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[ { "docid": "22699292", "title": "", "text": "purposes of § 1291 if not set forth on a document separate from the opinion. The issue arises because of Fed. Rule Civ. Proc. 58, which reads in part: We assume, without deciding, that the requirements for an effective judgment set forth in the Federal Rules of Civil Procedure must generally be satisfied before § 1291 jurisdiction may be invoked. We nonetheless conclude that it could not have been intended that the separate-document requirement of Rule 58 be such a categorical imperative that the parties are not free to waive it. “Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a).” The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U. S. C. § 2107 begins to run. According to the Advisory Committee that drafted the 1963 amendment: “Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., 'the plaintiff’s motion [for summary judgment] is granted,’ see United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227, 229 . . . (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79 (a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post verdict motions and for the purpose of appeal. . . . “The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document — distinct from any opinion or memorandum— which provides the basis for the entry of judgment.” 28 U. S. C. App., p. 7824. The separate-document requirement was thus intended to avoid" } ]

[ { "docid": "12628359", "title": "", "text": "and Fed. R. App. P. 10(e), both provide ample justification for granting the motion. Cendant then cross-appealed from the February 19 order. II The first question we must resolve is whether the May 24 order, entered on the docket on May 28, was a final judgment. If it was, then the rest of our analysis is relatively straightforward. If not, then we confront a different set of problems, as it is unclear when anything else that counts as a final judgment may have been entered. The order docketed on May 28 bore all the indicia of a final judgment: it disposed of all claims of all parties; it announced that the dismissals of the counts remaining in the case were with prejudice; and it said nothing that would have hinted that the court expected to see an amendment to the complaint. True, there was no separate judgment entered on the AO 450 judgment form pursuant to Fed. R. Civ. P. 58, but it has been well-established for years in this court that the lack of a Rule 58 judgment does not prevent a judgment from being final and appealable. See Otis v. City of Chicago, 29 F.3d 1159, 1165 (7th Cir.1994) (en banc). The parties also believed that the district judge had finished with the case. They were seeking reconsideration and extra time to appeal, not anything that logically would precede final judgment. We conclude that the entry of May 28 in the docket was a final judgment in this case, as contemplated not only by Fed. R. Crv. P. 58, but also by Fed. R. App. P. 4(a)(7). At that point, Properties had 30 days in which to file a notice of appeal. Had it filed a motion to reconsider within 10 days of the entry of judgment, such a motion would have tolled the time for appeal until the court ruled on it, see Fed. R. App. P. 4(a)(4). But it did not. Instead, it filed a motion on June 13, two days after the 10-day period expired. That motion was necessarily under Fed. R. Civ. P. 60(b)," }, { "docid": "22058263", "title": "", "text": "of judgment. Federal Rule of Civil Procedure 58(a)(1) requires every judgment and amended judgment to be set forth in a separate document unless it is “an order disposing of a motion ... (D) for a new trial, or to alter or amend the judgment, under Rule 59; or (E) for relief under Rule. 60.” Fed. R.Civ.P. 58(a)(1). To summarize the convoluted procedural history again, the Magistrate Judge initially ruled on cross-motions for summary judgment on December 16, 2004. On December 23, LeBoon filed a motion for reconsideration, pointing out a factual error in the court’s opinion; in its response, the LJCC conceded that the decision had been based in part on a manifest error of fact. Consequently, on January 14, 2005, the Magistrate Judge entered an order vacating the order of December 16, “so' that the Court may reconsider this matter.” On February 17, 2005, the Magistrate Judge issued an Opinion and Order that again denied LeBoon’s motion for summary judgment and granted the LJCC’s. Although at first blush the February 17 Order could be understood as merely ruling on LeBoon’s Rule 59 motion for reconsideration, it is clear that in fact its primary function was to dispose of the cross-motions for summary judgment, which were again pending because the earlier order ruling on them had been vacated. Thus the February 17 Order was subject to the separate-order rule. See Fed. R. Civ. Pro. 58 advisory committee notes (2002 amendment) (when the disposition of a post-judgment motion results in an amended judgment, the separate-document rule applies to the amended judgment); Employers Ins. of Wausau v. Titan Int’l, Inc., 400 F.3d 486, 489 (7th Cir.2005) (when a post-judgment motion is granted, and therefore produces an amended judgment, the amended judg ment must be set forth on a separate document). Since the February 17 Order was subject to the separate-order requirement of Rule 58, we next ask whether it complied with Rule 58. If it did not, LeBoon’s appeal is timely, because she filed a notice of appeal within 180 days from the docketing of the inadequate order. No magic words are" }, { "docid": "23372584", "title": "", "text": "in orders that do not require separate documents. See Fed.R.Civ.P. 58(a)(l)-(5) (listing motions exempted from separate-document rule). But the dismissal here was not such an order. . Appellate Rule 4(a)(7)(A)(i) applies to those orders excepted from the separate-document requirement by Federal Rule of Civil Procedure 58(a). But, as already noted, the dismissal in this case was not such an order. See supra note 1. . Since the 2007 style changes to the Federal Rules of Civil Procedure, the separate-document rule has been set out in Rule 58(a), not Rule 58(a)(1); and the text of Appellate Rule 4(a)(7)(B) has been amended, effective December 1, 2010, to reflect this. . The Civil Rules Advisory Committee adopted the same view: \"[T]he decision whether to waive the requirement that the judgment or order be set forth on a separate document is the appellant’s alone. It is, after all, the appellant who needs a clear signal as to when the time to file a notice of appeal has begun to run. If the appellant chooses to bring an appeal without waiting for the judgment or order to be set forth in a separate document, then there is no reason why the appellee should be able to object.” Fed. R.App. P. 4 advisory committee’s note, 2002 Amendments. . Even though failure to set forth a judgment on a separate document does not deprive a court of appeals of jurisdiction, it can still cause serious problems. Fed. R.App. P. 4(a)(4)(A) provides a list of motions that are commonly brought after a judgment has been entered, such as motions for a new trial or to alter or amend the judgment. Appellate Rule 4(a)(4)(B) states that if a notice of appeal is filed before these motions are disposed of, the notice will not be effective until the district court has ruled on all the motions. The advisory committee's note states that the notice of appeal, and with it the appellate court’s jurisdiction, is suspended until such motions are disposed of. See Fed. R.App. P. 4, advisory committee's note, 1993 Amendments. Because most of the Appellate Rule 4(a)(4)(A) motions can" }, { "docid": "23372585", "title": "", "text": "waiting for the judgment or order to be set forth in a separate document, then there is no reason why the appellee should be able to object.” Fed. R.App. P. 4 advisory committee’s note, 2002 Amendments. . Even though failure to set forth a judgment on a separate document does not deprive a court of appeals of jurisdiction, it can still cause serious problems. Fed. R.App. P. 4(a)(4)(A) provides a list of motions that are commonly brought after a judgment has been entered, such as motions for a new trial or to alter or amend the judgment. Appellate Rule 4(a)(4)(B) states that if a notice of appeal is filed before these motions are disposed of, the notice will not be effective until the district court has ruled on all the motions. The advisory committee's note states that the notice of appeal, and with it the appellate court’s jurisdiction, is suspended until such motions are disposed of. See Fed. R.App. P. 4, advisory committee's note, 1993 Amendments. Because most of the Appellate Rule 4(a)(4)(A) motions can be filed up to a certain time after entry of judgment, they can be filed long after the notice of appeal when the judgment is not set forth in a separate document. This can mean that the jurisdiction of the appellate court is suspended even if the court has been considering the appeal for some time. Warren v. Am. Bankers Ins., 507 F.3d 1239 (10th Cir.2007) provides an example of the mischief that can occur. There, the plaintiff first filed a notice of appeal after dismissal of the case, and then filed a motion to alter or amend judgment under Fed R. Civ. P. 59(e). See id. at 1245 (describing situation as a \"quagmire”). The Rule 59(e) motion was filed 35 days after dismissal, but was still timely because the district court had not set out the order on a separate document. See id. at 1244-45. We held that the motion suspended our jurisdiction to consider the appeal until the motion was resolved. See id. at 1245. Judicial efficiency requires that district courts comply with" }, { "docid": "12041669", "title": "", "text": "begin by explaining our jurisdiction to review the order dismissing the suit. Bell filed his notice of appeal 71 days after the court issued the order that dismissed his suit and gave its reason for doing so. That order was not the “ ‘separate document’ ” of judgment required by Rule 58 of the Federal Rules of Civil Procedure because it “states rather than omits the reason for dismissal.” Brown v. Fifth Third Bank, 730 F.3d 698, 701 (7th Cir. 2013) (Posner, J., in chambers); Otis v. City of Chicago, 29 F.3d 1159, 1163 (7th Cir. 1994) (en banc) (A proper Rule 58 order should say “who has won and what relief has been awarded, but omit[] the reasons for this disposition”). Because the district court did not enter a separate judgment, Bell’s time to appeal the dismissal did not begin running until 150 days after the order, see Fed. R. Civ. P. 58(c)(2)(B), and his notice of appeal is treated as filed on that date, see Fed. R. App. P. 4(a)(2). See Calumet River Fleeting, Inc. v. Int'l Union of Operating Eng’rs, Local 150, AFL-CIO, 824 F.3d 645, 650 (7th Cir. 2016). So Bell’s appeal of the dismissal order is timely. It also brings up for review the earlier order denying Bell’s application to proceed in the district court without prepaying the filing fee. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1019-20 (7th Cir. 2013). We conclude that the district court acted unreasonably in denying Bell’s application to proceed without prepaying fees and dismissing the suit. A district court errs when it dismisses an inmate’s suit for nonpayment of a filing fee without determining whether the prisoner is at fault in not supplying what the court required from the inmate’s trust account. Sultan v. Fenoglio, 775 F.3d 888, 890 (7th Cir. 2015); Thomas v. Butts, 745 F.3d 309, 312 (7th Cir. 2014). Prisoners have limited control over their prison trust accounts, and “it is entirely predictable that the prison will prefer to postpone [an inmate’s] ability to pursue litigation against itself.” Sultan, 775 F.3d at 890; Thomas," }, { "docid": "22320110", "title": "", "text": "as to when a judgment is entered and to expedite the entry of judgment by limiting the number of situations in which the court need rely on counsel for the prevailing party to prepare a form of judgment. The first sentence of the rule describes “simple” judgments, providing for recovery of only a sum certain, of costs, or of nothing. These clause (1) judgments are to be prepared, signed, and entered by the clerk without direction by the court. Clause (2) of that sentence deals with the more “complex” forms of judgment, which are to be entered by the clerk after the court approves the form of the judgment. The rule then continues that “[e]very judgment shall be set forth on a separate document,” and further states that “[a] judgment is effective only when so set forth and when entered as provided in Rule 79 (a).” The reason for the “separate document” provision is clear from the notes of the advisory committee of the 1963 amendment. See Notes of Advisory Committee following Fed. Rule Civ. Proc. 58, reported in 28 U. S. C. Prior to 1963, there was considerable uncertainty over what actions of the District Court would constitute an entry of judgment, and occasional grief to litigants as a result of this uncertainty. See, a g., United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227 (1958). To eliminate these uncertainties, which spawned protracted litigation over a technical procedural matter, Rule 58 was amended to require that a judgment was to be effective only when set forth on a separate document. Professor Moore makes the following cogent observation with respect to the purpose of the separate-document provision of the rule: “This represents a mechanical change that would be subject to criticism for its formalism were it not for the fact that something like this was needed to make certain when a judgment becomes effective, which has a most important bearing, inter alia, on the time for appeal and the making of post-judgment motions that go to the finality of the judgment for purposes of appeal.” 6A" }, { "docid": "12628360", "title": "", "text": "a Rule 58 judgment does not prevent a judgment from being final and appealable. See Otis v. City of Chicago, 29 F.3d 1159, 1165 (7th Cir.1994) (en banc). The parties also believed that the district judge had finished with the case. They were seeking reconsideration and extra time to appeal, not anything that logically would precede final judgment. We conclude that the entry of May 28 in the docket was a final judgment in this case, as contemplated not only by Fed. R. Crv. P. 58, but also by Fed. R. App. P. 4(a)(7). At that point, Properties had 30 days in which to file a notice of appeal. Had it filed a motion to reconsider within 10 days of the entry of judgment, such a motion would have tolled the time for appeal until the court ruled on it, see Fed. R. App. P. 4(a)(4). But it did not. Instead, it filed a motion on June 13, two days after the 10-day period expired. That motion was necessarily under Fed. R. Civ. P. 60(b), and the appellate rules are clear that such a motion does not toll the time for filing a notice of appeal. See Fed. R. App. P. 4(a)(4)(A)(vi). Although the district court has the power to extend the time for filing a notice of appeal upon a proper motion filed under Fed. R. App. P. 4(a)(5), that rule also provides as follows: (C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later. The rule does not preclude a party from filing a motion to extend the time for appeal during the period before the original 30-day time has run, as Properties did here. See Rule 4(a)(5)(B) (expressly acknowledging that a motion might be filed before the end of the time period prescribed by Rule 4(a)(1)). But it does place an outer limit on the amount of extra time a district court may grant, and we must see whether the district court here exceeded that" }, { "docid": "10048159", "title": "", "text": "alter or amend may accelerate an existing deadline for notice of appeal.. We do not agree with Peters and Osley that the district court’s minute order denying ABF’s attempted Civil Rule 59(e) motion to alter or amend shortened the deadline to appeal. The purpose of the separate document requirement is that the parties will know precisely when judgment has been entered and when they must begin preparing post-verdict motions or an appeal. Ford v. MCI Communications Corp. Health and Welfare Plan, 399 F.3d 1076, 1079 (9th Cir.2005). If a premature post-judgment motion accelerated the time-line for appeal, it would violate the intent of Civil Rule 58 and Appellate Rule 4 to provide definite deadlines for appeal. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 386, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (“[The separate document] rule is designed to simplify and make certain the matter of appealability ... The rule should be interpreted to prevent loss of the right to appeal, not to facilitate loss.”)(quoting 9 J. Moore, Federal Practice § 110.08[2], 120 n. 7 (1970)). Rule 58 and Appellate Rule 4 were recently amended “to work in conjunction” with each other. Fed. R. Civ. Proc. 58, Advisory Committee Note on 2002 Amendments. Those amendments “preserve[d]” the separate document rule for judgments such as the district court’s order of dismissal. Id. Although exceptions to the separate document rule exist for Rule 59(e) motions, that “does not excuse the obligation to set forth the judgment on a separate document.” Id. Moreover, while one purpose of the 2002 amendments was to assure that “appeal time does not linger on indefinitely,” id., nothing in the rules or the commentaries suggests an intent to shorten the time for appeal if a post-judgment is filed. Applying these principle's to the present case “with common sense,” id., we conclude that the district court’s minute orders on ABF’s Rule 59(e) motions did not substitute for its obligation to “comply with th[e] simple obligation” of entering the judgment on a separate document. Id. Following the separate document rule best complies with the intent of Rule 58 and" }, { "docid": "5564060", "title": "", "text": "motion to reconsider sua sponte at oral argument, neither party having raised the issue in briefs or oral argument. A. timely motion for reconsideration is governed by Federal Rule of Civil Procedure 59(e). See Bestran Corp. v.. Eagle Comtronics, Inc., 720 F.2d 1019, 1019 (9th Cir.1983); see also FED. R. BANKR. P. 9023(applying Rule 59 to bankruptcy cases). A Rule 59(e) motion must be filed within ten days after entry of judgment. See also W.D. WASH. BANKR. R. 9013-1(h) (stating that such motions must be filed within ten days after entry of judgment or order). Here, no written judgment or order was entered and the motion for reconsideration was filed almost eight months after the bankruptcy court’s oral ruling. Federal Rule of Civil Procedure 58 defines when entry of judgment has occurred. See also FED. R. BANKR. P. 9021 (applying Rule 58 to bankruptcy proceedings). At the time of the bankruptcy court’s ruling and until December 1, 2002, Rule 58 did not limit the time for filing a motion for reconsideration when no separate written judgment has been entered. See Carter v. Beverly Hills Sav. & Loan Ass’n, 884 F.2d 1186, 1189-90 (9th Cir. 1989) (holding that a notation on the docket indicating court’s decision, without a separate written order or judgment, did not start time for post-judgment motion). On December 1, 2002, an amendment of Rule 58 took effect, providing that where no separate written judgment was entered, the entry of judgment would occur “when 150 days have run from entry in the civil docket under Rule 79(a).” FED. R. CIV. P. 58(b)(2)(B). The court’s ruling that it lacked jurisdiction over the letter of credit claim was entered on the bankruptcy docket on August 6, 2002. The motion to reconsider, filed March 10, 2003, was therefore untimely under the amended Rule. The order of the Supreme Court amending Rule 58 states the amendment “shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” 207 F.R.D. 50, 53 (2002). Ordinarily, we would proceed to determine whether application of the amended" }, { "docid": "20387319", "title": "", "text": "Chi. v. Sec’y of Hous. & Urban Dev., 946 F.2d 1286, 1289 (7th Cir.1991); cf. Rush Univ. Med. Ctr. v. Leavitt, 535 F.3d 735, 737 (7th Cir.2008). But the Fund expressly disavowed any argument that a minute entry constituted the judgment on a separate document that started the running of the notice of appeal clock, so we will not consider such an argument here. (And, of course, there is more to Rule 58 than the separate document rule in sub-part (a). See, e.g., Fed.R.Civ.P. 58(b)(1) (stating, “the clerk must, without awaiting the court’s direction, promptly prepare, sign, and enter the judgment” (emphasis added) when, among other things, “the court denies all relief.”)). When a judgment is not set forth on a separate document even though Rule 58(a) requires that it be, Appellate Rule 4(a)(7)(h) says the judgment is treated as entered 150 days after its entry on the civil docket. That means that the time to file a notice of appeal starts to run then. See Fed. R.App. P. 4(a)(1)(A); see also Employers Ins. of Wausau v. Titan Int’l, Inc., 400 F.3d 486, 488 (7th Cir.2005). The 2002 Advisory Committee notes to the rule explain that prior to its amendment, there had been a circuit split on the following question: “When a judgment or order is required to be set forth on a separate document under Fed.R.Civ.P. 58 but is not, does the time to appeal the judgment or order — or the time to bring post-judgment motions, such as a motion for a new trial under Fed.R.Civ.P. 59 — ever begin to run?” Rules 4(a)(7)(A) and Federal Rule of Civil Procedure 58 were amended to impose a time cap: Under the amendments, a judgment or order is generally treated as entered when it is entered in the civil docket pursuant to Fed.R.Civ.P. 79(a). There is one exception: When Fed.R.Civ.P. 58(a)(1) requires the judgment or order to be set forth on a separate document, that judgment or order is not treated as entered until it is set forth on a separate document (in addition to being entered in the civil" }, { "docid": "22058264", "title": "", "text": "understood as merely ruling on LeBoon’s Rule 59 motion for reconsideration, it is clear that in fact its primary function was to dispose of the cross-motions for summary judgment, which were again pending because the earlier order ruling on them had been vacated. Thus the February 17 Order was subject to the separate-order rule. See Fed. R. Civ. Pro. 58 advisory committee notes (2002 amendment) (when the disposition of a post-judgment motion results in an amended judgment, the separate-document rule applies to the amended judgment); Employers Ins. of Wausau v. Titan Int’l, Inc., 400 F.3d 486, 489 (7th Cir.2005) (when a post-judgment motion is granted, and therefore produces an amended judgment, the amended judg ment must be set forth on a separate document). Since the February 17 Order was subject to the separate-order requirement of Rule 58, we next ask whether it complied with Rule 58. If it did not, LeBoon’s appeal is timely, because she filed a notice of appeal within 180 days from the docketing of the inadequate order. No magic words are necessary to satisfy the separate document rule; for instance, an “order’s denomination as an ‘order,’ rather than a ‘judgment,’ does not mean that it fails to satisfy the separate document requirement.” Local Union No. 1992, IBEW v. Okonite Co., 358 F.3d 278, 285 (3d Cir.2004). Rather, an order is treated as a separate document if it satisfies three criteria: (1) it must be self-contained and separate from the opinion, (2) it must note the relief granted, and (3) it must omit (or at least substantially omit) the trial court’s reasons for disposing of the claims. Id.; In re Cendant Corp. Securities Litig., 454 F.3d 235, 241 (3d Cir.2006). The February 17 Order easily satisfies the second and third criteria. Because it is not “self-contained and separate from the opinion,” however, it does not satisfy the first. In Cendant, we explained that although the separate-document requirement does not mean that the judgment must necessarily be distinct from another document, it means “the judgment must be set forth in a document that is independent of the court’s" }, { "docid": "22320109", "title": "", "text": "District Court on February 25,1971, entered formal judgments, the one in favor of respondent being in the amount of $3,621.32 against the Government. The Government’s notice of appeal was from this judgment. The Court of Appeals, in holding the Government’s notice of appeal untimely, decided that judgment had been actually entered on March 21, 1969, when the District Court clerk entered in the civil docket the notations described above. It held that the “separate document” requirement contained in Rule 58 applies only to the “complex” judgments described in clause (2) of that Rule. The court said that: “[W]hen the jury verdict is clear and unequivocal, setting forth a general verdict with reference to the sole question of liability and where nothing remains to be decided and when no opinion or memorandum is written, as is the situation described in clause (1) of Rule 58, there is no requirement for a separate document to start the time limits for appeal running.” 465 F. 2d, at 167-168. Rule 58 was substantially amended in 1963 to remove uncertainties as to when a judgment is entered and to expedite the entry of judgment by limiting the number of situations in which the court need rely on counsel for the prevailing party to prepare a form of judgment. The first sentence of the rule describes “simple” judgments, providing for recovery of only a sum certain, of costs, or of nothing. These clause (1) judgments are to be prepared, signed, and entered by the clerk without direction by the court. Clause (2) of that sentence deals with the more “complex” forms of judgment, which are to be entered by the clerk after the court approves the form of the judgment. The rule then continues that “[e]very judgment shall be set forth on a separate document,” and further states that “[a] judgment is effective only when so set forth and when entered as provided in Rule 79 (a).” The reason for the “separate document” provision is clear from the notes of the advisory committee of the 1963 amendment. See Notes of Advisory Committee following Fed. Rule Civ." }, { "docid": "22103846", "title": "", "text": "was no prior invocation of jurisdiction that could sustain the cross-appeal. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 371 (2d Cir.2003) (concluding court lacked appellate jurisdiction over cross-appeal because notice of appeal was untimely). Moreover, we cannot construe the cross-appeal as an independent appeal from the district court’s December 2005 order denying attorney’s fees, because the notice of cross-appeal was not filed within 30 days of that order. Indeed, Smith’s counsel conceded at oral argument that if the court lacks jurisdiction over Stephanie-Cardona’s appeal, it necessarily lacks jurisdiction over the cross-appeal. This cross-appeal must be dismissed. The appeal and the cross-appeal are dismissed; no party to recover costs. . Notwithstanding exceptions that do not apply here, Fed.R.Civ.P. 58(a)(1) provides that \"every judgment and amended judgment must be set forth on a separate document.” . Before the 2002 amendments to Fed. R.App. P. 4 and Fed.R.Civ.P. 58 took effect, the majority view was that the period for appeal never began to run if the district court docketed the order but failed to set it forth on a separate document. See Fed. R.App. P. 4, Advisory Comm. Notes to 2002 Amends., Subdivision (a)(7). In 2002, the 150-day rule was added to ensure that \"parties will not be given forever to appeal (or to bring a post-judgment motion) when a court fails to set forth a judgment or order on a separate document in violation of Fed.R.Civ.P. 58(a)(1).” Id.; see also Fed.R.Civ.P. 58, Advisory Comm. Notes to 2002 Amends. . \"[Ujnless the court orders otherwise, the clerk must, without awaiting the court’s direction, promptly prepare, sign, and enter the judgment when: (i) the jury returns a general verdict; (ii) the court awards only costs or a sum certain; or (iii) the court denies all relief[.]\" Fed.R.Civ.P. 58(a)(2)(A). The stipulation and order denied all relief to Stephanie-Cardona. Most of Stephanie-Cardona’s causes of action had already been dismissed by summary judgment, and the stipulation and order dismissed the remaining claims with prejudice. . See, e.g., Corrigan v. Bargala, 140 F.3d 815, 819 (9th Cir.1998). . Fed. R.App. P. 4(a)(4)(A) provides: If a party" }, { "docid": "10048161", "title": "", "text": "Appellate Rule 4 to provide a “clear signal” to potential appellants “that the time to appeal has begun to run.” Fed. R.App. Proc. 58, Advisory Committee Note on 2002 Amendments. Judgment for purposes of Appellate Rule 4, therefore, could not have been entered until a separate document had been filed or 150 days had passed. Fed. R. Civ. Proc. 58(b)(2); Fed. RApp. Proc. 4(a)(7)(A)(ii). Until judgment was entered one of these two ways, no obligation to appeal the judgment arose. Nothing in the 2002 amendments provides otherwise, or suggests that Congress meant to require appeal of a final judgment before entry of judgment, because an early-filed motion questioning the announced-but-not-entered judgment had been denied. Accordingly, we hold that a premature post-judgment motion may not accelerate the deadline for appeal before a separate judgment has been entered. B. Choice of Law After disposing of the initial jurisdictional question, the resolution of ABF’s appeals is straightforward. Here, the district court, sitting in diversity, applied California choice of law principles to find the assumption agreements’ New York choice of law clause enforceable. The district court further held application of New York’s statute of limitations appropriate and the parties’' attempted waiver of the statute of limitations ineffective under New York law. “In determining the enforceability of arm’s-length contractual choice-of-law provisions, California courts shall apply the principles set forth in Restatement section 187, which reflects a strong policy favoring enforcement of such provisions.” Hambrecht & Quist Venture Partners v. Am. Med. Int’l, Inc., 38 Cal.App.4th 1532, 1544, 46 Cal.Rptr.2d 33 (1995) (quoting Nedlloyd Lines B.V. v. Superior Court, 3 Cal.4th 459, 465-66, 11 Cal.Rptr.2d 330, 834 P.2d 1148 (1992)). Under this approach, we must first determine (1) whether New York has a substantial relationship to the parties or the transaction, or (2) whether there is any other reasonable basis for the parties’ choice of law. Ned-lloyd, 3 Cal.4th at 465, 11 Cal.Rptr.2d 330, 834 P.2d 1148. A substantial relationship exists where one of - the parties is domiciled or incorporated in the chosen state. Ned-lloyd, 3 Cal.4th at 467, 11 Cal.Rptr.2d 330, 834 P.2d 1148." }, { "docid": "16214181", "title": "", "text": "chemical in violation of this subchapter. (4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1), (2), or (9). (6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchap-ter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this sub-chapter. (8) All controlled substances which have been possessed in violation of this subchap-ter .... . In Marsh, we held that a defendant's motion for reconsideration of a trial court's order denying a motion for a new trial did not toll the time in which to file his notice of appeal. 700 F.2d at 1324-28. . Although Clymore’s action is brought pursuant to Rule 41(e), a federal rule of criminal procedure, \"[proceedings surrounding the motion for return of property seized in a criminal case are civil in nature ...United States v. Maez, 915 F.2d 1466, 1468 (10th Cir.1990) (emphasis added). Therefore, we apply the Federal Rules of Civil Procedure for determining whether Clymore's appeal was timely. See United States v. Madden, 95 F.3d 38, 39 n. 1 (10th Cir.1996). . Rule 58 was amended effective December 1, 2002. Under the new amendments, a separate document is still required for both initial and amended judgments. See Fed. R. Civ. P. 58(a)(1). However, “to ensure that appeal time does not linger on indefinitely,” the amendments added a 150-day rule when no separate judgment is entered. Fed. R. Civ. P. 58(b); Advisory Committee's Notes to 2002 Amendments. Specifically, if a separate judgment is required to be entered (as in this case) and the district court fails to do so (also as in this case), then the judgment is considered \"entered” 150 days from entry of the order on the civil docket. Id. Rule 4(a)(7) of the Federal" }, { "docid": "20387320", "title": "", "text": "Wausau v. Titan Int’l, Inc., 400 F.3d 486, 488 (7th Cir.2005). The 2002 Advisory Committee notes to the rule explain that prior to its amendment, there had been a circuit split on the following question: “When a judgment or order is required to be set forth on a separate document under Fed.R.Civ.P. 58 but is not, does the time to appeal the judgment or order — or the time to bring post-judgment motions, such as a motion for a new trial under Fed.R.Civ.P. 59 — ever begin to run?” Rules 4(a)(7)(A) and Federal Rule of Civil Procedure 58 were amended to impose a time cap: Under the amendments, a judgment or order is generally treated as entered when it is entered in the civil docket pursuant to Fed.R.Civ.P. 79(a). There is one exception: When Fed.R.Civ.P. 58(a)(1) requires the judgment or order to be set forth on a separate document, that judgment or order is not treated as entered until it is set forth on a separate document (in addition to being entered in the civil docket) or until the expiration of 150 days after its entry in the civil docket, whichever occurs first. This cap will ensure that parties will not be given forever to appeal (or to bring a post-judgment motion) when a court fails to set forth a judgment or order on a separate document in violation of Fed. R.Civ.P. 58(a)(1). Fed. R.App. P. 4 advisory committee’s note (2002). So the 30-day time limit to file a notice of appeal did not begin to run until 150 days after March 24, 2008, and the notice of appeal Perry and Wilk filed on April 24, 2008 was timely. See Fed. R.App. P. 4(a)(2) (notice of appeal filed after decision but before entry of judgment treated as filed on date of and after entry); McDonald v. Household Int’l, Inc., 425 F.3d 424, 426-27 (7th Cir.2005). We conclude this discussion by reminding litigants that if the court has not entered a proper Rule 58 judgment on a separate document, the parties should ask the court to do so. The rules specifically" }, { "docid": "16214182", "title": "", "text": "criminal procedure, \"[proceedings surrounding the motion for return of property seized in a criminal case are civil in nature ...United States v. Maez, 915 F.2d 1466, 1468 (10th Cir.1990) (emphasis added). Therefore, we apply the Federal Rules of Civil Procedure for determining whether Clymore's appeal was timely. See United States v. Madden, 95 F.3d 38, 39 n. 1 (10th Cir.1996). . Rule 58 was amended effective December 1, 2002. Under the new amendments, a separate document is still required for both initial and amended judgments. See Fed. R. Civ. P. 58(a)(1). However, “to ensure that appeal time does not linger on indefinitely,” the amendments added a 150-day rule when no separate judgment is entered. Fed. R. Civ. P. 58(b); Advisory Committee's Notes to 2002 Amendments. Specifically, if a separate judgment is required to be entered (as in this case) and the district court fails to do so (also as in this case), then the judgment is considered \"entered” 150 days from entry of the order on the civil docket. Id. Rule 4(a)(7) of the Federal Rules of Appellate Procedure, defining when a judgment is considered entered, was similarly amended. Whether this amendment should be applied retroactively in this case is irrelevant because our conclusion would be the same under either version of the rule. Under the amendments, the district court’s order in this case would be considered “entered” on September 15, 2002, 150 days from April 18, 2002, the date the district court’s order was entered on the civil docket. Therefore, Clymore's September 19, 2002 notice of appeal, filed within sixty days of September 15, 2002, is timely. See Fed. R. App. P. 4(a)(1)(B) (\"When the United States ... is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.”). . We raise the sovereign immunity issue sua sponte. See Villescas v. Abraham, 311 F.3d 1253, 1256 n. 3 (10th Cir.2002) (although not raised before the district court, sovereign immunity \"cannot be waived by government attorneys, and we are required to address it even though raised" }, { "docid": "22103847", "title": "", "text": "forth on a separate document. See Fed. R.App. P. 4, Advisory Comm. Notes to 2002 Amends., Subdivision (a)(7). In 2002, the 150-day rule was added to ensure that \"parties will not be given forever to appeal (or to bring a post-judgment motion) when a court fails to set forth a judgment or order on a separate document in violation of Fed.R.Civ.P. 58(a)(1).” Id.; see also Fed.R.Civ.P. 58, Advisory Comm. Notes to 2002 Amends. . \"[Ujnless the court orders otherwise, the clerk must, without awaiting the court’s direction, promptly prepare, sign, and enter the judgment when: (i) the jury returns a general verdict; (ii) the court awards only costs or a sum certain; or (iii) the court denies all relief[.]\" Fed.R.Civ.P. 58(a)(2)(A). The stipulation and order denied all relief to Stephanie-Cardona. Most of Stephanie-Cardona’s causes of action had already been dismissed by summary judgment, and the stipulation and order dismissed the remaining claims with prejudice. . See, e.g., Corrigan v. Bargala, 140 F.3d 815, 819 (9th Cir.1998). . Fed. R.App. P. 4(a)(4)(A) provides: If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: (i) for judgment under Rule 50(b); (ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment; (iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58; (iv) to alter or amend the judgment under Rule 59; (v) for a new trial under Rule 59; or (vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered. . Fed.R.Civ.P. 58(c)(2) states: When a timely motion for attorney fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and has become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4)" }, { "docid": "10048160", "title": "", "text": "7 (1970)). Rule 58 and Appellate Rule 4 were recently amended “to work in conjunction” with each other. Fed. R. Civ. Proc. 58, Advisory Committee Note on 2002 Amendments. Those amendments “preserve[d]” the separate document rule for judgments such as the district court’s order of dismissal. Id. Although exceptions to the separate document rule exist for Rule 59(e) motions, that “does not excuse the obligation to set forth the judgment on a separate document.” Id. Moreover, while one purpose of the 2002 amendments was to assure that “appeal time does not linger on indefinitely,” id., nothing in the rules or the commentaries suggests an intent to shorten the time for appeal if a post-judgment is filed. Applying these principle's to the present case “with common sense,” id., we conclude that the district court’s minute orders on ABF’s Rule 59(e) motions did not substitute for its obligation to “comply with th[e] simple obligation” of entering the judgment on a separate document. Id. Following the separate document rule best complies with the intent of Rule 58 and Appellate Rule 4 to provide a “clear signal” to potential appellants “that the time to appeal has begun to run.” Fed. R.App. Proc. 58, Advisory Committee Note on 2002 Amendments. Judgment for purposes of Appellate Rule 4, therefore, could not have been entered until a separate document had been filed or 150 days had passed. Fed. R. Civ. Proc. 58(b)(2); Fed. RApp. Proc. 4(a)(7)(A)(ii). Until judgment was entered one of these two ways, no obligation to appeal the judgment arose. Nothing in the 2002 amendments provides otherwise, or suggests that Congress meant to require appeal of a final judgment before entry of judgment, because an early-filed motion questioning the announced-but-not-entered judgment had been denied. Accordingly, we hold that a premature post-judgment motion may not accelerate the deadline for appeal before a separate judgment has been entered. B. Choice of Law After disposing of the initial jurisdictional question, the resolution of ABF’s appeals is straightforward. Here, the district court, sitting in diversity, applied California choice of law principles to find the assumption agreements’ New York choice" }, { "docid": "12041668", "title": "", "text": "later the district court dismissed the suit. In explaining the dismissal, the court observed that it had ordered Bell to submit a completed application “within thirty days” or risk dismissal. Because, the court continued, Bell failed to comply with this warning, it dismissed the case pursuant to Federal Rule of Civil Procedure 41(b) and declared that the “case is terminated.” Two months later Bell tried to revive the suit. He wrote to the district court, saying that he recently received the dismissal order and that he never had received the order denying his application and warning him to submit a completed one. The court interpreted Bell’s letter as a “motion to reconsider” the dismissal, but denied it because, the court reasoned, Bell still had not submitted a completed application. On appeal Bell challenges the district court’s dismissal, repeating that he never received the order telling him that his application was incomplete. Now at a different prison, where he has received the ledger, this court granted him leave to proceed on appeal without prepaying fees. We begin by explaining our jurisdiction to review the order dismissing the suit. Bell filed his notice of appeal 71 days after the court issued the order that dismissed his suit and gave its reason for doing so. That order was not the “ ‘separate document’ ” of judgment required by Rule 58 of the Federal Rules of Civil Procedure because it “states rather than omits the reason for dismissal.” Brown v. Fifth Third Bank, 730 F.3d 698, 701 (7th Cir. 2013) (Posner, J., in chambers); Otis v. City of Chicago, 29 F.3d 1159, 1163 (7th Cir. 1994) (en banc) (A proper Rule 58 order should say “who has won and what relief has been awarded, but omit[] the reasons for this disposition”). Because the district court did not enter a separate judgment, Bell’s time to appeal the dismissal did not begin running until 150 days after the order, see Fed. R. Civ. P. 58(c)(2)(B), and his notice of appeal is treated as filed on that date, see Fed. R. App. P. 4(a)(2). See Calumet River" } ]

[ { "docid": "9713178", "title": "", "text": "under the direct command of a uniformed, full-time U.S. Army lieutenant colonel.” Order on Motion to Dismiss & For Relief From Judgment Granted at 5, Stauber (No. A83-613). The record reflected that the employment and command structure, and the relative rank of the technicians, was the same whether the parties were on active duty on weekends or in civilian status during the week. During both periods, work in the on-base maintenance shop was essentially the same, and was governed by military regulations and standard operating procedures. The court assumed that, for some purposes, the parties were civilian employees of the Army, but nonetheless held that [t]his does not alter the fact that Plaintiff and Defendants were also Army National Guardsmen who performed the maintenance and repair work on vehicles and equipment used by the Army National Guard. Indeed, Plaintiff and Defendants used this equipment on weekends when they were on active duty. The work performed by Plaintiff and Defendants was beyond any question incident to military service. The Feres doctrine therefore applies, and Defendants are immune from suit. Id. at 5. The court therefore set aside judgment on the verdict and dismissed Stauber’s action. DISCUSSION I. WAIVER OF FERES IMMUNITY Stauber argues that the district court erred in considering Feres immunity because defendants failed to raise the issue as an affirmative defense. The district court adopted defendants’ position that the immunity could not be waived because it is an issue of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see Jablonski by Pahls v. United States, 712 F.2d 391, 394-95 (9th Cir.1983); Beers v. Southern Pac. Transp. Co., 703 F.2d 425, 429 (9th Cir.1983). We review de novo the district court’s decision to consider appellees’ late claim of intramilitary immunity. E.g., United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). In Feres v. United States, the Supreme Court held that members of the armed services could not sue the government for injuries that “arise out of or are in the course of activity incident to service.” 340 U.S." } ]

[ { "docid": "19258625", "title": "", "text": "jury.\" Morgan v. Perry, 142 F.3d 670, 677 (3d Cir.1998), cert. denied, 525 U.S. 1070, 119 S.Ct. 801, 142 L.Ed.2d 662 (1999). Accordingly, on June 19, 1998, a military lawyer issued a subpoena to the Schofield branch of First Hawaiian for “all bank records, # 25478010, to include all deposits and withdrawals.” This was a joint checking account of Flowers and his wife. First Hawaiian produced records in accordance with the subpoena. It also sent a letter with a copy of the subpoena to Flowers at his last known address. It did not, however, comply with the specific provisions of 12 U.S.C. § 3411 and 3412. Flowers asserts that First Hawaiian violated the RFPA by not complying with statutory notice provisions. Section 3403(a) of the RFPA provides: Release of records by financial institutions prohibited No financial institution, or officer, employees, or agent of a financial institution, may provide to any Government authority access to or copies of, or the information contained in, the financial records of any customer except in accordance with the provisions of this chapter. 12 U.S.C. § 3403(a). The RFPA was enacted to “protect the customers of financial institutions from unwarranted intrusion into their records while at the same time permitting legitimate law enforcement activityf.]” Neece v. Internal Revenue Service, 922 F.2d 573, 574 (10th Cir.1990). “Section 3402, in conjunction with sections 3404-08, requires notice to be given the individual when a federal agency seeks access to that individual’s records, and an opportunity is required to be provided for that individual to challenge the requested disclosure.” Id. at 573. Nevertheless, “it was clear from the outset that the newly created statutory right to privacy in banking records would not be absolute.” Velasquez-Campuzano v. Marfa National Bank, 896 F.Supp. 1415, 1420 (W.D.Tex.1995), aff’d, 91 F.3d 139 (5th Cir.1996) (mem.). “Consequently, there are a number of exceptions to the requirements of the RFPA.” Id. That is, if an exception applies, the financial institution need not provide notice to the customer or otherwise comply with the notice provisions in the RFPA. The exceptions are set forth in section 3413. In" }, { "docid": "184896", "title": "", "text": "suits would require courts to engage in exactly the same intrusion into military decisions as would servicemen’s suits, such as by rer quiring military personnel to testify against their commanding officers, they would pose almost as many problems — judicially and militarily — as would a serviceman's suit over the same issue. See id. at 1102. For this reason, most courts have adopted a “genesis” test for evaluating whether the Feres doctrine applies to derivative genetic injury claims of servicemen’s children based on governmental negligence in exposing the servicemen to dangerous substances. See, e.g., Hinkie v. United States, 715 F.2d 96, 98-99 (3d Cir.1983); Lombard v. United States, 690 F.2d 215, 223-24 (D.C.Cir.1982); Monaco v. United States, 661 F.2d 129, 133 (9th Cir.1981). Under this test, if a non-serviceman’s injury finds its “genesis” in the injury suffered by a serviceman incident to service, then the Feres doctrine bars the non-serviceman’s suit. See, e.g., Hinkie, 715 F.2d at 98-99. Stated otherwise, if the non-serviceman’s suit is based on essentially the same facts as the potential serviceman’s suit or the non-serviceman’s suit could not have happened “but for” the serviceman’s cause of action, then under the genesis principle the Feres doctrine precludes the suit. See, e.g., Gaspard, 713 F.2d at 1102; Lombard, 690 F.2d at 223-24. Until now, we have not had occasion to address the merits of this test. In Romero v. United States, 954 F.2d 223 (4th Cir.1992), we did permit a suit to proceed against the United States based on an infant’s injury caused by a military doctor’s failure to undertake specified prenatal procedures. We observed, however, that because the purpose of the failed treatment “was to insure the health of a civilian,” id. at 225 (emphasis added), and the government owed an affirmative duty of care “directly” to the civilian, id. at 226, the genesis test did not apply. We recognized, however, that the test might nevertheless bar a derivative injury claim where a “civilian injury ... derives from a service-related injury to a service person,” such as occurs when service members are exposed to radiation or Agent" }, { "docid": "14571587", "title": "", "text": "active duty); Wisniewski v. United States, 416 F.Supp. 599 (E.D.Wis.1976) (denied veteran’s claim based on a failure to provide him, after discharge, with results of a blood test taken while he was in the service); Broudy v. United States, 661 F.2d 125, 129 (9th Cir. 1981) (in cases of radiation, a failure to warn is only actionable “if the Government learned of the danger after [the serviceman] left the service.”); and even Thornwell, supra, 471 F.Supp. at 351. (“[I]t is clear at the very least that a mere act of negligence which takes place while the plaintiff is on active duty and which then remains uncorrected after discharge is not grounds for suit.”) In sum, Lombard’s claims under the Federal Torts Claims Act were properly dismissed as being in contravention of the Feres doctrine. B. Ruth Lombard and the Lombard Children Ruth Lombard and the Lombard children contend that even if Lombard himself is barred from suit by Feres, they are eligible to recover under the Tort Claims Act for the injuries they have incurred as a result of Lombard’s exposure to radiation at Los Alamos since they never served in the military, and since the children were all born after Lombard left military service. While these allegations are more compelling than those by Lombard discussed above, the case law nonetheless supports a finding that said claims were properly dismissed by the District Court. It is well established that Feres bars recovery by family members where the cause of action is ancillary or derivative to the serviceman’s action for his own injury received incident to military service. See discussion infra. Indeed, in Feres itself, two of the three suits barred were wrongful death actions instituted on behalf of widows of servicemen who had died from injuries suffered incident to service. This rule has also been specifically applied in two cases involving genetic defects developed in children as a result of exposure of their respective serviceman fathers to genetically mutating agents of one kind or another. In Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), the Ninth Circuit, dismissing" }, { "docid": "14147554", "title": "", "text": "McDonough v. Widnall, 891 F.Supp. 1439 (D.Colo.1995). See also, In re Porras, 191 B.R. 357, (Bankr.W.D.Tex.1995) (Function of RFPA is to balance competing interests of financial institutions and federal agencies seeking to discover records of the financial institution’s customers.) Thus, Congress sought to balance individual privacy rights with legitimate needs of federal authorities for access to this information. While seeking to protect an individual’s privacy interests in their financial documents, Congress also sought to continue to encourage proactive bank disclosure of suspected violations of the law by their customers without undue fear of liability. Congress achieved this end through § 3403(c) which provides an exception to liability under § 3417(a) of the RFPA for limited disclosures by financial institutions suspecting a customer of illegal activity. The Sornbergers urge this Court to read § 3403(c) to limit these disclosures to encompass only individuals suspected of illegal activity themselves. This Court finds such a reading too limiting and contradictory to Congressional intent. On the other hand, an individualized suspicion requirement is appropriate when a bank proactively discloses financial information protected by the RFPA. Requiring individualized suspicion in that instance protects a customer’s expectations of privacy while balancing the legitimate government interest in exposing financial crimes that banks and other financials institutions are often in the best position to identify. In many situations, the Government is unaware of the suspected violations and needs to rely upon the diligence of financial institutions exposing such violations; exposure that would be compromised or eliminated if financial institutions were subject to liability for even limited disclosures. Therefore, requiring an element of individualized suspicion in these situations should generate appropriate caution by financial institutions to ensure customers’ financial records remain private while neither preventing these same institutions from disclosing limited information about suspected illegal activity for fear of liability nor preventing Government notification of potential legal violations. However, this is not the case now before the Court. Here, First notified the FBI a robbery had occurred, and, under direct questioning from the FBI, divulged the disputed information regarding the Sorn-bergers. Even assuming as the Court must that no" }, { "docid": "17101267", "title": "", "text": "the subpoena. Sometime thereafter, the charges against Sergeant Major Flowers were dropped. On May 7, 1999, the Flowers filed a pro se complaint against the Bank in the district court alleging that the Bank’s production of their financial records violated the RFPA’s requirement that financial records be produced by a financial institution only after that institution has received from the governmental authority requesting the records a certificate of compliance with the RFPA. See 12 U.S.C. § 3411. The Bank filed an answer denying it had violated the RFPA, and moved for judgment on the pleadings. The Flowers responded and the district court heard oral argument. The central issue in contention was whether the Bank’s response to the Article 32 subpoena fit within one of the RFPA’s exemptions provided by 12 U.S.C. § 3413. The exemptions allow a financial institution to produce a customer’s financial records without obtaining a certificate of compliance from the requesting governmental authority when the records are sought in connection with litigation between a governmental authority and the customer, id. § 3413(e), or are sought in connection with grand jury proceedings, id. § 3413(i). In a published opinion, Flowers v. First Hawaiian Bank, 85 F.Supp.2d 993 (D.Haw.2000), the district court held that the Article 32 proceeding was within the governmental litigation exemption provided by § 3413(e), and entered judgment on the pleadings in favor of the Bank. The Flowers moved for reconsideration. They also moved for leave to amend their complaint to add the United States Army as a defendant and to clarify that Captain Ohlweiler was government counsel, not trial counsel, in the Article 32 proceeding. It is a little unclear, but the Flowers may also have sought permission to amend the allegations of their complaint concerning damages. The district court denied these motions. It concluded that no grounds for reconsideration were presented and that further amendment would be futile. This appeal followed. After argument, we asked the United States, including the Army, to submit an amicus brief addressing the merits of this case, and in particular the legality of the Article 32 subpoena. We have" }, { "docid": "17101269", "title": "", "text": "received and considered that brief, as well as a responsive brief from the Flowers. II The Right to Financial Privacy Act We review de novo the district court’s judgment on the pleadings. Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.2001). We also review de novo issues of statutory interpretation. Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir.2001). [1] It is not disputed that Sergeant Major Flowers, as a member of the armed services when the circumstances in this case occurred, is protected by the RFPA. United States v. Dowty, 48 M.J. 102, 109 (1998) (holding that the RFPA covers financial records of members of the armed services); see also 32 C.F.R. §§ 504.1-.2 (regulations applying the RFPA to military investigators). Nor is there any dispute that ordinarily, if a government authority requests or subpoenas a bank customer’s financial records, then, to protect itself from liability, a bank is required to obtain a certificate of compliance with the RFPA from the governmental agency requesting the records before producing them. 12 U.S.C. § 3411; see also id. § 3407. Unless exempt under other provisions of the RFPA, a violation of this requirement entitles the customer to $100 per violation, attorney fees and costs, and actual and punitive damages. Id. § 3417. Here, the Bank did not obtain a certificate of compliance from the Army. As a result, the issue is whether the subpoena issued by the Army in the Article 32 proceeding triggered the exemption provided for litigation between the government and a bank customer, id. § 3413(e), or the exemption for grand jury proceedings, id. § 3413(i). We hold that neither of these exemptions applies. A Litigation Between the Government and a Customer 12 U.S.C. § 3413(e) states: “Nothing in [the RFPA] shall apply when financial records are sought by a Government authority under the Federal Rules of Civil or Criminal Procedure or comparable rules of other courts in connection with litigation to which the Government authority and the customer are parties.” This exemption has four requirements, all of which must be" }, { "docid": "17101287", "title": "", "text": "litigants leave to amend. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248-49 (9th Cir.1995) (per curiam) (holding that dismissal of a pro se complaint without leave to amend is proper only if it is clear that the deficiencies cannot be cured by amendment or after the pro se litigant is given an opportunity to amend). A district court, however, does not abuse its discretion in denying leave to amend where amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir.1990) (per curiam). Here, amendment would not be futile because, as we have determined, the Flowers have stated a RFPA cause of action, and the exemptions asserted by the Bank are inapplicable. Further, trial has not begun and the Flowers are pro se litigants entitled to the permissive amendment standard. Lucas, 66 F.3d at 248-49. We reverse the district court’s order denying leave to amend. On remand, the district court shall allow appropriate amendments including, but not limited to, clarification of Captain Ohlweiler’s status and the addition of the Army as a defendant. The Flowers may also amend their damages allegations if they wish to do so. IV Conclusion The district court’s judgment on the pleadings in favor of the Bank, and its order denying the Flowers’ motion to amend their complaint, are reversed. The Flowers’ challenge to the district court’s denial of their motion for reconsideration is moot. REVERSED and REMANDED. . The Flowers' complaint erroneously suggests that the Bank was charged with providing them with a notice of the subpoena that included a statement of the rights the Flowers enjoyed under the RFPA. That is incorrect. The responsibility for providing such a notice rests with the requesting government authority. See 12 U.S.C. § 3407. . The government contends that, because the Bank mailed Sergeant Major Flowers a letter informing him (but not his wife) of the subpoena six weeks before the financial records were produced, and the Flowers did not object to their production, they waived the right to file a complaint regarding the production of" }, { "docid": "17101268", "title": "", "text": "or are sought in connection with grand jury proceedings, id. § 3413(i). In a published opinion, Flowers v. First Hawaiian Bank, 85 F.Supp.2d 993 (D.Haw.2000), the district court held that the Article 32 proceeding was within the governmental litigation exemption provided by § 3413(e), and entered judgment on the pleadings in favor of the Bank. The Flowers moved for reconsideration. They also moved for leave to amend their complaint to add the United States Army as a defendant and to clarify that Captain Ohlweiler was government counsel, not trial counsel, in the Article 32 proceeding. It is a little unclear, but the Flowers may also have sought permission to amend the allegations of their complaint concerning damages. The district court denied these motions. It concluded that no grounds for reconsideration were presented and that further amendment would be futile. This appeal followed. After argument, we asked the United States, including the Army, to submit an amicus brief addressing the merits of this case, and in particular the legality of the Article 32 subpoena. We have received and considered that brief, as well as a responsive brief from the Flowers. II The Right to Financial Privacy Act We review de novo the district court’s judgment on the pleadings. Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.2001). We also review de novo issues of statutory interpretation. Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir.2001). [1] It is not disputed that Sergeant Major Flowers, as a member of the armed services when the circumstances in this case occurred, is protected by the RFPA. United States v. Dowty, 48 M.J. 102, 109 (1998) (holding that the RFPA covers financial records of members of the armed services); see also 32 C.F.R. §§ 504.1-.2 (regulations applying the RFPA to military investigators). Nor is there any dispute that ordinarily, if a government authority requests or subpoenas a bank customer’s financial records, then, to protect itself from liability, a bank is required to obtain a certificate of compliance with the RFPA from the governmental agency requesting the records before" }, { "docid": "7197694", "title": "", "text": "Guard occurred while she was still a member of the Air Force Reserve. See 10 U.S.C. § 12106(b); 10 U.S.C. § 12107(b)(2). Because Zaputil was still in the Reserve, decisions and orders to recall her into the California Air National Guard necessarily implicate military decisions, affairs and discipline. See Jackson v. United States, 110 F.3d 1484, 1487 (9th Cir.1997) (holding that “[mjembers of the National Guard and the Reserves are service members under Feres.”). The issue before us is not whether the orders issued to Zaputil were lawful, unlawful, or otherwise, and therefore we express no opinion on whether a unit of the Air National Guard may call up a member of the Air Force Reserve. Under the Feres doctrine, military service personnel simply do not enjoy a federal tort remedy for damages caused by even indisputably erroneous military decisions and orders. If an order to a reservist to report for duty is wrongful or invalid, it can be challenged through military channels (as Zaputil successfully did), or its invalidity raised as a defense in a court-martial. See 10 U.S.C.A. § 892; United States v. New, 55 M.J. 95 (2001). Furthermore, habeas corpus relief is available if the military exceeds its jurisdiction. Gibson v. United States, 329 U.S. 338, 358-59, 67 S.Ct. 301, 91 L.Ed. 331 (1946). However, under the Feres doctrine, federal courts simply do not provide a forum for civil damage claims for such events. Whenever confronted with situations in which a reservist was improperly called into service, or situations in which a discharge or its timing was challenged, courts have consistently held that Feres bars a civilian court from hearing the claim. In Rogers v. United States, 902 F.2d 1268 (7th Cir.1990), the Seventh Circuit held that the Feres doctrine barred a suit for false imprisonment when the plaintiff was arrested for desertion, after his discharge, because of the Navy’s negligence in finalizing his paperwork. The court said: We conclude that the Feres doctrine is applicable, largely because a tort suit against the military for false imprisonment where the confined plaintiff has not received final discharge is" }, { "docid": "18061751", "title": "", "text": "recover damages under the FTCA for birth defects caused by her father’s unwitting exposure to atomic radiation during World War II. Id. at 133-34. In holding that her claim was barred under Feres, we reasoned: Denise’s case differs from Stencel in that she seeks relief for an injury to herself rather than indemnity for losses due to injury to her father, but this does not change the substantive analysis: the court still must examine the, Government’s activity in relation to military personnel on active duty. It is precisely this type of examination the Feres doctrine seeks to avoid. Id. at 134 (emphasis added). Similarly, in Persons, we held that the widow and child of serviceman Kelly Persons, who committed suicide while off-duty after having been released from a naval hospital, could not sue the hospital for failing to warn them of Kelly’s condition and for loss of consortium. 925 F.2d at 295-97. Relying on Monaco, we concluded that these claims “must be viewed as ‘derivative’ claims, having their genesis in Kelly’s service-related death.” Id. at 297 (citations omitted). And in Grosinsky v. United States, 947 F.2d 417 (9th Cir.1991), we dismissed under Feres the claim of a military wife who alleged that an Army surgeon’s negligently-performed vasectomy on her serviceman husband resulted in an unanticipated child. Id. at 418-19. Application of these cases compels the same conclusion here. Ritchie alleges that military personnel at Fort Shafter caused Gregory’s death by ordering January to engage in military duties against her doctor’s recommendations. That Gregory’s injury derived from January’s military service is, in other words, the core theory of his case. If adjudication of a claim involving an Army trainee’s exposure to radiation on a football field in Chicago would improperly require judicial examination of the Army’s activity in relation to military personnel, Monaco, 661 F.2d at 134, a fortiori, a claim challenging military orders given to a servicewoman on active duty likewise cannot escape Feres. And, if a claim for failure to warn family members of impending suicide derived from a service-related suicide, Persons, 925 F.2d at 297, a claim that" }, { "docid": "1688825", "title": "", "text": "landscape rife with inconsistencies. See, e.g., United States v. Johnson, 481 U.S. at 692, 107 S.Ct. at 2069 (Scalia, J. dissenting). It is, however, the law, and this Court is bound to follow it. See Morey v. United States, 903 F.2d 880, 883 (1st Cir.1990). . In neither Reilly nor Williams was Feres expressly discussed in regard to the child's claim. The claims were allowed to be brought, however, and it is clear, at least in Reilly that the government knew of Feres since it tried to apply it to bar the claims of the serviceman father. . The very brief opinion in De Font was written almost twenty years ago, before the Supreme Court’s discussions of Feres in Stencel and Johnson. The opinion did not focus on how the individual Feres factors affected the claims brought there. . The Court notes that although the Court of Appeals for the First Circuit did not explicitly consider the Feres factors in De Font, if they were examined, the possibility of compensation for the widow under the Veterans’ Benefits Act, 38 U.S.C. § 341, would militate against enlarging the government’s liability, as would, the military discipline rationale. . In Monaco v. United States, 661 F.2d 129, 134 (9th Cir.1981), a civilian Plaintiff sought recovery from the government for a birth defect allegedly caused by genetic damage inflicted upon her father while he was in the military. The court there simplistically applied Stencel, stating broadly that \"the [Supreme] Court ... rejected the argument that non-military claimants should be entitled to recovery because of their inability to collect compensation under the Veterans’ Benefit Act.’’ Although noting the difference between Plaintiff’s claim for her own injury and the claim presented in Stencel for indemnification for damages paid to a serviceman, the court in Monaco failed to see the relevance of this difference for the second Feres rationale. . The Court notes that the Court of Appeals for the Ninth Circuit has found no connection between military discipline and the prenatal care administered to a servicewoman plaintiff by military personnel. Atkinson v. United States, 804 F.2d" }, { "docid": "17101266", "title": "", "text": "comparison, at a court-martial, the government is represented by a lawyer, the “trial counsel,” who serves as the military prosecutor. 10 U.S.C. § 838. The investigating officer for the Article 32 proceeding in the present case was Major Timothy M. Ryan. The more significant figure, however, was the government counsel, Captain John Ohlweiler. On June 19, 1998, while the Article 32 proceeding was pending, Captain Ohlweiler issued a subpoena to the Bank’s Scho-field branch requesting all bank records for an account held jointly by the Flowers. The subpoena stated on its face that it was a subpoena in an Article 32 proceeding. Approximately two weeks later, Sergeant Major Flowers received a letter from the Bank informing him of the subpoena and enclosing a copy. That notice did not inform the Flowers of their rights under the RFPA. See 12 U.S.C. § 3407(b). The responsibility for providing such notice rests with the government authority that issues the subpoena. See id. In late July or early August, the Bank produced the Flowers’ financial records in accordance with the subpoena. Sometime thereafter, the charges against Sergeant Major Flowers were dropped. On May 7, 1999, the Flowers filed a pro se complaint against the Bank in the district court alleging that the Bank’s production of their financial records violated the RFPA’s requirement that financial records be produced by a financial institution only after that institution has received from the governmental authority requesting the records a certificate of compliance with the RFPA. See 12 U.S.C. § 3411. The Bank filed an answer denying it had violated the RFPA, and moved for judgment on the pleadings. The Flowers responded and the district court heard oral argument. The central issue in contention was whether the Bank’s response to the Article 32 subpoena fit within one of the RFPA’s exemptions provided by 12 U.S.C. § 3413. The exemptions allow a financial institution to produce a customer’s financial records without obtaining a certificate of compliance from the requesting governmental authority when the records are sought in connection with litigation between a governmental authority and the customer, id. § 3413(e)," }, { "docid": "19258624", "title": "", "text": "ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS SAMUEL P. KING, District Judge. INTRODUCTION This case involves the Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq. (“RFPA”). Plaintiff Marshall Kenneth Flowers (“Flowers”) contends that Defendant First Hawaiian Bank (“First Hawaiian”) violated the RFPA when it revealed financial information about Flowers and his wife under a subpoena in a military Article 32 proceeding, but did not give him notice as set forth in the RFPA. First Hawaiian moves for judgment on the pleadings, asserting that Flowers fails to state a claim. First Hawaiian is correct. A specific statutory exemption applies. For the reasons set forth to follow, the motion is GRANTED. DISCUSSION Flowers was a Sergeant Major in the Army in 1998, stationed at Schofield Barracks. In April of 1998, he was charged with larceny under the Uniform Code of Military Justice (\"UCMJ\"). A hearing under Article 32 of the UCMJ, 10 U.S.C. § 832, was scheduled for June 25, 1998. An Article 32 proceeding is \"the military counterpart to the civilian grand jury.\" Morgan v. Perry, 142 F.3d 670, 677 (3d Cir.1998), cert. denied, 525 U.S. 1070, 119 S.Ct. 801, 142 L.Ed.2d 662 (1999). Accordingly, on June 19, 1998, a military lawyer issued a subpoena to the Schofield branch of First Hawaiian for “all bank records, # 25478010, to include all deposits and withdrawals.” This was a joint checking account of Flowers and his wife. First Hawaiian produced records in accordance with the subpoena. It also sent a letter with a copy of the subpoena to Flowers at his last known address. It did not, however, comply with the specific provisions of 12 U.S.C. § 3411 and 3412. Flowers asserts that First Hawaiian violated the RFPA by not complying with statutory notice provisions. Section 3403(a) of the RFPA provides: Release of records by financial institutions prohibited No financial institution, or officer, employees, or agent of a financial institution, may provide to any Government authority access to or copies of, or the information contained in, the financial records of any customer except in accordance with the provisions of" }, { "docid": "17101263", "title": "", "text": "in response to the Army’s Article 32 subpoena was within the RFPA’s exemption for information disclosed in the course of litigation between the government and a private citizen. See id. § 3413(e). The bank also contended that the RFPA’s exemption for information disclosed pursuant to a grand jury subpoena applied, see id § 3413®, but the district court did not reach that question. The court granted judgment on the pleadings in favor of the Bank, and denied the Flowers’ motions for reconsideration and leave to amend. We have jurisdiction under 28 U.S.C. § 1291, and we reverse. Because subpoenas are not authorized in Article 32 proceedings, the subpoena was not lawfully issued. When the Bank complied with the subpoena without obtaining a certificate of compliance from the Army, it acted at its peril and it is not entitled to the protection of the RFPA exemptions on which it relies. Accordingly, judgment on the pleadings was inappropriate. We also conclude that the district court should have granted the Flowers’ motion for leave to amend. The Flowers’ challenge to the denial of their motion for reconsideration is moot. I Facts and Proceedings “A judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law.” Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir.1998). All facts alleged in the Flowers’ complaint are, therefore, taken as true. This case arose while Mr. Flowers was a Sergeant Major in the United States Army stationed at the Schofield Barracks in Hawaii. In April 1998, the Army charged Sergeant Major Flowers with larceny under the UCMJ. Article 32 of the UCMJ provides that an investigative proceeding must be conducted before convening a general court-martial. 10 U.S.C. § 832. The proceeding must “include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.” Id. Further, in the proceeding," }, { "docid": "17101288", "title": "", "text": "status and the addition of the Army as a defendant. The Flowers may also amend their damages allegations if they wish to do so. IV Conclusion The district court’s judgment on the pleadings in favor of the Bank, and its order denying the Flowers’ motion to amend their complaint, are reversed. The Flowers’ challenge to the district court’s denial of their motion for reconsideration is moot. REVERSED and REMANDED. . The Flowers' complaint erroneously suggests that the Bank was charged with providing them with a notice of the subpoena that included a statement of the rights the Flowers enjoyed under the RFPA. That is incorrect. The responsibility for providing such a notice rests with the requesting government authority. See 12 U.S.C. § 3407. . The government contends that, because the Bank mailed Sergeant Major Flowers a letter informing him (but not his wife) of the subpoena six weeks before the financial records were produced, and the Flowers did not object to their production, they waived the right to file a complaint regarding the production of the records. We disagree. The RFPA requires more than just notice of a subpoena. It requires that the government authority issuing the subpoena notify the customer of his or her rights under that Act. 12 U.S.C. § 3407(2). The Army never provided such a notice, and neither did the Bank. Acceptance of the government's argument would lead to a direct contradiction of the plain language of the RFPA, allowing a financial institution to fail to obtain the requisite certificate of compliance, and then claim waiver based on an inadequate notice. We will not read into the RFPA an exception that contradicts its plain language. . The Flowers also brought a separate action against the Army in federal court in Hawaii. As an alternative to permitting the Flowers to amend their complaint to add the Army as a defendant, the district court may decide to consolidate the two actions, if consolidation would achieve the same purpose as the amendment and would otherwise be appropriate, questions we do not consider." }, { "docid": "17101265", "title": "", "text": "an accused is entitled to counsel and some discovery, and has the right to cross-examine witnesses. Id. See generally United States v. Samuels, 10 C.M.A. 206 (1959); United States v. Bramel, 29 M.J. 958 (A.C.M.R.1990); Commander Edward M. Byrne, Military Law 81-87 (2d Ed.1975); Charles A. Shanor & L. Lynn Hogue, Military Law 146-47 (2d Ed.1996). A commanding officer initiates an Article 32 proceeding by appointing an investigating officer. The investigating officer need not be a lawyer. Major Larry A. Gaydos, A Comprehensive Guide to the Military Pretrial Investigation, 111 Mil.L.Rev. 49, 59 (1986). The investigating officer produces a written report recommending whether the charges should be referred to a general court-martial. Rules for Courts-Martial (RCM) 405(j); Shanor & Hogue, supra, at 147. The personnel present at an Article 32 proceeding are somewhat different from those present at a court-martial. Only the investigating officer, defendant, and defense counsel need be present. “Government counsel” may also be present to represent the government, but such presence is not required. Gaydos, supra, at 58-68 & n. 97. In comparison, at a court-martial, the government is represented by a lawyer, the “trial counsel,” who serves as the military prosecutor. 10 U.S.C. § 838. The investigating officer for the Article 32 proceeding in the present case was Major Timothy M. Ryan. The more significant figure, however, was the government counsel, Captain John Ohlweiler. On June 19, 1998, while the Article 32 proceeding was pending, Captain Ohlweiler issued a subpoena to the Bank’s Scho-field branch requesting all bank records for an account held jointly by the Flowers. The subpoena stated on its face that it was a subpoena in an Article 32 proceeding. Approximately two weeks later, Sergeant Major Flowers received a letter from the Bank informing him of the subpoena and enclosing a copy. That notice did not inform the Flowers of their rights under the RFPA. See 12 U.S.C. § 3407(b). The responsibility for providing such notice rests with the government authority that issues the subpoena. See id. In late July or early August, the Bank produced the Flowers’ financial records in accordance with" }, { "docid": "4166133", "title": "", "text": "the Feres doctrine bars claims for radiation-induced injuries by members of the armed forces exposed to radiation during military service. See, e.g., Gaspard v. United States, 713 F.2d 1097 (5th Cir.1983) (sovereign immunity bars claim of former servicemen who under military orders took part in atmospheric weapons tests during early 1950’s); Monaco v. United States, 661 F.2d 129 (9th Cir.1981) (sovereign immunity bars action by former serviceman to recover for colon cancer resulting from radiation exposure); Everett v. United States, 492 F.Supp. 318 (S.D.Ohio 1980) (sovereign immunity bars action brought by surviving spouse against United States to recover for wrongful death of husband who participated in military maneuvers in conjunction with nuclear weapons tests). Plaintiffs retort that the Feres doctrine should not preclude their claims because it is a judicially-created exception which applies only “when Congress has otherwise provided compensation systems for injuries or death of those in the armed forces.” Although the United States government has taken the special step of providing a system of compensation for veterans exposed to atmospheric nuclear testing or assigned to the American occupation of Hiroshima or Nagasaki, Japan, 38 U.S.C. § 1154(5)(a)(l) (“Veterans’ Dioxin and Radiation Exposure Compensation Standards Act”), that system does not include veterans of Project Crested Ice. Further, pursuant to the “NATO SOFA” agreement, the United States must provide 75% of the payment made on claims by Danish civilians (or their surviving families) who worked on Project Crested Ice. In light of this, the plaintiffs argue the Feres doctrine should not bar their claims for damages under the FTCA, especially because the United States is compensating foreign nationals for their participation in the same clean-up effort. Plaintiffs note that in holding that Congress did not intend to allow those who were injured on active duty to sue the government for negligence, the Supreme Court in Feres reasoned that Congress provided other methods of compensation, which is not the case here. Application of the Feres doctrine does not depend on the extent to which its rationales are present in a particular ease. United States v. Johnson, 481 U.S. 681, 687-88, 107" }, { "docid": "18061750", "title": "", "text": "of military duty....’ ” Stencel, 431 U.S. at 671-72, 97 S.Ct. 2054 (citations omitted); see Costo, 248 F.3d at 866 (“[T]he danger to discipline ... has been identified as the best explanation for Feres.”); Atkinson v. United States, 825 F.2d 202, 204 (9th Cir.1987) (indicating that the military discipline rationale is “determinative”); Monaco v. United States, 661 F.2d 129, 132 (9th Cir.1981) (“[T]he protection of military discipline ... serves largely if not exclusively as the predicate for the Feres doctrine”); cf. Persons, 925. F.2d at 295 (observing that our Feres “jurisprudence has been guided by an increasing sense of awe for things military”). When considering whether claims by relatives of military personnel are barred by Feres, we employ a “genesis test,” asking whether the family member’s FTCA claim has its “genesis in injuries to members of the armed forces.” Grosinsky v. United States, 947 F.2d 417, 418 (9th Cir.1991) (citations omitted). The test originated in Monaco v. United States, 661 F.2d 129 (9th Cir.1981), in which the daughter of a serviceman, Denise Monaco, sued to recover damages under the FTCA for birth defects caused by her father’s unwitting exposure to atomic radiation during World War II. Id. at 133-34. In holding that her claim was barred under Feres, we reasoned: Denise’s case differs from Stencel in that she seeks relief for an injury to herself rather than indemnity for losses due to injury to her father, but this does not change the substantive analysis: the court still must examine the, Government’s activity in relation to military personnel on active duty. It is precisely this type of examination the Feres doctrine seeks to avoid. Id. at 134 (emphasis added). Similarly, in Persons, we held that the widow and child of serviceman Kelly Persons, who committed suicide while off-duty after having been released from a naval hospital, could not sue the hospital for failing to warn them of Kelly’s condition and for loss of consortium. 925 F.2d at 295-97. Relying on Monaco, we concluded that these claims “must be viewed as ‘derivative’ claims, having their genesis in Kelly’s service-related death.” Id. at" }, { "docid": "17101262", "title": "", "text": "OPINION THOMPSON, Senior Circuit Judge. Marshall Kenneth Flowers and his wife Anna Flowers (collectively the “Flowers”) brought suit pro se under the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401-3422, against the defendant First Hawaiian Bank (“the Bank”). They alleged that the Bank violated the RFPA by producing copies of their financial records to the United States Army, pursuant to a subpoena, without first obtaining a certificate of compliance from the Army as required by the RFPA. See id. §§ 3403(b), 3407, 3411. The primary issue in this case is whether such a certificate was required, or whether the Bank’s production of the Flowers’ financial records pursuant to the subpoena was exempt from the RFPA. The Army had issued the subpoena during an Article 32 proceeding. An Article 32 proceeding, in general terms, is an investigative proceeding that is required under Article 32 of the Uniform Code of Military Justice (UCMJ) before a general court-martial may be convened. The district court held that the Bank did not violate the RFPA because its conduct in response to the Army’s Article 32 subpoena was within the RFPA’s exemption for information disclosed in the course of litigation between the government and a private citizen. See id. § 3413(e). The bank also contended that the RFPA’s exemption for information disclosed pursuant to a grand jury subpoena applied, see id § 3413®, but the district court did not reach that question. The court granted judgment on the pleadings in favor of the Bank, and denied the Flowers’ motions for reconsideration and leave to amend. We have jurisdiction under 28 U.S.C. § 1291, and we reverse. Because subpoenas are not authorized in Article 32 proceedings, the subpoena was not lawfully issued. When the Bank complied with the subpoena without obtaining a certificate of compliance from the Army, it acted at its peril and it is not entitled to the protection of the RFPA exemptions on which it relies. Accordingly, judgment on the pleadings was inappropriate. We also conclude that the district court should have granted the Flowers’ motion for leave to amend. The Flowers’" }, { "docid": "11567318", "title": "", "text": "101 (E.D.La.1978), aff’d, 620 F.2d 568 (5th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). . In recent cases, the Third Circuit, en banc, in an action involving injury to a serviceman incident to his service, rejected a constitutional intentional tort cause of action, based on the policy concerns underlying the Feres doctrine, viz., the effect of such suits on military discipline and Congress’ express provision of another remedy. Jaffee v. United States, 663 F.2d 1226 (3d Cir. 1981); the Ninth Circuit in Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), held that the Feres doctrine precluded a claim based on post-service occurrence of an injury (cancer) caused by an in-service act (exposure to radiation), but, in Broudy v. United States, 661 F.2d 125 (9th Cir. 1981), held that a claim that the government, in an independent, post-service, negligent act, failed to warn the serviceman of possible injury (cancer) or to monitor for possible injury arising from an in-service act (exposure to radiation), was not precluded by the Feres doctrine. The court based its holding on the United States Supreme Court’s 1954 decision in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), that a claim arising from a post-service act of negligence was not barred under Feres. . Even were we to find jurisdiction to review plaintiffs’ claim based on the Military Claims Act, we would hold it not cognizable under the express provisions of the Act. Section 2733(b)(3) of the Military Claims Act provides: (b) a claim may be allowed under subsection (a) only if— (3) it is not for personal injury or death of such a member [of the Army, Navy, Air Force, Marine Corps or Coast Guard] or civilian officer or employee whose injury or death is incident to his service. [Emphasis added]. Although there is little case law construing the incident to service exclusion of the MCA, the Supreme'Court in Feres discussed the Military Claims Act, in dictum, and implied that the standard for determining what constituted activity incident to service was" } ]

[ { "docid": "23492064", "title": "", "text": "of petitioner, 321 U. S. 800; Helvering v. Insular Sugar Refining Corp., 141 F. 2d 713; cf. E. Regensburg & Sons v. Helvering, 130 F. 2d 507. A new administrative procedure for recovery of taxes paid under the Agricultural Adjustment Act was provided by Title VII of the Revenue Act of 1936, §§ 901-917, 49 Stat. 1747, 7 U. S. C. §§ 644-59, repealing §§ 21 (d), (e), and (g) of the 1935 amendments to the Agricultural Adjustment Act, 49 Stat. 771-73. The provisions were reviewed at length and their constitutionality upheld in Anniston Mfg. Co. v. Davis, 301 U. S. 337. In outline, so far as relevant to this case, they are as follows: The claimant is required to prove that he bore the burden of the tax. § 902. Average “margins” per unit of the commodity processed, consisting of the difference between cost of the commodity (plus tax paid, if any) and gross sales value of the articles resulting from the processing, are to be computed for the tax period and a base period; the base period is the period two years preceding imposition of the tax and the six months thereafter (February to July, 1936). §§ 907 (b), (c). If the margins for the tax period are lower than those for the base period, it is “prima facie evidence” that, to that extent, the claimant bore the burden of the tax; if they are not lower, it is “prima facie evidence” that none of the burden was borne by the claimant. § 907 (a). But this “presumption” may be rebutted either by the claimant or by the Commissioner, by proof of “the actual extent” to which the claimant shifted the tax to others. Such proof may include, but is not limited to, certain types of evidence described by the statute. § 907 (e). For our purposes the material facts must be gleaned from the findings and memorandum of the Board of Review and a stipulation filed by the parties in the Court of Appeals. Petitioner is a grower and purchaser of sugar cane, which it processes into" } ]

[ { "docid": "9824532", "title": "", "text": "THOMAS, Circuit Judge. This is a petition to review an order ■ of the United' States Processing. Tax Board of Review. It involves a claim for refund of the sum of $2,218.61 collected from the petitioner as a tax on the domestic processing of hogs pursuant to the provisions of the Agricultural Adjustment Act, c. 25, 48 Stat. 31, 7 U.S.C.A. § 601 et seq. The Commissioner of Internal Revenue disallowed the petitioner’s claim on the grounds (1) that the claim is not founded on the basis that petitioner had borne the burden of the tax; (2) that no evidence was submitted to establish that the burden of the tax was borne by the petitioner; (3) that the claim as filed does not conform to the provisions of sections 902 and 903 of Title VII of the Revenue Act of 1936, c. 690, 49 Stat. 1747, 7 U.S.C.A. §§ 644, 645; and (4) that the claim as filed afforded no basis for the Commissioner to consider it on its merits. The petitioner thereupon sought a review of the decision of the Commissioner before the Board of Review created by the Act, praying that it be granted a hearing; that the decision of the Commissioner be reversed; and alleging that Title VII of the Revenue Act of 1936 is unconstitutional, null, and void, in so far as it purports to condition refund of the tax upon proof that the taxpayer bore the burden of the tax, or in so far as it requires proof based upon records not theretofore required to be kept by the taxpayer. Upon motion of the respondent the Board dismissed the petition on the ground that “the claim for refund, the disallowance by the respondent of which is sought to be reviewed, fails to com ply with the requirements of Title VII of the Revenue Act of 1936 and of the Treasury Regulations promulgated thereunder.” The appeal is before this court pursuant to Section 906(g) of the Revenue Act of 1936, c. 690, 49 Stat. 1648, 1750, 7 U.S.C.A. § 648(g). The single question presented is the" }, { "docid": "22348557", "title": "", "text": "Mr. Justice Frankfurter delivered the opinion of the Court. This is a suit under Title VII of the Revenue Act of 1936, 49 Stat. 1648, 1747, 7 U. S. C. § 644 et seq., for a refund of processing taxes paid under the Agricultural Adjustment Act of 1933. The problem of the case derives from the procedural requirements of a claim for such a refund. The petitioner, Angelus Milling Company, known until June, 1933 as the Middleport Flour Mills, Inc., was a processor of wheat, with its principal office in Niagara Falls, New York. During the years for which the refund is claimed — 1933 to 1936 — its processing operations were closely connected with those of the Niagara Falls Milling Company. The two companies had the same officers, employees, and majority stockholder, and a joint bank account. They also had a common set of books, but the respective transactions of the two companies — purchases, costs of manufacture, sales — were entered in their separate accounts on the books. Between July 9, 1933, and January 31, 1935, the companies filed joint processing tax returns. Between February 1, 1935, and November 30, 1935, Niagara filed returns in its name on behalf of itself and petitioner. After United States v. Butler, 297 U. S. 1, invalidated the processing tax, three claims were filed with the Commissioner on June 22, 1936, all stating the name of the taxpayer and claimant as “Niagara Falls Milling Co., Inc. and/or Middleport Flour Mills, Inc.” Each of these claims is for only part of the period during which the tax was paid, and their total is $434,045.27. Admittedly the form of these claims did not satisfy the requirements of the statute or the authorized Treasury Regulations. They were filed on an old Form 843 and not on the required Form P. T. 79. While these claims were still undetermined, Niagara, on June 30, 1937, filed a claim in the sum of $436,231.73. This claim was in due form but was filed by Niagara on its own behalf alone. Thereafter, on August 15, 1938, petitioner filed a" }, { "docid": "8920589", "title": "", "text": "JONES, Circuit Judge. The principal question in this case is whether the matter submitted by the plaintiff taxpayer to the Commissioner of Internal Revenue in support of a claim for refund of taxes paid under the Agricultural Adjustment Act of 1933, 7 U.S.C.A. § 601 et seq., complied sufficiently with the requirements of Title VII, § 902, of the Revenue Act of 1936, c. 690, 49 Stat. 1648, 7 U.S.C.A. § 644 (providing for refund of such taxes), so as to preserve the plaintiff’s standing to sue for the refund following the Commissioner’s disallowance of the claim. The appellant raises a further question as to whether the proofs adduced by the plaintiff at trial were sufficient to warrant the trial court (the case was tried without a jury) in finding that the plaintiff bore the burden of the taxes for which refund is claimed and that the taxpayer had not been relieved thereof or reimbursed therefor and had not shifted the burden, either, directly or indirectly, to others. The trial court found that the plaintiff consumed in the manufacture of its bakery products, within three weeks after payment of the taxes, the flour upon which the taxes had been imposed and that it did not increase the price nor alter the per unit weight of its products made therefrom. As there is sufficient evidence to support the trial court’s findings, we are without power to interfere with them upon appeal. Certainly they are not clearly erroneous. Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. See Kuhn v. Princess Lida of Thurn & Taxis, 3 Cir., 119 F.2d 704, 705. In addition to these specific findings there is uncontradicted testimony that the plaintiff did not reduce the wages of its employees during the material period. Nor was there anything shown which would indicate that the plaintiff’s maintenance of the price and weight of its products, despite the tax, was brought about by adulteration of quality or similar compensating artifice. In the light of the record, the findings are dispositive of the appellant’s contention as to" }, { "docid": "9824547", "title": "", "text": "the disallowance of the claim. The provisions of these regulations require that certain specific facts shall be stated in support of any claim for refund. The claimant is privileged to prove those facts in any manner available to him and to submit such evidence to that end as he may desire. Art. 601. Claim form prescribed.— Claims for refund of amounts paid as processing tax (as defined in section 913(b) of the Act [7 U.S.C.A. § 655(b)]) shall be filed on P. T. Form 79. * * *. Art. 603. Payment of taw. — The claimant shall set forth in the claim complete data with respect to the amount of processing tax which he has paid on the processing of the commodity. (Detailed instructions follow). Art. 605. Evidence as to Margins.— Section 907 of the Act (c. 690, 49 Stat. 1751, 7 U.S.C.A. § 649) provides that in claims for refund of amounts paid as processing tax it shall be prima facie evidence that the burden of such amount was borne by the claimant to the extent (not to exceed the amount of the tax) that the average margin per unit of the commodity processed was lower during the tax period than the average margin per unit of such commodity was during the period before and after the tax. If the average margin during the tax period was not lower, it shall be prima facie evidence that none of the burden of such amount was borne by the claimant but that it’was shifted to others. There shall be submitted with, and as a part of, each claim, a statement showing the average margin for the tax period and for the period before and after the tax. * * * (Detailed instructions for the computation of the average margin follow). In support of such statement there shall be submitted, verified by appropriate affidavit, a detailed showing of the manner in which the margins for each month and the average margins for each period wore ascertained, the data and records on which they were based, the location of such data and records," }, { "docid": "13576326", "title": "", "text": "the amount of the processing tax required to be paid under the act, and the petitioner remitted to Armour & Company, by separate check or separate'payment on a separate invoice, the amount of the processing tax, which was by Armour & Company remitted to the collector. This tax was paid by the petitioner to Armour & Company with the express understanding that if the tax were held to be invalid, Armour & Company would refund to the petitioner so much of the tax as Armour & Company might recover from the United States by reason of the wrongful assessment or collection thereof. The Agricultural Adjustment Act, or that portion which levied the tax, was dedared unconstitutional by the Supreme Court in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, decided January 6, 1936. Thereafter, the Congress enacted the Revenue Act of 1936, 7 U.S.C.A. § 648(b), which included Title VII and which authorized refunds under conditions and limitations contained therein. The Processing Tax Board of Review was given exclusive jurisdiction to review the Commissioner’s disallowance of claims for refunds of payments made as “processing tax” with right of review to this court. Thereafter, the petitioner filed its timely claim and amended claim for refund in the sum of $166,729.50, under the Revenue Act, supra. The sole question presented for our consideration is whether or not the petitioner is entitled to maintain these proceedings before the Board, under the provisions of the Revenue Act of 1936j which authorizes refund of the illegal tax, and involves a construction of Sec. 906 of the Revenue Act of 1936, supra. It must be conceded that the tax, the refund of which is sought, was paid by the petitioner to Armour & Company, and by Armour & Company remitted to the government ; that Armour & Company had no interest in the tax imposed, except to comply with its statutory obligation to collect and remit the same, and that it bore none of the burdens of the tax; and that Armour & Company had made no claim" }, { "docid": "12700452", "title": "", "text": "Supreme Court, as provided in 44 Stat. 9, as amended, 26 U.S.C.A. §§ 641, 642, he could pay the deficiency, file claim for refund, and, if denied, file suit in the District Court, or Court of Claims, for recovery. Rev.St. §§ 3220, 3226, 3228, as amended, 26 U.S.C.A. §§ 1670(a) (1), (b), 1676, 1672-1673, 1433 ; 28 U.S.C.A. §§ 41, 250. If the necessity exists for a reconstruction of plaintiffs’ accounts in order to accurately determine what taxes, if any, are due by each of the them, the expense of such determination need not be borne by any one of them. In the last analysis, if a tax return is filed in good faith, the burden of determining the factual basis for additional taxes will rest on the Commissioner of Internal Revenue. From the facts stated in the respective plaintiffs’ petitions, each of them, if it so desires, may have a determination of its liability to taxes tried at law before being called on to pay, and this may be had without the risk of penalties or undue hardship. I am satisfied the plaintiffs have an adequate remedy at law, but, if this conclusion is erroneous, they are not entitled to relief for the additional reason which follows. At the time of the passage of the act here in question, the Congress was confronted with the problem of raising $620, 000,000 of additional revenue to pay the soldiers’ bonus, and make refundment of taxes unconstitutionally imposed. House Report No. 2475, 74th Congress, 2d Session, pp. 1-5. It was presumed when the Agricultural Adjustment Act was adopted that the excise taxes levied pursuant thereto would be passed on to the ultimate consumer. The first processor was required to pay the tax, but it would be immediately reflected in the retail price of the taxed article. The original act (chapter 25, 48 Stat. 31, see 7 U.S.C.A. c. 26, § 601 et seq.) provided that, where contracts of sale existed at the time of the effective date thereof, the purchaser thereunder was required to either pay the tax or make satisfactory adjustment" }, { "docid": "12979392", "title": "", "text": "indicates that it bore the burden only to the extent of $18,126.43. In the instant case counsel contends that petitioner was the processor within the in-tendment of the Agricultural Adjustment Act (48 Stat. 31), and that it ought not to be denied the right to a refund because it was compelled to pay the tax to the slaughterer. On the other hand counsel for the Commissioner contends that the slaughterer was the taxpayer under Title VIT of the Revenue Act of 1936, 49 Stat. 1747, 7 U.S.C.A. § 623 note, 644 et seq. The main question here involved is whether the petitioner was the processor who was obligated to pay the processing tax under the statute. The Taxing Statute. The Agricultural Adjustment Act was enacted in 1933 and the pertinent provisions for purpose of discussion herein are: (1) The Act imposed the processing tax upon the “first domestic processing” of the commodity and provided that the tax “shall be paid by the processor.” 48 Stat. 35, 7 U.S.C.A. § 609 (a). (2) It also provided that the term “processing” means “In case of hogs, * * * the slaughter of hogs for market.” 48 Stat. 36. It further provided (3) that no tax shall be required to be paid on processing by or for producers for home consumption, and (4) that “The Secretary of Agriculture is authorized, by regulations, to exempt from the payment of the processing tax the processing of commodities by or for the producer thereof for sale by him * * *.” 48 Stat. 39, 7 U.S.C.A. § 615(b). As the bill passed the House of Representatives it contained (1) and (3) above, a provision empowering the Secretary of Treasury to define “processing with respect to any commodity,” and a provision stating that the Secretary of Agriculture is authorized “to exempt producers from the payment of the processing tax with respect to hogs * * * in cases where the producer’s sales of the products resulting from the processing * * * do not exceed $100 per annum.” Congressional Record, vol. 77, pp. 671-766. In the Senate" }, { "docid": "8920601", "title": "", "text": "at trial (see § 902). The trial court was satisfied that the plaintiff had borne the tax exclusively and that finding was supported by sufficient evidence. The judgment of the District Court is affirmed. This was evidently intended to mean within three weeks of the effective date of the processing tax (July 9, 1933) as the uncontradicted evidence had shown. The taxes were not paid until August 4, 1933. § 902 of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev.Acts, p. 960, 7 U.S.C.A. § 644, provided in part here material that,— “No refund shall be made or allowed, in pursuance of court decisions or otherwise, of any amount paid by or collected from any claimant as tax under the Agricultural Adjustment Act, unless the claimant establishes to the satisfaction of the Commissioner in accordance with regulations prescribed by him, with the approval of the Secretary, or to the satisfaction of the trial court, or the Board of Review in cases provided for under section 906, as the case may he— “(a) That he bore the burden of such amount and has not been relieved thereof nor reimbursed therefor nor shifted such burden, directly or indirectly, (1) through inclusion of such amount by the claimant, or by any person directly or indirectly under his control, or having control over him. or subject to the same common control, in the price of any article with respect to which a tax was imposed under the provisions of such Act, or in the price of any article processed from any commodity with respect to which a tax was imposed under such Act, or in any charge or fee for services or processing; (2) through reduction of the price paid for any such commodity; or (3) in any manner whatsoever; and that no understanding or agreement, written or oral, exists whereby he may be relieved of the burden of such amount, be reimbursed therefor, or may shift the burden thereof; * * *» Revenue Act of 1918, § 900(3), 40 Stat. 1122; Revenue Act of 1921, § 900 (3), 42 Stat. 291; and Revenue" }, { "docid": "8920591", "title": "", "text": "the shifting of the tax. The appellant’s argument on the facts as to whether the plaintiff bore the burden of the particular taxes exclusively proceeds upon the assumption that the analysis of costs of flour submitted by the taxpayer was erroneous. The evidence does not justify the assumption and it was not error for the trial court to accredit the plaintiff’s evidence. The question as to the jurisdiction of the court to entertain the plaintiff’s suit for refund under the circumstances shown requires reference to the action taken by the taxpayer and the Commissioner with respect to the claim and also to the terms and provisions of the pertinent statutes. On August 4, 1933, the Bethlehem Baking Company, a processor of flour, paid to the Collector of Internal Revenue a tax under the Agricultural Adjustment Act on floor stocks of flour in its possession on July 9, 1933, the date upon which the tax attached under the statute. The taxing provisions of the Agricultural Adjustment Act were later held by the Supreme Court to be unconstitutional and void. United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. Thereafter Congress enacted Title VII, §§ 901-907 of the Revenue Act of 1936, 7 U.S.C.A. §§ 623 note, 644-649, providing for the refund of taxes which had been levied and collected under the Agricultural Adjustment Act. In order to prevent unjust enrichment by way of refund to anyone who, having paid the tax, had shifted the burden thereof to others, Congress imposed as a condition to refund that the claimant establish to the satisfaction of the Corn- missioner that he had borne the burden of the tax. The validity of this condition has been sustained. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143. The Baking Company filed with the Collector on June 28, 1937, upon the form prescribed by the Commissioner, a claim for refund for the amount of the processing tax which it had paid. The claim, which was filed timely (see § 903 of the Revenue Act of" }, { "docid": "12979400", "title": "", "text": "1747. Heretofore we have discussed the several provisions of this refund statute. F. & F. Laboratories v. Commissioner, 7 Cir., 104 F.2d 563; Oswald Taeger Baking Co. v. Commissioner, 7 Cir., 108 F.2d 375, certiorari denied, 60 S.Ct. 723, 84 L.Ed. 1027. Upon further consideration we find no reason for receding from what we there said. We held in those cases that the statute restricted refunds to the particular processor who alone was obligated to pay the processing tax under the taxing statute. Clearly this statute authorizes refunds to any processor who was obligated under the Agricultural Adjustment Act to pay the processing tax and can show that he did not pass the tax burden on to others. Sec. 902, 49 Stat. 1747. But, as far as it is pertinent here, the statute arranges the claims of taxpayers under the taxing statute into two classes and then applies separate enforcement procedures to each class of claims. The claims are classified as follows: (1) Processing tax refund claims, or claims of taxpayers who paid taxes upon the processing of commodities used in their own business; and (2) custom processing tax refund claims, or claims of taxpayers who paid taxes with respect to the processing of commodities for customers for a charge or fee. Sec. 902, 49 Stat. 1747; Sec. 913(b), 49 Stat. 1754; Art. 101(h), (i), (k), T. R. 96, promulgated under the Revenue Act of 1936. In this regard the Commissioner has provided that claims be filed on separate forms; claim (1) on P. T. Form 79; and claim (2) on P. T. Form 78. Sec. 903, 49 Stat. 1747; Arts. 501 and 601, T. R. 96. The enforcement procedures selected are as follows: for the enforcement of claim (1), from Commissioner to Board of Review to the appellate courts (Sec. 906, 49 Stat. 1748) ; for the enforcement of claim (2), from Commissioner to District Court or Court of Claims to the appellate courts (Secs. 904 and 905, 49 Stat. 1748). Conclusions. We have studied the statutes and now we can answer the problem. The taxing statute taxes the" }, { "docid": "8920592", "title": "", "text": "unconstitutional and void. United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. Thereafter Congress enacted Title VII, §§ 901-907 of the Revenue Act of 1936, 7 U.S.C.A. §§ 623 note, 644-649, providing for the refund of taxes which had been levied and collected under the Agricultural Adjustment Act. In order to prevent unjust enrichment by way of refund to anyone who, having paid the tax, had shifted the burden thereof to others, Congress imposed as a condition to refund that the claimant establish to the satisfaction of the Corn- missioner that he had borne the burden of the tax. The validity of this condition has been sustained. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143. The Baking Company filed with the Collector on June 28, 1937, upon the form prescribed by the Commissioner, a claim for refund for the amount of the processing tax which it had paid. The claim, which was filed timely (see § 903 of the Revenue Act of 1936), was based upon the claimant’s assertion that it had borne the entire burden of the tax. The Commissioner advised the claimant by letter that the evidence submitted by the claimant was insufficient to establish that it had borne the burden of the tax and that it would be necessary for the claimant to submit additional evidence. Thereafter the claimant submitted an analysis of costs for periods prior to and subsequent to the effective date of the tax and for periods during which the taxes were in effect. It does not appear that this analysis was under oath. However the Commissioner did not reject the additional evidence on that ground, for by letter acknowledging his receipt of the analysis he wrote the claimant that “This evidence is inadequate as it does not contain any information concerning the bakery products made or the prices charged for such products before or after the effective date of the floor stock tax, July 9, 1933.” After some further correspondence between the claimant and the Commissioner the latter on December" }, { "docid": "12979398", "title": "", "text": "the slaughtering of hogs for market.” Hog.Regulations, Series 1, effective November 5, 1933. Later the Department of Agriculture availed itself of Section 15(b) of the Act, 48 Stat. 39, and make two exceptions to the standard that the first domestic processing is the slaughtering of hogs. Hog Regulations, Series 1, No. 1, issued October 29, 1934. These exceptions exempted the “producer” or “feeder” who slaughtered his own hogs and sold the carcass to such transferees as butchers, packers, retailers, hotels and restaurants. In these instances the initial act of the transferee in preparing the carcass for use was held to constitute the “first domestic processing.” No other hog regulations were issued after October 29, 1934. These departmental regulations were further refined by Treasury Decisions and rulings issued by the Bureau of Internal Revenue. See Sec: 10(d), 48 Stat. 37, 7 U.S.C.A. § 610(d). Regulations are general rules only and often special problems have to be met. The effect of the regulations, Treasury Decisions and Bureau rulings is to give an exact statement of what is to be taxed, who is to be taxed and at what point in the processing operation the tax is to be imposed. Our exact factual situation, the case of the customs processor, soon came to the attention of the tax collectors. Who was liable for the tax— the customs slaughterer or his customer (pork packer) ? On May 14, 1934, the ruling was made that the customs slaughterer was the first domestic processor of the hogs in such a case and that he was liable for the processing tax. See Internal Revenue Bulletin, No. 20, p. 19, dated May 14, 1934; C.B. XIII-1, p. 451, January-June 1934. In the instant case the Government imposed the tax on C. A. Burnette Company (the customs slaughterer). Refund Statute. In 1936 the Agricultural Adjustment Act was held unconstitutional in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, and thereafter Congress enacted Title VII of the Revenue Act of 1936 which provided for a refund of the processing taxes. 49 Stat." }, { "docid": "12979389", "title": "", "text": "KERNER, Circuit Judge. Fuhrman & Forster Company (petitioner) filed a refund claim for sums alleged to have been paid as processing taxes under the Agricultural Adjustment Act, 48 Stat. 31, 7 U.S.C.A. § 601 et seq. The Commissioner of Internal Revenue rejected the claim on the ground that the amount sought to be recovered had not been paid by or collected from the petitioner under the Agricultural Adjustment Act. Petitioner then sought review of the disallowance in the United States Processing Tax Board of Review. There, upon motion of the Commissioner, the Board dismissed the petition for lack of jurisdiction. The case .is now before us on petition to review pursuant to Sec. 906(g) of the Revenue Act of 1936. 49 Stat. 1750, 7 U.S.C.A. Sec. 648. There are also three companion petitions — Nos. 7173, 7174 and 7175 — filed with this court, which present the identical problem before us in the instant case. Upon motion made and order duly entered, the decision in this case shall apply to and be held as controlling in the other three cases. The petitioner is engaged in the meat packing business and to the trade it is known as a “pork packer.” Except for killing floor facilities, its business with respect to cutting, curing, smoking, cooking, manufacturing sausage and other processing is virtually the same as other packers who operate their own abattoir. The petitioner purchased the hogs in the open market (from the producer or commission houses) and engaged the C. A. Burnette Company (a customs slaughterer) to kill the hogs at an agreed price per head. After the killing and chilling operations which are conducted under the supervision of the petitioner, the carcasses and viscera are transported to petitioner’s plant for the treatment above described. Counsel for petitioner states that the customs slaughterer is a “bailee for hire to do a specific job under a contract” and that “with respect to the larger meat packing companies who own and operate their own abattoir, the slaughter of hogs is the first of a series of processes in preparing the hogs for" }, { "docid": "12700453", "title": "", "text": "penalties or undue hardship. I am satisfied the plaintiffs have an adequate remedy at law, but, if this conclusion is erroneous, they are not entitled to relief for the additional reason which follows. At the time of the passage of the act here in question, the Congress was confronted with the problem of raising $620, 000,000 of additional revenue to pay the soldiers’ bonus, and make refundment of taxes unconstitutionally imposed. House Report No. 2475, 74th Congress, 2d Session, pp. 1-5. It was presumed when the Agricultural Adjustment Act was adopted that the excise taxes levied pursuant thereto would be passed on to the ultimate consumer. The first processor was required to pay the tax, but it would be immediately reflected in the retail price of the taxed article. The original act (chapter 25, 48 Stat. 31, see 7 U.S.C.A. c. 26, § 601 et seq.) provided that, where contracts of sale existed at the time of the effective date thereof, the purchaser thereunder was required to either pay the tax or make satisfactory adjustment with his vendor. Numerous other parts of the act provided for compensation to the original processor for the taxes borne by him. It would extend this opinion unnecessarily to enumerate them, but throughout the administration of the act provisions were made to avoid its weight falling on the processor and an examination of the price of taxed processed articles clearly shows the tax was reflected therein. The Congress was confronted with the problem of raising the additional revenue. The burden was to fall either on the general taxpayer or some special class, and, while justice is not a cardinal principle in taxation, Congress leaned on its side in selecting the class that profited most by the previous unconstitutional exercise of the taxing power. The processors had, before the Agricultural Adjustment Act was declared unconstitutional, enjoyed an increase in the price of the taxed articles and presumably their profits had been increased accordingly. In theory at least, if not in practice, all taxes enter into the ultimate cost of the taxed article and the Congress had" }, { "docid": "3302290", "title": "", "text": "BRENNAN, Chief Judge. The plaintiff seeks a money judgment which represents an alleged overpayment of income taxes in the amount of $5,301, paid by the plaintiff in accordance with its income tax return filed for the fiscal year ending October 31, 1940. The facts are undisputed, and will be briefly outlined. The plaintiff (hereinafter called “Durr”), has been engaged for a number of years in the processing of meat at Utica, New York. At all times referred to herein its books were kept and income tax returns were made upon an accrual basis. In 1933, 1934 and 1935, the plaintiff paid substantial processing taxes under the provisions of the Agricultural Adjustment Act of 1933, 7 U.S.C.A. § 601 et seq.- The sums so paid were claimed as deductions upon its income tax returns filed for such years. Such taxes were held to be invalid June 6, 1936. United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. On June 29, 1937, the plaintiff filed claims for refund of processing tax in the amount of $350,289.56, and for floor stocks taxes in the amount of $4,568.87. The claims were filed under the provisions of Title VII of the Revenue Act of 1936, § 901 et seq., 7 U.S.C.A. §§ 623 note, 644 et seq., which became effective on June 22, 1936, after conferences and negotiations, and on October 29, 1940, a check in the amount of $27,900, plus interest of about $10,000, was issued by the Treasury Department to the plaintiff in settlement of its claim for processing and floor 'stocks taxes paid by it during the years above mentioned. The -claim for floor stocks tax refund was apparently denied in- toto, and this litigation involves only the claim for refund of processing tax. The plaintiff had not accrued any sum -of money on account of said refund or claim upon its books or in its income tax returns prior to 1940, but did report the sum of $27,900 so refunded upon the taxpayer’s income tax return for the fiscal year ending -October 31, 1940." }, { "docid": "3302291", "title": "", "text": "tax in the amount of $350,289.56, and for floor stocks taxes in the amount of $4,568.87. The claims were filed under the provisions of Title VII of the Revenue Act of 1936, § 901 et seq., 7 U.S.C.A. §§ 623 note, 644 et seq., which became effective on June 22, 1936, after conferences and negotiations, and on October 29, 1940, a check in the amount of $27,900, plus interest of about $10,000, was issued by the Treasury Department to the plaintiff in settlement of its claim for processing and floor 'stocks taxes paid by it during the years above mentioned. The -claim for floor stocks tax refund was apparently denied in- toto, and this litigation involves only the claim for refund of processing tax. The plaintiff had not accrued any sum -of money on account of said refund or claim upon its books or in its income tax returns prior to 1940, but did report the sum of $27,900 so refunded upon the taxpayer’s income tax return for the fiscal year ending -October 31, 1940. The tax thereon was paid, and on November 9, 1943, the plaintiff filed a claim for refund in the amount of $5,301, 'Claiming in substance that it was a mistake or error to include the above item of $27,900 in its 1940 tax return, but that it did in fact accrue in the ¡ fiscal year 1936. It appears that in 1936,; the income tax return filed by the plaintiff resulted in no tax being imposed, and, even if the sum of $27,900 had been accrued and reported in .that year, no tax would be pay able. The claim for refund was denied and this action followed. Plaintiff contends that having kept its books upon an accrual basis, the refund of $27,900 in fact and in law accrued in the year 1936, by reason of the Supreme Court decision above referred to, and the subsequent passage of Title VII of the Revenue Act of 1936, which in substance provides for and limits the right to the repayment of the invalid tax above referred to. Its" }, { "docid": "2708887", "title": "", "text": "HICKS, Circuit Judge. Petition to review an order of the United States Processing Tax Board of Review, dismissing a petition for the determination upon its merits of a claim for refund of $177.45 taxes paid upon the processing of hogs, under the provisions of the Agricultural Act declared invalid January 19, 1936, in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, the claim having been disallowed by the Commissioner of Internal Revenue. According to the petition, taxes were paid during the period from September 1933 to December 1935. The refund claim was filed under the provisions of Title VII of the Revenue Act of 1936, Secs. 901-917, Ch. 690, 49 Stat. 1648, 7 U.S.C.A. §§ 623 note, 644 — 659, which authorized refunds of amounts so collected under certain conditions and limitations and prescribed the procedure to be followed. The Commissioner disallowed the claim upon the ground, that it contained no allegation or evidence that petitioner had borne the burden of the tax and had not shifted it to others; and that it afforded no basis for a determination of the incidence of the tax and failed to conform to the provisions of Sections 902 and 903 of the statute. In its petition to the Board the petitioner not only took issue with the rulings of the Commissioner but insisted that the Corn-missioner erred in not holding that Sections 902 and 903 of Title VII of the Revenue Act of 1936 were unconstitutional in so far as they purported to condition refund upon proof that the taxpayer had borne the burden of the tax. The Board dismissed the petition upon the ground that the refund claim failed to comply with the provisions of the Act here involved and of the Treasury Regulations .promulgated thereunder. Our question is, whether the order of dismissal was justified. It is provided by Sec. 902 that before the claimant is entitled to any refund he is required to establish to the satisfaction of the Commissioner in accordance with the prescribed regulations, or to the satisfaction of the" }, { "docid": "12979391", "title": "", "text": "market.” Petitioner paid the processing taxes for November and December of 1933, amounting to $13,711.23, directly to the Collector of Internal Revenue. Later the Collector returned the payments with instructions to pay the C. A. Burnette Company. Thereafter the Collector demanded payment of and received the tax from C. A. Burnette Company. From that time on C. A. Bur-nette Company sent the petitioner invoices for the killing charge and separate notices of the processing taxes on hogs slaughtered. In lurn the petitioner paid C. A. Burnette Company the killing fee and processing tax by separate checks, and recorded the disbursements on its records as processing taxes paid. The money collected from the petitioner was actually used by C. A. Bur-nette Company for the payment of the processing taxes. The only exception to this method of payment appears to be the payment by the petitioner of $2,589.13 directly to tlje Collector on July 1, 1935. Although the petitioner has filed a refund claim for $260,075.15 (the amount of processing taxes paid as above described), the petition indicates that it bore the burden only to the extent of $18,126.43. In the instant case counsel contends that petitioner was the processor within the in-tendment of the Agricultural Adjustment Act (48 Stat. 31), and that it ought not to be denied the right to a refund because it was compelled to pay the tax to the slaughterer. On the other hand counsel for the Commissioner contends that the slaughterer was the taxpayer under Title VIT of the Revenue Act of 1936, 49 Stat. 1747, 7 U.S.C.A. § 623 note, 644 et seq. The main question here involved is whether the petitioner was the processor who was obligated to pay the processing tax under the statute. The Taxing Statute. The Agricultural Adjustment Act was enacted in 1933 and the pertinent provisions for purpose of discussion herein are: (1) The Act imposed the processing tax upon the “first domestic processing” of the commodity and provided that the tax “shall be paid by the processor.” 48 Stat. 35, 7 U.S.C.A. § 609 (a). (2) It also provided" }, { "docid": "8958082", "title": "", "text": "of 1936 forbids the institution of or maintenance of such suits and that Congress has by its legislation placed suits for drawback of taxes upon exportation in the same class as suits brought to recover taxes wrongfully collected under an invalid act. He relies, first, upon section 601(b) of the act (7 U.S.C.A. § 641(b), in part as follows: “Except for refunds under section 15(a) of the Agricultural Adjustment Act, [615(a) of this title] as reenacted herein, no refund under this section shall be made to the processor or other person who paid or was liable for the tax with respect to the articles on which the claim is based.” This language, it is insisted, constitutes a specific prohibition of such suits as the one before us. But it is to be observed that in subsection (a) of the same section, Congress expressly re-enacted section 17 allowing the drawback recovery, to the ex;tent necessary for “the purpose of allowing refunds in accordance therewith in cases where * * * the exportation * * * took place prior to January 6, 1936.” To our minds it could not have been the intent to provide specifically in subsection (a) for preservation of the remedy for drawback in case of exportation and then immediately following, by subsection (b), to provide that the remedy specifically recognized by subsectiqn (a) was abolished. Rather, we believe, reconciling the two sections, it was the intent, by subsection (b), to deal only with refunds governed by the new legislation, of taxes illegally collected under an invalid statute. The words “refund under this section” must have been intended to refer to the new remedy created by title 7 of the Revenue Act of 1936 (section 902 et seq. [7 U.S.C.A. § 644 et seq.]), covering procedure for the recovery of taxes illegally collected. Any other interpretation nullifies entirely subsection (a), which reenacts section 17 for the purpose of allowing refunds in case of exportation. House committee report No. 2475, 74th Congress, 2d Session, pp. 13, 14, in discussing the proposed act, said that it was the intent to preserve" }, { "docid": "9824546", "title": "", "text": "wholly without merit. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; United States v. Jefferson Electric Co., 291 U.S. 386, 54 S.Ct. 443, 78 L.Ed. 859; Burnet v. Houston, 283 U.S. 223, 228, 51 S.Ct. 413, 75 L.Ed. 991. The order of the Board of Review is affirmed. Art. 201. Claims — Form and where to file. — Claims for the refund of tax shall be made on the prescribed forms. Such claims shall be prepared in accordance with the instructions contained on the forms and in accordance with the provisions of these regulations. * * *. Art. 202. Facts and evidence in support of claim. — Each claim shall set forth in detail and under oath each ground upon which the refund is claimed. It is incumbent upon the claimant to prepare a true and complete claim and to substantiate by clear and convincing evidence all of the facts necessary to establish his claim to th¿ satisfaction of the Commissioner ; failure to do so will result in the disallowance of the claim. The provisions of these regulations require that certain specific facts shall be stated in support of any claim for refund. The claimant is privileged to prove those facts in any manner available to him and to submit such evidence to that end as he may desire. Art. 601. Claim form prescribed.— Claims for refund of amounts paid as processing tax (as defined in section 913(b) of the Act [7 U.S.C.A. § 655(b)]) shall be filed on P. T. Form 79. * * *. Art. 603. Payment of taw. — The claimant shall set forth in the claim complete data with respect to the amount of processing tax which he has paid on the processing of the commodity. (Detailed instructions follow). Art. 605. Evidence as to Margins.— Section 907 of the Act (c. 690, 49 Stat. 1751, 7 U.S.C.A. § 649) provides that in claims for refund of amounts paid as processing tax it shall be prima facie evidence that the burden of such amount was borne by the claimant to" } ]

[ { "docid": "22139206", "title": "", "text": "as a private remedy for Title VI violations, at least in the absence of proof of intentional discrimination. In view of the foregoing, it is apparent to me that the only proper Title VI relief granted by the District Court is the order directing the respondents to take actions and make disclosures intended to insure that future hiring practices will be nondiscriminatory and valid. However, this relief is wholly sustainable under the District Court’s findings and conclusions with respect to petitioners’ Title VII claim, and all members of the class will fully benefit from it. There is thus no need to disturb the judgment of the Court of Appeals. I — I > In conclusion, for the reasons expressed above, I am convinced that discriminatory intent is not an essential element of a Title VI violation, but that a private plaintiff should recover only injunctive, noncompensatory relief for a defendant’s unintentional violations of Title VI. Such relief should not include an award of constructive seniority. Albeit on different grounds, the judgment below is Affirmed,. Section 601 of the Act, 78 Stat. 252, 42 U. S. C. § 2000d, provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The five of us reach the conclusion that the Court of Appeals erred by different routes. Justice Stevens, joined by Justice Brennan and Justice Blackmun, reasons that, although Title VI itself requires proof of discriminatory intent, the administrative regulations incorporating a disparate-impact standard are valid. Post, at 642-645. Justice Marshall would hold that, under Title VI itself, proof of disparate-impact discrimination is all that is necessary. Post, at 623. I agree with Justice Marshall that discriminatory animus is not an essential element of a violation of Title VI. I also believe that the regulations are valid, even assuming, arguendo, that Title VI, in and of itself, does not proscribe disparate-impact discrimination. Part II, infra. The class representatives are The Guardians Association" } ]

[ { "docid": "430812", "title": "", "text": "eligible to play on a reinstated team. We agree with- the district court that CSU fails the third prong of effective accommodation test. E Finally, defendant argues that the district court erred in holding that plaintiffs were not required to show discriminatory intent. Defendant reasons that because Title IX was modeled on Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to -4a, and because discriminatory intent is required to prove a violation of Title VI, see Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 608 n. 1, 103 S.Ct. 3221, 3235 n. 1, 77 L.Ed.2d 866 (1983) (Powell, J., concurring), proof of a Title IX violation must therefore also require intentional discrimination. Defendants neglect to consider the additional holding of Guardians, that “although Title VI itself requires proof of discriminatory intent, the administrative regulations [under Title VI] incorporating a disparate-impact standard are valid.” Id. at 584 n. 2, 103 S.Ct. at 3223 n. 2 (opinion of White, J.). Plaintiffs’ complaint alleges violations both of Title IX and of the implementing regulations. If we accept defendant’s analogy to Title VI, then Guardians would permit us to find a violation of Title IX’s regulations without proof of discriminatory intent. See Haffer v. Temple Univ., 678 F.Supp. 517, 539-40 (E.D.Pa.1987), modified, 1988 WL 3845, 1988 U.S.Dist. LEXIS 761. Further, despite the fact that Title IX was explicitly modeled on Title VI, this court has held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to -17, is “the most appropriate analogue when defining Title IX’s substantive standards, including the question of whether ‘disparate impact’ is sufficient to establish discrimination under Title IX.” Mabry v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d 311, 316 n. 6 (10th Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987). Because it is well settled that Title VII does not require proof of overt discrimination, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); 42 U.S.C. § 2000e-2(k), the district court did not err" }, { "docid": "17471252", "title": "", "text": "Title VI of the Civil Rights Act of 1964,” Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), we believe that the standard adopted for Title VI actions in Guardians Ass’n should be required in Title IX cases. In so doing, we admit that we would have been more comfortable had the personal philosophical observations of the several justices in Guardians Ass’n been distilled somehow to offer, if not clear guidance, at least some guidance as to the quantum of proof required. In Guardians, the “threshold issue before the Court [was] whether ... private plaintiffs ... need to prove discriminatory intent to establish a violation of Title VI ... and administrative implementing regulations promulgated thereunder.” Id. 463 U.S. at 584, 103 S.Ct. at 3223. A majority of the Court agreed that a violation of the statute itself requires proof of discriminatory intent. A different majority seemed to suggest that proof of discriminatory effect suffices to establish liability when suit is brought to enforce the regulations rather than the statute itself. See id. at 607 n. 27, 103 S.Ct. at 3235 n. 27 (opinion of White, J.); id. at 608 n. 1, 103 S.Ct. at 3235 n. 1 (opinion of Powell, J., concurring). However, Justice White, in a final footnote, concluded that “no compensatory relief should be awarded if discriminatory animus is not shown.” Id. at 607 n. 27, 103 S.Ct. at 3235 n. 27 (opinion of White, J.). In any event, we need not meet this problem because the gravamen of Pfeiffer’s complaint is that she was intentionally discriminated against in violation of Title IX and its implementing regulations. This is, therefore, not a case of discriminatory effect, but one of discriminatory intention. In her complaint she alleged that the defendants “conspired to deprive [her] of her constitutional rights.” Complaint at 11; App. at 20. Because an intentional violation has been alleged, we find it unnecessary to enter into the quagmire created by the Supreme Court’s fragmented opinions in Guardians Ass’n. See, e.g., Haffer v. Temple Univ., 678 F.Supp. 517, 540 (E.D. Pa.1987) (“plaintiffs" }, { "docid": "17471251", "title": "", "text": "Gwinnett County Pub. Schools, 911 F.2d 617 (11th Cir.1990) (compensatory damages are not recoverable under either Title VI or Title IX based on Fifth Circuit precedent); Cannon v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351 (7th Cir.1983) (case law precluded claim for damages under Title IX); Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir.1981) (damages unavailable under Title IX), cert. denied, 456 U.S. 937, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). However, we believe that it is to the Supreme Court that we must look for guidance, and our reading of Guardians Ass’n, supra, and its progeny, persuades us that Title IX includes a remedy of compensatory damages. In so doing, we follow the analysis of Judge Lord in Haffer v. Temple Univ., 678 F.Supp. 517 (E.D.Pa.1987) and Chief Judge Nealon in Beehler v. Jeffes, 664 F.Supp. 931 (M.D.Pa. 1986). D. Neither the Supreme Court nor this court has decided specifically whether intent is a necessary element of a Title IX claim. However, recognizing that “Title IX was patterned after Title VI of the Civil Rights Act of 1964,” Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), we believe that the standard adopted for Title VI actions in Guardians Ass’n should be required in Title IX cases. In so doing, we admit that we would have been more comfortable had the personal philosophical observations of the several justices in Guardians Ass’n been distilled somehow to offer, if not clear guidance, at least some guidance as to the quantum of proof required. In Guardians, the “threshold issue before the Court [was] whether ... private plaintiffs ... need to prove discriminatory intent to establish a violation of Title VI ... and administrative implementing regulations promulgated thereunder.” Id. 463 U.S. at 584, 103 S.Ct. at 3223. A majority of the Court agreed that a violation of the statute itself requires proof of discriminatory intent. A different majority seemed to suggest that proof of discriminatory effect suffices to establish liability when suit is brought to enforce the regulations rather than the statute" }, { "docid": "8536623", "title": "", "text": "procedure — to serve at-risk students and to admit a broad cross-section of the community— is inadequate to lead us to a different conclusion than that of the district court. Because the district court correctly found that the Board did not intentionally discriminate against Hispanic parents, we hold that it properly found for the appellees with respect to the Parents’ equal protection claims. B. Discriminatory Impact The Parents also argue that the school closures and the implementation of the PSAS admissions procedure violated their right under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4a, to be free from discrimination “under any program or activity receiving Federal financial assistance,” id. § 2000d. Although Title VI itself proscribes only intentional discrimination, certain regulations promulgated pursuant to Title YI prohibit actions that have a disparate impact on groups protected by the act, even in the absence of discriminatory intent. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 584 n. 2, 103 S.Ct. 3221, 3223 n. 2, 77 L.Ed.2d 866 (1983). The district court found that the Parents had failed to demonstrate that the school closures would have a. discriminatory impact on Hispanic students. The proper standard of review of such a determination concerning disparate impact depends upon the basis of the alleged error. When the district court allegedly has used the wrong groups as the basis of a statistical comparison, we have employed plenary review. See Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1244 n. 29 (10th Cir.1991). By contrast, when the dispute involves “[u]nderly ing factual findings” the disparate impact determination of the district court is undisturbed unless clearly erroneous. See id. Here the Parents do not allege any error in the district court’s method of analysis. In fact, they did not assert a traditional disparate impact claim, which would have involved a comparison of the statistical impact of the Board’s decisions on the class allegedly harmed, i.e. Hispanics, relative to a relevant comparison group. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992, 108 S.Ct. 2777, 2787, 101 L.Ed.2d" }, { "docid": "17471250", "title": "", "text": "cases involving Title IX and its statutory predecessor, Title VI. In Guardians Ass’n v. Civil Service Comm’n of N.Y. City, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), a majority of the Court found that compensatory relief based on past violations of conditions regulating use of federal funds is available for Title VI violations when intentional discrimination is present. Id. at 602-03, 103 S.Ct. at 3232-33; see also 463 U.S. at 606-07, 103 S.Ct. at 3234-35 (White, J., announcing judgment of the Court, joined by Rehnquist, J.); id. at 610-11, 103 S.Ct. at 3237 (Powell, J., concurring, joined by Burger, C.J., and Rehnquist J.); id. at 615, 103 S.Ct. at 3238 (O’Connor, J., concurring). Tracking this analysis to a Title IX claim, we now conclude, not without some difficulty, that compensatory relief is available ' for certain Title IX violations and that this is one of them. C. We recognize that our decision here puts us in conflict with the Courts of Appeals of both the Seventh and Eleventh Circuits. See Franklin v. Gwinnett County Pub. Schools, 911 F.2d 617 (11th Cir.1990) (compensatory damages are not recoverable under either Title VI or Title IX based on Fifth Circuit precedent); Cannon v. University of Health Sciences/The Chicago Medical School, 710 F.2d 351 (7th Cir.1983) (case law precluded claim for damages under Title IX); Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir.1981) (damages unavailable under Title IX), cert. denied, 456 U.S. 937, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). However, we believe that it is to the Supreme Court that we must look for guidance, and our reading of Guardians Ass’n, supra, and its progeny, persuades us that Title IX includes a remedy of compensatory damages. In so doing, we follow the analysis of Judge Lord in Haffer v. Temple Univ., 678 F.Supp. 517 (E.D.Pa.1987) and Chief Judge Nealon in Beehler v. Jeffes, 664 F.Supp. 931 (M.D.Pa. 1986). D. Neither the Supreme Court nor this court has decided specifically whether intent is a necessary element of a Title IX claim. However, recognizing that “Title IX was patterned after" }, { "docid": "874769", "title": "", "text": "D.C.Code. As with the issue of obstetrical and gynecological care at CTF, the Court considers this issue pursuant to it pendent jurisdiction over D.C.Code claims arising out of the same nucleus of operative fact. Financial General Bankshares, Inc. v. Metzger, 680 F.2d 768, 769 (D.C.Cir.1982). . The Defendants concede that they receive federal funding. (Defs. Answer to Int. No. 2.) . Senator Bayh's intentions were made clear the previous year when he introduced similar legislation and stated: “What we are trying to do is provide equal access for women and men students to the educational process....” 117 Cong.Rec. 30407 (1971) (emphasis added), and “the bill ... seeks to assure complete equality of access to educational opportunity.\" 117 Cong. Rec. 30412 (1971) (emphasis added). The Senate never voted on this measure because it was ruled nongermane. 117 Cong.Rec. 30415 (1971). . Under Title Vi's implementing regulations, proof of discriminatory effect suffices to establish liability. See Guardians Ass'n v. Civil Service Comm’n, 463 U.S. 582, 584 n. 2, 103 S.Ct. 3221, 3223 n. 2, 77 L.Ed.2d 866 (1983) (opinion of White, J.). Some courts conclude that discriminatory intent is equally unnecessary for a violation of Title IX’s regulations. See Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 832-33 (10th Cir.1993); Haffer v. Temple University, 678 F.Supp. 517, 539-40 (E.D.Pa.1987). A review of Title IX's implementing regulations demonstrates an emphasis on the \"effects” and \"impact” of a defendant’s policies. The Court finds no requirement of intent in the regulations. See 34 C.F.R. §§ 106.21(b)(2) (prohibits tests for admission which have disproportionately adverse effect, unless test is valid predictor), 106.22 (no admission preference for graduates of single sex schools if preference has discriminatory effect), 106.23(b) (no recruitment primarily at single sex schools if it has discriminatory effect), 106.34(d) (prohibits physical education skill standard which has adverse effect on one sex), 106.37(b) (prohibits award of sex-restricted forms of financial assistance which have overall effect of sexual discrimination), 106.52 (prohibits any employment criterion which has disproportionate adverse impact unless it validly predicts successful performance), 106.53(b) (prohibits recruitment at entities which furnish job applicants of" }, { "docid": "4058628", "title": "", "text": "1956-57. Under Title VI, \"no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. In Guardians Association v. Civil Service Commission of New York, 463 U.S. 582, 610-11, 103 S.Ct. 3221, 3236-37, 77 L.Ed.2d 866 (1983), the Supreme Court held, without a majority opinion, that Title VI plaintiffs must prove discriminatory intent on the part of a defendant in order to obtain damages under that statute. That decision also strongly suggested that Title VI, the statute upon which Title IX is based, was enacted pursuant to the Spending Clause. See 463 U.S. at 598, 103 S.Ct. at 3230 (“I note first that Title VI is spending-power legislation”) (White, J., plurality opinion). For this reason, this Court assumes, absent direction to the contrary from the Ninth Circuit or the Supreme Court, that Title IX was likewise enacted pursuant to the Spending Clause. See Doe, 830 F.Supp. at 1574 n. 9. . As the Doe court has explained, the reasoning of Franklin compels the conclusion that a finding that a student’s rights under Title IX have been violated in the peer harassment context requires a determination that at least one defendant official has affirmatively discriminated against that student on the basis of gender: [Franklin ] requirefs] that discriminatory intent be shown before damages are recoverable.... The court holds that no damages may be obtained under Title IX (merely) for a school district's failure to take appropriate action in response to complaints of student-to-student sexual harassment. Rather, the school district must be found to have intentionally discriminated against the plaintiff student on the basis of sex. The school's failure to take appropriate action, as alleged in plaintiff's complaint, could be circumstantial evidence of intent to discriminate. 830 F.Supp. at 1576; see also Houston v. Mile High Adventist Academy, 846 F.Supp. 1449, 1457 (D.Colo.1994) (citing Franklin and holding, in case in which plaintiff student claimed that she had been subjected to" }, { "docid": "3504371", "title": "", "text": "necessary element of a Title IX claim. However, recognizing that “Title IX was patterned after Title VI of the Civil Rights Act of 1964,” Grove City, 465 U.S. at 566, 104 S.Ct. at 1218, defendants urge me to adopt the intent standard adopted for Title VI actions in Guardians Ass’n v. Civil Service Commission, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). In Guardians, the “threshold issue before the court [was] whether ... private plaintiffs need to prove discriminatory intent to establish a violation of Title VI ... and administrative implementing regulations promulgated thereunder.” Id. at 584,103 S.Ct. at 2323. A majority of the Court agreed that a violation of the statute itself requires proof of discriminatory intent. However, a different majority agreed that proof of discriminatory effect suffices to establish liability when suit is brought to enforce the regulations rather than the statute itself. See id. at 607 n. 27, 103 S.Ct. at 3235 n. 27 (opinion of White, J.); id. at 608 n. 1, 103 S.Ct. at 3235 n. 1 (opinion of Powell, J., concurring). See also Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985); Latinos Unidos de Chelsea v. Secretary of Housing, 799 F.2d 774, 785 n. 20 (1st Cir.1986); Larry P. by Lucille P. v. Riles, 793 F.2d 969, 981-82 (9th Cir.1984). Plaintiffs’ complaint explicitly alleges violations of both Title IX and the implementing regulations. See amended complaint at 4, 45-47. The Title IX regulations, like the Title VI regulations at issue in Guardians, do not explicitly impose an intent requirement. As there is no reason that a Title IX plaintiff should have a higher burden of proof than a Title VI plaintiff, see, e.g., Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (interpretation of Title IX dependent upon interpretation of Title VI); Chowdhury v. Reading Hospital & Medical Center, 677 F.2d 317 (3d Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1411 (1983) (courts have “consistently held” language of Title IX cases applicable to Title VI" }, { "docid": "3504372", "title": "", "text": "of Powell, J., concurring). See also Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985); Latinos Unidos de Chelsea v. Secretary of Housing, 799 F.2d 774, 785 n. 20 (1st Cir.1986); Larry P. by Lucille P. v. Riles, 793 F.2d 969, 981-82 (9th Cir.1984). Plaintiffs’ complaint explicitly alleges violations of both Title IX and the implementing regulations. See amended complaint at 4, 45-47. The Title IX regulations, like the Title VI regulations at issue in Guardians, do not explicitly impose an intent requirement. As there is no reason that a Title IX plaintiff should have a higher burden of proof than a Title VI plaintiff, see, e.g., Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (interpretation of Title IX dependent upon interpretation of Title VI); Chowdhury v. Reading Hospital & Medical Center, 677 F.2d 317 (3d Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1411 (1983) (courts have “consistently held” language of Title IX cases applicable to Title VI cases), I hold that plaintiffs need not prove discriminatory intent to succeed on their claim. Plaintiffs have also alleged that Temple discriminates in the allocation of book loans, an aspect of financial aid. In recent years, approximately one-third of the student athletes receiving book awards have been women. Moreover, women did not receive such awards before the 1981-82 school year. Temple has introduced evidence that the Association for Intercollegiate Athletics for Women (“AIAW\"), the body that regulated Temple’s women’s sports teams, “prohibited the award of a book loan” to women student athletes. Affidavit of Eve Atkinson at 2. Plaintiffs have introduced evidence that AIAW rules explicitly permitted book loans to women. Plaintiff’s memorandum, Exhibit B (affirmation of AIAW past president). Summary judgment is inappropriate on this claim. Plaintiffs Motion to Exclude Evidence Plaintiffs move to strike the expert reports of Drs. Degnan and Siskin. Both reports include statistical analyses of financial aid, expenditure and revenue data, coach assignments, and the competitive performance of the various Temple teams. Plaintiffs argue that these reports should be precluded" }, { "docid": "15263665", "title": "", "text": "whether the [Section 602] regulations and guidelines promulgated by HEW go beyond the authority of Section 601”). Five Justices in Guardians reaffirmed this holding of Lau Guardians also involved a private suit by black and Hispanic police officers alleging, inter alia, that their department’s lay-off policy violated Title VI. In a plurality opinion, five Justices endorsed the view that Section 602 implementing regulations could support declaratory or injunctive relief for private plaintiffs under Title VI. See Alexander, 469 U.S. at 293, 105 S.Ct. 712; Guardians, 463 U.S. at 584, 103 S.Ct. 3221 (White, J.); id. at 615, 103 S.Ct. 3221 (Marshall, J.); id. at 641-45, 103 S.Ct. 3221 (Stevens, Brennan, Blackmun, JJ.). While the Justices did not explicitly address whether an implied private right of action existed under Section 602, their analysis strongly supports recognizing such a right. All five of the plurality members would allow private plaintiffs to sue for injunctive or declaratory relief on the basis of Section 602 disparate impact regulations that prohibit recipients of federal funds from enforcing policies with discriminatory effects on protected minority groups. See id. at 584, 589-93, 103 S.Ct. 3221 (White, J.); id. at 615, 103 S.Ct. 3221 (Marshall, J.); id. at 641-45, 103 S.Ct. 3221 (Stevens, Brennan, Blackmun, JJ.). Moreover, the agency regulations supporting this private cause of action are promulgated under the authority of Section 602 of Title VI to “effectuate” the statute’s purposes as outlined in Section 601. See 42 U.S.C. § 2000d-1. Finally, this inference also draws support from the language of the plurality opinions. In announcing the decision, Justice White explained: the threshold issue before the Court is whether the private plaintiffs in this case need to prove discriminatory intent to establish a violation of Title VI of the Civil Rights Act of 1961, and administrative implementing regulations promulgated thereunder. I conclude, as do four other Justices, in separate opinions, that the Court of Appeals erred in requiring proof of discriminatory intent. However, I conclude that the judgment below should be affirmed on other grounds, because, in the absence of discriminatory animus, compensatory relief should not be" }, { "docid": "4010315", "title": "", "text": "of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), we find it clear that Drayden constituted this circuit’s view on the matter of compensatory damages under Titles VI and IX prior to Guardians Association, a case to which we now turn. In Guardians Association, petitioners black and Hispanic police officers of the City of New York, brought a class action lawsuit against the Civil Service Commission alleging their layoffs constituted civil rights violations under, inter alia, Title VI. The district court awarded constructive seniority, with monetary and nonmonetary entitlements, and certain other relief. The court of appeals reversed on the issue of damages, holding that intentional discrimination — which had not been found by the trial court — was required for relief under Title VI. A fragmented Supreme Court affirmed the judgment of the court of appeals. A fair reading of the various opinions discloses that a majority of Justices agreed that discriminatory intent is not a prerequisite to relief under Title VI, see Guardians Association, 463 U.S. at 584 & n. 2, 103 S.Ct. at 3223 & n. 2 (opinion of White, J.), but that “at least five justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminatory intent.” Manecke v. School Bd. of Pinellas County, Fla., 762 F.2d 912, 922 n. 8 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986). At the outset, we concede some difficulty in application of Guardians Association to the instant dispute, given the various opinions therein. In this regard, we note the comments of Justice Powell that the Court’s several “opinions [in Guardians Association] ... will further confuse rather than guide.” 463 U.S. at 608, 103 S.Ct. at 3235. And though Guardians Association has been described as “a badly fragmented decision,” see id., we nevertheless have looked to it for guidance. In announcing the judgment of the Guardians Association Court, Justice White concocted an opinion which only Justice Rehnquist joined. Noting that there had been no showing of intentional discrimination, Justice White “put aside” the question of damages in" }, { "docid": "811190", "title": "", "text": "3235-37 (Powell, J, concurring) but expressed no opinion on the issue of the remedies available to private plaintiffs, assuming the existence of a cause of action. From the various opinions in Guardians Association it is clear that at least four members of the Court believe that private plaintiffs should be able to recover damages for all violations of Title VI and accompanying regulations, while at least two other justices believe that damages should be awarded only upon a showing of an intentional violation. Thus, all six members of the Court who have addressed the issue believe that plaintiffs can recover damages for intentional violations of Title VI. This court is aware of pre-Guardians Association precedent in this circuit suggesting that plaintiffs here have no cause of action for damages, even upon proof of an intentional violation. In Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir.1981), cert, denied, 456 U.S. 937, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982), the court held plaintiff had no right to monetary relief for a violation of the sex discrimination provision of Title IX. Justice White cited Lieberman in his Guardians Association opinion for the general proposition that damages were inappropriate in Title VI actions. 103 S.Ct. at 3232, n. 23. As noted above, however, he then narrowed the application of this no-damages principle to cases where the discrimination was unintentional. We need not decide at this point whether Guardians Association supersedes Lieberman in cases where there has been an intentional violation of non-discrimination provisions. . The non-discrimination language of the funding agreements which were used in the spring of 1980 provided: Nondiscrimination The Trustee has complied and will continue to comply, to the extent required to do so by law, with— (a) Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d et seq (hereinafter in this paragraph referred to as the \"Civil Rights Act”), (b) all requirements imposed by or pursuant to 49 C.F.R. Part 21, (2) any regulations which may be issued by the Administrator in compliance with Department of Transportation Order No. 1000.12, and (d)" }, { "docid": "3504370", "title": "", "text": "relevant background evidence in a proceeding in which the status of a current practice is at issue.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Cf. McCleskey v. Kemp, — U.S. -, - n. 20, 107 S.Ct. 1756, 1770 n. 20, 95 L.Ed.2d 262 (1987) (rejecting petitioner’s attempt to rely on Civil War era laws as historical evidence of discriminatory intent, and noting that “unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value.”) Even if the only relevant figures were those for the last three years, summary judgment would be inappropriate. There is a genuine issue of material fact over whether Temple unconstitutionally limits women’s participation rates in intercollegiate athletics. If the participation figures result from unlawful discrimination, then they cannot justify summary judgment on plaintiff’s Title IX claim. Finally, Temple argues that plaintiffs must prove discriminatory intent to succeed on their Title IX claim. Neither the Supreme Court nor the third circuit has decided whether intent is a necessary element of a Title IX claim. However, recognizing that “Title IX was patterned after Title VI of the Civil Rights Act of 1964,” Grove City, 465 U.S. at 566, 104 S.Ct. at 1218, defendants urge me to adopt the intent standard adopted for Title VI actions in Guardians Ass’n v. Civil Service Commission, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). In Guardians, the “threshold issue before the court [was] whether ... private plaintiffs need to prove discriminatory intent to establish a violation of Title VI ... and administrative implementing regulations promulgated thereunder.” Id. at 584,103 S.Ct. at 2323. A majority of the Court agreed that a violation of the statute itself requires proof of discriminatory intent. However, a different majority agreed that proof of discriminatory effect suffices to establish liability when suit is brought to enforce the regulations rather than the statute itself. See id. at 607 n. 27, 103 S.Ct. at 3235 n. 27 (opinion of White, J.); id. at 608 n. 1, 103 S.Ct. at 3235 n. 1 (opinion" }, { "docid": "430811", "title": "", "text": "than female athletes at CSU. The First Circuit rejected this position in Cohen,' and so do we. “[T]his benchmark sets a high standard: it demands not merely some accommodation, but full and effective accommodation. If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this prong of the test.” Id. at 898. Based on the district court’s subsidiary findings of fact, we conclude that plaintiffs met the burden of showing that CSU has not accommodated their interests and abilities fully and effectively. Questions of fact under this third prong will be less vexing when plaintiffs seek the reinstatement of an established team rather than the creation of a new one. Here, plaintiffs were members of a successful varsity softball team that played a competitive schedule as recently as the spring of 1992. Although apparently four .plaintiffs have transferred and one has been dismissed, seven or eight plaintiffs remain at CSU for at least part of the 1993-94 school year and would be eligible to play on a reinstated team. We agree with- the district court that CSU fails the third prong of effective accommodation test. E Finally, defendant argues that the district court erred in holding that plaintiffs were not required to show discriminatory intent. Defendant reasons that because Title IX was modeled on Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to -4a, and because discriminatory intent is required to prove a violation of Title VI, see Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 608 n. 1, 103 S.Ct. 3221, 3235 n. 1, 77 L.Ed.2d 866 (1983) (Powell, J., concurring), proof of a Title IX violation must therefore also require intentional discrimination. Defendants neglect to consider the additional holding of Guardians, that “although Title VI itself requires proof of discriminatory intent, the administrative regulations [under Title VI] incorporating a disparate-impact standard are valid.” Id. at 584 n. 2, 103 S.Ct. at 3223 n. 2 (opinion of White, J.). Plaintiffs’ complaint alleges violations both of Title IX and of the" }, { "docid": "1757030", "title": "", "text": "Title VI provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Both statutes also utilize a similar “administrative mechanism” to terminate financial assistance to recipients “engaged in prohibited discrimination”. Cannon, 441 U.S. at 695-96, 99 S.Ct. at 1957. Moreover, our court recently described Title VI as the “model” for Title IX. Rowinsky, 80 F.3d at 1012 n. 14. And, in Chance v. Rice University, 984 F.2d 151, 153 (5th Cir.), reh’g denied, 989 F.2d 179 (5th Cir.1993), a district court’s application of Title VI standards to a Title IX claim was not held erroneous. Chance, however, involved a claim of discrimination in the promotion and compensation of professors at a university, not teacher-student sexual abuse; furthermore, an imputed liability standard was not at issue. 984 F.2d at 152. To receive compensatory damages, a Title VI plaintiff must prove discriminatory intent. Guardians Ass’n v. Civil Serv. Comm’n of the City of New York, 463 U.S. 582, 584, 103 S.Ct. 3221, 3223, 77 L.Ed.2d 866 (1983); id. at 608 n. 1, 103 S.Ct. at 3235 n. 1 (Powell, J., concurring); see Franklin, 503 U.S. at 70, 112 S.Ct. at 1035. Consequently, CISD asserts that it cannot be liable absent proof that it actually participated in Perales’ discriminatory conduct. See, e.g., Seamons v. Snow, 864 F.Supp. 1111, 1117 (D.Utah 1994), aff'd in part and rev’d in part, 84 F.3d 1226 (10th Cir.1996); R.L.R. v. Prague Pub. Sch. Dist. I-103, 838 F.Supp. 1526, 1534 (W.D.Okla.1993). b. Leija also disclaims the district court’s strict liability/limited damages approach. Leija asserts that Title VII liability principles should govern instead. The basis for this approach is the Franklin Court’s reliance on Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), a Title VII case, in stating that [Unquestionably, Title IX placed on the Gwinnett County Schools the duty not to discriminate on the basis of" }, { "docid": "430813", "title": "", "text": "implementing regulations. If we accept defendant’s analogy to Title VI, then Guardians would permit us to find a violation of Title IX’s regulations without proof of discriminatory intent. See Haffer v. Temple Univ., 678 F.Supp. 517, 539-40 (E.D.Pa.1987), modified, 1988 WL 3845, 1988 U.S.Dist. LEXIS 761. Further, despite the fact that Title IX was explicitly modeled on Title VI, this court has held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to -17, is “the most appropriate analogue when defining Title IX’s substantive standards, including the question of whether ‘disparate impact’ is sufficient to establish discrimination under Title IX.” Mabry v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d 311, 316 n. 6 (10th Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987). Because it is well settled that Title VII does not require proof of overt discrimination, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); 42 U.S.C. § 2000e-2(k), the district court did not err here in failing to require proof of discriminatory intent. Ill Defendant makes two broad objections to the relief ordered by the district court. First, it maintains that plaintiffs have an adequate remedy at law and therefore in-junctive relief is inappropriate. Second, defendant argues that it should have been afforded the opportunity to present a plan to the court that would have brought it into compliance with Title IX, rather than ordered to reinstate the softball program and required to take other specific actions with respect to its management of the team. A Defendánt suggests for the first time on appeal that because plaintiffs have settled their damages suit, they -have been made whole and injunctive relief is unnecessary. We draw no such conclusion. Plaintiffs’ damages action is not before us, and we do not presume to know for what they are being compensated. However, insofar as defendant’s continuing violation of Title IX operates to deprive plaintiffs of the opportunity to play softball, we believe monetary relief alone is inadequate. The district court correctly ordered an" }, { "docid": "8536622", "title": "", "text": "make adequate arrangements to ensure that the P.R.A.I.S.E. program and high levels of parental involvement would be maintained after the closures; and that the Board improperly took into consideration the ethnic mix of the closed and receiving schools. See Aplts’ Br. at 30. However, the evidence concerning these allegations, when viewed in concert with “the totality of the relevant facts,” see Davis, 426 U.S. at 242, 96 S.Ct. at 2048, is insufficient to lead us to conclude that the district court’s finding of a lack of discriminatory intent was clearly erroneous. Indeed, several of the Board members and the Superintendent are themselves Hispanic, see Tr. at 102, 459, and have notable records of commitment to the Hispanic and minority communities of Pueblo, id. at 113-14, 305-06, including long years of service to the plurality-Hispanic District 60, id. at 187-188, 459. The Parents’ separate claim of discriminatory intent in the implementation of admissions procedures for PSAS similarly rests on circumstantial evidence which, in the face of the clear purpose of the charter school and its admissions procedure — to serve at-risk students and to admit a broad cross-section of the community— is inadequate to lead us to a different conclusion than that of the district court. Because the district court correctly found that the Board did not intentionally discriminate against Hispanic parents, we hold that it properly found for the appellees with respect to the Parents’ equal protection claims. B. Discriminatory Impact The Parents also argue that the school closures and the implementation of the PSAS admissions procedure violated their right under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4a, to be free from discrimination “under any program or activity receiving Federal financial assistance,” id. § 2000d. Although Title VI itself proscribes only intentional discrimination, certain regulations promulgated pursuant to Title YI prohibit actions that have a disparate impact on groups protected by the act, even in the absence of discriminatory intent. Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 584 n. 2, 103 S.Ct. 3221, 3223 n. 2, 77 L.Ed.2d 866 (1983)." }, { "docid": "874702", "title": "", "text": "C.F.R. § 106.38 and Pt. 100, App. B, VII-A & VII-B. Under Title IX and its implementing regulations, prisons may not have to offer as many classes in the typically smaller female prison as opposed to the typically larger male prison, but the number of classes offered should at least be proportionate, not just to the total number of inmates, but to the number of inmates desiring to take educational programs. Jeldness v. Pearce, 30 F.3d 1220, 1229 (9th Cir.1994). In addressing the requirements of Title IX, a prison may not prevail by simply using penological necessity as a defense since it is just one factor in how the equality principles of Title IX are to be applied. Id. at 1230. In addition, a desire to preserve the state’s limited resources cannot be used to justify an allocation of those resources which unfairly denies women equal access to programs routinely available to men. Canterino v. Wilson, 546 F.Supp. 174, 211 (W.D.Ky.1982). There is disagreement in the federal courts as to the state of mind required for a violation of Title IX. The Court again notes the Supreme Court’s holding that “[t]he drafters of Title IX explicitly assumed that it would be interpreted [like] ... Title VI____”, Cannon v. University of Chicago, 441 U.S. 677, 696, 99 S.Ct. 1946, 1957, 60 L.Ed.2d 560 (1979), and that a majority of justices have stated that Title VI requires “intentional discrimination” in order to prove a statutory violation. See Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582, 608 n. 1, 103 S.Ct. 3221, 3235 n. 1, 77 L.Ed.2d 866 (1983) (Powell, J., concurring) (“Seven members of the Court agree that a violation of [Title VI] requires proof of discriminatory intent.”). Discriminatory intent, however, is only an issue in cases involving facially neutral policies. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293-94, 60 L.Ed.2d 870 (1979). When a classification is expressly defined in terms of gender, an inquiry into intent is unnecessary. Canterino v. Barber, 564 F.Supp. 711, 714 (W.D.Ky.1983). Defendants policy of segregating male and female" }, { "docid": "17471253", "title": "", "text": "itself. See id. at 607 n. 27, 103 S.Ct. at 3235 n. 27 (opinion of White, J.); id. at 608 n. 1, 103 S.Ct. at 3235 n. 1 (opinion of Powell, J., concurring). However, Justice White, in a final footnote, concluded that “no compensatory relief should be awarded if discriminatory animus is not shown.” Id. at 607 n. 27, 103 S.Ct. at 3235 n. 27 (opinion of White, J.). In any event, we need not meet this problem because the gravamen of Pfeiffer’s complaint is that she was intentionally discriminated against in violation of Title IX and its implementing regulations. This is, therefore, not a case of discriminatory effect, but one of discriminatory intention. In her complaint she alleged that the defendants “conspired to deprive [her] of her constitutional rights.” Complaint at 11; App. at 20. Because an intentional violation has been alleged, we find it unnecessary to enter into the quagmire created by the Supreme Court’s fragmented opinions in Guardians Ass’n. See, e.g., Haffer v. Temple Univ., 678 F.Supp. 517, 540 (E.D. Pa.1987) (“plaintiffs need not prove discriminatory intent to succeed on their claim”); Beehler, 664 F.Supp. at 940 (award of money damages appropriate in private suit involving intentional discrimination). We find it sufficient to allow a remedy of compensatory damages when a plaintiff alleges and then establishes discriminatory intent. IX. Appellant also appeals the district court’s failure to reach her constitutional claims. The district court held that her constitutional claims were “subsumed” by Title IX and otherwise barred by the doctrine in Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). In Sea Clammers, the Court held: “[Wjhen ‘a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under § 1983.’ ” 453 U.S. at 20, 101 S.Ct. at 2626 (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 673 n. 2, 99 S.Ct. 1905, 1945 n. 2, 60 L.Ed.2d 508 (1979) (Stewart, J., dissenting))." }, { "docid": "14950928", "title": "", "text": "463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). In Guardians, black and Hispanic police officers brought suit asserting discrimination under, inter alia, Title VI due to disproportionate layoffs resulting from allegedly discriminatory examinations. The district court, finding discriminatory intent need not be proved under Title VI, granted relief for the plaintiffs. The court of appeals for the Second Circuit reversed the decision as to the Title VI claim, concluding proof of discriminatory intent was necessary. Although the Supreme Court was unable to establish a majority opinion, reading the various opinions of the Court, it is clear that five members concluded discriminatory intent is not a prerequisite to a Title VI claim. Id. at 584 n. 2, 103 S.Ct. at 3223 n. 2. Additionally, among the several opinions \"at least five Justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminato ry intent.” Manecke v. School Bd., 762 F.2d 912, 921-22 n. 8 (11th Cir.1985) (emphasis in original) (citing Guardians, 463 U.S. at 607 n. 27, 103 S.Ct. at 3235 n. 27), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986). Therefore, even though the Guardians opinion indicates compensatory damages would be unavailable in a case of unintentional discrimination, in cases of intentional discrimination, the availability of compensatory damages was left unclear. The Eleventh Circuit, attempting to interpret the Guardians holding, noted that “[although it seems clear that the judgment of Guardians Association precludes a cause of action for compensatory damages for unintentional discrimination, we believe the various opinions of a majority of the Justices simply leaves open the question whether compensatory damages for intentional discrimination may be sought.” Franklin v. Gwinnett County Pub. Schs., 911 F.2d 617, 621 (11th Cir.1990), rev’d, — U.S. -, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). In Franklin, a high school student brought suit under Title IX, alleging sexual harassment by a teacher. The Eleventh Circuit analogized the Guardians Title VI holding to the Title IX claim and found compensatory damages were not available. Id. at 622. The Supreme Court, however, reversed the" } ]

[ { "docid": "18393508", "title": "", "text": "a Judge of the Superior Court). Mr. Murray, after his untimely death, was succeeded by Stanley Van Ness, Esq., then personal counsel to Governor Richard J. Hughes, and in turn he became head of the new Department of the Public Advocate with its creation in 1974, with authority to represent prison inmates not only in connection with their state trials and appeals, and later habeas petitions under 28 U.S.C. § 2254, but also in other matters, such as § 1983 suits, through the Division of Inmate Advocacy. This history, well known in this District, makes it plain that long before Bounds v. Smith, supra, New Jersey recognized and undertook to discharge its constitutional obligations. The fact that it chose to do so by means of a system of public defenders and public advocates by no means implies that it has the further obligation to provide full libraries in every jail throughout the State. Bounds v. Smith, supra, makes clear that it has no such additional constitutional duty. If the question were coming up for the first time and if this court were called upon to decide it, the experience it has over the decades would strongly persuade it to rule that the required legal assistance can be provided only through a system of professionally trained lawyers and staff, and would exclude as adequate the traditional law library. In this court’s view, access to the fullest law library anywhere is a useless and meaningless gesture in terms of the great mass of prisoners. The bulk and complexity have grown to such an extent that even experienced lawyers cannot function efficiently today without the support of special tools, such as the computer research systems of FLITE, JURIS, LEXIS and WESTLAW. To expect untrained laymen to work with entirely unfamiliar books, whose content they cannot understand, may be worthy of Lewis Carroll, but hardly satisfies the substance of the constitutional duty. Access to full law libraries makes about as much sense as furnishing medical services through books like: “Brain Surgery Self-Taught”, or “How to Remove Your Own Appendix”, along with scalpels, drills, hemostats," } ]

[ { "docid": "22102238", "title": "", "text": "to the courts through “adequate law libraries or adequate assistance from persons trained in law.” In determining whether this constitutional minimum has been breached, we “focus on whether the individual plaintiff before [us] has been denied meaningful access.” King v. Atiyeh, 814 F.2d 565, 568 (9th Cir.1987) (citation omitted). Our prior decisions support the district court’s finding that the system of satellite law libraries and inmate law clerks provided to Wood was constitutionally adequate. The system at the Nevada State Prison is very similar to the one we found constitutional in Lindquist v. Idaho State Bd. of Corrs., 776 F.2d 851 at 854 (9th Cir.1985) (library supplemented by inmate law clerks provides meaningful access to the courts). Although Wood’s access to the library was limited because of his special conditions of confinement, we have held that prison officials may regulate the use of the library to ensure the security of the facility. Id. at 858. Wood himself admitted that he could and did get the books and supplies he needed to complete basic research, and that he received assistance from other inmates in preparing his legal materials. Wood’s success was naturally limited due to his lack of a legal education, but “[t]his circuit’s decisions have reflected our belief that the Constitution requires that certain minimum standards be met; it does not require the maximum or even the optimal level of ac-cess_ [T]he Constitution does not require the elimination of all economic, intellectual, and technological barriers to litigation.” Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir.1989). Where inmates can not show denial of adequate law libraries or adequate assistance from persons trained in the law, they may still succeed by showing “actual injury” to court access. Id. at 1192 (confiscation of carbon paper and typewriter did not constitute actual injury). Again, Wood’s claim fails. Wood has not shown that defendants or their charges interfered in his efforts to bring this case. The only allegation of this type is that on one occasion prison guards took a book from Wood’s cell and returned it to the library so other inmates could" }, { "docid": "20088460", "title": "", "text": "1433, 1437-38 (11th Cir.1985) (inmates are not constitutionally entitled to an attorney if the State provides access to an adequate collection of law books), cert. denied, — U.S. -, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). Other courts, however, and in particular two district courts in this circuit, have found that a State may not always be able to satisfy its obligation under Bounds simply by providing inmates with access to a collection of law books. See Kendrick v. Bland, 586 F.Supp. 1536, 1549 (W.D.Ky. 1984); Glover v. Johnson, 478 F.Supp. 1075, 1096 (E.D.Mich.1979); see also Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 855 (9th Cir.1985) (indicating that an adequate law library under Bounds includes “inmate law clerks trained to assist inmates with legal problems”); Battle v. Anderson, 614 F.2d 251, 255-56 (10th Cir.1980) (indicating that an adequate supply of law books combined with access to writ writers and inmate law clerks may suffice under Bounds)', Cody v. Hillard, 599 F.Supp. 1025, 1060-61 (D.S.D.1984) (following Glover), aff'd, 799 F.2d 447 (8th Cir.1986), reh’g granted, Oct. 28, 1986. In a follow-up on the Supreme Court’s decision in Bounds itself, moreover, the Court of Appeals for the Fourth Circuit recently upheld a district court’s finding that the State of North Carolina had failed to provide an adequate law library for inmates because, in part, it had not implemented a program for “the training and placement of ... inmate paralegals.” Smith v. Bounds, 813 F.2d 1299, 1302 (4th Cir.1987). From its analysis of the published case law the Court has concluded that a State seeking to satisfy its obligation under Bounds generally must provide a program of access that satisfies two criteria. First, the program must provide some source of legal information, whether in the form of an adequately stocked law library, attorneys, or some combination of the two, to all inmates. Secondly, “for those inmates who possess insufficient intellectual or educational abilities to permit reasonable comprehension of their legal claims, provision must be made to allow them to communicate with someone who, after consultation with the legal learning source," }, { "docid": "22102237", "title": "", "text": "(deliberate indifference found where police knew of prisoner’s condition and totally failed to treat it competently). Nor does the delay in treatment that Wood suffered constitute an eighth amendment violation; the delay must have caused substantial harm. See Shapley v. Nevada Bd. of State Prison Com’rs, 766 F.2d 404, 407 (9th Cir.1985). Given the seriousness of his condition and the treatment Wood actually received such harm was not present here. Wood’s condition did not require emergency attention. Cf. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (delay of six days in treating hepatitis may constitute deliberate indifference). Nor did the delay substantially harm Wood’s treatment, considering that the only remedy immediately available was a prescription for painkillers. Cf. Hunt v. Dental Department, 865 F.2d 198, 199 (9th Cir.1989) (three month delay in replacing dentures, causing gum disease and possibly weight loss constituted eighth amendment violation). II. The Sixth Amendment Claim Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977), established the right of inmates to “meaningful” access to the courts through “adequate law libraries or adequate assistance from persons trained in law.” In determining whether this constitutional minimum has been breached, we “focus on whether the individual plaintiff before [us] has been denied meaningful access.” King v. Atiyeh, 814 F.2d 565, 568 (9th Cir.1987) (citation omitted). Our prior decisions support the district court’s finding that the system of satellite law libraries and inmate law clerks provided to Wood was constitutionally adequate. The system at the Nevada State Prison is very similar to the one we found constitutional in Lindquist v. Idaho State Bd. of Corrs., 776 F.2d 851 at 854 (9th Cir.1985) (library supplemented by inmate law clerks provides meaningful access to the courts). Although Wood’s access to the library was limited because of his special conditions of confinement, we have held that prison officials may regulate the use of the library to ensure the security of the facility. Id. at 858. Wood himself admitted that he could and did get the books and supplies he needed to complete basic research, and" }, { "docid": "6592460", "title": "", "text": "aff'd. on rehearing en banc 841 F.2d 77 (4th Cir.1988) (no reconsideration of district court judgment necessary). As of the date of this writing, it appears that certiorari has not been sought. Judge Dupree determined that the North Carolina Department of Corrections was constitutionally required to furnish some form of legal services for inmates which would provide inmates with the assistance of licensed counsel in Smith v. Bounds, 610 F.Supp. 597 (E.D.N.C.1985), reconsideration den’d, 657 F.Supp. 1322 (E.D.N.C. 1985), second order entered 657 F.Supp. 1327 (E.D.N.C.1986), aff'd. 813 F.2d 1299 (4th Cir.1987), aff'd. on rehearing en banc 841 F.2d 77 (4th Cir.1988) (no reconsideration of district court judgment necessary). The state was ordered to provide attorneys in view of findings that inmate paralegals did not provide their fellow inmates adequate legal assistance, that a high degree of illiteracy among the inmates made it virtually impossible for them to conduct meaningful legal research, and that certain segregated inmates did not have sufficient physical access to a law library to meet their legitimate legal research needs. Ibid. Thus, in fact situations demonstrating deficiencies in a state’s plan for providing inmates with meaningful access to the courts, the state has an obligation to furnish those inmates with effective legal assistance including the aid of counsel. Ibid. The standard established by the Supreme Court in Bounds, supra, has been applied to the facts upon which it arose and has been held to require the provision of attorneys to assist those inmates who are unable to utilize the law libraries provided by a prison. Ibid. Clearly, as the further proceedings in Bounds illustrate, mere provision of a law library does not automatically satisfy the standards set in Bounds, supra, for all inmates. Finally, it is obvious that state governments cannot necessarily discharge their duty to provide meaningful access to the courts for all inmates regardless of literacy, indigency, or segregated status by providing the dubious assistance of other inmates in whatever capacity. Courts have been reluctant to place any reliance on the work of inmates purporting to possess legal expertise. One judge aptly summarized: This" }, { "docid": "6592459", "title": "", "text": "775 F.2d 1433 (11th Cir.1985), cert. den’d 479 U.S. 913, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). Strikingly, the United States Court of Appeals for the Fourth Circuit, in which Bounds, supra, originated, does not agree with the decision in Hooks v. Wainwright, supra. When the Supreme Court set the standard for meaningful access, it also sent the Bounds case back to the district court on remand. District Judge Dupree was to oversee the implementation of a plan by which law libraries and assistance by inmates trained as paralegals were to be provided to North Carolina inmates. Bounds, supra. The failure of the North Carolina Department of Corrections to actually provide meaningful access to the courts despite furnishing law libraries and some other aid by inmates led Judge Dupree to order the provision of attorneys as necessary to meet the requirements established by the Supreme Court in Bounds, supra. Smith v. Bounds, 610 F.Supp. 597 (E.D.N.C.1985), reconsideration den’d, 657 F.Supp. 1322 (E.D.N.C.1985), second order entered 657 F.Supp. 1327 (E.D.N.C.1986), aff'd. 813 F.2d 1299 (4th Cir.1987), aff'd. on rehearing en banc 841 F.2d 77 (4th Cir.1988) (no reconsideration of district court judgment necessary). As of the date of this writing, it appears that certiorari has not been sought. Judge Dupree determined that the North Carolina Department of Corrections was constitutionally required to furnish some form of legal services for inmates which would provide inmates with the assistance of licensed counsel in Smith v. Bounds, 610 F.Supp. 597 (E.D.N.C.1985), reconsideration den’d, 657 F.Supp. 1322 (E.D.N.C. 1985), second order entered 657 F.Supp. 1327 (E.D.N.C.1986), aff'd. 813 F.2d 1299 (4th Cir.1987), aff'd. on rehearing en banc 841 F.2d 77 (4th Cir.1988) (no reconsideration of district court judgment necessary). The state was ordered to provide attorneys in view of findings that inmate paralegals did not provide their fellow inmates adequate legal assistance, that a high degree of illiteracy among the inmates made it virtually impossible for them to conduct meaningful legal research, and that certain segregated inmates did not have sufficient physical access to a law library to meet their legitimate legal research needs. Ibid." }, { "docid": "23149099", "title": "", "text": "v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, - U.S.-, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). A. The inmates contend that the inmate law clerks who work in the library are untrained and, therefore, unable to assist other inmates who are illiterate, uneducated, or do not speak English. The inmates also suggest that four inmate law clerks is an insufficient number to serve a prison population of over 950 inmates. The district court found that a program was being employed to provide inmate law clerks with minimum training in legal research and writing. The program consisted of two 45-minute video cassette tapes and an inmate law clerk training program conducted by an attorney hired by the Idaho Department of Corrections. Inmate law clerks need not be extensively trained to possess adequate ability to assist disadvantaged inmates and to provide them constitutionally sufficient access to the courts. We take judicial notice that in Xdoe the district judge found that there are now seven inmate law clerks, several of whom have a great deal of experience and do an excellent job. Furthermore, in Xdoe the court stated that a new extensive program on methods of legal research and writing is being conducted by the staff of the state law library, which will be videotaped and then used to train inmate law clerks. To the extent this issue is not moot, we conclude, after reviewing the record, that the district judge did not err in his determination that there are a sufficient number of law clerks to assist the disadvantaged inmates at the Prison, and that the training the inmate law clerks are presently receiving meets the constitutional minimum requirements. B. The inmates also contend that the approved plan does not provide all inmates of every classification at the Prison with adequate access to the library and that inmates are constantly being denied visits and put on waiting lists to use the library. On the other hand, the Prison alleges that inmates, including those at the reception center and minimum custodial facility, are provided access to the Prison’s" }, { "docid": "6676410", "title": "", "text": "Bd. of Corrections, 776 F.2d 851 (9th Cir.1985) (emphasis in original). In the case at bar, plaintiffs directly challenge the adequacy of the law libraries and the legal assistance available to them. As a result, they need not prove any actual injury; they need not prove that they, or anyone, was denied access to the courts. Consequently, the burden shifts to defendants to prove that they either provide plaintiffs with an adequate law library or with adequate assistance from persons trained in the law. Defendants contend that they provide plaintiffs with both alternatives. See Defendant’s Post-Trial Memorandum, Doc. 179, at 24. As this court divines the defendants’ argument, they, in essence, contend that through the combination of trained assistance, plus the books available to PC inmates on an overnight loan basis, they comply with the meaningful access standard. The court concludes for the following reasons that the defendants do not provide the plaintiffs with adequate legal assistance. Because PC inmates may only com municate with general population law clerks in writing, a PC inmate’s ability to swap ideas and gain guidance is impaired. See Valentine v. Beyer, 850 F.2d 951 (3d Cir.1988) (rejecting plan to reduce paralegal assistance for close custody prisoners whose access to law books was limited to a library paging system); Watson v. Norris, 729 F.Supp. 581, 584 (M.D.Tenn.1989) (“legal secretaries” are of “little practical use” when the legal secretaries may not meet with an inmate who requests assistance). Furthermore, the defendants do not guarantee that a PC inmate who requests assistance with legal research will receive the assistance of a trained inmate law clerk. Given the ratio of trained to untrained law clerks — 1 to 2 — the odds are good that a PC inmate would receive assistance from an untrained law clerk. Yet, it is well-established that “[a]n untrained legal research staff is insufficient to safeguard an inmate’s right to access to the courts.” Valentine, 850 F.2d at 956 (citing United States ex rel. Para-Professional Law Clinic v. Kane, 656 F.Supp. 1099 (E.D.Pa.), aff'd without decision, 835 F.2d 285 (3d Cir.1987), cert. denied, 485" }, { "docid": "20088459", "title": "", "text": "State officials are given substantial discretion in deciding how to implement the holding of Bounds, and a court reviewing a State’s system must evaluate it “as a whole to ascertain its compliance with constitutional standards.” Bounds, 430 U.S. at 832, 97 S.Ct. at 1500. Whatever system a State chooses, however, must ensure that “inmate access to the courts is adequate, effective, and meaningful.” The vagueness of the Supreme Court’s decision in Bounds has led lower federal courts to issue differing interpretations of what a State must do to ensure that inmates have meaningful access to the courts. Some courts have indicated that a State need only provide inmates with access to an adequate collection of law books, regardless of whether the inmates are able to use the materials. See Campbell v. Miller, 787 F.2d 217, 229-30 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 673, 93 L.Ed.2d 724 (1987); Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir.1985); Cepulonis v. Fair, 732 F.2d 1, 6 (1st Cir.1984); see also Hooks v. Wainwright, 775 F.2d 1433, 1437-38 (11th Cir.1985) (inmates are not constitutionally entitled to an attorney if the State provides access to an adequate collection of law books), cert. denied, — U.S. -, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). Other courts, however, and in particular two district courts in this circuit, have found that a State may not always be able to satisfy its obligation under Bounds simply by providing inmates with access to a collection of law books. See Kendrick v. Bland, 586 F.Supp. 1536, 1549 (W.D.Ky. 1984); Glover v. Johnson, 478 F.Supp. 1075, 1096 (E.D.Mich.1979); see also Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 855 (9th Cir.1985) (indicating that an adequate law library under Bounds includes “inmate law clerks trained to assist inmates with legal problems”); Battle v. Anderson, 614 F.2d 251, 255-56 (10th Cir.1980) (indicating that an adequate supply of law books combined with access to writ writers and inmate law clerks may suffice under Bounds)', Cody v. Hillard, 599 F.Supp. 1025, 1060-61 (D.S.D.1984) (following Glover), aff'd, 799 F.2d 447 (8th Cir.1986)," }, { "docid": "23149092", "title": "", "text": "to file cases rais ing claims that are serious and legitimate even if ultimately unsuccessful.” Id. at 826-27, 97 S.Ct. at 1497. Relying on Bounds, we have held that a prison must provide inmates with access to an adequate law library or, in the alternative, with adequate assistance from persons trained in the law. See Washington v. Penwell, 700 F.2d 570, 572 (9th Cir.1983); United States v. Wilson, 690 F.2d 1267, 1271-72 (9th Cir.1982), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983); Storseth v. Spellman, 654 F.2d 1349, 1352-53 (9th Cir.1981); Leeds v. Watson, 630 F.2d 674, 676-77 (9th Cir.1980). The district court interpreted Bounds in a similar fashion and approved the state’s plan to furnish inmates with meaningful access to the courts by providing a law library with sufficient space, chairs, and bookcases; essential and up-to-date law books; paper and writing facilities; typewriters and copy equipment; and inmate law clerks trained to assist inmates with legal problems. The inmates’ position, however, gathers support from several district court decisions outside of this circuit. See Smith v. Bounds, 610 F.Supp. 597, 603 (E.D.N.C.1985) (assistance of counsel required because of state’s unwillingness to comply with a plan requiring a law library and trained inmate law clerks); Hooks v. Wainwright, 536 F.Supp. 1330, 1340-41 (M.D.Fla.1982) (an adequate law library combined with inmate law clerks does not meet the meaningful access requirements of Bounds), dismissed without opinion, 716 F.2d 913 (11th Cir.1983); Canterino v. Wilson, 562 F.Supp. 106, 111-12 (W.D.Ky.1983) (assistance of persons trained in the law is necessary because female inmates are not as experienced as their male counterparts are at utilizing prison law library resources); Glover v. Johnson, 478 F.Supp. 1075, 1097 (E.D.Mich.1979) (same). Nevertheless, we find it impossible to ignore the Supreme Court’s explicit holding in Bounds that “adequate law libraries are one constitutionally acceptable method to assure meaningful access to the courts.” 430 U.S. at 830, 97 S.Ct. at 1499. In fact, the position advanced by the inmates is the same as that Justice Stewart unsuccessfully urged in Bounds: if the Constitution requires meaningful access to" }, { "docid": "22367373", "title": "", "text": "rendered effective legal research virtually impossible. Id. at 1403. However, the district court allowed the defendants to deny physical access to the libraries to those plaintiffs who are documented security risks. Id. at 1424. The court specified that any prisoner denied access to the libraries be permitted to order five books per week, which would be delivered to the prisoner’s cell. Id. In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court held that prisoners have a constitutional right of access to the courts which in turn requires prison authorities to provide prisoners with adequate law libraries or adequate assistance from persons trained in the law. Id. at 828, 97 S.Ct. at 1498; see Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 855 (9th Cir.1985). In Lindquist, we recognized that The existence of an adequate law library does not provide for meaningful access to the courts if the inmates are not allowed a reasonable amount of time to use the library. However, the Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used. The fact that an inmate must wait for a turn to use the library does not necessarily mean that he has been denied meaningful access to the court. Id. at 858 (citations omitted). Defendants do not challenge the validity of the district court’s factual findings. Defendants argue that the district court should have limited injunctive relief to remedying the deficiencies in the paging system. Plaintiffs argue that the district court did not abuse its discretion in ordering physical access absent compelling security needs. Plaintiffs also argue, however, that the district court abused its discretion by failing to require defendants to provide legal assistance to inmates barred from physical access. , The district court’s order accommodates defendants’ interests by allowing them to limit physical access to the law library. They need only permit reasonably necessary use. Moreover, even if a segregated inmate needs to use the law library, defendants may" }, { "docid": "23149098", "title": "", "text": "not presented on appeal or in the district court. Id. at 722. We conclude that the law book inventory approved by the district court meets minimum constitutional standards and provides inmates with sufficient access to legal research materials to prepare pro se pleadings, appeals, and other legal documents. IV The inmates also contend that even if the approved plan is constitutionally adequate, the district court erred in concluding that the Prison was complying with the plan. The inmates assert that the existing library facility is inadequate, that the inmate law clerks are untrained and insufficient in numbers, that inmates were not given sufficient access to the library, and that the typewriters and paper supplies are inadequate. We will not address the adequacy of the library facility as we have already found that claim to be moot. As to the remaining issues raised, we review factual findings under the clearly erroneous standard, Fed.R.Civ.P. 52(a), while those claims that are mixed questions of law and fact that are not “essentially factual” are reviewable de novo. United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, - U.S.-, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). A. The inmates contend that the inmate law clerks who work in the library are untrained and, therefore, unable to assist other inmates who are illiterate, uneducated, or do not speak English. The inmates also suggest that four inmate law clerks is an insufficient number to serve a prison population of over 950 inmates. The district court found that a program was being employed to provide inmate law clerks with minimum training in legal research and writing. The program consisted of two 45-minute video cassette tapes and an inmate law clerk training program conducted by an attorney hired by the Idaho Department of Corrections. Inmate law clerks need not be extensively trained to possess adequate ability to assist disadvantaged inmates and to provide them constitutionally sufficient access to the courts. We take judicial notice that in Xdoe the district judge found that there are now seven inmate law clerks, several of whom have a" }, { "docid": "15587183", "title": "", "text": "Board of Corrections, 776 F.2d 851 (9th Cir.1985) (affirming district court’s order that state must furnish essential and up-to-date law books). Several libraries also do not contain self-help manuals to instruct inmates on how to use the law books. The complexities of legal research at the very least require these aids to enable inmates to use the books effectively. As the Court in Bounds mandated, access must be “adequate, effective, and meaningful.” 430 U.S. at 822, 97 S.Ct. at 1495 (emphasis added). 2. Physical Access We recognized in Lindquist that the Constitution does not guarantee a prisoner unlimited access to a law library, and that “[p]rison officials of necessity must regulate the time, manner, and place in which library facilities are used.” 776 F.2d at 858. Accordingly, in Toussaint v. McCarthy, 801 F.2d 1080, 1109 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987), we held that prisons may deny inmates physical access to the law library if such access would threaten institutional security. We affirmed the district court’s order that required prison officials to allow segregated prisoners access to a law library “as reasonably necessary, absent documented security reasons.” Id. at 1108-09. Following the rule established in Toussaint, we hold that unless ADOC can demonstrate actual security risks, an inmate should be allowed access to the law library. The district court correctly concluded that ADOC may not routinely prohibit lockdown inmates from physically using the law library. Access to the law library’s books is crucial because as we explained in Toussaint, legal research often requires browsing through various materials in search of inspiration; tentative theories may have to be abandoned in the course of research in the face of unfamiliar adverse precedent. New theories may occur as a result of a chance discovery of an obscure or forgotten case. 801 F.2d at 1110 (quoting Williams v. Leeke, 584 F.2d 1336, 1339 (4th Cir.1978), cert. denied, 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 276 (1979)). 3. Legal Assistance For those inmates deemed security risks and denied access to the library, Bounds requires the State" }, { "docid": "19000833", "title": "", "text": "Accord, Toussaint v. McCarthy, supra, 801 F.2d at 1109-10; Morrow v. Harwell, supra, 768 F.2d at 623 (“Even a quick research project by a trained lawyer may require reference and cross reference to numerous volumes”). Likewise, Judge Shadur explained: [A]s anyone who has done legal research knows, it is essential to have free access to the books to know just which ones you No one — even the most skilled legal scholar — can work effectively by having to designate in advance precisely which books (or which pages) are needed, then having those books (or pages) brought to the individual, then designating other books (or pages) as a result of reviewing the first designation, and so on. Even if an inmate were sophisticated and attuned to the nuances of legal meaning, the limitations imposed by defendants would convert the possible work of minutes into a need to spend hours — and, moreover, hours to which no plaintiff could gain access. really need. Williams v. Lane, 646 F.Supp. 1379, 1389 (N.D.Ill.1986), aff'd, 851 F.2d 867 (7th Cir.1988), cert. denied, 488 U.S. 1047, 109 S.Ct. 879, 102 L.Ed.2d 1001 (1989). 13. A runner system is even less adequate to meet the needs of illiterate prisoners. For these inmates, “as a practical matter, there can be no meaningful access to the judicial system unless some literate person is available to reduce their stories to intelligible written pleadings.” Knop v. Johnson, supra, 977 F.2d at 1006. As other courts have noted, “[i]t goes without saying that ‘a book and a library are of no use, in and of themselves, to a prisoner who cannot read.’ ” Casey v. Lewis, supra, 43 F.3d at 1267 (quoting from Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 855-56 (9th Cir.1985)). For this reason, numerous courts have held that meaningful access to the courts requires assistance to illiterate inmates in researching and drafting pleadings regardless of whether the inmates have access to a library. E.g., Casey v. Lewis, supra (requiring sufficient legal assistants under organized plan for functionally illiterate inmates and inmates in segregation); Knop v." }, { "docid": "12963828", "title": "", "text": "constitution requires of them. The district court exercised no discretion in concluding, as a matter of law, that the constitution required them to provide legal assistance to inmates denied library access. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1497, 52 L.Ed.2d 72 (1977) (fundamental constitutional right of access to the courts requires prison authorities to provide prisoners with adequate law libraries or with adequate assistance from persons trained in the law); Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 855 (9th Cir.1985) (prison must provide an adequate law library or, in the alternative, adequate assistance from persons trained in the law). Indeed, prison officials concede that the constitution requires them to provide either access to a law library or legal assistance. To the extent that the district court did exercise discretion in formulating the procedures for prison officials to use in implementing the constitutional requirements, I believe the district court properly did so in accordance with our instruction that “[i]f the parties fail to agree on a plan that provides meaningful access to the courts, the district court shall fashion one.” Toussaint, 801 F.2d at 1110. Earlier in this litigation the district court did simply provide that “[prisoners shall be given reasonable opportunity to study law books,” without providing a detailed plan to implement this directive. See Toussaint v. Rushen, 553 F.Supp. 1365, 1385 (N.D.Cal.1983), [Toussaint I], aff'd in part, Toussaint v. Yockey, 722 F.2d 1490 (9th Cir.1984) [Toussaint II]. It was only upon the monitor’s subsequent findings that prison officials delayed an average of two weeks in providing inmates with access to law libraries and permitted only inmates with court deadlines such access, that the district court found it necessary, in accordance with our previous decision, to order more detailed relief. Prison officials attempt to escape this conclusion by arguing that the constitution also permits them to provide meaningful access to the courts with a “hybrid” proce dure whereby inmates receive limited library access and limited legal assistance. They rely upon the statement in Cepulonis v. Fair, 732 F.2d 1, 6 (1st Cir.1984)," }, { "docid": "22378004", "title": "", "text": "argues that the district court erred by dismissing on summary judgment his claim that the defendants violated his right to access to the courts by limiting his access to the law library, by providing inadequate copying and notary services, and by denying him contact visits with his lawyer. We disagree. Inmates have a constitutional right to either assistance of a lawyer, or access to a law library. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977); Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854-55 (9th Cir.1985). The defendants provide IMU inmates such as Keenan access to a law library correspondence system, under which inmates may not visit the law library or possess hardbound books, but may obtain copies of requested materials within 24 hours, indexes to help choose materials, and weekly assistance from inmate law clerks. Although an inmate in segregation may prevail on a denial of access claim if he has a particular need for more access than that allowed him, and that denial has caused him actual harm, such a system as that afforded here in a high security unit has been upheld as generally adequate. See Wood v. Housewright, 900 F.2d 1332, 1334, 1335 (9th Cir.1990); Oltarzewski, 830 F.2d at 138. Keenan has not shown inadequate access. Keenan claimed that photocopy and notary services were too slow and expensive. However, to state an access to the courts claim that concerns neither the inadequacies of the law library nor the lack of assistance of a person trained in law, an inmate must demonstrate “actual injury,” i.e. “some specific instance in which an inmate was actually denied access to the courts.” Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989) (quotations and citations omitted). Keenan has alleged no actual injury related to copying and notary services. Keenan claimed the defendants denied him contact visits with his lawyer. However, while the Constitution protects such visits, Ching v. Lewis, 895 F.2d 608, 610 (9th Cir.1990), prison officials may restrict this right where high-risk inmates such as Keenan are involved, Casey v. Lewis," }, { "docid": "22378003", "title": "", "text": "been reluctant to sanction a soft-covered publisher only rule_”). Although qualified immunity protects the defendants from liability on this claim, Johnson v. Moore, 948 F.2d 517, 520-21 (9th Cir.1991), on remand injunctive relief is not foreclosed if Keenan establishes his First Amendment claim. American Fire, Theft & Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir.1991) (“Qualified immunity is an affirmative defense to damage liability; it does not bar actions for declaratory or injunctive relief.”) (citations omitted). Keenan also challenges the limited number of books in the IMU library, the lack of access by IMU inmates to the.main prison library and the state library, and the “no passing rule,” under which inmates may not pass books to one another. We view these claims as part and parcel of Keenan’s overall claim that inmates are deprived of reading material and they should be viewed by the district court on remand along with the deprivations imposed by the publishers only rule to determine whether the First Amendment is violated. D. ACCESS TO THE COURTS Keenan argues that the district court erred by dismissing on summary judgment his claim that the defendants violated his right to access to the courts by limiting his access to the law library, by providing inadequate copying and notary services, and by denying him contact visits with his lawyer. We disagree. Inmates have a constitutional right to either assistance of a lawyer, or access to a law library. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977); Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854-55 (9th Cir.1985). The defendants provide IMU inmates such as Keenan access to a law library correspondence system, under which inmates may not visit the law library or possess hardbound books, but may obtain copies of requested materials within 24 hours, indexes to help choose materials, and weekly assistance from inmate law clerks. Although an inmate in segregation may prevail on a denial of access claim if he has a particular need for more access than that allowed him, and that denial has" }, { "docid": "22367372", "title": "", "text": "capacity. In part, it may be due to the fact that lockup units have no programs. But in large measure, it originates in the violent propensities of segregated inmates themselves. 597 F.Supp. at 1404-05. The plaintiffs’ argument also depends on the assertion that enforced idleness inflicts psychological pain without penological justification. Again, plaintiffs ignore the actual findings and reasoning of the district court. The district court expressly found that “denial of programs is not totally without penological justification.” 597 F.Supp. at 1414. Plaintiffs’ argument that the district court failed to consider related conditions, therefore, is incorrect. We vacate Part III(C) of the Permanent Injunction. The administration of state-created work programs is the province of prison officials, not of the district court. IX ACCESS TO THE PRISON LAW LIBRARY In Part 11(15) of the Permanent Injunction, the district court ordered defendants to allow segregated prisoners access to the prison law library as reasonably necessary, absent documented security reasons. 597 F.Supp. at 1424. The court found that the “paging system” in use at San Quentin and Folsom rendered effective legal research virtually impossible. Id. at 1403. However, the district court allowed the defendants to deny physical access to the libraries to those plaintiffs who are documented security risks. Id. at 1424. The court specified that any prisoner denied access to the libraries be permitted to order five books per week, which would be delivered to the prisoner’s cell. Id. In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court held that prisoners have a constitutional right of access to the courts which in turn requires prison authorities to provide prisoners with adequate law libraries or adequate assistance from persons trained in the law. Id. at 828, 97 S.Ct. at 1498; see Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 855 (9th Cir.1985). In Lindquist, we recognized that The existence of an adequate law library does not provide for meaningful access to the courts if the inmates are not allowed a reasonable amount of time to use the library. However, the Constitution does not" }, { "docid": "15587182", "title": "", "text": "trained in the law.” Bounds 430 U.S. at 828, 97 S.Ct. at 1498. In determining the constitutional adequacy of a legal access program, the Court directed district courts to evaluate the program “as a whole,” emphasizing that “meaningful access to the courts is the touchstone.” Id. at 832, 823, 97 S.Ct. at 1500, 1495. We hold that the district court correctly applied case law in concluding that AD OC’s legal access program unconstitutionally denied inmates meaningful access to the courts. In Storseth v. Spellman, 654 F.2d 1349, 1352 (9th Cir.1981), we held that it is the State’s burden to provide meaningful access and to demonstrate that its chosen method is adequate. ADOC has not met this burden. 1. Contents of the Law Libraries Undisputed facts support the district court’s finding that the contents of ADOC’s law libraries are inadequate. In several libraries, volumes of various reporters, as well as the pocket parts to various secondary sources are missing. Updated inventories are unquestionably an essential element of an adequate library system. See Lindquist v. Idaho State Board of Corrections, 776 F.2d 851 (9th Cir.1985) (affirming district court’s order that state must furnish essential and up-to-date law books). Several libraries also do not contain self-help manuals to instruct inmates on how to use the law books. The complexities of legal research at the very least require these aids to enable inmates to use the books effectively. As the Court in Bounds mandated, access must be “adequate, effective, and meaningful.” 430 U.S. at 822, 97 S.Ct. at 1495 (emphasis added). 2. Physical Access We recognized in Lindquist that the Constitution does not guarantee a prisoner unlimited access to a law library, and that “[p]rison officials of necessity must regulate the time, manner, and place in which library facilities are used.” 776 F.2d at 858. Accordingly, in Toussaint v. McCarthy, 801 F.2d 1080, 1109 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987), we held that prisons may deny inmates physical access to the law library if such access would threaten institutional security. We affirmed the district court’s order" }, { "docid": "23355904", "title": "", "text": "lockdown providing for main law library paging system supplemented by smaller direct access to basic law library sufficient if District of Columbia caselaw available for prisoner who needs it); Campbell v. Miller, 787 F.2d 217 (7th Cir.1986) (main library paging system and Control Unit library at U.S. Penitentiary at Marion); Lindquist v. Idaho State Board of Corrections, 776 F.2d 851, 858 (9th Cir.1985) (existence of an adequate law library does not provide for meaningful access to the courts if the inmates are not allowed a reasonable amount of time to use the library); Harrington v. Holshouser, 741 F.2d 66 (4th Cir.1984) (access for inmates in disciplinary segregation in North Carolina constitutionally sufficient where prisoners transported to libraries), but see Smith v. Bounds, 813 F.2d 1299 (4th Cir.1987) (because North Carolina not in compliance with its constitutional obligations, district court properly ordered remedy of attorney assistance). . At least one court has determined that for purposes of all state post-conviction proceedings involving a challenge to the death penalty, the right of meaningful access to the courts cannot be assured without the mandatory appointment of counsel. See Giarratano v. Murray, 847 F.2d 1118 (4th Cir.1988) (en banc). . We note, however, that we have recently rejected a plan in Trenton State Prison proposing reduced paralegal assistance for prisoners in close custody limited to a library paging system. See Valentine v. Beyer, 850 F.2d 951 (3d Cir.1988), see also Para-Professional Law Clinic v. Kane, 656 F.Supp. 1099 (E.D.Pa.), aff’d, 835 F.2d 285 (3d Cir.1987) (table), cert. denied, — U.S. -, 108 S.Ct. 1302, 99 L.Ed.2d 511 (1988). Paging systems similar to the one established by the Commonwealth, as the sole legal assistance furnished to inmates, have been rejected consistently by other courts of appeals. See e.g., Corgain v. Miller, 708 F.2d 1241, 1250 (7th Cir.1983) (“catch-22” paging system); Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir.1985) (weekly bookmobile checkout system, accompanied by circumscribed assistance from law students); Green v. Ferrell, 801 F.2d 765 (5th Cir.1986) (twice weekly requests of two specific volumes from county law library; virtually all inmates have had legal" }, { "docid": "6592458", "title": "", "text": "deprived of meaningful access to the courts if a law library is automatically deemed sufficient to satisfy the Bounds, supra, duty to assist inmates in the preparation of legal papers. Judge Scott concluded in Hooks v. Wainwright, 536 F.Supp. 1330 (M.D.Fla.1982), “no plan utilizing libraries alone could assure meaningful access to the courts, and ... defendants [must] provide ‘assistance of counsel, in some form.’ Ibid, at 1349” (as cited in United States ex rel. Para-Professional Law Clinic. v. Kane, 656 F.Supp. 1099, 1105 (E.D.Penn.1987) aff'd. without op. 835 F.2d 285 (3rd Cir.1987), cert. den’d sub nom, Zimmerman v. Para-Professional Law Clinic, — U.S. -, 108 S.Ct. 1302, 99 L.Ed.2d 511 (1988)). The United States Court of Appeals for the Eleventh Circuit reversed Judge Scott’s decision on the grounds that Bounds, supra, does not require a state to necessarily provide only the aid of legal counsel in a program designed to assure inmates meaningful access to the courts if other, sufficient sources of legal aid are available to answer a particular inmate need. Hooks v. Wainwright, 775 F.2d 1433 (11th Cir.1985), cert. den’d 479 U.S. 913, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). Strikingly, the United States Court of Appeals for the Fourth Circuit, in which Bounds, supra, originated, does not agree with the decision in Hooks v. Wainwright, supra. When the Supreme Court set the standard for meaningful access, it also sent the Bounds case back to the district court on remand. District Judge Dupree was to oversee the implementation of a plan by which law libraries and assistance by inmates trained as paralegals were to be provided to North Carolina inmates. Bounds, supra. The failure of the North Carolina Department of Corrections to actually provide meaningful access to the courts despite furnishing law libraries and some other aid by inmates led Judge Dupree to order the provision of attorneys as necessary to meet the requirements established by the Supreme Court in Bounds, supra. Smith v. Bounds, 610 F.Supp. 597 (E.D.N.C.1985), reconsideration den’d, 657 F.Supp. 1322 (E.D.N.C.1985), second order entered 657 F.Supp. 1327 (E.D.N.C.1986), aff'd. 813 F.2d 1299 (4th Cir.1987)," } ]

[ { "docid": "22668804", "title": "", "text": "California Supreme Court denied review. McGuire then filed a petition for habeas corpus relief in the United States District Court for the Northern District of California. That court denied relief. The Court of Appeals for the Ninth Circuit reversed and granted McGuire’s habeas petition. The court ruled that the prior injury evidence was erroneously admitted to establish battered child syndrome, because no evidence linked McGuire to the prior injuries and no claim had been made at trial that the baby died accidentally. In addition, the court believed that the trial court’s instruction on the use of prior act evidence allowed a finding of guilt based simply on a judgment that McGuire committed the prior bad acts. The court concluded that the admission of the evidence, in conjunction with the prejudicial instruction, “rendered [McGuire’s] trial arbitrary and fundamentally unfair” in violation of due process. 902 F. 2d, at 753. We hold that none of the alleged errors rise to the level of a due process violation, and so reverse. I We first consider whether the admission of the prior injury evidence justified habeas relief. In ruling that McGuire’s due process rights were violated by the admission of the evidence, the Court of Appeals relied in part on its conclusion that the evidence was “incorrectly admitted . . . pursuant to California law.” Id,., at 754. Such an inquiry, however, is no part of a federal court’s habeas review of a state conviction. We have stated many times that “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U. S. 764, 780 (1990); see also Pulley v. Harris, 465 U. S. 37, 41 (1984). Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting ha-beas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U. S. C. § 2241; Rose v. Hodges, 423 U. S. 19, 21 (1975) (per curiam). We thus turn to the question whether the admission" } ]

[ { "docid": "8260611", "title": "", "text": "at least one of the suspects in that shooting was a Mob member gave further explanation as to why [petitioner] would want to shoot relatives of the founder of the Mob. This simply is not a case in which the gang-related evidence had little evidentiary value yet great emotional impact. (People v. Olguin, supra, 31 Cal.App.4th at 1369, 37 Cal.Rptr.2d 596 [exclusion of evidence under Evid.Code, § 352 “designed for situations in which evidence of little evidentiary impact evokes an emotional bias”].) Based on the strong link between the gang-related evidence and the shooting of Terry and Witherow, the evidence was highly relevant to the issue of motive and thus, as the trial court concluded, more probative than prejudicial.” (Lodgment No. 4 at 6-8). 4. Findings and conclusion The Court concurs with the California Court of Appeal that the evidence in question was relevant to petitioner’s motive for shooting the victims. Accordingly, the admission of such evidence did not violate petitioner’s federal constitutional rights to due process and to a fair trial. See Estelle, supra; Jammal, supra; Windham v. Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1998) (holding that evidence of gang involvement was properly admitted to prove motive for participating in the alleged crimes). The Court therefore finds and concludes that the California courts’ rejection of petitioner’s claim based on the admission of the gang evidence neither was contrary to nor involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. 7 B. Habeas relief is not warranted on petitioner’s claim concerning the trial court’s admission of evidence concerning two uncharged murders. Petitioner contends that the trial court erred in permitting the prosecutor to cross-examine petitioner on two uncharged murders which petitioner was suspected of committing. (First Amended Petition at 6; Memorandum at 8-9; Traverse at 6-11). 1. The record below As discussed above, the trial court initially disallowed evidence that petitioner was a suspect in two gang-related murders. During the defense case, petitioner testified that he was an FSC gang member who had prior convictions for gun possession (twice) and commercial" }, { "docid": "8260604", "title": "", "text": "raised must be considered de novo. Frantz v. Hazey, 513 F.3d 1002, 1012-14 (9th Cir.2008); see also Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456,162 L.Ed.2d 360 (2005). [4]The same standard of objective unreasonableness applies where the petitioner is challenging the state court’s factual findings under 28 U.S.C. § 2254(d)(2). See Buckley v. Terhune, 397 F.3d 1149, 1154 (9th Cir.2005); Bruce v. Terhune, 376 F.3d 950, 954 (9th Cir.2004); Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.), cert, denied, 543 U.S. 1038, 125 S.Ct. 809, 160 L.Ed.2d 605 (2004); Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir.2000). A federal court first must undertake an “intrinsic review” of the state court’s factfinding, which requires an examination of the state court’s factfinding process and not its findings. Buckley, supra, 397 F.3d at 1154— 55; Taylor, supra, 366 F.3d at 1000. “Intrinsic challenges to state-court findings pursuant to the 'unreasonable determination’ standard come in several flavors, each presenting its own peculiar set of considerations.” Taylor, supra, 366 F.3d at 1000-01 (listing, e.g.: “where the state court should have made a finding of fact but neglected to do so[;] ... where the state court does make factual findings, but does so under a misapprehension as to the correct legal standard!;] ... and, where the fact-finding process itself is defective.”). If the state court’s factfinding process survives the federal court’s intrinsic review, or if the petitioner does not challenge the state court’s factfinding process, the state court’s factual findings are presumed correct unless rebutted by clear and convincing evidence. Buckley, supra, 397 F.3d at 1155. VI. DISCUSSION A. Habeas relief is not warranted on petitioner’s claim concerning the trial court’s admission of gang evidence. Petitioner contends that the trial court deprived him of his state and federal constitutional due process rights by erroneously admitting highly inflammatory gang evidence. Specifically, petitioner contends that the trial court erred in admitting evidence of petitioner’s gang membership, evidence of the history of rivalry between Front Street Crips (“FSC”) gang and the Mob gang, and evidence of the shootings resulting from the ongoing rivalry. (First Amended" }, { "docid": "8260607", "title": "", "text": "The trial court found that evidence about the generalities of the gang war, petitioner’s gang membership, and petitioner having been a shooting victim in the gang war “clearly goes to motive,” and ruled that the gang evidence was more probative than prejudicial. However, the trial court found that evidence of petitioner’s involvement as a suspect in prior gang activities (i.e., two murders) and evidence of incidents that occurred after the instant shootings was more prejudicial than probative. (See 4 RT 1334,1337-41). At trial, Los Angeles Police Department Detective Donovan Nickerson, the prosecution’s gang expert, testified as follows; In the late 1990’s there was a feud within the FSC gang which led to Dennis Evans (“Evans”), Witherow’s older brother, creating a new gang, the Mob gang. As a result of this break up, a war between the two factions ensued. A number of shootings and murders occurred between the two gangs dating back from March 1999. Witherow’s two brothers, Evans and Devon Witherow, were murdered by suspected FSC gang members on May 18, 2000 and August 22, 2002, respectively. Petitioner was a victim of a shooting on May 25, 2003, in which a Mob gang member named Ricko Reed was the suspect. Petitioner was a documented member of the FSC gang based on petitioner’s numerous admissions to various police officers. (See 4 RT 1459-60, 1462-66, 1470-71,1475). Detective Nickerson testified that he believed the current shootings were gang-motivated, based on his knowledge of the ongoing gang war and the individuals involved in the instant crimes (i.e., that petitioner was the shooter and that the victims were related to Evans). (See 4 RT 1467-68). 2. Legal authority A federal court is limited in conducting habeas review to deciding whether a conviction violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). A state court’s evidentiary ruling is not cognizable on federal habeas review, unless the ruling infringes upon a specific federal constitutional or statutory provision or deprives the defendant of a fundamentally fair trial" }, { "docid": "8260608", "title": "", "text": "22, 2002, respectively. Petitioner was a victim of a shooting on May 25, 2003, in which a Mob gang member named Ricko Reed was the suspect. Petitioner was a documented member of the FSC gang based on petitioner’s numerous admissions to various police officers. (See 4 RT 1459-60, 1462-66, 1470-71,1475). Detective Nickerson testified that he believed the current shootings were gang-motivated, based on his knowledge of the ongoing gang war and the individuals involved in the instant crimes (i.e., that petitioner was the shooter and that the victims were related to Evans). (See 4 RT 1467-68). 2. Legal authority A federal court is limited in conducting habeas review to deciding whether a conviction violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). A state court’s evidentiary ruling is not cognizable on federal habeas review, unless the ruling infringes upon a specific federal constitutional or statutory provision or deprives the defendant of a fundamentally fair trial as guaranteed by due process. See Pulley v.Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.1995). The failure to comply with state rules of evidence is not a basis for granting federal habeas relief on due process grounds. See Henry v.Kernan, 197 F.3d 1021, 1031 (9th Cir.1999), cert. denied, 528 U.S. 1198, 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). The issue is whether the admission of evidence was so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See Walters, supra, 45 F.3d at 1357; Jeffries v. Blodgett, 5 F.3d 1180, 1193 (9th Cir.1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994). “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.” Jammal, supra, 926 F.2d at 920; McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir.), cert. denied, 510 U.S. 1020, 114 S.Ct. 622, 126 L.Ed.2d" }, { "docid": "8260648", "title": "", "text": "firearm finding, plus a stayed sentence for the other enhancement; and with respect to Count 2, a consecutive term of 8 months. . On August 14, 2006, the trial court resen-tenced petitioner on Count 2 to a consecutive prison term of 2 years. (See Lodgment No. 7). . Terry was murdered shortly before the first trial. The transcript of his preliminary hearing testimony was read to the jury, which was instructed that he was unavailable. . Officer Vejar’s encounter with [petitioner] on August 8, 2003, combined with [petitioner's] stipulation as to his status as a felon, formed the basis for [petitioner’s] conviction at his first trial for possession of a firearm by a felon. . Although petitioner phrased this claim in terms of error by the California Court of Appeal (see First Amended Petition at 5), the Court construes this claim as a challenge to the trial court's admission of gang-related evidence. . To the extent that petitioner is contending that the admission of such evidence violated the California Constitution, petitioner's claim is not cognizable on federal habeas review. See 28 U.S.C. S 2254(a); Estelle v. McGuire, 502 U.S. 62, 67, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). . Any reference to \"trial” will pertain to the second trial unless otherwise indicated. .Petitioner also moved to bifurcate the trial with respect to the issue of whether petitioner was actually a gang member. Specifically, petitioner requested that the trier of fact first determine the identity of the shooter, and if it concluded that the shooter was petitioner, then the issue of whether petitioner was a gang member should be addressed. (See 4 RT 1325-27). The trial court denied petitioners motion to bifurcate. (See 4 RT 1338-39) . The trial court ruled, “[A]s far as whether [petitioner] is a gang member a general history of the rivalry is certainly evidence of motive and highly probative and with the exclusion of the two things I’ve done [testimony that petitioner was a suspect in two unrelated murders and evidence" }, { "docid": "23034812", "title": "", "text": "that the prosecutor exercised due diligence. The admission of Reed’s testimony at the preliminary hearing did not deprive Windham of his right to confrontation. Windham also contends that his Sixth Amendment right to confront adverse witnesses was violated by the admission of Adams’s preliminary hearing testimony. The trial court received this testimony after ruling that Adams was unavailable due to her assertion of her Fifth Amendment right against self-incrimination. Windham did not raise this contention in his habeas petition to the district court. In that petition, Windham objected to the instruction given to the jury regarding inferences to be drawn from Adams’ failure to testify. Windham did not object, however, to the trial court’s determination that Adams was unavailable because of her assertion of her constitutional right to remain silent or to the court’s decision to admit Adams’s preliminary hearing testimony. Because Windham raises this issue for the first time on appeal, we will not address his contention that his Sixth Amendment right to confront witness Adams was violated. See Belgarde v. Montana, 123 F.3d 1210, 1216 (9th Cir.1997) (“Habeas claims that are not raised in the petition before the district court are not cognizable on appeal”). V Windham contends that he was denied his due process right to a fundamentally fair trial when the trial court admitted evidence tending to support the prosecution’s “gang involvement theory.” We have no authority to review alleged violations of a state’s evidentiary rules in a federal habeas proceeding. See Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). Our role is limited to determining whether the admission of evidence rendered the trial so fundamentally unfair as to violate due process. See Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir.1986). The admission of “other acts” evidence, which a defendant contends is unduly prejudicial, will violate due process only when “there are no permissible inferences the jury may draw from the evidence.” Jammal, 926 F.2d at 920. Thus, whether or not the admission of evidence is contrary to a state rule of evidence, a trial court’s ruling does not violate due process" }, { "docid": "8260609", "title": "", "text": "as guaranteed by due process. See Pulley v.Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.1995). The failure to comply with state rules of evidence is not a basis for granting federal habeas relief on due process grounds. See Henry v.Kernan, 197 F.3d 1021, 1031 (9th Cir.1999), cert. denied, 528 U.S. 1198, 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). The issue is whether the admission of evidence was so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See Walters, supra, 45 F.3d at 1357; Jeffries v. Blodgett, 5 F.3d 1180, 1193 (9th Cir.1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994). “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.” Jammal, supra, 926 F.2d at 920; McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir.), cert. denied, 510 U.S. 1020, 114 S.Ct. 622, 126 L.Ed.2d 586 (1993); see also Estelle v. McGuire, supra, 502 U.S. at 70, 112 S.Ct. 475 (where the challenged evidence is relevant to an issue in the case, its admission cannot be said to have violated the defendant’s due process rights). 3. California Court of Appeal decision In rejecting petitioner’s claim challenging the trial court’s admission of gang evidence, the California Court of Appeal reasoned as follows: “Contrary to [petitioner’s] contention, the trial court’s decision to permit testimony regarding evidence of his gang affiliation and the relationship between Terry and Witherow, the victims of the attempted murders, and [petitioner’s] rival gang members on the ground the evidence was relevant to establish motive for the charged offenses was well within the bounds of reason. This evi dence gave context to a shooting that otherwise would have appeared random. Moreover, evidence regarding the history of Front Street and its culture helped explain [petitioner’s] shooting at Terry and Witherow as retaliatory. In addition, the fact that [petitioner] had been shot approximately three months before the instant offenses and that" }, { "docid": "8260649", "title": "", "text": "on federal habeas review. See 28 U.S.C. S 2254(a); Estelle v. McGuire, 502 U.S. 62, 67, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). . Any reference to \"trial” will pertain to the second trial unless otherwise indicated. .Petitioner also moved to bifurcate the trial with respect to the issue of whether petitioner was actually a gang member. Specifically, petitioner requested that the trier of fact first determine the identity of the shooter, and if it concluded that the shooter was petitioner, then the issue of whether petitioner was a gang member should be addressed. (See 4 RT 1325-27). The trial court denied petitioners motion to bifurcate. (See 4 RT 1338-39) . The trial court ruled, “[A]s far as whether [petitioner] is a gang member a general history of the rivalry is certainly evidence of motive and highly probative and with the exclusion of the two things I’ve done [testimony that petitioner was a suspect in two unrelated murders and evidence of shootings that occurred after the instant offenses], I don't think it is more prejudicial than probative. I think it is more probative than prejudicial.” . Under Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), it may be presumed that the California Supreme Court by its silent denial of petitioner’s Petition for Review raising the same claims, did not intend to change the California Court of Appeal's reasoned decision rejecting them. . During rebuttal testimony, Detective Nick-erson opined that the Anderson murder was in retaliation for the murder of a fellow FSC gang member, Marvin Johnson and that Farr was murdered because he was a FSC gang member who tried to join the Mob gang (See 5 RT 1670-71). Detective Nickerson testified that petitioner was a prime suspect in both murders. (See id.). . The fact the trial court gave a limiting instruction regarding Detective Nickerson’s rebuttal testimony did not create a sua sponte duly on the part of trial court to give such an instruction" }, { "docid": "1413936", "title": "", "text": "overwhelming to such a degree that no prejudice could result from a failure to sever. See United States v. VonWillie, 59 F.3d 922, 930 (9th Cir.1995); see also United States v. Ragghianti, 527 F.2d 586, 587 (9th Cir.1975) (holding that the trial judge has great discretion in ruling on severance motions, and review on appeal is limited to whether “the joint trial (was) so prejudicial ... as to require the exercise of that discretion in only one way, by ordering a separate trial”) (citations omitted). Due Process Violations Fuller next argues that the district court erred in ruling that the admission of certain evidence and jury instructions did not constitute due process violations. The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result denies a fundamentally fair trial guaranteed by due process. See Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.1986). A state prisoner can obtain federal habeas corpus relief only if he is held in violation of the Constitution or laws and treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Failure to comply with state evidence rules is neither a necessary nor a sufficient basis for the grant of federal habeas relief on due process grounds. See Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). Further, federal habeas relief is not available for attacks on violations of state law or procedure and is unavailable for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir.1994). We agree with the district court that Fuller’s claims do not raise an intelligible habeas issue for this court to decide, nor do we find any prejudicial error. Ineffective Assistance ofCownsel Fuller next contends that the district court erred in determining that his claim of ineffective assistance of counsel was not prejudicial. We disagree. The district" }, { "docid": "8260625", "title": "", "text": "of the evidence of guilt the jury properly could have considered”].) (Lodgment No. 4 at 11-13). 4. Findings and conclusion The Court concurs with the California Court’s reasoning and conclusion that the trial court did not fail to give a limiting instruction as to all gang-related evidence. Detective Nickerson’s testimony during direct examination about petitioner’s membership in the FSC gang, the history of the rivalry between the FSC gang and the Mob gang, and the various shootings resulting from the ongoing rivarly was relevant to show why petitioner shot the two victims. During closing argument, the prosecutor emphasized that Detective Nickerson’s testimony was only to be considered on the issue of motive. (See 5 RT 1720). As noted by the California Court of Appeal, there is no reason to believe the jury would have improperly considered such evidence to show petitioner’s propensity to commit the instant crimes. Consequently, the trial court’s failure to give a limiting instruction with respect to all gang-related evidence did not so infect the trial as to make the resulting conviction a denial of due process. See Estelle, supra; Cupp, supra. Moreover, the California Court of Appeal’s application of harmless error analysis was not contrary to clearly established federal law, as determined by the United States Supreme Court. Thus, the sole determination for the Court is whether the California Court of Appeal “applied harmless-error review in an ‘objectively unreasonable’ manner.” See Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). The Court finds that it did not. As noted by the California Court of Appeal, overwhelming evidence established that petitioner committed the attempted murders. Moreover, as noted above, petitioner’s testimony about his lack of involvement in the attempted murders was seriously impeached. Accordingly, the Court finds that the California courts’ rejection of petitioner’s instructional error claim neither was neither contrary to nor involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. D. Habeas relief is not warranted on petitioner’s prosecutorial misconduct claim. Petitioner contends that the prosecutor committed misconduct in two respects: (1)" }, { "docid": "8260617", "title": "", "text": "that petitioner would retaliate in a deadly manner for harm inflicted on a FSC gang member, that he desired to kill members of the Mob gang, and that he intended to kill Terry and Witherow. Thus, the admission of such evidence was not so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See Estelle, supra; Jammal supra; see also see McKinney v. Rees, supra, 993 F.2d at 1384-85. Moreover, petitioner has failed to show that the admission of evidence of petitioner’s involvement in uncharged murders violates clearly established United States Supreme Court law. The United States Supreme Court has specifically left open the question of whether the admission of propensity evidence violates due process. See Estelle, supra, 502 U.S. at 75 n. 5, 112 S.Ct. 475 (“[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime”); see also Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir.2006). cert. denied, — U.S. ---, 127 S.Ct. 1834, 167 L.Ed.2d 333 (2007). Finally, even if the California Court of Appeal erred in finding that the trial court did not err in admitting evidence of petitioner’s involvement in uncharged acts of murder, and even if the admission of such evidence amounted to a federal constitutional violation as a matter of clearly established Supreme Court law, the Court finds that the constitutional error did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). There was substantial evidence, beyond the evidence of petitioner’s involvement in the uncharged acts of murder, showing petitioner’s involvement in the attempted murders of Terry and Witherow. (See 4 RT 1381-86, 1393-95, 1412-13, 1415-20, 1426-27, 1429-30, 1459-60, 1462-68, 1470-71, 1475). Terry unequivocally identified petitioner as the person who shot him. (See 4 RT 1383-86). Dennis Terry, who saw both Terry and Witherow shortly after the shootings, testified that Witherow identified petitioner as the shooter. (See 4 RT 1415-18)." }, { "docid": "8260612", "title": "", "text": "Jammal, supra; Windham v. Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1998) (holding that evidence of gang involvement was properly admitted to prove motive for participating in the alleged crimes). The Court therefore finds and concludes that the California courts’ rejection of petitioner’s claim based on the admission of the gang evidence neither was contrary to nor involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. 7 B. Habeas relief is not warranted on petitioner’s claim concerning the trial court’s admission of evidence concerning two uncharged murders. Petitioner contends that the trial court erred in permitting the prosecutor to cross-examine petitioner on two uncharged murders which petitioner was suspected of committing. (First Amended Petition at 6; Memorandum at 8-9; Traverse at 6-11). 1. The record below As discussed above, the trial court initially disallowed evidence that petitioner was a suspect in two gang-related murders. During the defense case, petitioner testified that he was an FSC gang member who had prior convictions for gun possession (twice) and commercial burglary (see 5 RT 1576-78); that he was a victim of a shooting on May 25, 2003, which left him unable to run (see 5 RT 1578-79, 1583); and that he was not armed with a firearm when he was shot on May 25, 2003, and that he did not shoot Terry or Witherow on August 7, 2003 (see 5 RT 1591-94). On cross-examination, petitioner testified that he had never shot at another person (see 5 RT 1594-95); that he was unaware of any gang war between the FSC gang and the Mob gang (see 5 RT 1597-99); and that, although he was an FSC gang member, he was “not-active” on the date of the August 7, 2003 shootings (see 5 RT 1600). During re-direct examination, petitioner testified that he had “done some bad things” as a gang member (see 5 RT 1623) and that he carried guns for defensive purposes only and not with the intent to harm another person (see 5 RT 1625). Petitioner again asserted that he was not armed with a" }, { "docid": "8260606", "title": "", "text": "Petition at 5; Memorandum at 6-Traverse at 6-11). 1. The record below Prior to trial, petitioner moved to exclude evidence of petitioner’s membership in the FSC gang, the history of the rivalry between the FSC gang and the Mob gang, and the shootings arising out of the rivalry. Petitioner argued that the gang evidence was too prejudicial because there was no gang enhancement allegation. The prosecutor objected, explaining that the gang evidence was relevant to show that the shootings in the instant case were retaliatory actions taken by petitioner, stemming from the gang war between the FSC gang and the Mob gang. He explained that petitioner, who was a prime suspect in two unsolved murders, had been shot by a suspected Mob gang member. The prosecutor presented the theory that petitioner retaliated by shooting at Faron Witherow (“Wiherow”) and Sheldon Terry (“Terry”), both of whom were related to two members of the Mob gang (those two Mob gang members had been killed as a result of the gang war). (See 4 RT 1324-1330, 1334-35, 1340-41). The trial court found that evidence about the generalities of the gang war, petitioner’s gang membership, and petitioner having been a shooting victim in the gang war “clearly goes to motive,” and ruled that the gang evidence was more probative than prejudicial. However, the trial court found that evidence of petitioner’s involvement as a suspect in prior gang activities (i.e., two murders) and evidence of incidents that occurred after the instant shootings was more prejudicial than probative. (See 4 RT 1334,1337-41). At trial, Los Angeles Police Department Detective Donovan Nickerson, the prosecution’s gang expert, testified as follows; In the late 1990’s there was a feud within the FSC gang which led to Dennis Evans (“Evans”), Witherow’s older brother, creating a new gang, the Mob gang. As a result of this break up, a war between the two factions ensued. A number of shootings and murders occurred between the two gangs dating back from March 1999. Witherow’s two brothers, Evans and Devon Witherow, were murdered by suspected FSC gang members on May 18, 2000 and August" }, { "docid": "20353149", "title": "", "text": "Opinion by Judge POOLE; Dissent by Judge TANG. ORDER Judge Kilkenny is unable to participate further in this appeal and Judge Canby has been drawn to replace him. Walters’ petition for rehearing is granted. The majority, concurring and dissenting opinion filed December 8, 1993 are withdrawn, and the attached majority opinion and Judge Tang’s dissenting opinion are filed in their place. OPINION POOLE, Circuit Judge: Roger Matthew Walters, an Oregon state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and sentence for attempted rape, attempted sodomy, and attempted kidnapping of a thirteen-year old girl. We review de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). We affirm in part and reverse in part and remand to the district court with instructions to grant the writ on the ground that insufficient evidence supports Walters’ convictions for attempted rape and attempted sodomy. I Walters first contends that he was denied a fair trial when the state court admitted evidence that in 1981, he approached another thirteen-year old girl with the ploy of searching for a nonexistent white German shepherd, offered her $20, and then kidnapped her, took her to his trailer, and forcibly raped and sodomized her. Walters used the same German shepherd ploy in this case to try to lure the thirteen-year old victim into his truck. The state court admitted the prior bad acts evidence as proof of intent. State prisoners are entitled to habeas relief under 28 U.S.C. § 2254 only if their detention violates the Constitution or a federal statute or treaty. 28 U.S.C. § 2241(c); Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam). A state court’s procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984); Jammal v. Van" }, { "docid": "21706224", "title": "", "text": "complains the Texas Court of Criminal Appeals erroneously applied state law principles in rejecting his complaints about the trial court’s rulings on various challenges for cause, his arguments do not furnish a basis for federal habeas relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. 475; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. 3092; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. 871. When a federal district court reviews a state prisoner’s habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” The court does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A federal court may grant habeas relief based on an erroneous state court eviden-tiary ruling only if the ruling violates a specific federal constitutional right or is so egregious it renders the petitioner’s trial fundamentally unfair. Brown v. Dretke, 419 F.3d 365, 376 (5th Cir.2005), cert. denied, 546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006); Wilkerson v. Cain, 233" }, { "docid": "15396924", "title": "", "text": "federal evidentiary one. Although the Supreme Court, in Jaffee v. Redmond, 518 U.S. 1, 8, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), recognized a psychotherapist-patient privilege, it looked exclusively to the Federal Rules of Evidence for authorization. Henry has pointed to no Supreme Court or Ninth Circuit case which recognizes a constitutional privilege for psychotherapist-patient communications, nor any cases which use Jaffee to support a constitutional psychotherapist-patient privilege. Therefore, at best, Henry’s challenge to the admissibility of Dr. Sander’s testimony and notes is a challenge to an evidentiary ruling based on state law. A federal habeas court, of course, cannot review questions of state evidence law. On federal habeas review, we may consider only whether the petitioner’s conviction violated constitutional norms. See Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). Even where it appears that evidence was erroneously admitted, a federal court will interfere only if it appears that its admission violated fundamental due process and the right to a fair trial. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir.1993). Henry has not made a showing that the admission of Dr. Sander’s testimony violated due process or his right to a fair trial. At Henry’s trial, two witnesses testified that Henry had complained to them about Withrow’s handling of his money and property; one of these witnesses further testified that Henry had commented to her that he should do the world a favor and kill Withrow. Thus, Dr. Sander’s testimony regarding Henry’s confidences did not constitute the only evidence that Henry had stated he felt like killing Withrow, or that Henry might have been motivated by revenge. Henry has failed to demonstrate that the admission of Dr. Sander’s testimony and notes so fatally infected his trial as to render it fundamentally unfair or that the violation of his privacy resulted in a complete miscarriage of justice. See Jam-mal, 926 F.2d at 919. Accordingly, we affirm the district court’s denial of habeas relief to Henry on his constitutional privacy claim. IV." }, { "docid": "20353150", "title": "", "text": "thirteen-year old girl with the ploy of searching for a nonexistent white German shepherd, offered her $20, and then kidnapped her, took her to his trailer, and forcibly raped and sodomized her. Walters used the same German shepherd ploy in this case to try to lure the thirteen-year old victim into his truck. The state court admitted the prior bad acts evidence as proof of intent. State prisoners are entitled to habeas relief under 28 U.S.C. § 2254 only if their detention violates the Constitution or a federal statute or treaty. 28 U.S.C. § 2241(c); Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam). A state court’s procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir.1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986). Thus, a federal court cannot disturb on due process grounds a state court’s decision to admit prior bad acts evidence unless the admission of the evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839, 107 S.Ct. 142, 93 L.Ed.2d 84 (1986). The Oregon court did not err by admitting evidence of Walters’ 1981 convictions. Walters’ use of the German shepherd ploy in 1981 was relevant to show his intent in using the same ploy in 1987. Moreover, the prior act was not too remote in time. Although seven years elapsed between the two crimes, Walters spent almost all of that time in jail serving his sentence for the 1981 crime. The trial court reduced the danger of unfair prejudice by giving a limiting instruction that the evidence" }, { "docid": "23034813", "title": "", "text": "1210, 1216 (9th Cir.1997) (“Habeas claims that are not raised in the petition before the district court are not cognizable on appeal”). V Windham contends that he was denied his due process right to a fundamentally fair trial when the trial court admitted evidence tending to support the prosecution’s “gang involvement theory.” We have no authority to review alleged violations of a state’s evidentiary rules in a federal habeas proceeding. See Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). Our role is limited to determining whether the admission of evidence rendered the trial so fundamentally unfair as to violate due process. See Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir.1986). The admission of “other acts” evidence, which a defendant contends is unduly prejudicial, will violate due process only when “there are no permissible inferences the jury may draw from the evidence.” Jammal, 926 F.2d at 920. Thus, whether or not the admission of evidence is contrary to a state rule of evidence, a trial court’s ruling does not violate due process unless the evidence is “of such quality as necessarily prevents a fair trial.” Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir.1986). Windham objects to the admission of the testimony of Detective Angel Delgadillo and Jonathan Reed. The trial court allowed the prosecution to introduce the testimony of Detective Delgadillo, a member of the Sacramento City Police Department Street Gang Unit, as a “gang expert.” Detective Delga-dillo testified that there were several factions of the gangs known as “Crips” and “Bloods” in the area where the crimes took place. Ninety-five percent of these gang members are black. Most are male. Detective Delga-dillo stated that gangs engage in “paybacks,” or retributive behavior, against rival gangs when one of their cohorts is wronged. Detective Delgadillo also testified regarding Woods’s membership in the Crips gang. While Delgadillo was on the stand, the prosecutor introduced a photo album belonging to Woods which was inscribed “Crip Fo Life” and which contained other writings and photos indicating Woods’s gang affiliation. No evidence was introduced that Windham was a member of the" }, { "docid": "8260605", "title": "", "text": "state court should have made a finding of fact but neglected to do so[;] ... where the state court does make factual findings, but does so under a misapprehension as to the correct legal standard!;] ... and, where the fact-finding process itself is defective.”). If the state court’s factfinding process survives the federal court’s intrinsic review, or if the petitioner does not challenge the state court’s factfinding process, the state court’s factual findings are presumed correct unless rebutted by clear and convincing evidence. Buckley, supra, 397 F.3d at 1155. VI. DISCUSSION A. Habeas relief is not warranted on petitioner’s claim concerning the trial court’s admission of gang evidence. Petitioner contends that the trial court deprived him of his state and federal constitutional due process rights by erroneously admitting highly inflammatory gang evidence. Specifically, petitioner contends that the trial court erred in admitting evidence of petitioner’s gang membership, evidence of the history of rivalry between Front Street Crips (“FSC”) gang and the Mob gang, and evidence of the shootings resulting from the ongoing rivalry. (First Amended Petition at 5; Memorandum at 6-Traverse at 6-11). 1. The record below Prior to trial, petitioner moved to exclude evidence of petitioner’s membership in the FSC gang, the history of the rivalry between the FSC gang and the Mob gang, and the shootings arising out of the rivalry. Petitioner argued that the gang evidence was too prejudicial because there was no gang enhancement allegation. The prosecutor objected, explaining that the gang evidence was relevant to show that the shootings in the instant case were retaliatory actions taken by petitioner, stemming from the gang war between the FSC gang and the Mob gang. He explained that petitioner, who was a prime suspect in two unsolved murders, had been shot by a suspected Mob gang member. The prosecutor presented the theory that petitioner retaliated by shooting at Faron Witherow (“Wiherow”) and Sheldon Terry (“Terry”), both of whom were related to two members of the Mob gang (those two Mob gang members had been killed as a result of the gang war). (See 4 RT 1324-1330, 1334-35, 1340-41)." }, { "docid": "83874", "title": "", "text": "for Federal Habeas Relief Insofar as petitioner argues the state trial court erroneously applied the Texas Rules of Evidence in excluding the testimony of Barbara Boyd regarding Samuel Boyd’s criminal record and reputation for violence, petitioner’s arguments do not furnish a basis for federal habeas corpus relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991)(holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)(recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874. When a federal district court reviews a state prisoner’s habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” The court does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter. Coleman v. Thompson, 501 U.S. at 780, 111 S.Ct. at 2554. A federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling violates a specific federal constitutional right or is so egregious it renders the petitioner’s trial fundamentally unfair. Brown v. Dretke, 419 F.3d 365, 376 (5th Cir.2005), cert. denied, 546 U.S. 1217," } ]

[ { "docid": "22086935", "title": "", "text": "were produced and delivered to petitioner at the trial, and he submits that this cannot appropriately be done in this Court, especially since neither the receipts nor the proffered list is contained in the present record, but can properly be done only in the District Court. He therefore asks us to vacate the judgment and remand the case to the District Court to hear these issues and to determine whether a new trial should be ordered or the judgment should be reinstated with the right in the petitioner, of course, to appeal from any such judgment to the Court of Appeals. In opposition, petitioner argues that the claimed destruction of the agents’ notes admits the destruction of evidence that may have been helpful to him and deprives him of his rights under § 3500 and to due process of law, and therefore the judgment should be reversed. Alternatively, he argues that only he and his counsel could determine the uses that might have been made of the receipts had they been produced, and he concludes that it would not be possible for the District Court, on remand, to find that the failure to produce the receipts was nonprejudicial or harmless error, and that therefore he is entitled to a new trial. As to petitioner’s contention that the claimed destruction of the agents’ notes admits the destruction of evidence, deprives him of legal rights and requires reversal of the judgment, it seems appropriate to observe that almost everything is evidence of something, but that does not mean that nothing can ever safely be destroyed. If the agents’ notes of Ondrejka's oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. Those are the factual representations made by the Solicitor General. Whether they are true" } ]

[ { "docid": "20694573", "title": "", "text": "or innocence. It is not entirely clear under what theory Killian thought the FBI agents’ notes would be relevant, only that he insisted he had the right to inspect them free from bad-faith government interference. In this case, by contrast, Armstrong has advanced a straightforward theory for the relevance of the drug paraphernalia: if tested, it probably would have revealed the fingerprints or other evidence of the real killer. The Supreme Court acknowledged the significance of Killian when it faced the question of the duty to preserve evidence decades later in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The Trombetta Court said “the instant case is reminiscent of Killi-an,” a case “in which we have discussed due process constraints on the Government’s failure to preserve potentially exculpatory evidence.” Id. at 487, 104 S.Ct. 2528. And our colleagues in other circuits have consistently interpreted Killian in this manner. See United States v. Sullivan, 919 F.2d 1403, 1427 & n. 37 (10th Cir.1990); United States v. Arra, 630 F.2d 836, 848-49 (1st Cir.1980) (relying in part on Killian in announcing a three-pronged inquiry — materiality, prejudice, and good or bad faith — for due process claims for destruction of evidence); United States v. Moore, 453 F.2d 601, 603-04 (3rd Cir.1971) (citing Killian but finding no error because FBI agent’s notes “were destroyed in good faith”). Norsetter also asserts that a prosecutor had no clearly established legal duty to refrain from destroying evidence of any kind in 1980. While he acknowledges that Brady v. Maryland established a duty to disclose material evidence to the defense, 373 U.S. at 86, 83 S.Ct. 1194, he says there was no non-disclosure here because Armstrong was aware that the evidence was destroyed before trial. This second argument fails in light of Killian, but it also strains Brady to the point of absurdity. Though Brady did not announce a duty to preserve evidence, a duty to refrain from bad-faith destruction flows necessarily, and obviously, from its familiar holding that suppression of material exculpatory evidence violates due process. Brady, 373 U.S. at 86," }, { "docid": "14579379", "title": "", "text": "RONEY, Circuit Judge: Clifton Ray Martin appeals his conviction for interstate transportation of a stolen motor vehicle, 18 U.S.C.A. § 2312, alleging the Government violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C.A. § 3500, because it could not produce the interview notes of a testifying FBI agent, which notes had been destroyed. The destruction having occurred through normal practice and not in bad faith, we affirm. On two occasions prior to his arrest, defendant Martin was interviewed by an agent of the Federal Bureau of Investigation, who made handwritten notes of those interviews. Shortly afterwards, the agent used the notes to prepare standard FBI interview reports, Form “FD-302.” After checking the typed 302 reports for accuracy, he destroyed the notes. This was standard procedure at the time. The FBI has since changed its policy and now .retains the rough notes even after the 302 report has been prepared. The agent testified at trial about what Martin had told him during these interviews. According to the agent, Martin said he knew the camper was stolen, and that, in fact, the man from whom he purchased it told him it was stolen and that he had switched the serial plate on the camper. Martin testified at trial that he did not know the camper had been stolen. He denied having told the FBI agent he knew it was stolen, and denied having made the other incriminating remarks to which the agent testified and which were contained in the 302 report. The defense was given copies of the 302 reports after the agent testified. Martin claims, however, that if the agent’s rough notes were available, they would show the 302 reports to be inaccurate. He asserts he was entitled to those notes, and that, since they are unavailable, he should get a new trial, at which the agent should be prevented from testifying. As to the Jencks Act argument that Martin was entitled to the notes after the witness testified, this Circuit has recently ruled adversely. Under the" }, { "docid": "14451650", "title": "", "text": "of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by [the witness], and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. * * * It is entirely clear that petitioner would not be entitled to a new trial because of the nonproduction of the agents’ notes if those notes were so destroyed and not in existence at the time of the trial. * * * ” (368 U.S. at 242, 82 S.Ct. at 308, 7 L.Ed.2d 256). In Campbell an F. B. I. agent dictated an Interview Report from his handwritten notes, and, after comparing the two, destroyed the notes. Defendant was denied access to the Interview Report. He contended this was error, and, in any event, that destruction of the notes required imposition of the sanctions provided by 18 U.S.C.A. § 8500(d). The Supreme Court sustained the determination of the District Court, following a post-trial hearing, that the handwritten notes were producible as a written statement made and adopted by the witness (18 U.S.C.A. § 3500(e) (1)), and that the Interview Report was producible as a “copy” of the notes — “copy,” in this context, connoting absence of “material variance or inconsistency,” the differences being confined to “grammatical and syntactical changes, rearrangement into chronological order, and omissions and additions of information immaterial for impeachment purposes.” (373 U.S. at 495, 83 S.Ct. at 1361, 10 L.Ed.2d 501). Since the Interview Report was available for defendant’s use in the new trial, the Supreme Court found it unnecessary to review the holding of the Court of Appeals that if the notes qualified as a producible “statement” under the Act and the Interview Report did not, and so was not available to defendant, sanctions nonetheless would not attach to the destruction of the notes if the destruction was not in bad faith. 373 U.S. at 491 n. 5," }, { "docid": "13529754", "title": "", "text": "guilty on all five counts of mail fraud. The court sentenced Waterman to two years on each count, to be served consecutively. This appeal followed. II. Discussion. A. FBI notes. Prior to his trial, Waterman moved for production of certain notes made by an FBI agent based on interviews with Gamst. When Gamst decided to plead guilty, the FBI debriefed him in several interviews. According to the Government, the notes from these interview sessions were eventually transcribed onto forms, and provided to Waterman’s attorney during discovery. Prior to both the completion of the forms and the commencement of the first trial, an FBI agent used the debriefing notes to prepare a short outline of Gamst’s testimony for the benefit of the defendants in the first trial. This outline has apparently since been destroyed. Waterman does not question the good faith of the Government’s representations concerning the outline, but he claims that he should have had access either to the outline or to the agent who prepared it, because information from either source might have been useful as exculpatory evidence. Waterman contends the trial court erred in permitting Gamst to testify for the prosecution without first affording Waterman access either to the FBI agent or to his outline. We disagree. In view of the fact that Waterman admits that he received the forms detailing the results of Gamst’s FBI interviews, the district court could properly have determined that the Government did not need to produce the agent or the agent’s outline under either the Jencks Act, 18 U.S.C. § 3500 (1976), or Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (suppression of exculpatory evidence violates due process). Even if the outline were still in existence, it would not constitute a witness’ “statement” under the Jencks Act. 18 U.S.C. § 3500(e)(1); see Kane v. United States, 431 F.2d 172, 174-75 (8th Cir.1970). Moreover, Waterman has failed to show that the outline contained evidence that would have materially affected the outcome of the trial as required under Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at" }, { "docid": "22748103", "title": "", "text": "prosecutor’s obligation to serve the cause of justice” be lost. 427 U. S., at 111. Nor does United States v. Valenzuela-Bernal, 458 U. S. 858 (1982), provide support for the majority’s “bad faith” requirement. In that case a defendant was deprived of certain testimony at his trial when the Government deported potential witnesses after determining that they possessed no material evidence relevant to the criminal trial. These deportations were not the result of malice or negligence, but were carried out pursuant to immigration policy. Id., at 863-866. Consideration of the Government’s motive was only the first step in the due process inquiry. Because the Government acted in good faith, the defendant was required to make “a plausible showing” that “the evidence lost would be both material and favorable to the defense.” Id., at 873. In Valenzuela-Bernal, the defendant was not able to meet that burden. Under the majority’s “bad faith” test, the defendant would have no opportunity to try. In Killian, the notes in question related to witnesses’ statements, were used to prepare receipts which the witnesses then signed, and were destroyed in accord with usual practice. 368 U. S., at 242. Had it not been the usual practice of the agents to destroy their notes, or if no reports had been prepared from those notes before they were destroyed, a different question, closer to the one the Court decides today, would have been presented. The cases relied upon by the majority for the proposition that bad faith is necessary to show a due process violation, United States v. Marion, 404 U. S. 307 (1971), and United States v. Lovasco, 431 U. S. 783 (1977), concerned claims that preindictment delay violated due process. The harm caused by such delay is certainly more speculative than that caused by the deprivation of material exculpatory evidence, and in such cases statutes of limitations, not the Due Process Clause, provide the primary protection for defendants’ interests. Those cases are a shaky foundation for the radical step taken by the Court today. We noted in California v. Trombetta, 467 U. S. 479, 486 (1984): “The" }, { "docid": "23150631", "title": "", "text": "that the prosecutor's repeated and deliberate efforts to emphasize what the jury may or may not have heard was improper, see XVI R. at 1831, and properly cautioned the jury to consider only those portions of the tape that it heard and and could understand. See, e.g., XIV R. at 1245-46, 1251; XVII R. at 2042, 2165-66. We are persuaded, however, that despite the court’s efforts to cure the effect of the prosecutor’s improper use of the transcript, the damage had already been done. Significantly, the court did not give any limiting instruction after the prosecutor quoted extensively from the transcript during his closing argument. The court overruled defense counsel’s objection and motion for mistrial without comment. XVII R. at 2247. . Melvin Rogers testified that he had as many as six meetings with Agent Means and that Means took notes at all but one meeting. X R. at 249. Defense counsel, however, was provided with copies of interview notes for only one meeting with Melvin Rogers. Similarly, Means' own chronology of events reveals that he had meetings, either in person or by telephone, with Evelyn Rogers 16 times between May 9, 1988, and July 21, 1988. Defense counsel was furnished with Means’ handwritten notes for only four of those meetings. Finally, Means’ chronology reveals that he had 12 meetings, either in person or by telephone, with the informant Steve Howell between May 22 and July 21, 1988. Defense counsel, however, was not provided with any notes or reports of interviews with Steve Howell. .Defense counsel raised the matter again at trial, see XI R. at 467-68, 556, and the court again denied defendant’s motion to dismiss. Id. at 594-95. Because the defendants request that the case be dismissed, and not merely reversed and remanded for a new trial, this issue is not moot. . The defendants argue in the alternative that even if the interview notes were not Brady material, the defendants were deprived of due process because Agent Means destroyed the evidence in bad faith. See Br. of Russell Sullivan at 7-11. . When the court denied defendants’" }, { "docid": "22725389", "title": "", "text": "failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U. S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U. S. C. § 1001. A key element of the Government’s case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner’s trial, the F. B. I. agents who prepared the investigatory report destroyed the preliminary, notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner’s defense, the Court ruled that their destruction did not rise to the level of constitutional violation: “If the agents’ notes . . . were made only for the purpose of transferring the data thereon . . . , and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” Id., at 242. In many respects the instant case is reminiscent of Killian v. United States. To the extent that respondents’ breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the Intoxilyzer. The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents’ notes hi order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyzer. Given our precedents in this area, we cannot agree with the California Court of Appeal that the State’s failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents’ breath samples in a" }, { "docid": "23150633", "title": "", "text": "motion to dismiss from the bench, it did not express its reasons for doing so. See XI R. at 595. . This case is strikingly similar to the pre-Brady case of Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). In Killian, the government relied in its case in chief on an investigatory report prepared by the Federal Bureau of Investigation. Prior to trial, however, the FBI Agents who prepared that report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. The Solicitor General, however, represented that the agents’ notes were made only for the purpose of transferring the data thereon to the required receipts, and that, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices. See 368 U.S. at 242, 82 S.Ct. at 308-309. The Court acknowledged that the notes might have contributed to the petitioner’s defense, but held that if the Solicitor General’s factual representations were true, the destruction of the notes would not \"constitute an impermissible destruction of evidence nor deprive petitioner of any right.” Id. The Court remanded the case to the district court for a hearing to determine whether the Solicitor General's representations were true, and if not, for a new trial. Id. at 244, 82 S.Ct. at 309. . We are mindful of the difficulty of this task. As the Supreme Court observed in Trombetta, \"[w]henever potentially exculpatory evidence is permanently lost, courts face the treacherous task of defining the import of materials whose contents are unknown and, very often, disputed.\" 467 U.S. at 486, 104 S.Ct. at 2532. Nevertheless, findings following the evidentiary hearing will afford the best resolution of the constitutional claim. Finally, we note that on the present record we cannot conclude as a matter of law that the interview notes were immaterial, or that their likely impeachment value would be insubstantial. See generally United States" }, { "docid": "3128928", "title": "", "text": "its omission to produce was “harmless error” (Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304), can only be factually decided by the trial judge. B — as to the Notes: The Court rejected the defendant appellant’s “destruction per se error” argument, to wit, that the mere fact of destroying an Act statement precludes a fair trial. In this regard at page 242 of 368 U.S., at page 308 of 82 S.Ct., the Court states: “If the agent’s notes of Ondrejka's oral reports of expenses were made only for the purpose of transfering data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accordance with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” Inferentially, from this language we can conclude that the fact of destruction can be offset by a showing of good faith. What constitutes good faith will for the most part depend upon the individual circumstances of the case, and once determined a trial judge’s ruling which is benefited by the presence of the witnesses at the time they testify should not be reversed absent it being held to be “clearly erroneous”. Unquestionably many things go into and contribute to a judge’s making such a determination. Most important is the testimony of the witness who caused the destruction — his character and his apparent motives. Also, as I have already indicated earlier in this memorandum, if the information contained in the destroyed statement, or better a Campbell “II” copy of the destroyed statement, is made available to the defendant such a fact would substantially support a finding of good faith destruction. Directly on point is the following language contained in a most recent opinion written by Judge Swygert. United States v. Spatuzza, 7 Cir., 331 F.2d 214, 218: “Defendants complain that enforcement of section 3500 was thwarted when the FBI agents destroyed notes taken during interviews with witnesses. The agents" }, { "docid": "5144505", "title": "", "text": "render summary judgment or to preclude respondent from offering proof concerning the subject matter of the spoliated or destroyed evidence. First, and most troublesome, petitioners cite the destruction by Special Agent Connor of handwritten interview notes taken by him during the course of his investigation of Dr. Riland. These notes related to interviews of Dr. Riland and other individuals. It was Connor’s practice to destroy such notes after they were carefully incorporated into more formal memoranda. At Dr. Riland’s criminal trial, Connor stated that the notes were generally destroyed because after they were used to prepare a typewritten memorandum, they served no purpose and merely took up extra space. Connor also testified, however, that another reason for his destroying the notes was to prevent witness impeachment should a defense attorney uncover any inconsistencies between those notes and a witness’ testimony at trial. The destruction of interview notes after incorporating those notes into typed memoranda was standard IRS procedure prior to 1977. This practice was ended that year in response to the holdings in United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), and United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975). Harris and Harrison held that rough notes of interviews of third parties taken by FBI agents conducting criminal^ investigations were potentially discoverable by criminal defendants under the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), and hence must be preserved. In Brady v. Maryland, the Supreme Court held \"that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (373 U.S. at 87.) We have previously held that the formal memoranda of interviews conducted by IRS agents of taxpayers are discoverable under Rule 70(c) as statements of a party because of \"The extreme care taken by the agents to assure the accuracy and completeness of the memoranda.” Phelps v. Commissioner, 62 T.C. 513, 517 (1974). We have also held that memoranda of IRS interviews of nonparty witnesses" }, { "docid": "23150585", "title": "", "text": "read from the purported transcript, the accuracy of which was not determined and which was not in evidence. VIII. The Brady Claim The defendants argue that they were deprived of due process because the government destroyed handwritten notes made during Agent Means’ investigative interviews with the three government informants. The issue arose at trial when defense counsel’s cross examination of Melvin and Evelyn Rogers disclosed that Means had conducted as many as thirty-two interviews with the informants, whereas the government provided interview notes for only five of those meetings. In some but not all cases the government apparently provided defense counsel with a typewritten report of the interview in lieu of the agent’s handwritten notes. According to the defendants’ briefs, when defense counsel confronted the prosecutor with this information, he was informed that Means had “shredded” the notes pursuant to “departmental policy.” See Wright Br. at 17; Sullivan Br. at 7. Thereafter, defense counsel filed a motion to dismiss for suppression of evidentiary material in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court denied the motion by minute order. The government acknowledges that some “handwritten drafts [of final reports] based on field notes and recollection” were destroyed, along with a note written on a napkin, but otherwise disputes defendants’ factual allegations. Brief of United States at 26. The government further alleges that “handwritten draft field notes were produced to defendants,” and that the substance of the “shredded” notes was embodied in reports also furnished to the defendants. Id. The government characterizes the defendants’ claim as “speculative” and argues that in any case the defendants have not demonstrated that the missing evidence had any exculpatory value or that it was destroyed in bad faith, id. at 25-26, citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In Youngblood, the Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58," }, { "docid": "20694571", "title": "", "text": "harm from the destruction of the notes because all relevant information from them was incorporated into the summary report or contained in On-drejka’s narrative statements, both of which were given to the defense. Id. at 240-41, 82 S.Ct. 302. But Killian still asserted a violation of statutory and constitutional due process rights because the government “admits the destruction of evidence that may have been helpful.” Id. at 241, 82 S.Ct. 302. The Court found no statutory or constitutional violation, but only on the assumption that the Solicitor General was correct and the government acted in good faith: “If the agents’ notes of Ondrejka’s oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrej-ka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” 368 U.S. at 242, 82 S.Ct. 302. The Court then remanded to the district court with specific directions: “If ... the District Court finds that the Solicitor General’s representations are untrue in any material respect, it shall grant petitioner a new trial.” Id. at 244, 82 S.Ct. 302. Norsetter argues that the Killian remand order was limited to determining whether the non-disclosure of two other documents was harmless error. This interpretation is untenable in light of the Court’s order that the petitioner be granted a new trial if “the Solicitor General’s representations are untrue in any material respect,” 368 U.S. at 244, 82 S.Ct. 302, and the plainly conditional ruling on the destruction of the notes, id. at 242, 82 S.Ct. 302. Based on Killian, then, law enforcement officials were on notice long before 1980 that the duty to preserve was not limited to obviously exculpatory evidence. In fact, the connection between evidence in question in Killian and guilt or innocence of the charged crime was much more attenuated than the connection here between the drug paraphernalia and Armstrong’s guilt" }, { "docid": "14577891", "title": "", "text": "reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. Id. at 242, 82 S.Ct. at 308. Killian does not conflict with our holding here. The expense notes upon which the Court was focusing are by no means the kind of “crucial” evidence involved in this case, statements by key eyewitnesses containing their initial identifications of the suspects. See note 39 infra. If the remand in Killian resulted in a new trial, the defendants were to have access to any final receipts which contained information relating to the witness’ testimony. 368 U.S. at 239, 82 S.Ct. 302. Moreover, the Government had offered at the first trial to provide a complete list showing all payments to the informant for expenses and services. Id. at 238, 82 S.Ct. 302. The important fact, going to Ondrejka’s credibility, was therefore already established — that Ondrejka was indeed a well-paid government informant. Any discrepancy between the notes of expenses Ondrejka reported and the receipts showing money actually paid would have availed the defendant almost nothing. We cannot accept the notion that in focusing on such an unimportant category of evidence as this, the Supreme Court was announcing doctrine meant to cover even notes of substantive statements given by important witnesses. Perhaps the most persuasive evidence that the Court had no such intention is the fact that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), came down a mere two years later but made no mention of Killian. . We have found only one case where the defendant prevailed because he was able to bring in other evidence that there was a discrepancy between the destroyed materials and the final 302 report. United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965). Cf. Lee v." }, { "docid": "14577890", "title": "", "text": "Of course, the regular procedures for preservation must be adequate to the task; systematic non-preservation of tapes involving Government undercover agents — as in the cases before us — might be regular, but would be insufficiently protective of defendants’ right to discovery. United States v. Bryant, supra note 1, 142 U.S.App.D.C. at 142, 439 F.2d at 652. . See Comment, supra note 1, at 548-552. Most of the cases upholding the FBI practice rely on an oft-cited passage from Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). Defendants there sought a number of materials relating to the testimony of two government informers. Because of important factual questions which could not be settled on the record as it then stood, a remand was necessary. In the course of giving guidance to the District Court on the standards to be applied on remand, Justice Whit-taker wrote for the Court the following directions, concerning rough notes of certain expenses of one of the informers, Ondrejka: If the agents’ notes of Ondrejka’s oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. Id. at 242, 82 S.Ct. at 308. Killian does not conflict with our holding here. The expense notes upon which the Court was focusing are by no means the kind of “crucial” evidence involved in this case, statements by key eyewitnesses containing their initial identifications of the suspects. See note 39 infra. If the remand in Killian resulted in a new trial, the defendants were to have access to any final receipts which contained information relating to the witness’ testimony. 368 U.S. at 239, 82 S.Ct. 302. Moreover, the Government had offered at the first trial to provide a complete list showing all payments to the informant for expenses" }, { "docid": "20694570", "title": "", "text": "daw enforcement’s duty to preserve potentially exculpatory evidence. Killian was convicted of giving false testimony for lying about his involvement in the Communist Party. Killian, 368 U.S. at 235, 82 S.Ct. 302. A witness working for the government testified he had seen Killian participate in party meetings. Id. at 237, 82 S.Ct. 302. The witness, Ondrejka, was reimbursed for party membership fees and travel expenses by orally reporting his expenses to an FBI agent, who took notes and saw that On-drejka was paid. Id. at 238, 82 S.Ct. 302. Killian wanted the government to produce the FBI agents’ notes of the reimbursement payments. Id. at 238-39, 82 S.Ct. 302. The government refused but offered a summary of payments showing the date, amount, and reason for each payment. Id. at 238, 82 S.Ct. 302. When the case reached the Supreme Court, the- Solicitor General represented that the FBI had destroyed the original notes “in accord with normal practice” before Killian’s trial. 368 U.S. at 241, 82 S.Ct. 302. The Solicitor General argued that there was no harm from the destruction of the notes because all relevant information from them was incorporated into the summary report or contained in On-drejka’s narrative statements, both of which were given to the defense. Id. at 240-41, 82 S.Ct. 302. But Killian still asserted a violation of statutory and constitutional due process rights because the government “admits the destruction of evidence that may have been helpful.” Id. at 241, 82 S.Ct. 302. The Court found no statutory or constitutional violation, but only on the assumption that the Solicitor General was correct and the government acted in good faith: “If the agents’ notes of Ondrejka’s oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrej-ka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” 368 U.S. at 242, 82" }, { "docid": "3128927", "title": "", "text": "Solicitor General in effect confessed error by making the following arguments: A — as to the Receipts: They are Act statements, however, they do not “relate to” the witness’s testimony with the exception of two such receipts in which, although ac-' knowledgedly they do relate, their information was turned over in even greater detail in the statements that were produced to the defendant. B — as to the Notes: They may have been Act statements, however, they were not in existence at the time of the trial having been destroyed by the Federal Bureau of Investigation in accordance with its normal practice. The Solicitor General gratuitously acknowledged that this representation of his need not be accepted by the petitioner. The Court in considering these arguments held as follows: A — as to Receipts: (1) The Government’s contention that they do not relate can only be determined by a trial court in camera hearing. (2) The Government’s contention, as to the-two relating documents, that the information they contain was possessed by the defense counsel and therefore its omission to produce was “harmless error” (Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304), can only be factually decided by the trial judge. B — as to the Notes: The Court rejected the defendant appellant’s “destruction per se error” argument, to wit, that the mere fact of destroying an Act statement precludes a fair trial. In this regard at page 242 of 368 U.S., at page 308 of 82 S.Ct., the Court states: “If the agent’s notes of Ondrejka's oral reports of expenses were made only for the purpose of transfering data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accordance with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” Inferentially, from this language we can conclude that the fact of destruction can be offset by a showing of good faith. What constitutes good" }, { "docid": "23150584", "title": "", "text": "be accurate. Defendants argue that because the recording was substantially inaudible, it was improper for the prosecutor to read passages from the purported transcript, thereby reinforcing his version of selected portions of the conversation that the jury may or may not have heard. We have heard the entire recording and, although we do not conclude that the trial court abused its discretion in permitting the playing of the tape, see United States v. McIntyre, 836 F.2d 467, 469-70 (10th Cir.1987), the tape is of an extremely poor quality, inaudible in numerous places, and difficult to understand because of a persistent echo due to the use of more than one microphone. Even if the jury was able to discern a damaging statement here and there, we cannot fairly say that the jury could hear and would have found that the statements from the purported transcript were made as the prosecutor quoted in his closing argument. Although the court admonished the jury to rely on its own recol lection of the evidence, the prosecutor should not have read from the purported transcript, the accuracy of which was not determined and which was not in evidence. VIII. The Brady Claim The defendants argue that they were deprived of due process because the government destroyed handwritten notes made during Agent Means’ investigative interviews with the three government informants. The issue arose at trial when defense counsel’s cross examination of Melvin and Evelyn Rogers disclosed that Means had conducted as many as thirty-two interviews with the informants, whereas the government provided interview notes for only five of those meetings. In some but not all cases the government apparently provided defense counsel with a typewritten report of the interview in lieu of the agent’s handwritten notes. According to the defendants’ briefs, when defense counsel confronted the prosecutor with this information, he was informed that Means had “shredded” the notes pursuant to “departmental policy.” See Wright Br. at 17; Sullivan Br. at 7. Thereafter, defense counsel filed a motion to dismiss for suppression of evidentiary material in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct." }, { "docid": "14451649", "title": "", "text": "the handwritten notes constituted a producible “statement,” but that since the information in the notes was available to appellant at trial in the signed statement of March 28, 1958 a new trial was not required. The court further found that in destroying the notes the agent acted in good faith with no intention to suppress evidence, and in accordance with the regulations and normal practice of the F.B.I. 1. On the main issue raised by appellant we think this case is controlled by Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961), and Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963). In Killian the government argued that the destruction of certain F.B.I. notes did not prejudice,defendant because the information contained in the notes was available to defendant in other forms; defendant argued that destruction of the notes violated his rights under the Jencks Act and was in itself enough to require reversal. The Court held, “If the agents’ notes of [the witness’] oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by [the witness], and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. * * * It is entirely clear that petitioner would not be entitled to a new trial because of the nonproduction of the agents’ notes if those notes were so destroyed and not in existence at the time of the trial. * * * ” (368 U.S. at 242, 82 S.Ct. at 308, 7 L.Ed.2d 256). In Campbell an F. B. I. agent dictated an Interview Report from his handwritten notes, and, after comparing the two, destroyed the notes. Defendant was denied access to the Interview Report. He contended this was error, and, in any event, that destruction of the notes required imposition of the sanctions provided by 18" }, { "docid": "23150632", "title": "", "text": "he had meetings, either in person or by telephone, with Evelyn Rogers 16 times between May 9, 1988, and July 21, 1988. Defense counsel was furnished with Means’ handwritten notes for only four of those meetings. Finally, Means’ chronology reveals that he had 12 meetings, either in person or by telephone, with the informant Steve Howell between May 22 and July 21, 1988. Defense counsel, however, was not provided with any notes or reports of interviews with Steve Howell. .Defense counsel raised the matter again at trial, see XI R. at 467-68, 556, and the court again denied defendant’s motion to dismiss. Id. at 594-95. Because the defendants request that the case be dismissed, and not merely reversed and remanded for a new trial, this issue is not moot. . The defendants argue in the alternative that even if the interview notes were not Brady material, the defendants were deprived of due process because Agent Means destroyed the evidence in bad faith. See Br. of Russell Sullivan at 7-11. . When the court denied defendants’ motion to dismiss from the bench, it did not express its reasons for doing so. See XI R. at 595. . This case is strikingly similar to the pre-Brady case of Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). In Killian, the government relied in its case in chief on an investigatory report prepared by the Federal Bureau of Investigation. Prior to trial, however, the FBI Agents who prepared that report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. The Solicitor General, however, represented that the agents’ notes were made only for the purpose of transferring the data thereon to the required receipts, and that, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices. See 368 U.S. at 242, 82 S.Ct. at 308-309. The Court acknowledged that the" }, { "docid": "22725388", "title": "", "text": "on an effective defense. 458 U. S., at 873. We have, however, never squarely addressed the government’s duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing — as the California Court of Appeal did in this case— the State’s most probative evidence. ' One case in which we have discussed due process constraints on the Government’s failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U. S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U. S. C. § 1001. A key element of the Government’s case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner’s trial, the F. B. I. agents who prepared the investigatory report destroyed the preliminary, notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner’s defense, the Court ruled that their destruction did not rise to the level of constitutional violation: “If the agents’ notes . . . were made only for the purpose of transferring the data thereon . . . , and if, having served that purpose, they were destroyed by the agents in good" } ]

[ { "docid": "15109426", "title": "", "text": "entitled to attorney’s fees as prevailing parties under 42 U.S.C.A. § 1988. On appeal we hold the action is not moot, the practices complained of violate the Establishment Clause, and plaintiffs are entitled to declaratory and injunctive relief. Morning Devotionals Everyone seems to be in substantial agreement that the conducting of morning devotionals was unconstitutional under established law. See School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Meltzer v. Board of Public Instruction, 577 F.2d 311 (5th Cir. 1978) (en banc), cert. denied, 439 U.S. 1089, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979). The district court so held, and the defendants state they have discontinued the practice. The critical issue here is whether the plaintiffs were entitled to some affirmative relief. We think they were. Defendants permitted the longstanding practice to continue until the filing of this lawsuit was imminent in 1979, despite the fact that such religious readings in public schools were declared unconstitutional as early as 1963. See School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). Defendants disputed the constitutionality of the practice up to the day of trial, when defense counsel for the first time indicated they had no intention of reviving the devotionals. Although the superintendent of schools testified he was aware the activity was unconstitutional and had so advised the various school principals, no further attempt had been made to ensure the practice had been discontinued in all Conecuh County schools. The recognized rule is that “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot.’’ United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Jurisdiction may abate if there is no reasonable expectation the alleged violations will recur and if inter vening events have completely and irrevocably eradicated the effects of the alleged violations. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59" } ]

[ { "docid": "2395780", "title": "", "text": "religion, and the limited nature of the encroachment does not free the state from the limitations of the Establishment Clause.” Id. at 1021. None of the arguments offered by the School District are persuasive in the present case. Each alleged distinction overlooks the single fact that a state or its subdivision cannot endorse or advance religion. Nor can a state use religious means to achieve secular purposes where, as here, secular means exist to achieve those purposes. In short, the equal access plan is unconstitutional because it has a religious purpose and a primary effect of advancing religion. By using a purely secular invocation, the School District could avoid any problems of entanglement, fulfill its secular purposes, and not advance religion, thereby complying with the requirements of Lemon and its progeny. Because the School District rejected the alternative of a purely secular pregame speech, and instead adopted a plan which fails to satisfy the Lemon test, we hold that the equal access plan is unconstitutional on its face. B. Invocations Before Equal Access Plan Implemented The district court declared that the pregame invocation system that was in place prior to the “adoption” of the equal access plan was unconstitutional. The School District contends that the question of the constitutionality of the invocation practices as they existed prior to the equal access plan was moot and, therefore, the district court lacked jurisdiction to make such a declaration. Alternatively, the School District argues that, if the issue was not moot, the district court erroneously declared the prior pregame invocation practice to be unconstitutional. 1. Mootness The School District first raised mootness as a jurisdictional impediment when the district court prepared to award attorneys’ fees to the Jagers. The district court rejected the School District’s argument because it was not absolutely clear that the prior practice of having religious invocations given by DCMA ministers would not recur. See United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). Ordinarily, the defendant’s voluntary cessation of a challenged practice will not moot an action because “the" }, { "docid": "2395813", "title": "", "text": "Clause challenge to a school policy allowing students to conduct morning devotionals over the school’s public address system was not moot, even though the school had discontinued the practice when the filing of the lawsuit was imminent. The Court noted that jurisdiction abates because of mootness when there is no reasonable expectation that the alleged violations will recur and when intervening events have completely and irrevocably eradicated the effects of the alleged violations. In finding that these criteria were not met, the Court focused on the fact that defendants asserted the constitutionality of the challenged activity up to the day of trial, even though the activity was clearly unconstitutional under School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and was so recognized by the school superintendent. Hall, 656 F.2d at 1000. In Saladin, the Court was faced with an Establishment Clause challenge to the design of a city seal, featuring a winged figure holding a banner inscribed with the words “Liberty” and “Christianity.” The Court held that the challenge to the display of the seal on the city’s water tank, vehicles and uniforms was moot because the city had agreed to remove the seal everywhere except on city stationery and documents. The Court based its decision on the fact that the city was no longer displaying the seal in the challenged locations, had promised not to display the seal in the future and there was no “basis for believing that the City will break its word.” Saladin, 812 F.2d at 693. I believe that Saladin controls this case. The key factor here is that the school system has not simply abandoned its earlier practice of using local ministers to deliver invocations, it has actually replaced this practice with a plan to select invocation speakers randomly from a pool which excludes clergymen. With this revised plan in place, adopted by consensus among school officials, there is no reasonable expectation that the activity initially challenged in this case will recur. While it is true that the school defended the traditional practice even though" }, { "docid": "2395763", "title": "", "text": "if prayers voluntarily ceased at football games in the interim. In September 1986, Superintendent She-hane met with the principals of Douglas County high schools. The group decided to proceed with pregame invocations pursuant to the equal access plan. On September 15, 1986, the high school principals informed their schools that the equal access plan, which the district court found to be coextensive with the Jenkins/Mountain plan, would govern future games, including those scheduled for September 26, 1986. Under the terms of the equal access plan, all school clubs and organizations can designate club members to give invocations, and any student, parent or school staff member can seek to deliver an invoeation. The plan specifies that the student government will randomly select the invocation speaker, and no ministers will be involved in selecting invocation speakers or in delivering invocations. In addition, the schools will not monitor the content of the invocations. On September 19, 1986, the Jagers filed a complaint in the United States District Court for the Northern District of Georgia. The district court issued a temporary restraining order enjoining the Douglas County School District (“the School District”) from conducting or permitting religious invocations prior to any athletic event at the school stadium. The case was tried to the district court in November 1986. On February 3, 1987, the district court (1) declared the pregame invocations unconstitutional, (2) denied the Jag-ers’ request for a permanent injunction, (3) rejected the Jagers’ claim based on the Free Exercise of Religion Clause of the First Amendment, and (4) rejected the Jag-ers’ claim that the School District violated the Georgia Constitution. After the School District filed a Motion for Clarification, the district court entered an additional order in which it held that the equal access plan was constitutional on its face and did not violate the Establishment Clause. The court expressly declined to determine whether the equal access plan was unconstitutional as applied. The district court denied the Jagers’ request for declaratory and injunctive relief relating to the equal access plan. On June 2, 1987, the district court determined that the Jagers were “prevailing" }, { "docid": "2395783", "title": "", "text": "v. Board of School Comm’rs, 656 F.2d 999, 1000 (5th Cir. Unit B Sept.1981), this Court held that the defendant school board’s voluntary cessation of morning devotionals upon learning that a lawsuit was going to be filed did not moot the plaintiff’s Establishment Clause challenge to the practice. The Hall Court noted that the defendant school board had disputed the constitutionality of the practice up to the day of trial, when defense counsel indicated for the first time that the board had no intention of reviving the devotionals. Additionally, although the school superintendent knew that the practice was unconstitutional and had informed the school principals of this fact, he made no further attempt to ensure that all schools discontinued the practice. Id. Hall controls the mootness issue in the present case. Under the imminent threat of the Jagers’ lawsuit, the School District voluntarily ceased the practice of having pregame religious invocations delivered by Protestant ministers, and it implemented the equal access plan. However, the equal access plan was merely implemented by the school principals. It was not a formal policy adopted by the School District or the Douglas County Board of Education, and the defendants never prom ised not to resume the prior practice. In fact, the defendants continue to press on appeal that the voluntarily ceased conduct should be declared constitutional. Thus, as in Hall, the controversy concerning the pri- or invocation practices is not moot. Because the School District’s posture on appeal suggests it may revert to the practices it engaged in prior to the development of the equal access plan, the present case is distinguishable from Saladin v. City of Milledgeville, 812 F.2d 687, 693 (11th Cir.1987). In Saladin, this Court held an action moot where the City voluntarily ceased displaying an official seal in which the word “Christianity” appeared, and it promised not to display the seal again in the future. Importantly, the Court noted that there was no indication that the City would break its word. Id. Conversely, in the present case, there is no indication that the School District will refrain from resuming its" }, { "docid": "2395781", "title": "", "text": "The district court declared that the pregame invocation system that was in place prior to the “adoption” of the equal access plan was unconstitutional. The School District contends that the question of the constitutionality of the invocation practices as they existed prior to the equal access plan was moot and, therefore, the district court lacked jurisdiction to make such a declaration. Alternatively, the School District argues that, if the issue was not moot, the district court erroneously declared the prior pregame invocation practice to be unconstitutional. 1. Mootness The School District first raised mootness as a jurisdictional impediment when the district court prepared to award attorneys’ fees to the Jagers. The district court rejected the School District’s argument because it was not absolutely clear that the prior practice of having religious invocations given by DCMA ministers would not recur. See United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). Ordinarily, the defendant’s voluntary cessation of a challenged practice will not moot an action because “the defendant is free to return to his old ways.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). In the case at bar, the district court held that: the issue of the constitutionality of the pre-“equal access” plan practice of pregame prayer is not moot. In fact, the practice was temporarily enjoined by this court prior to adjudication on the merits. At no point during the hearing on the motion by plaintiffs for a temporary restraining order or during the trial on the merits was the mootness argument raised. Both plaintiffs and defendants have steadfastly litigated the allegedly moot issue. R2-48-3. In arguing that the district court’s holding was error, the School District seeks to distinguish Concentrated Phosphate and W.T. Grant. It contends that voluntary cessation in those cases occurred after the complaint was filed, whereas the Douglas County School Superintendent and the school principals decided to implement the equal access plan four days before the Jag-ers filed their complaint. This argument is unavailing. In Hall" }, { "docid": "2395782", "title": "", "text": "defendant is free to return to his old ways.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). In the case at bar, the district court held that: the issue of the constitutionality of the pre-“equal access” plan practice of pregame prayer is not moot. In fact, the practice was temporarily enjoined by this court prior to adjudication on the merits. At no point during the hearing on the motion by plaintiffs for a temporary restraining order or during the trial on the merits was the mootness argument raised. Both plaintiffs and defendants have steadfastly litigated the allegedly moot issue. R2-48-3. In arguing that the district court’s holding was error, the School District seeks to distinguish Concentrated Phosphate and W.T. Grant. It contends that voluntary cessation in those cases occurred after the complaint was filed, whereas the Douglas County School Superintendent and the school principals decided to implement the equal access plan four days before the Jag-ers filed their complaint. This argument is unavailing. In Hall v. Board of School Comm’rs, 656 F.2d 999, 1000 (5th Cir. Unit B Sept.1981), this Court held that the defendant school board’s voluntary cessation of morning devotionals upon learning that a lawsuit was going to be filed did not moot the plaintiff’s Establishment Clause challenge to the practice. The Hall Court noted that the defendant school board had disputed the constitutionality of the practice up to the day of trial, when defense counsel indicated for the first time that the board had no intention of reviving the devotionals. Additionally, although the school superintendent knew that the practice was unconstitutional and had informed the school principals of this fact, he made no further attempt to ensure that all schools discontinued the practice. Id. Hall controls the mootness issue in the present case. Under the imminent threat of the Jagers’ lawsuit, the School District voluntarily ceased the practice of having pregame religious invocations delivered by Protestant ministers, and it implemented the equal access plan. However, the equal access plan was merely implemented by the school principals. It" }, { "docid": "6012288", "title": "", "text": "SEYMOUR, Circuit Judge. Plaintiff parents Joann Bell and Lucille McCord sued the Little Axe Independent School District, the school board and its individual members, and several administrative officials (the District) under 42 U.S.C. § 1983 (1982), claiming that various District policies and practices violated the Establishment Clause of the First Amendment. In their initial complaint, Bell and McCord sought injunctive relief against the District for permitting religious meetings to be held on school premises during school hours and for permitting the distribution of Bibles at the school. They also sought a declaration that the Oklahoma voluntary prayer statute, Okla.Stat. tit. 70, § 11-101.1 (1981), was unconstitutional. When the District subsequently adopted an equal access policy, in part as a response to this lawsuit, Bell and McCord amended their complaint to challenge the policy and to request damages for the alleged violations of their civil rights. Following a non-jury trial, the district court enjoined the religious meetings but found the Bible distribution claim to be moot. It further held that the District’s policy was not facially unconstitutional and that the state prayer statute was never at issue since the District denied reliance on it for its actions. The court also refused to award either compensatory or punitive damages. Both parties now appeal. Bell and McCord assert that the district court should have granted relief on all claims. The District, in turn, argues first that plaintiffs had no standing to bring this action, and second that enjoining the meetings violated the students’ freedom of speech and religion. We affirm the district court in most respects but reverse and remand on the issue of damages. I. BACKGROUND Joann Bell and Lucille McCord each have several children who have attended Little Axe School. During the 1980-81 school year, their children told them of certain religious meetings held before class every Thursday morning. Testimony in the record indicates that other students asked the Bell and McCord children why they had not chosen to attend the meetings, asserting that they therefore must not believe in God. Consequently, Bell and McCord notified defendant Holleyman, then school superintendent" }, { "docid": "15109425", "title": "", "text": "RONEY, Circuit Judge: Rufus Hall, a resident of Conecuh County, Alabama, individually and on behalf of his children enrolled in the Conecuh County public school system, brought suit under 42 U.S.C.A. § 1983 challenging two activities at Repton High School as being violative of the Establishment Clause of the First Amendment of the Constitution: (1) permitting students to conduct morning devotional readings over the school’s public address system, and (2) teaching an elective Bible Literature course in a manner which advanced religion. The district court after trial dismissed the action as moot because defendants had voluntarily ceased the morning devotionals after learning a lawsuit was going to be filed and because the Bible Literature course was not then being taught at Repton High School. Despite this jurisdictional holding, the court made findings of fact on the merits of plaintiffs’ claims and concluded that the morning devotionals were unconstitutional, but that plaintiffs failed to prove that the Bible Literature course was taught in a way that advanced religion. The court further ruled that plaintiffs were not entitled to attorney’s fees as prevailing parties under 42 U.S.C.A. § 1988. On appeal we hold the action is not moot, the practices complained of violate the Establishment Clause, and plaintiffs are entitled to declaratory and injunctive relief. Morning Devotionals Everyone seems to be in substantial agreement that the conducting of morning devotionals was unconstitutional under established law. See School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Meltzer v. Board of Public Instruction, 577 F.2d 311 (5th Cir. 1978) (en banc), cert. denied, 439 U.S. 1089, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979). The district court so held, and the defendants state they have discontinued the practice. The critical issue here is whether the plaintiffs were entitled to some affirmative relief. We think they were. Defendants permitted the longstanding practice to continue until the filing of this lawsuit was imminent in 1979, despite the fact that such religious readings in public schools were declared unconstitutional as early as 1963. See School District of Abington Township v." }, { "docid": "13479291", "title": "", "text": "that the challenged behavior is not reasonably likely to recur where it constituted an isolated incident, was unintentional, or was at least engaged in reluctantly.” Sheely, 505 F.3d at 1184. “Conversely, we are more likely to find a reasonable expectation of recurrence when the challenged behavior constituted a ‘continuing practice’ or was otherwise deliberate.” Id. at 1184-85 (citing Grant, 345 U.S. at 632 n. 5, 73 S.Ct. 894 (“When defendants are shown to have settled into a continuing practice ..., courts will not assume that it has been abandoned without clear proof.” (internal quotation marks omitted))); Sec’y of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir.1992) (“five-year history of violations” cut against finding of mootness); Hall v. Bd. of Sch. Comm’rs, 656 F.2d 999, 1000 (5th Cir.1981) (“longstanding practice” cut against finding of mootness). Arguing that the post March 2010 practice of selecting speakers, as codified in Resolution 4848, violated the Establishment Clause of the First Amendment, AOF contends that the adoption of Resolution 4848 was a litigation strategy that is “at best a cosmetic tactic to attempt to mask their continuing and patently unconstitutional practices.” Appellants’ Br. 21. As discussed above, the record shows that the practice followed before March 2010 of not selecting speakers who were not Christians ended prior to the date AOF filed this action. In Hall, the Fifth Circuit reversed the district court’s determination that a case was moot because the record showed that the longstanding practice of requiring the reading of morning devotionals in public schools was not moot because it was “permitted ... to continue until the filing of th[e] lawsuit was imminent in 1979, despite the fact that such religious readings in public school were declared unconstitutional as early as 1963.” Hall, 656 F.2d at 1000. In this matter, unlike the circumstances in Hall, the pre-March 2010 speaker selection practice had been discontinued at the request of City Attorney McCausland pri- or to the filing of this action. After AOF began voicing complaints about the invocation practice, City Attorney McCausland made a conscientious effort to conform Lakeland’s prayer practices" }, { "docid": "7002344", "title": "", "text": "decided to suspend M.R. from school for five days for his role in the planned attack. In the days after word of the plot surfaced, the five students were the subjects of both police and school investigations. Ms. Remer hired attorney Terrence Rose to represent M.R. through these investigations. After Ms. Remer retained Rose, Burlington High’s assistant principal contacted Ms. Remer by letter to inform her that M.R.’s suspension would be extended pending the outcome of an expulsion hearing before the District’s school board. Responsibility for arranging the expulsion hearing later passed to the District’s superintendent, Ron Jandura. On November 24, Superintendent Jandura sent a letter to Ms. Remer informing her that the expulsion hearing had been scheduled for December 1. Meanwhile, as Burlington High’s administration set the expulsion process in motion, the School District’s attorneys filed a civil complaint against M.R. in the Circuit Court of Racine County. In its complaint, the District sought to obtain a declaratory judgment as well as a temporary restraining order and an injunction that would prevent M.R. from contacting the School District or coming within 200 yards of any District property “for as long as [M.R. is] suspended and for the length of any future expulsion.” R.8, Ex. I. The circuit court granted the temporary restraining order, and the hearing date for the injunction request was set for November 30. When it later became impossible for the court to hold the hearing on November 30, M.R., through attorney Rose, agreed to extend the temporary restraining order until the circuit court could conduct the injunction hearing. On December 1, the District’s school board, which consisted of the named individual defendants in the present lawsuit, held the expulsion hearing for M.R. The Remers and Rose did not attend the hearing. The school board voted to expel M.R. until 2003, the year M.R. will turn 21 years old; the practical effect of expelling M.R. until age 21 is that M.R. can never again be a student at Burlington High. The Remers learned of the school board’s decision by letter. According to the expulsion order, M.R. was" }, { "docid": "2395784", "title": "", "text": "was not a formal policy adopted by the School District or the Douglas County Board of Education, and the defendants never prom ised not to resume the prior practice. In fact, the defendants continue to press on appeal that the voluntarily ceased conduct should be declared constitutional. Thus, as in Hall, the controversy concerning the pri- or invocation practices is not moot. Because the School District’s posture on appeal suggests it may revert to the practices it engaged in prior to the development of the equal access plan, the present case is distinguishable from Saladin v. City of Milledgeville, 812 F.2d 687, 693 (11th Cir.1987). In Saladin, this Court held an action moot where the City voluntarily ceased displaying an official seal in which the word “Christianity” appeared, and it promised not to display the seal again in the future. Importantly, the Court noted that there was no indication that the City would break its word. Id. Conversely, in the present case, there is no indication that the School District will refrain from resuming its forty-year-old practice of having clergy deliver religious invocations before high school football games. Therefore, because Hall, not Saladin, controls the question of mootness, we will reach the merits of the Jagers’ challenge to the pre-equal access plan practices. 2. Merits The School District appeals the district court’s declaration that the practice of having ministers give religious invocations violated the Establishment Clause. However, under the Lemon test, this argument is without merit. First, the invocations were prayers, delivered by ministers, and thus fail the secular purpose prong of the Lemon test for the reasons set forth in Part A, supra. Second, the primary effect of advancing religion was clear for the reasons given by the district court: “[o]ne of the effects of the prior practices in regard to invocations was to create the appearance or impression that the school system endorsed Protestant Christianity.” Rl-24-19. The School District labels this finding clearly erroneous, but such a finding is inescapable where the person giving the invocation was identified by name and, frequently, by church affiliation. Third, excessive entanglement" }, { "docid": "14215097", "title": "", "text": "within the Special School District of Fort Smith, Arkansas, who are similarly situated because of race and color. She sought to enjoin the school board members and the District Superintendent, defendants in the action, from maintaining and operating segregated public schools in such district. Janice graduated from the twelfth grade upon completion of the 1963-1964 school term, and as to her the issues presented by this litigation are now moot. Patricia will enter the last year of high school with the advent of the 1965-1966 school year. The allegations of the complaint upon which plaintiffs (hereinafter designated as appellants) premise their right to relief appear verbatim in the District Court’s opinion (Judge John E. Miller), 232 F.Supp. 833 (1964) and need not be fully restated herein. It is sufficient to recall that appellants alleged that defendants (hereinafter sometimes designated as appellees) were maintaining and operating segregated high schools for the minor appellants and the members of the class they represent; were maintaining and operating the voluntary transfer system for assignment of pupils; were maintaining and approving budgets, programs and curricula designed to perpetuate and maintain compulsory racially segregated schools; and were assigning principals, teachers, and administrative personnel to the various high schools on the basis of their race and color, all in violation of the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. At a pretrial conference held after the issues had been joined, the Court , ruled that the voluntary transfer provision was invalid and granted appellees a reasonable time to file a revised plan of integration. On July 17, 1964, appellees, in compliance with the Court’s order, filed a revised plan which also came under attack by appellants. After a trial on August 10, 1964, the Court, on August 19, 1964 filed its opinion, and entered judgment approving and confirming the revised plan of integration. The Court, however, retained jurisdiction of the cause for a decision “of any question that might arise as to the assignment of teachers and principals.” We revert now to the original desegregation plan, the circumstances attending" }, { "docid": "13920667", "title": "", "text": "Mrs. Torrez replied on March 4, 1974, refusing to give the information as § 4.28 required the information to be filed with the county clerk, not the county judge. On or about February 28, 1974, two days following Judge Decker’s first letter, the school board which governs the Hondo schools filed a lawsuit styled Hondo Independent School District v. Irma Torrez, et al., in the 38th Judicial District Court, Medina County, Texas, to enjoin Familias, its membership, and other persons from boycotting classes. Additionally, Irma Torrez was personally charged with a violation of § 4.33, Texas Educational Code, a misdemeanor allegation for disruption of school classes. Upon receipt of Irma Torrez’s refusal to furnish Judge Decker with the requested information, Judge Decker corrected his error and reissued his request that the information be provided, this time to the County Clerk of Medina County. Appellants then filed their first complaint on March 7, 1974, naming as defendants the Governor of the State of Texas, Judge Decker as Medina County Judge, the Superintendent of the Hondo Independent School District, and certain members of the Board of Trustees of the Hondo Independent School District. The action was stated to arise pursuant to 42 U.S.C. §§ 1983, 1985 and 1988, with jurisdiction being conferred under 28 U.S.C. §§ 1343(3), (4) and 28 U.S.C. §§ 2201 and 2202. As a class, appellants challenged the constitutionality of § 4.28 of The Texas Educational Code and requested that a three-judge district court be convened as provided in 28 U.S.C. §§ 2281 and 2284; sought a temporary restraining order; demanded a permanent injunction against the statute’s enforcement; requested a declaratory judgment; and asked for damages to the class, both actual and punitive, in the amounts of $100,000 for each award. On March 13, 1974, a visiting judge denied appellants’ motion for temporary restraining order enjoining appellees from enforcing § 4.28 as “moot”; the judge being advised that County Judge Decker had withdrawn his request for information regarding names of members of appellants’ association. Answers of all appellees were then forthcoming. A month following their answers, the school superintendent" }, { "docid": "2395791", "title": "", "text": "concluded that there was no violation of the Establishment Clause. The Van Zandt court’s decision to extend the Marsh test to the case of a prayer room in the state capital building can be understood because both cases dealt with legislative prayer issues. However, Van Zandt's adoption of the Marsh test is irrelevant in the present case involving public schools. . The district court issued a temporary restraining order against invocations during the 1986 season. Despite the fact that no invocations were delivered during the 1986 season, the district court found that \"the School System experienced no measurable increase in fan violence, rowdiness or unsportsmanlike behavior.” Rl-24-18. . The district court found that the School District cited no secular purposes for the invocations until after the Jagers filed suit. In fact, at the September 23, 1986 hearing which ultimately led to the district court’s issuing a temporary restraining order, the following conversation occurred between the court and the school system attorney: COURT: Does the practice of invocations in the Douglas County stadium that we are talking about have any secular purpose? MR. HELMS: It has no secular purpose whatsoever, Your Honor. R4-33 (emphasis added). Attorney Helms went on to explain that: The whole football program is wholly secular from start to finish, and I submit that the ... injection or the beginning of that two or three hour period with the invocation does not convert the whole program to a non-secular event. Id. Although Helms’ explanation suggests that he did not mean to concede that one of the prongs of the Lemon test was not satisfied, his statement is consistent with our reading of the record. While his admission does not constitute conclusive evidence that the pregame invocations fail the first prong of the Lemon test, the statement reinforces our conclusion that the actual purpose behind both the equal access plan and the prior invocation practice was to endorse Protestant Christianity. . As noted above, the Douglas County Board of Education has never formally adopted the equal access plan. Rather, the school superintendent and the principals decided to follow the" }, { "docid": "13479292", "title": "", "text": "best a cosmetic tactic to attempt to mask their continuing and patently unconstitutional practices.” Appellants’ Br. 21. As discussed above, the record shows that the practice followed before March 2010 of not selecting speakers who were not Christians ended prior to the date AOF filed this action. In Hall, the Fifth Circuit reversed the district court’s determination that a case was moot because the record showed that the longstanding practice of requiring the reading of morning devotionals in public schools was not moot because it was “permitted ... to continue until the filing of th[e] lawsuit was imminent in 1979, despite the fact that such religious readings in public school were declared unconstitutional as early as 1963.” Hall, 656 F.2d at 1000. In this matter, unlike the circumstances in Hall, the pre-March 2010 speaker selection practice had been discontinued at the request of City Attorney McCausland pri- or to the filing of this action. After AOF began voicing complaints about the invocation practice, City Attorney McCausland made a conscientious effort to conform Lakeland’s prayer practices to the requirements of the Establishment Clause. Although AOF continues to vehemently dispute the lawfulness of the pre-March 2010 practice, the case is moot because it “is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” Already, LLC, 133 S.Ct. at 727 (quotation omitted). AOF has failed to rebut the presumption that the Lakeland City Commission will not reinstate its pre-March 2010 practices if we hold that Resolution 4848 is constitutional. The Lake-land City Commission discontinued its pri- or speaker selection procedures a few days after it was requested to do so, and months prior to the filing of this action. We conclude, therefore, that we lack jurisdiction to decide AOF’s claim that the Lakeland City Commission’s pre-March 2010 speaker selection practice violated the Establishment Clause of the First Amendment or Article I, Section 3 of the Florida Constitution. See Todd v. State, 643 So.2d 625, 628 n. 3 (Fla.Dist.Ct.App. 1994) (“Because the language regarding establishment in the Florida constitution parallels the language of the First Amendment, federal law will be" }, { "docid": "2395812", "title": "", "text": "sect, cult, or religious denomination or of any sectarian institution.” I would hold that there is no violation of this provision here because, as noted above, I do not believe that the invocations do aid or advance any particular church, sect, cult or religious denomination. Moreover, plaintiffs’ position that the clause is violated by even a de minimis expenditure is difficult to square with Georgia’s practice of paying a salary to its legislative chaplain. See Marsh, 463 U.S. at 794 n. 18, 103 S.Ct. at 3337 n. 18 (noting that Georgia is among the states that provide compensation to its chaplains). Mootness of Challenge to Traditional Invocation Practice I would deem moot the Jagers’ challenge to the invocations given before adoption of the equal access plan. The resolution of this issue turns on an analysis of Hall v. Board of School Comm’rs of Conecuh County, 656 F.2d 999 (5th Cir. Unit B Sept. 1981) and Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir.1987). In the former case, this Court held that an Establishment Clause challenge to a school policy allowing students to conduct morning devotionals over the school’s public address system was not moot, even though the school had discontinued the practice when the filing of the lawsuit was imminent. The Court noted that jurisdiction abates because of mootness when there is no reasonable expectation that the alleged violations will recur and when intervening events have completely and irrevocably eradicated the effects of the alleged violations. In finding that these criteria were not met, the Court focused on the fact that defendants asserted the constitutionality of the challenged activity up to the day of trial, even though the activity was clearly unconstitutional under School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and was so recognized by the school superintendent. Hall, 656 F.2d at 1000. In Saladin, the Court was faced with an Establishment Clause challenge to the design of a city seal, featuring a winged figure holding a banner inscribed with the words “Liberty” and “Christianity.” The Court held" }, { "docid": "15109428", "title": "", "text": "L.Ed.2d 642 (1979); City of Waco v. Environmental Protection Agency, 620 F.2d 84, 87 (5th Cir. 1980). To defeat jurisdiction on this basis, however, defendants must offer more than their mere profession that the conduct has ceased and will not be revived. See United States v. W. T. Grant Co., 345 U.S. at 632-33, 73 S.Ct. at 897. Under the circumstances in this case, the action was not mooted by defendants’ cessation of the morning devotionals and the plaintiffs were entitled to injunctive relief that would be binding upon the institutions, regardless of changes in personnel. Bible Literature Course The Bible Literature course was not being taught at the time of trial. Testimony at trial was, however, that the course was not offered during the 1979-1980 school year because of scheduling problems, not because of admitted unconstitutionality, as with the morning devotionals. Defendants did not argue to the trial court that the issue was moot, but vigorously asserted the validity of the course. They did not intimate an intention not to offer the course in the future. Under the above stated law, the district court erred in dismissing the challenge to this course as moot. The district court made findings of fact and conclusions of law on the merits of plaintiffs’ claims, perhaps anticipating the possibility of reversal on the mootness question. Based upon the district court’s own findings, which neither party challenges on appeal, it appears that it erred in deciding the course as taught did not violate the Constitution under the established law on this subject. The district court found as follows: 5. The State of Alabama, through the State Board of Education has approved a course entitled “Bible Literature” as an elective to be offered at the option of the individual schools. The course offering was formulated through procedures outlined for the State Courses of Study Committee. Ala.Code §§ 16-36-1 to 16-36-5. 6. The Bible Literature course utilizes a state approved textbook entitled The Bible for Youthful Patriots, Parts I and II. The textbook is approved through the procedures of the State Textbook Committee. Ala.Code §§ 16-36-1" }, { "docid": "23125433", "title": "", "text": "Cir.1974), for the proposition that the district court’s acceptance of their Compliance Plan moots the class claims. In that case, a teacher sued her school district for race and sex discrimination surrounding her maternity leave. Before oral argument on appeal, the maternity policy was changed and Locke was transferred, at her own request, into a teaching position that she found satisfactory. We noted there that “in her original complaint the only relief sought by Mrs. Locke other than money damages was an injunction restraining the school system from implementing its present leave policy against the 'plaintiff in a discriminatory manner.” Id. at 363 (emphasis added). We went on to explain: It is clear from the facts before us ... that the plaintiff herein has now been satisfied as to her request for a job complete with- supplemental work and pay. The counsel for the school board ... has assured this court that the school board always had, and still maintains, good will toward Mrs. Locke. Furthermore, it is clear that the school board has done everything within its power to comply with Mrs. Locke’s wishes within the limitations placed upon the board by the various federal orders and mandates. This court is aware ... that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the cases, i.e., does not make the case moot. But, the mootness in this case ... depends not at all upon a voluntary cessation of activity, but rather depends on the simple fact that Mrs. Locke’s wishes have been complied with and it is a matter of record that the school board is complying with the various federal mandates and orders as to integration of its school system. ' Even though ... it could be argued that this is a question that is capable of repetition, here, ... that is not possible. The maternity leave policy allegedly forced on Mrs. Locke is no longer in existence, a new one having taken its place on December 12, 1972. Mrs. Locke will never again be forced to comply with that" }, { "docid": "22289491", "title": "", "text": "select students to read poetry, Bible verses, and prayers of a Protestant cast for the school’s daily morning devotional observance. The chosen students are expected to rehearse their devotionals before a classroom of their peers and then to perform over the school-wide public address system. Verbal pressure is allegedly exerted on students who do not participate willingly. Pelahatchie Middle School Principal Ste-gall concedes that “inspirational programs” are conducted in the manner plaintiff suggests, but denies that their character is exclusively Protestant, or for that matter, religious. Stegall insists that student participation is strictly voluntary. Further, the Superintendent of Rankin County Schools denies that the school board maintains a policy requiring school prayer. The complaint, framed as a class action, sought to enjoin routine daily religious observances in the county’s public schools. It also sought a declaratory judgment invalidating the recently enacted Mississippi statute authorizing voluntary prayer in Mississippi public schools. The statute and the religious observances, the complaint charges, violate the establishment clause of the First Amendment. On November 1, 1979, the plaintiffs promptly moved for a protective order to preserve their anonymity. They agreed to disclose their identities to the defendants and to the Court; their motion merely sought to bar disclosure to the general public. Fearing harassment and violence directed against the Roe family generally and the Doe children in particular should their names be publicly disclosed, the plaintiffs asked that they be permitted to proceed under fictitious names. A motion for pre liminary injunction to stop the ongoing morning religious observances was filed simultaneously. The named defendants— officials of the Rankin County schools — and the State of Mississippi, which had intervened to defend the constitutionality of its statute, opposed both motions. After considering documentary evidence and legal arguments proferred by both sides, the district court determined that it had no jurisdiction over the lawsuit and issued an order denying both motions. That order is the subject'of this appeal. II. We turn first to the appealability of the order before us. Our Court has no authority to review “tentative, informal, or incomplete” decisions made by district courts" }, { "docid": "13742609", "title": "", "text": "litigation has concluded. See Davis, 440 U.S. at 631, 99 S.Ct. 1379 (holding that only if there is no reasonable expectation that the alleged violation will recur can the voluntary cessation of a challenged practice render a case moot). Temple did not change its sexual harassment policy for more than a year after the commencement of litigation and then only near the end of discovery, less than three weeks before the dis-positive motions deadline in the case. More importantly, Temple defended and continues to defend not only the constitutionality of its prior sexual harassment policy, but also the need for the former policy. We consider these two factors significant in evaluating whether there is a “reasonable expectation” that Temple will reimplement its previous sexual harassment policy. See id. The Supreme Court considered mootness and the voluntary cessation of a policy in Parents Involved in Community Schools v. Seattle School District No. 1, — U.S. -, 127 S.Ct. 2738, 2751, 168 L.Ed.2d 508 (2007). There, the Supreme Court considered whether a student assignment plan that relied on racial classification to allocate slots in oversubscribed high schools was constitutional. Parents Involved in Cmty Schs., 127 S.Ct. at 2749. The plaintiffs son, Joshua, was assigned to Young Elementary, a school approximately ten miles away from their house. The mother attempted to have him transferred to a school one-mile away that had openings. Her request was denied because, “[t]he transfer would have an adverse effect on desegregation compliance” of Young. The mother then brought suit, alleging violations of the Equal Protection Clause. In challenging the petitioner’s standing, the School District noted that it had ceased using the racial tiebreaker pending the outcome of the litigation. Id. at 2751. The Court noted that, despite this suspension, the School District vigor ously defended the constitutionality of its race-based program, and did not deny that if the litigation was resolved in its favor it would resume using race to assign students. Id. The Court reiterated that, “[v]oluntary cessation does not moot a ease or controversy unless ‘subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior" } ]

[ { "docid": "19394344", "title": "", "text": "not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. I Petitioner Michael Descamps was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). That unadorned offense carries a maximum penalty of 10 years in prison. The Government, however, sought an enhanced sentence under ACCA, based on Descamps' prior state convictions for burglary, robbery, and felony harassment. ACCA prescribes a mandatory minimum sentence of 15 years for a person who violates § 922(g) and \"has three previous convictions ... for a violent felony or a serious drug offense.\" § 924(e)(1). The Act defines a \"violent felony\" to mean any felony, whether state or federal, that \"has as an element the use, attempted use, or threatened use of physical force against the person of another,\" or that \"is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.\" § 924(e)(2)(B). Descamps argued that his prior burglary conviction could not count as an ACCA predicate offense under our categorical approach. He had pleaded guilty to violating California Penal Code Ann. § 459 (West 2010), which provides that a \"person who enters\" certain locations \"with intent to commit grand or petit larceny or any felony is guilty of burglary.\" That statute does not require the entry to have been unlawful in the way most burglary laws do. Whereas burglary statutes generally demand breaking and entering or similar conduct, California's does not: It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours. See People v. Barry, 94 Cal. 481, 483-484, 29 P. 1026, 1026-1027 (1892). In sweeping so widely, the state law goes beyond the normal, \"generic\" definition of burglary. According to Descamps, that asymmetry of offense elements precluded his conviction under § 459 from serving as an ACCA predicate, whether or not his own burglary involved an unlawful entry that could have satisfied the requirements of the generic crime. The District Court disagreed." } ]

[ { "docid": "5750296", "title": "", "text": "OPINION WALLACE, Senior Circuit Judge: In August 2009, Park pleaded guilty to being a felon in possession of a firearm, which is prohibited by 18 U.S.C. § 922(g)(1). The government now appeals from Park’s 37-month sentence, arguing that the district court erred when it refused to impose a “crime of violence” sentencing enhancement based on Park’s pri- or conviction for first-degree burglary in California. According to the government, the district court should have applied the enhancement because California first-degree burglary is categorically a “crime of violence” under section 2K2.1(a) of the United States Sentencing Guidelines (U.S.S.G.). We have jurisdiction over the instant appeal pursuant to 18 U.S.C. § 3742(b), and we vacate Park’s sentence and remand for resentencing. I. Federal firearms defendants, such as Park, are subject to an enhanced Sentencing Guidelines range when they commit a firearm offense after “sustaining [one or more] felony conviction! (s) ] of ... a crime of violence.” U.S.S.G. § 2K2.1(a) (2009). To determine whether a prior offense is a “crime of violence” under section 2K2.1(a), we look to the definition of that term under U.S.S.G. § 4B1.2(a). United States v. Crews, 621 F.3d 849, 851 (9th Cir.2010). Section 4B1.2(a), which is otherwise known as the “career offender provision,” id. at 856, defines a “crime of violence” as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. This definition is almost identical to the wording used to define the term “violent felony” under the Armed Career Criminal Act of 1984 (ACCA). Compare U.S.S.G. § 4B 1.2(a) with 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony” as an offense that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”). Accordingly, we frequently look to" }, { "docid": "5195235", "title": "", "text": "(2007) (same); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190-194, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (same). And where, for example, a state court has applied its burglary statute to conduct well outside the generic definition of burglary, the Supreme Court has been willing to treat that decision as evidence that the state crime was not categorically a violent felony. See Descamps, 133 S.Ct. at 2282 (referring to shoplifting conduct to show coverage of state statute is broader than the generic burglary offense); see also Moncrieffe, 133 S.Ct. at 1687. C. Finally, our conclusion that defendant’s Maryland resisting arrest conviction categorically qualifies under the crime-of-violence enhancement draws support from this court’s treatment of the same crime in closely analogous contexts. United States v. Wardrick held that a Maryland common-law resisting arrest conviction categorically qualified as a “violent felony” within the meaning of the ACCA. 350 F.3d 446, 455 (4th Cir.2003). And Wardrick’s reasoning was confirmed by United States v. Jenkins, which held that the same common-law forerunner to the present statutory offense categorically constituted a “crime of violence” under the “career-offender enhancement” defined at U.S.S.G. § 4B1.2. 631 F.3d 680, 682-83, 685 (4th Cir.2011). Of particular significance here, Jenkins expressly framed the question before the court as “whether the Resisting Arrest Offense ... ‘involve[s] purposeful, violent, and aggressive conduct,’ ” id. at 684 (brackets in original) (quoting Begay v. United States, 553 U.S. 137, 144-45, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)) — ultimately answering in the affirmative, id. at 684-85. To be sure, the specific textual hooks on which Wardrick and Jenkins hung then-holdings were the residual clauses of the respective provisions, both of which encompass offenses that, inter alia, “involve! ] conduct that presents a serious potential risk of physical injury to another.” Wardrick, 350 F.3d at 454-55 (quoting 18 U.S.C. § 924(e)(2)(B)©); Jenkins, 631 F.3d at 682 (quoting U.S.S.G. § 4B1.2(a)(2)). From this foundation, the defendant attempts to argue that the Fourth Circuit implicitly denied that the force clauses of those provisions, which are identical to the Guidelines language in question here, also reach Maryland’s resisting arrest" }, { "docid": "22473848", "title": "", "text": "example is burglary. A burglary would be covered under § 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.”) (footnote omitted). Leocal addressed a generic burglary, but in United States v. Becker, 919 F.2d 568 (9th Cir. 1990), we held that California first-degree burglary under California Penal Code § 459 is categorically a “crime of violence” under 18 U.S.C. § 16(b) because the crime inherently involves a substantial risk of physical force: Any time a burglar enters a dwelling with felonious or larcenous intent there is a risk that in the course of committing the crime he will encounter one of its lawful occupants, and use physical force against that occupant either to accomplish his illegal purpose or to escape apprehension. Id. at 571. Although Becker involved a sentencing enhancement under the Guidelines, at the time the relevant Guidelines section defined “crime of violence” by reference to 18 U.S.C. § 16. Becker, 919 F.2d at 569; see also James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (holding that the proper inquiry for the categorical approach is whether the conduct covered by the crime presents the requisite risk of injury “in the ordinary case”); United States v. Park, 649 F.3d 1175, 1178 (9th Cir.2011) (holding that California residential burglary is categorically a “crime of violence” under the residual clause of U.S.S.G. § 4B1.2(a)(2), which requires the criminal conduct to present “a serious potential risk of physical injury to another”); United States v. M.C.E., 232 F.3d 1252, 1255 (9th Cir.2000) (explaining that “[c]ourts ... have come to the conclusion (unanimous, so far as we can tell) that residential burglary is indeed a crime of violence”). Under Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc), therefore, we must follow Becker unless an intervening Supreme Court or en banc decision is “clearly irreconcilable” with it. We must decide today whether our" }, { "docid": "22473849", "title": "", "text": "of violence” by reference to 18 U.S.C. § 16. Becker, 919 F.2d at 569; see also James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (holding that the proper inquiry for the categorical approach is whether the conduct covered by the crime presents the requisite risk of injury “in the ordinary case”); United States v. Park, 649 F.3d 1175, 1178 (9th Cir.2011) (holding that California residential burglary is categorically a “crime of violence” under the residual clause of U.S.S.G. § 4B1.2(a)(2), which requires the criminal conduct to present “a serious potential risk of physical injury to another”); United States v. M.C.E., 232 F.3d 1252, 1255 (9th Cir.2000) (explaining that “[c]ourts ... have come to the conclusion (unanimous, so far as we can tell) that residential burglary is indeed a crime of violence”). Under Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc), therefore, we must follow Becker unless an intervening Supreme Court or en banc decision is “clearly irreconcilable” with it. We must decide today whether our recent en banc decision in Aguilar-Montes de Oca changes this result. We hold that it does not. In United States v. Aguilar Montes de Oca, 655 F.3d 915, 917-19 (9th Cir.2011) (en banc) (per curiam), Aguila was convicted of first-degree residential burglary under California Penal Code § 459. Later, he was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The district court enhanced his sentence under U.S.S.G. § 2L1.2(b)(l)(A), holding that his prior burglary conviction qualified as “burglary of a dwelling” and therefore a “crime of violence” under the Guidelines. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). In so holding, the district court did not rely on the definition of crime of violence we must use here, which looks to whether the crime is a felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Rather, the district court held that a conviction under California Penal Code § 459 was a crime" }, { "docid": "23640818", "title": "", "text": "1227(a)(2)(A)(iii), 1228(b), 1229c(a)(l); United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir.2000). Ramos argues that the district court should not have allowed this tainted deportation to serve as the predicate to criminal prosecution for post-deportation re-entry under 8 U.S.C. § 1326. See generally United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (describing what a § 1326 defendant must prove to prevail in such a collateral attack on his prior deportation). Our decisions in United States v. Becker, 919 F.2d 568 (9th Cir.1990), and Lopez-Cardona v. Holder, 662 F.3d 1110 (9th Cir.2011), establish that first-degree burglary under California Penal Code § 459 is categorically a crime of violence and thus an “aggravated felony” for the purposes of the INA. We therefore affirm Ramos’s conviction. In Becker, we held that first-degree burglary under California Penal Code § 459 qualified as a “crime of violence” under the Sentencing Guidelines. 919 F.2d at 573. The defendant in Becker had prior convictions for first-degree burglary under California Penal Code § 459 when he was convicted of bank robbery. Id. at 570. The district court held that each of the prior convictions counted as a “crime of violence” and sentenced the defendant accordingly. Id. The Sentencing Guidelines in effect at the time defined “crime of violence” by reference to 18 U.S.C. § 16. Id. at 569 (citing U.S.S.G. § 4B1.2 (1988)). Subsection (b) of 18 U.S.C. § 16 provided that any offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” was a “crime of violence.” Accordingly, we examined whether first-degree burglary under California Penal Code § 459 by its nature involved a substantial risk of force. Becker, 919 F.2d at 571. We reasoned that “[a]ny time a burglar enters a dwelling with felonious or larcenous intent there is a risk that in the course of committing the crime he will encounter one of its lawful occupants, and use physical force against that occupant either to accomplish his illegal" }, { "docid": "8651940", "title": "", "text": "ORDER PANNER, District Judge: Defendant Ryan Michael Snyder is set to be sentenced for the second time on his conviction for being a felon in possession of a firearm. The Ninth Circuit reversed this court’s sentence and remanded for resentencing. United States v. Snyder, 643 F.3d 694 (9th Cir.2011) (Snyder), cert. denied, — U.S. -, 132 S.Ct. 1909, 182 L.Ed.2d 777 (2012). The Ninth Circuit ruled defendant has three prior convictions that qualify as violent felonies under the Armed Career Criminal Act (the ACCA), and must receive the ACCA’s mandatory minimum sentence of fifteen years’ imprisonment. But after the Ninth Circuit issued Snyder, the Supreme Court decided Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which rejected the Ninth Circuit’s approach for determining whether a prior conviction is a violent felony. See id., 133 S.Ct. at 2287 (abrogating United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc) (per curiam)). Because the Ninth Circuit relied on decisions that Descamps overruled, Snyder is not binding. I reinstate the sentence previously imposed. PROCEDURAL BACKGROUND Defendant pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g). By itself, the crime carries a maximum sentence of ten years in prison, but a defendant with three prior convictions for violent felonies or serious drug offenses faces a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e). . At sentencing, the government argued defendant had three prior convictions for violent felonies: (1) second-degree assault and second-degree robbery ; (2) second-degree burglary; and (3) attempting to elude police. Defendant argued his convictions for second-degree burglary and attempting to elude were not violent felonies. I concluded second-degree burglary was a violent felony, but attempting to elude police was not. Because the ACCA mandatory minimum sentence did not apply, I sentenced defendant to 110 months in prison, the low end of the guideline range. On appeal, the government contended attempting to elude police was a violent felony. Defendant, contended second-degree burglary was not a violent felony. On June 9,2011, while the parties’ cross-appeals" }, { "docid": "8651949", "title": "", "text": "lot full of trucks, trailers, RVs, booths, and sheds, as well as the site of a generic building. Thus, for purposes of the modified categorical approach, accompanying the statutory term “building” with a street address does nothing, categorically, to aid the analysis. Id. Because the elements of Oregon burglary do not match the elements of generic burglary, a conviction under the Oregon statute cannot be generic burglary, regardless of the underlying facts of the crime. See Descamps, 133 S.Ct. at 2293. C. Second-Degree Burglary Is Not a Violent Felony Under the Residual Clause The government ‘argues that even if defendant’s burglary conviction is not for the generic crime, the conviction still qualifies as a violent felony under the ACCA’s residual clause.’ The categorical approach also applies to the residual clause. The sentencing court may consider only “ “whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.’ ” Sykes, 131 S.Ct. at 2272 (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). The court first asks whether conduct covered by the offense “in the ordinary case ... ‘presents a serious potential risk of physical injury to another.’ ” United States v. Chandler, 743 F.3d 648, 650 (9th Cir.2014) (per curiam) (quoting 18 U.S.C. § 924(e)(2)(B)(ii) (omitting further quotation marks and citations)). If so, the court asks whether the offense is “ ‘roughly similar, in kind as well as in the degree of risk posed’ ” to burglary of a dwelling, arson, extortion, or crimes involving explosives. Id. (quoting United States v. Park, 649 F.3d 1175, 1178 (9th Cir.2011) (omitting further quotation marks and citation), cert. denied, — U.S. -, 132 S.Ct. 1119, 181 L.Ed.2d 1010 (2012)). 1. Serious Potential Risk of Physical Injury Although the Ninth Circuit has held that Oregon first-degree burglary is a violent felony under the residual clause, the court has not analyzed second-degree burglary under the residual clause. See United States v. Mayer, 560 F.3d 948, 962-63 (9th Cir.2009) (first-degree" }, { "docid": "11581425", "title": "", "text": "PER CURIAM: Courtney Mays appeals the district court’s 'denial of his first and only 28 U.S.C. § 2255 motion to vacate his sentence. Mays was convicted of two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was then sentenced pursuant to 18 U.S.C. § 924(e)(1) of the Armed Career Criminal Act (ACCA). Relying on Descamps v. United States, 570 U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Mays asserts his sentence under § 924(e)(1) is illegal. Specifically, he argues that, in light of Descamps and Johnson, he does not have the number of qualifying prior convictions required to trigger a § 924(e)(1) sentence and, therefore, his sentence under the section is unlawful. We agree and find that Mays’s sentence is illegal. Although Des-camps and Johnson were decided after Mays’s conviction and sentence became final, we hold that both eases apply retroactively in the first post-conviction context. Accordingly, we reverse the district court’s denial of Mays’s motion and remand for resentencing. I. SENTENCING UNDER THE ACCA To provide the legal context for Mays’s appeal, we begin with a brief discussion of Descamps, Johnson, and the relevant portions of § 924(e). Under § 924(e)(1), “a person who violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious drug offense is Subject to additional fines and a fifteen-year minimum sentence (and has an enhanced guidelines sentence under U.S.S.G. § 4B1.4).” United States v. Petite, 703 F.3d 1290, 1293 (11th Cir.2013) (internal quotation marks omitted); see also 18 U.S.C. § 924(e)(1). The ACCA defines a violent felony as “any crime punishable by imprisonment for a term exceeding one year” that: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; (2) “is burglary, arson, or extortion [or] involves use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)." }, { "docid": "20548133", "title": "", "text": "because the district court correctly admitted the • statements and gun, we need not evaluate whether their admission was harmless. Thus; because the district court did not err in denying Binford’s motion to suppress, we affirm Binford’s convictions. B. Sentencing Issues Binford received two enhancements -at sentencing, first under the . ACCA, 18 U.S.C. § 924(e), and second, under the career-offender enhancement in Guideline § 4B1.1. The ACCA enhances the sentence of a defendant who is convicted of being a felon in possession of a firearm and has at least three prior convictions for “violent felonies.” § 924(e). The Sentencing Guidelines increase tjie senteneing-guide-lines range of a defendant who has “at least two prior felony convictions of ... a crime 6f violence.” USSG § 4B1.l1(a). Binford was found to qualify under both enhancements due to three prior felony c’ónvictions, only two of which Binford has ever challenged: one for second-degree burglary and one for fourth-degree burglary, both Ohio convictions. The district court- held that both burglary convictions qualified as crime's of violence under the residual clauses of both the ACCA and Sentencing : Guidelines, rather than ’ the enumerated .clauses. However, due to reasons set forth below, the government concedes that Binford’s fourth-degree burglary conviction under Ohio law does not .qualify as a violent felony under the ACCA or as a crime,of violence under the career offender provision of the guidelines. Therefore, because the ACCÁ enhance ment requires three prior qualifying convictions and because the government now argues Binford only has two prior qualifying convictions, the government has also conceded that Binford’s ACCA enhancement was not proper and should be vacated. Therefore, the only remaining issue before the court is whether Binford’s second-degree' burglary conviction constitutes a “crime of violence” under the residual clause of the career offender enhancement, USSG § 4B1.2(a)(2). During the pendency of the appeal in this case, the Supreme Court held in Johnson, that the identically worded residual clause of the ACCA is void for vagueness. Compare USSG § 4B1.2(a)(2), with 18 U.S.C. § 924(e)(2)(B)(ii). This court has interpreted both residual clauses identically. See United States" }, { "docid": "22894148", "title": "", "text": "against the person or property of another may be used in the course of committing the offense.” It follows that an offense that is a “crime of violence” under subsection (a) also meets the criteria in subsection (b), but that subsection (b) covers offenses that do not meet the criteria in subsection (a). These subsections serve different functions with different consequences. An appreciation of the differences between the subsections and their roles informs my understanding of the Supreme Court’s opinions in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). Although the terms “crime of violence,” “violent felony,” and “aggravated felonies” may appear to be synonymous to a lay person, courts have recognized that, as used in their statutory contexts, they are distinct terms .of art covering distinct acts with different legal consequences. A. In Descamps, the Government sought an enhancement of Descamps’ sentence under the ACCA, 18 U.S.C. § 924(e), on the basis that his California conviction for burglary was a “violent felony.” Descamps, 133 S.Ct. at 2281-82. In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court had established a “rule .for determining when a defendant’s prior conviction counts as one of ACCA’s enumerated predicate offenses.” Descamps, 133 S.Ct. at 2283. In other words, Taylor focused on whether the state crime and the enumerated federal predicate offense had the same elements. In Taylor, the Court first determined the federal definition of burglary, and then considered How courts were to determine whether a state conviction met that definition. The Court, concerned with the substantive and practical problems of determining that the state conviction met the criteria for a federal offense, set forth a “categorical approach” instructing sentencing courts to look at the statutory definitions and not to the particular facts underlying a conviction. Descamps, 133 S.Ct. at 2283 (citing Taylor, 495 U.S. at 600, 110 S.Ct. 2143). In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)," }, { "docid": "23620066", "title": "", "text": "can be difficult. The Supreme Court’s most recent guidance on the question came in Descamps, 133 S.Ct. 2276. Descamps was convicted of being a felon in possession of a firearm. See id. at 2282. One of his previous convictions was for burglary under a California statute. See id. A state offense is a violent felony under the ACCA if it “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The government argued that Descamps’s prior conviction was a violent felony because it was a burglary. See Descamps, 133 S.Ct. at 2282. Burglary is not defined by the ACCA, but the Supreme Court has construed the term to mean generic burglary—“an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” James v. United States, 550 U.S. 192, 197, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (internal quotation marks omitted). Descamps argued that his burglary conviction did not qualify under the ACCA because the California offense is broader than generic burglary. See Descamps, 133 S.Ct. at 2282. The California statute “provides that a person who enters certain locations with intent to commit grand or petit larceny or any felony is guilty of burglary.” Id. (internal quotation marks omitted). Unlike the definition of generic burglary, the statutory definition does not require the entry into the location to be unlawful or unprivileged. See id. Des-camps argued that because some crimes under the statute would fit the generic definition of burglary and others would not, a conviction under the statute would not qualify as a violent felony under the ACCA and the court was precluded from using the modified categorical approach to examine the facts of conviction. See id. The Ninth Circuit disagreed, relying on its recent en banc opinion in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir.2011). In that case the Ninth Circuit determined that the modified categorical approach applies to “missing element” statutes that are “missing an element of the" }, { "docid": "19331462", "title": "", "text": "defined third-degree burglary to exclude the potential presence of a victim, thereby eliminating a serious potential risk to others. Third, he argued that the residual clause was unconstitutionally vague. The district court concluded that the proffered documents adequately demonstrated that Phillips was convicted of a “burglary” within the meaning of the ACCA. The district court thus found it unnecessary to determine whether Phillips’s burglary conviction qualified under the ACCA’s residual clause. Phillips timely appealed. II. The government concedes that, in light of the Supreme Court’s recent decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which postdates the district court’s judgment, the evidence in the record does not establish that Phillips committed a generic burglary. Nevertheless, we may affirm the district court on any ground supported by the record. United States v. Gill, 685 F.3d 606, 609 (6th Cir.2012). We therefore turn to the applicability of the ACCA’s residual clause. A. We review de novo the question whether a defendant’s prior conviction is a violent felony under the ACCA. See United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir.2013). We also review a challenge to the constitutionality of a statute de novo. Id. at 403. B. The ACCA imposes a fifteen-year minimum sentence on a defendant convicted under 18 U.S.C. § 922(g) when that defendant has three or more prior convictions for a “violent felony” or a “serious drug offense” or both. 18 U.S.C. § 924(e)(1). The ACCA contains a list of enumerated violent felonies: burglary, arson, extortion, and crimes involving the use of explosives. Id. § 924(e)(2)(B)(ii). The ACCA’s residual clause defines a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. “A sentencing court applies a ‘categorical’ approach to determine the nature of a prior conviction, which means that it focuses on the statutory definition of the offense, rather than the manner in which an offender may have violated the statute in a particular circumstance.” United States v. Denson, 728 F.3d 603, 607 (6th Cir.2013). Under the ACCA’s" }, { "docid": "8651941", "title": "", "text": "the sentence previously imposed. PROCEDURAL BACKGROUND Defendant pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g). By itself, the crime carries a maximum sentence of ten years in prison, but a defendant with three prior convictions for violent felonies or serious drug offenses faces a mandatory minimum sentence of fifteen years. 18 U.S.C. § 924(e). . At sentencing, the government argued defendant had three prior convictions for violent felonies: (1) second-degree assault and second-degree robbery ; (2) second-degree burglary; and (3) attempting to elude police. Defendant argued his convictions for second-degree burglary and attempting to elude were not violent felonies. I concluded second-degree burglary was a violent felony, but attempting to elude police was not. Because the ACCA mandatory minimum sentence did not apply, I sentenced defendant to 110 months in prison, the low end of the guideline range. On appeal, the government contended attempting to elude police was a violent felony. Defendant, contended second-degree burglary was not a violent felony. On June 9,2011, while the parties’ cross-appeals were pending, the Supreme Court ruled that an Indiana conviction for fleeing police was a violent felony under the ACCA. Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). On June 30, 2011, the Ninth Circuit affirmed that second-degree burglary was a violent felony, but reversed this court’s ruling that attempting to elude was not a violent felony. The Ninth Circuit held Sykes controlled because the Indiana statute at issue there was “similar enough” to the Oregon statute. 643 F.3d at 699. The Ninth Circuit remanded for sentencing to the ACCA’s mandatory minimum. In June 2013, the Supreme Court issued Descamps. LEGAL STANDARDS When a Ninth Circuit decision becomes “‘clearly irreconcilable’ with the reasoning or theory of intervening higher authority,” this court must follow the higher authority. Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir.2013) (quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc)). “The issues presented in the two cases need not be identical in order for the intervening higher" }, { "docid": "8651942", "title": "", "text": "were pending, the Supreme Court ruled that an Indiana conviction for fleeing police was a violent felony under the ACCA. Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). On June 30, 2011, the Ninth Circuit affirmed that second-degree burglary was a violent felony, but reversed this court’s ruling that attempting to elude was not a violent felony. The Ninth Circuit held Sykes controlled because the Indiana statute at issue there was “similar enough” to the Oregon statute. 643 F.3d at 699. The Ninth Circuit remanded for sentencing to the ACCA’s mandatory minimum. In June 2013, the Supreme Court issued Descamps. LEGAL STANDARDS When a Ninth Circuit decision becomes “‘clearly irreconcilable’ with the reasoning or theory of intervening higher authority,” this court must follow the higher authority. Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir.2013) (quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc)). “The issues presented in the two cases need not be identical in order for the intervening higher authority to be controlling.” Id. DISCUSSION I. The ACCA’s Definition of Violent Felony The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year ... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The ACCA has three tests to determine whether a prior conviction is a violent felony. First, the sentencing court asks whether the prior crime requires proof that the defendant used, attempted to use, or threatened to use physical force against another person. 18 U.S.C. § 924(e)(2)(B)(i). The “force clause” does not apply here because neither burglary nor attempting to elude, police includes an element of force. Second, if the crime does not include an element of force, the sentencing court asks whether the elements of the prior crime match the elements of" }, { "docid": "11284186", "title": "", "text": "BOGGS, J., delivered the opinion of the court, in which WHITE, J., joined. BATCHELDER, J. (pp. 519-23), delivered a separate dissenting opinion. OPINION BOGGS, Circuit Judge. This case presents the question whether a conviction for third-degree burglary under New York law is categorically a “violent felony” under 18 U.S.C. § 924(e), commonly referred to as the Armed Career Criminal Act (ACCA). A jury convicted Paul Prater of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). The district court determined that Prater qualified for an enhanced mandatory minimum sentence under the ACCA and an increased offense level under the Guidelines Manual. It relied on Prater’s prior convictions for New York third-degree burglary and attempted third-degree burglary. The district court held that these offenses categorically qualify as violent felonies. Because this was error and because the district court did not apply the Supreme Court’s “modified categorical approach” to determine whether the version of the crimes for which Prater was convicted qualified as a violent felony, Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013), we vacate the district court’s sentence and remand for resentencing. I Following a jury trial, Paul Prater was convicted of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Prater’s presentence report determined that U.S.S.G. § 2K2.1 provided the base offense level for the sentencing of offenses under 18 U.S.C. § 922(g). Because Prater had at least two prior felony convictions for what the Manual refers to as “crimes of violence,” his base offense level was 24, under § 2K2.1(a)(2). The presentence report also determined that Prater qualified as an armed career criminal, under 18 U.S.C. § 924(e)(1), because he had at least three convictions for a “violent felony” committed on different occasions. This finding subjected Prater to a mandatory minimum sentence of fifteen years of imprisonment. § 924(e)(1). It also raised Prater’s offense level to 33, under § 4B1.4(b)(3)(B). The presentence report assigned Prater twenty criminal-history points, which corresponded to a criminal-history category of VI. An offense level of 33" }, { "docid": "22882062", "title": "", "text": "CARNES, Chief Judge: This Court has held that a conviction under Alabama’s third-degree burglary statute, Ala.Code § 13A-7-7, can qualify as a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). See United States v. Rainer, 616 F.3d 1212, 1213 (11th Cir.2010). The settled law of that decision has been unsettled by the Supreme Court’s recent decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which requires that we revisit our earlier decision of the issue. When we decided in Rainer that third-degree burglary convictions in Alabama can qualify as ACCA predicates, we believed that the modified categorical approach could be applied to prior convictions for violating any nongeneric statute. See 616 F.3d at 1215-16. In Descamps, however, the Supreme Court decided that the modified categorical approach can be applied only when the non-generic statute is also a “divisible” statute, which is one that “sets out one or more elements of the offense in the alternative.” Descamps, 133 S.Ct. at 2281-82. The appellant, Frank Howard, contends that Alabama’s third-degree burglary statute is non-generic and indivisible, which would mean that in light of Descamps his convictions under that statute cannot be ACCA predicates. In the alternative, he argues that the documents the government presented at his sentence hearing did not establish that his third-degree burglary convictions qualify as violent felonies under the ACCA even if the modified categorical approach did apply. Howard also challenges his current conviction based on the sufficiency of the evidence presented at his trial. I. Facts Because of Howard’s sufficiency challenge, we set out in some detail the facts presented at his trial, construed in the light most favorable to the conviction, see United States v. Browne, 505 F.3d 1229, 1253 (11th Cir.2007). On April 28, 2011, the Prichard Police Department received a report from an anonymous caller that a gray Cadillac was parked at a vacant house on Edison Drive. The caller told the police that the vehicle likely contained guns, drugs, and stolen property. Four officers responded to the call around 8:00 p.m. and" }, { "docid": "19331461", "title": "", "text": "weapon or explosive, and the offender enters or remains in a: (a) Structure, and there is not another person in the structure at the time the offender enters or remains[.] Id. § 810.02(4)(a). In 2012, Philips pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Report determined that Phillips qualified for an enhanced sentence under the ACCA, concluding that his Florida conviction was a burglary as defined in 18 U.S.C. § 924(e)(2)(B)(ii). Phillips objected to the ACCA enhancement on three grounds. First, he argued that his prior conviction was not categorically a generic burglary within the meaning of § 924(e)(2)(B)(ii) under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and that the government had failed to prove that his was a generic burglary with appropriate Shepard documents, see Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Second, he argued that the ACCA’s residual clause did not apply because the Florida statute defined third-degree burglary to exclude the potential presence of a victim, thereby eliminating a serious potential risk to others. Third, he argued that the residual clause was unconstitutionally vague. The district court concluded that the proffered documents adequately demonstrated that Phillips was convicted of a “burglary” within the meaning of the ACCA. The district court thus found it unnecessary to determine whether Phillips’s burglary conviction qualified under the ACCA’s residual clause. Phillips timely appealed. II. The government concedes that, in light of the Supreme Court’s recent decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which postdates the district court’s judgment, the evidence in the record does not establish that Phillips committed a generic burglary. Nevertheless, we may affirm the district court on any ground supported by the record. United States v. Gill, 685 F.3d 606, 609 (6th Cir.2012). We therefore turn to the applicability of the ACCA’s residual clause. A. We review de novo the question whether a defendant’s prior conviction is a violent felony under the" }, { "docid": "10669674", "title": "", "text": "he knew his possession of the shotgun and ammunition were illegal. United States v. Miller, 646 F.3d 1128, 1132 (8th Cir. 2011) (citing United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004)). Accordingly, we conclude that the district court did not abuse its discretion by rejecting Instructions 26 and 27. E. Classification as an Armed Career Criminal Under the ACCA, a person convicted of violating § 922(g) who has three previous convictions for, as relevant, a “violent felony” is subject to a 15-year mandatory-minimum prison term. 18 U.S.C. § 924(e)(1). In this case, the presentenee report (PSR) stated that Walker qualified as an armed career criminal based on his 1987 Minnesota conviction for third-degree burglary, and his 1998 Minnesota convictions for attempted aggravated robbery with a dangerous weapon and for second-degree burglary. In the district court, Walker objected to his classification as an armed career criminal, asserting, as relevant, that Minnesota’s burglary statutes were “divisible” because they defined multiple methods by which burglary could be committed, and only one subsection of the definition of first-degree burglary included an element involving violence. At the August 2015 sentencing hearing, the district court determined that Walker qualified as - an armed career criminal, and sentenced him to two concurrent 240-month prison terms. On appeal, Walker reasserts his arguments challenging his classification as an armed career criminal, including his argument that Minnesota’s burglary statutes are divisible. This court reviews de novo the district court’s determination that a defendant’s prior conviction constitutes a violent felony under the ACCA. See United States v. Soileau, 686 F.3d 861, 864 (8th Cir. 2012). “Burglary” is one of the offenses specifically enumerated as a violent felony under the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court has defined generic “burglary” for ACCA purposes as “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Supreme Court recognized in Taylor" }, { "docid": "2045169", "title": "", "text": "for a term exceeding one year ... [that] is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Notably, a violent felony as defined in the ACCA is nearly identical to a “crime of violence” as defined in the Sentencing Guidelines’ Career Offender enhancement. Compare 18 U.S.C. § 924(e)(2)(B)(ii) with U.S. Sentencing Guidelines .Manual § 4B1.2(a) (providing that a crime of violence is (1) “any offense ... punishable by imprisonment for a term exceeding one year, that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”). Because there is no meaningful distinction between the definitions, we have used our analysis of the definition of crime of violence in the Sentencing Guidelines to guide our interpretation of violent felony in the ACCA. See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013); United States v. Crews, 621 F.3d 849, 852 n. 4 (9th Cir.2010); United States v. Melton, 344 F.3d 1021, 1027 (9th Cir.2003). In United States v. Park, 649 F.3d 1175 (9th Cir.2011), we established a framework for analyzing whether a conviction under state law is a conviction for a crime of violence. “First, the ‘conduct encompassed by the elements of the offense, in the ordinary case,’ must ‘present[ ] a serious potential risk of physical injury to another.’ ” Id. at 1177-78 (alteration in original) (quoting James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). “Second, the state offense must be ‘roughly similar, in kind as well as in degree of risk posed’ to those offenses enumerated at the beginning of the residual clause — burglary of a dwelling, arson, extortion, and crimes involving explosives.” Id. at 1178 (quoting Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). As we recently observed: The inquiry under Park’s first prong is straightforward. But the second requirement — whether the state offense" }, { "docid": "16143180", "title": "", "text": "upon new rules of constitutional law. In his first claim, Griffin asserts that his sentence was improperly enhanced under the career offender guideline, based on his prior convictions for burglary of a dwelling and robbery. Griffin’s first claim relies on Johnson v. United States, 576 U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), in which the United States Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague, and Griffin asserts that the residual clause of the ACCA is identical to the relevant clause in the career offender guideline. In his second claim, Griffin asserts that his sentence was improperly enhanced under the career offender guideline based on his prior conviction for burglary of a dwelling, because the burglary statute under which he was convicted is indivisible. Griffin’s second claim relies upon an allegedly new rule of law that the modified categorical approach cannot be applied to indivisible statutes, from Descamps v. United States, 570 U.S.-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Griffin was sentenced in 1998, pre-Booker when the Guidelines were mandatory. The ACCA defines violent felony as any crime punishable by a term of imprisonment exceeding one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Section 4B1.1 of the Sentencing Guidelines provides that a defendant is classified as a career offender if he (1) was at least 18 years old at the time of the offense of conviction; (2) the offense of conviction was a felony and either a crime of violence or a controlled substance offense; and (3) he had at least two" } ]

[ { "docid": "22365095", "title": "", "text": "imposed upon distributors and retail dealers of gasoline, for the privilege of engaging in the business, an excise .tax of three cents and four cents respectively per gallon sold in the State. The Supreme Court of thé State declares it to be a privilege tax but points out that whether this tax is on the privilege or on the property it is imposed before the gasoline has left :the dealer’s hands. The plaintiff in error* a dealer, was sued by the State for certain sums that were due under .the statutes. It pleaded that the sales in respect of which the tax was demanded were sales to the United States for the use of its. Coast Guard and Veterans’ Hospital, that these being instrumentalities of the government it did not include the amount of the tax in the price charged, and that the statute did not and could not tax the dealer for them consistently with the Constitution of the United States. The Supreme Court of the State upheld the tax and pointed out the extreme consequences to which á different decision might lead. It seems to me that the State Court was right. I should say plainly right, but for the effect of certain dicta of Chief Justice Marshall which culminated in or rather were founded upon his often quoted proposition that the power to tax is the power to destroy. Ip those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree. If the States had any power it was assumed that they had all power, and that the necessary alternative was to deny it altogethér. But this Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to. tax. The power to tax is not the power to destroy while this Court sits. The power to fix rates is the power to destroy if unlimited, but this Court while, it endeavors to prevent confiscation does not prevent" } ]

[ { "docid": "22318748", "title": "", "text": "interstate transaction of which the delivery is only a part, as in the case of a tax upon the entire gross receipts. Petitioner strongly insists that in substance the tax here should be regarded as the same as a use tax the validity of which this Court has sustained. Henneford v. Silas Mason Co., 300 U. S. 577; Southern Pacific Co. v. Gallagher, 306 U. S. 167. But in the Henneford case, Mr. Justice Cardozo, in speaking for the Court, was most careful to show that the use tax was upheld because it was imposed after interstate commerce had come to an end. In making this distinction, the Court clearly recognized that a tax imposed directly upon interstate commerce would be beyond the state’s power, and the tax was sustained as one upon property which had come to rest within the State and like other property was subject to its jurisdiction. The Court said: “The tax is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an end. . . . The privilege of use is only one attribute, among many, of the bundle of privileges that make up property or ownership.” Id., p. 582. And later, in Puget Sound Co. v. State Tax Commission, 302 U. S. 90, 92, 94, Mr. Justice Cardozo in delivering the opinion of the Court, after showing that the business of the company, so far as it consisted of the loading and discharge of cargoes by longshoremen subject to its own control, was interstate or foreign commerce, concluded that the State was “not ■ at liberty to tax the privilege of doing it by exacting in return therefor a percentage of the gross receipts.” He observed that “De cisions to that effect are many and controlling.” The fact that a use tax, sustained as a tax upon an attribute of property which is subject to the jurisdiction of the State, may have an incidental or indirect effect upon interstate commerce, and thus in the opinion of commentators may tend to discourage, interstate transactions, is certainly no" }, { "docid": "14433407", "title": "", "text": "451 U.S. 725, 756, 101 S.Ct. 2114, 2134, 68 L.Ed.2d 576 (1981). The Supreme Court has recognized -that a “compensatory tax” — i.e., one imposed in lieu of other taxes which “discloses no purpose to discriminate” and “in substance does not do so” — does not offend Commerce Clause principles. General American Tank Car Co. v. Day, 270 U.S. 367, 373, 46 S.Ct. 234, 235, 70 L.Ed. 635 (1926). The Court applied this principle, in Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937). There, Washington imposed a 2% sales tax on all goods sold in the state. Because, as a sales tax, the tax promoted purchases outside the state (at least to the extent adjoining states imposed no such tax on purchases), Washington also imposed a 2% “compensating tax” on the use of all goods in the state — exempting those goods that had already been subject to a sales tax in Washington or any other state. A contractor who brought its equipment into Washington from out-of-state challenged these provisions under the Commerce Clause, claiming they burdened interstate and foreign commerce. The Supreme Court disagreed, explaining that “the burden borne by the [contractor because of the use tax] is balanced by an equal burden where the sale is strictly local.” 300 U.S. at 584, 57 S.Ct. at 527. The Court explained Henneford and its progeny in Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977): In all the use-tax cases, an individual faced with a choice of an in-state or out-of-state purchase could make that choice without regard to the tax consequences. If he purchased.in State, he paid a sales tax; if he purchased out of State but carried the article back for use in State, he paid a'use tax of the same amount. The taxes treated both transactions in the same manner. Id. at 332, 97 S.Ct. at 608. Under this reasoning, states can impose taxes on interstate commerce to create equality between in-state and out-of-state transactions — to make the choice between in-state" }, { "docid": "22395424", "title": "", "text": "We therefore hold that the exemption in § 465 does not encompass or bar the collection of New Mexico’s nondiscriminatory gross receipts tax and that the Tribe’s ski resort is subject to that tax. B We reach a different conclusion with respect to the compensating use tax imposed on the personalty installed in the construction of the ski lifts. According to the Stipulation of Facts, that personal property has been “permanently attached to the realty.” In view of § 465, these permanent improvements on the Tribe’s tax-exempt land would certainly be immune from the State’s ad valorem property tax. See United States v. Rickert, 188 U. S. 432, 441-443 (1903). We think the same immunity extends to the compensating use tax on the property. The jurisdictional basis for use taxes is the use of the property in the State. See Henneford v. Silas Mason Co,, 300 U. S. 577 (1937); McLeod v. J. E. Dilworth Co., 322 U. S. 327, 330 (1944). It has long been recognized that “use” is among the “bundle of privileges that make up property or ownership” of property and, in this sense at least, a tax upon “use” is a tax upon the property itself. Henneford v. Silas Mason Co., supra, at 582. This is not to say that use taxes are for all purposes to be deemed simple ad valorem property taxes. See, e. g., United States v. Detroit, 355 U. S. 466 (1958), and its companion cases; Sullivan v. United States, 395 U. S. 169 (1969). But use of permanent improvements upon land is so intimately connected with use of the land itself that an explicit provision relieving the latter of state tax burdens must be construed to encompass an exemption for the former. “Every reason that can be urged to show that the land was not subject to local taxation applies to the assessment and taxation of the permanent improvements.” United States v. Rickert, supra, at 442. The judgment of the Court of Appeals is Affirmed in part and reversed in part. In 1936, the Tribe adopted a constitution, pursuant to §" }, { "docid": "22055623", "title": "", "text": "private lessee or user. The owner is not liable for their payment nor is the property itself subject to any lien if they remain unpaid. So far as the United States is concerned as the owner of the exempt property used in this case it seems clear that there was no attempt to levy against its property or treasury. Nevertheless the Government argues that since the tax is measured by the value of the property used it should be treated as nothing but a contrivance to lay a tax on that property. We do not find this argument persuasive. A tax for the beneficial use of property, as distinguished from a tax on the property itself, has long been a commonplace in this country. See Henneford, v. Silas Mason Co., 300 U. S. 577, 582-583. In measuring such a use tax it seems neither irregular nor extravagant to resort to the value of the property used; indeed no more so than measuring a sales tax by the value of the property sold. Public Act 189 was apparently designed to equalize the annual tax burden carried by private businesses using exempt property with that of similar businesses using nonexempt property. Other things being the same, it seems obvious enough that use of exempt property is worth as much as use of comparable taxed property during the same interval. In our judgment it was not an impermissible subterfuge but a permissible exercise of its taxing power for Michigan to compute its tax by the value of the property used. A number of decisions by this Court support this conclusion. For example in Curry v. United States, 314 U. S. 14, we upheld unanimously a state use tax on a contractor who was using government-owned materials although the tax was based on the full value of those materials. Similarly in Esso Standard Oil Co. v. Evans, 345 U. S. 495, the Court held valid a state tax on the privilege of storing gasoline even though that part of the tax which was challenged was measured by the number of gallons of government-owned gasoline" }, { "docid": "5956369", "title": "", "text": "should settle the use tax issue once and for all. It is quite manifest from what is stated in those cases that our Supreme Court does not intend, by strained constitutional construction, to restore to the Atomic Energy Act what was deleted therefrom by the Congress of the United States pursuant to strong public demand that it do so. In the Borg-Warner case it was pointed out by Mr. Justice Black in the leading opinion that the Michigan statute challenged in that case imposed a tax on a private lessee and user of tax exempt property in the conduct of his own business. Further that the taxes imposed by the statute were personal obligations of the private user; that the owner was not liable for the payment of the tax nor was the property itself subject to a lien for the satisfaction of the tax, and that no attempt had been made to levy against the leased property belonging to the government. “Nevertheless”, as Mr. Justice Black went on to say, “the Government argues that since the tax is measured by the value of the property used it should be treated as nothing but a contrivance to lay a tax on that property. We do not find this argument persuasive. A tax for the beneficial use of property, as distinguished from a tax on the property itself, has long been a commonplace in this country. See Henneford v. Silas Mason Co., 300 U.S. 577, 582-583, 57 S.Ct. 524, 526-527, 81 L.Ed. 814.” [355 U.S. 466, 78 S.Ct. 476.] Obviously, the federal government may not impose federal taxes by contract, since the power to impose federal taxes is vested in the Congress of the United States, or impose state taxes by contract, since the power to impose state taxes is vested in the several States. For the same obvious and basic reasons, the federal government is without power to grant relief from federal or state taxes by the expediency of a contract with a private corporation, since the power to impose taxes necessarily includes the power to grant relief therefrom and" }, { "docid": "5956370", "title": "", "text": "since the tax is measured by the value of the property used it should be treated as nothing but a contrivance to lay a tax on that property. We do not find this argument persuasive. A tax for the beneficial use of property, as distinguished from a tax on the property itself, has long been a commonplace in this country. See Henneford v. Silas Mason Co., 300 U.S. 577, 582-583, 57 S.Ct. 524, 526-527, 81 L.Ed. 814.” [355 U.S. 466, 78 S.Ct. 476.] Obviously, the federal government may not impose federal taxes by contract, since the power to impose federal taxes is vested in the Congress of the United States, or impose state taxes by contract, since the power to impose state taxes is vested in the several States. For the same obvious and basic reasons, the federal government is without power to grant relief from federal or state taxes by the expediency of a contract with a private corporation, since the power to impose taxes necessarily includes the power to grant relief therefrom and that power as respects federal taxes is vested in the Congress and as respects state taxes is vested in the legislative bodies of the several States. Therefore, whether du Pont may be relieved of state taxes in the performance of its contractual obligations in South Carolina for the government can by no stretch of the imagination be determined by a contract with the AEC in the absence of some valid statute exempting du Pont from such taxation, as by making du Pont an agent with power to bind the government. Even assuming, without agreeing, that du Pont has rendered without charge services that are valuable to the government, and that the commendable character of the services merit relief from State taxes in the performance of those services it does not follow that the State of South Carolina should bear the sole burden of that relief. This is particularly true since the effect of such relief would not be for the benefit of du Pont, but solely for the government, in relieving it from its contractual" }, { "docid": "22318747", "title": "", "text": "integral part of the interstate transaction. It is said that title to the coal passes to the purchaser on delivery. But the place where the title passes has not been regarded as the test of the interstate character of a sale. We have frequently decided that where a- commodity is mined or manufactured in one State and in pursuance of contracts of sale is delivered for transportation to purchasers in another State, the mere fact that the sale is f. o. b. cars in the seller’s State and the purchaser pays the freight does not make the sale other than interstate. And when, as here, the buyer in an interstate sale takes delivery in his own State, that delivery in completion of the sale is as properly immune from state taxation as is the transportation to the purchaser’s dock or vessel. Moreover, even if it were possible to sustain a state tax by reason of such delivery within the State, there would still be no ground for sustaining a tax upon the whole of the interstate transaction of which the delivery is only a part, as in the case of a tax upon the entire gross receipts. Petitioner strongly insists that in substance the tax here should be regarded as the same as a use tax the validity of which this Court has sustained. Henneford v. Silas Mason Co., 300 U. S. 577; Southern Pacific Co. v. Gallagher, 306 U. S. 167. But in the Henneford case, Mr. Justice Cardozo, in speaking for the Court, was most careful to show that the use tax was upheld because it was imposed after interstate commerce had come to an end. In making this distinction, the Court clearly recognized that a tax imposed directly upon interstate commerce would be beyond the state’s power, and the tax was sustained as one upon property which had come to rest within the State and like other property was subject to its jurisdiction. The Court said: “The tax is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an" }, { "docid": "22055642", "title": "", "text": "“But, as the Court in that case was careful to point out, in language later quoted with approval in Macallen Co. v. Massachusetts [279 U. S. 620, 631], ‘A tax very well may be upheld as against any casual effect it may have upon the bonds of the United States when passed with a different intent and not aimed at them ....’” Here the Michigan statute plainly says that the tax shall “apply to federal property for which payments are [not] made in lieu of taxes in amounts equivalent to taxes which might otherwise be lawfully assessed” (§1), and, hence, it cannot be said that this tax is “casual [in its] effect . . . upon the [property] of the United States”; and it must be said that the tax is plainly “aimed at [it].” Educational Films Corp. v. Ward, supra, at 393. The majority rely principally upon Henneford v. Silas Mason Co., 300 U. S. 577; Esso Standard Oil Co. v. Evans, 345 U. S. 495, and, as does also Mr. Justice Harlan in his separate opinion, upon Curry v. United States, 314 U. S. 14, but, as I read them, those cases do not at all support the Court’s conclusion. In Henneford this Court merely held that a tax imposed by a State upon its citizen for his use within the State of his own property which he had purchased in another State and imported in interstate commerce was not a prohibited tax on such commerce, which had earlier ended. It did not in any way involve a tax upon government property interests. The Esso case simply upheld a state privilege tax imposed not upon any property interest of the Government but directly upon a storer of gasoline, on a gallonage basis, for his privilege of conducting that business within the State. One of its customers was the Government which had, by contract, agreed to reimburse Esso for any tax imposed upon it by the State in consequence of having stored the Government’s gasoline. Thus the tax was not imposed by the State upon the Government’s property interests" }, { "docid": "22733468", "title": "", "text": "when they have become part of the common mass of property within the state of destination. Wiloil Corp. v. Pennsylvania, 294 U. S. 169, 175; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 575; American Steel & Wire Co. v. Speed, 192 U. S. 500, 519; Woodruff v. Parham, 8 Wall. 123, 137. This is so, indeed, though they are still in the original packages. Sonneborn Bros. v. Cureton, 262 U. S. 506; American Steel & Wire Co. v. Speed, supra; Woodruff v. Parham, supra. For like reasons they may be subjected, when once they are at rest, to a non-discriminatory tax upon use or enjoyment. Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 267; Edelman v. Boeing Air Transport, Inc., 289 U. S. 249, 252; Monamotor Oil Co. v. Johnson, 292 U. S. 86, 93. The privilege of use is only one attribute, among many, of the bundle of privileges that make up property or ownership. Nashville, C. & St. L. Ry. Co. v. Wallace, supra; Bromley v. McCaughn, 280 U. S. 124, 136-138; Burnet v. Wells, 289 U. S. 670, 678. A state is at liberty, if it pleases, to tax them all collectively, or to separate the faggots and lay the charge distributively. Ibid. Calling the tax an excise when it is laid solely upon the use (Vancouver Oil Co. v. Henneford, 183 Wash. 317; 49 P. (2d) 14) does not make the power to impose it less, for anything the commerce clause has to say of its validity, than calling it a property tax and laying it on ownership. “A nondiscriminatory tax upon local sales . . . has never been regarded as imposing a direct burden upon interstate commerce and has no greater or different effect upon that commerce than a general property tax to which all those enjoying the protection of the State may be subjected.” Eastern Air Transport, Inc. v. South Carolina Tax Comm’n, 285 U. S. 147, 153. A tax upon the privilege of use or storage" }, { "docid": "5783094", "title": "", "text": "Supreme Court has described the very tax here in question, “The use tax is not a tax on property but is described in the act as, and in fact is, in the nature of an excise tax upon the privilege of using, storing or consuming property.” Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 307, 57 A. 2d 128, 134. This distinction may sometimes be more formal than actual, cf. Henneford v. Silas Mason Co., 300 U. S. 577, 582, 586. But its long-time general acceptance supports the conclusion that when Congress talked about taxes on, or even “in respect of,” personal property, it did not thereby include use taxes. This conclusion is further buttressed by the close interconnection of sales and use taxes. See generally 3 State Taxation of Interstate Commerce, H. R. Rep. No. 565, 89th Cong., 1st Sess., 607-620 (1965). As a complement to the sales tax and an integral part of a single broad pattern of excise taxes, the use tax is not likely to have been grouped by Congress with taxes “in respect of the personal property.” By 1938, more than half the States had adopted sales and use taxes. See 3 State Taxation of Interstate Commerce, supra, n. 28, at 609. 54 Stat. 1059, now 4 U. S. C. §§ 105-110. 4 U. S. C. § 105 (a) states: “No person shall be relieved from liability for payment of, collection of, or accounting for any sales or use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area; and such State or taxing authority shall have full jurisdiction and power to levy and collect any such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area.” 4 U. S. C. § 107 states: “(a) The provisions of sections 105 and" }, { "docid": "22413022", "title": "", "text": "of the press to uncertain economic proof. But, as Justice Rehnquist clearly shows, post, at 597-598, this is not such a case. Since it is plainly evident that Minneapolis Star is not disadvantaged and is almost certainly benefited by a use tax vis-á-vis a sales tax, I cannot agree that the First Amendment forbids a State to choose one method of taxation over another. See, e. g., Alaska v. Arctic Maid, 366 U. S. 199 (1961) (Alaska occupational tax collected from freezer ships at rate of 4% of value of salmon not discriminatory because Alaskan canneries pay a 6% tax on the value of salmon obtained for canning). See Norfolk & Western R. Co. v. Missouri State Tax Comm’n, 390 U. S. 317, 329 (1968) (holding property tax on rolling stock based on a mileage formula violated due process) (“[W]hen a taxpayer comes forward with strong evidence tending to prove that the mileage formula will yield a grossly distorted result in a particular case, the State is obliged to counter that evidence . . .”); Great Northern R. Co.v. Minnesota, 278 U. S. 503, 509 (1929) (“We find nothing in the record to indicate that the tax under consideration, plus that already collected, exceeds ‘what would be legitimate as an ordinary tax on the property valued as part of a going concern, [or is] relatively higher than the taxes on other kinds of property.’ Pullman Co. v. Richardson, 261 U. S. 330, 339”). See also Pullman Co. v. Richardson, 261 U. S. 330, 339 (1923); Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453-455 (1918); United States Express Co. v. Minnesota, 223 U. S. 335 (1912); Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217 (1908). In Henneford, a 2% tax was imposed on the privilege of using products coming from other States. Excepted from the tax was any property, the sale or use of which had already been subjected to an equal or greater tax. The Court, speaking through Justice Cardozo, upheld the use tax, noting that “[w]hen the account is made up, the" }, { "docid": "23025406", "title": "", "text": "we have upheld. The State assessed a use tax on personal property used within the State but originally purchased elsewhere to compensate for the burden that a sales tax placed on similar property purchased within the State. See Henneford v. Silas Mason Co., 300 U. S. 577 (1937). Appellee’s reliance on Henneford v. Silas Mason Co., however, does not aid its cause. That case addressed a use tax imposed by the State of Washington on the “privilege of using within this state any article of tangible personal property.” The tax did not apply to “the use of any article of tangible personal property” the sale or use of which had already been taxed at an equal or greater rate under the laws of Washington or some other State. Id., at 580-581. We upheld the tax because, in the context of the overall tax structure, the burden it placed on goods purchased out-of-state was identical to that placed on an equivalent purchase within the State. This identical impact was no fortuity; it was guaranteed by the statutory exemption from the use tax for goods on which a sales tax had already been paid, regardless of whether the sales tax had been paid to Washington or to another State. As we explained in Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64, 70 (1963): “The conclusion is inescapable: equal treatment for instate and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.” The parallel condition precedent for a valid multiple activities exemption eliminating exposure to the burden of a multiple tax on manufacturing and wholesaling would provide a credit against Washington tax liability for wholesale taxes paid by local manufacturers to any State, not just Washington. The multiple activities exemption only operates to impose a unified tax eliminating the risk of multiple taxation when the acts of manufacturing and wholesaling are both carried out within the State. The exemption excludes similarly situated manufacturers and wholesalers which conduct one of those activities within Washington and the other activity out side the State." }, { "docid": "22413001", "title": "", "text": "State to justify its action. Since Minnesota has offered no satisfactory justification for its tax on the use of ink and paper, the tax violates the First Amendment, and the judgment below is Reversed. JusTiCE Blackmun joins this opinion except footnote 12. Currently, the tax applies to sales of items for more than 90. Minn. Stat. §297A.03(2) (1982). When first enacted, the threshold amount was 160. Act of June 1, 1967, ch. 32, Art. XIII, § 3(2), 1967 Minn. Laws 2143, 2180. After the 1974 amendment, the use tax provision read in full: “For the privilege of using, storing or consuming in Minnesota tangible personal property, tickets or admissions to places of amusement and athletic events, electricity, gas, and local exchange telephone service purchased for use, storage or consumption in this state, there is hereby imposed on every person in this state a use tax at the rate of four percent of the sales price of sales at retail of any of the aforementioned items made to such person after October 31, 1971, unless the tax imposed by section 297A.02 [the sales tax] was paid on said sales price. “Motor vehicles subject to tax under this section shall be taxed at the fair market value at the time of transport into Minnesota if such motor vehicles were acquired more than three months prior to its [sic] transport into this state. “Notwithstanding any other provisions of section 297A.01 to 297A.44 to the contrary, the cost of paper and ink products exceeding $100,000 in any calendar year, used or consumed in producing a publication as defined in section 297A.25, subdivision 1, clause (i) is subject to the tax imposed by this section.” 1973 Minn. Laws 1637, codified at Minn. Stat. §297A.14 (1982). The final paragraph was the only addition of the 1974 amendment. The provision has since been amended to increase the rate of the tax, Act of June 6, 1981, ch. 1, Art. IV, § 5, 1981 Minn. Laws 2396, but has not been changed in any way relevant to this litigation. Although the Minnesota Legislature records some proceedings and preserves" }, { "docid": "22286995", "title": "", "text": "For these and other reasons set out elsewhere I believe the judgment of the Supreme Court of Washington should be affirmed. Henneford v. Silas Mason Co., 300 U. S. 577, 583. Cf. Postal Telegraph-Cable Co. v. Richmond, 249 U. S. 252, 259. Fifth Biennial Report, Tax Commission of Washington; “The Sales Tax in the American States,” Haig & Shoup (1934), p. 309 et seq. At least eleven States — most of them recently — have imposed gross income or gross sales taxes upon the privilege of doing business within their respective borders. See, “Tax Systems of the World,” 7th ed. (CCH), pp. 153 to 156. While these laws vary in application, several may be generally characterized as similar to the Washington tax. See, “State Law Index” No. 5, p. 673 (Legislative Reference Service, Library of Congress); Fifth Biennial Report, supra; dissent, Adams Manufacturing Co. v. Storen, 304 U. S. 307, 317, footnote 4. Fifth Biennial Report, supra, p. 8. Cf. Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453, 454; United States Express Co. v. Minnesota, 223 U. S. 335, 345, 347. Woodruff v. Parham, 8 Wall. 123, 137. While about 25% of appellant’s business relates to the sale of Oregon-grown apples, the State of Washington made no contention that it could under its statute impose a tax upon appellant’s receipts from, the sale of Oregon-grown apples. The judgment of the State court from which appeal was taken expressly states: “the court . . , considered . . . the stipulation between the parties that the state makes no claim to the tax upon the Oregon business of . . . [appellant] even though it- clears through . . . [appellant’s] Seattle office,” and was “of the opinion that the business of . . . [appellant], originating in the State of Washington, is taxable.” (Italics supplied.) In affirming this judgment the Supreme Court of Washington pointed out that appellant was denying “the state tax commission’s • claim of a tax liability on the total commission appellant receives from the growers for Washington-grown food sold and shipped to parts within" }, { "docid": "22733467", "title": "", "text": "or elsewhere. The practical effect of a system .thus conditioned is readily perceived. One of its effects must be that retail sellers in Washington will be helped to compete upon terms of equality with retail dealers in other states who are exempt from a sales tax or any corresponding burden. Another effect, or at least another tendency, must be to avoid the likelihood of a drain upon the revenues of the state, buyers being no longer tempted to place their orders in other states in the effort to escape payment of the tax on local sales. Do these consequences which must have been foreseen, necessitate a holding that the tax upon the use is either a tax upon the operations of interstate commerce or a discrimination against such commerce obstructing or burdening it unlawfully? 1. The tax is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an end. Things acquired or transported in interstate commerce may be subjected to a property tax, non-discriminatory in its operation, when they have become part of the common mass of property within the state of destination. Wiloil Corp. v. Pennsylvania, 294 U. S. 169, 175; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 575; American Steel & Wire Co. v. Speed, 192 U. S. 500, 519; Woodruff v. Parham, 8 Wall. 123, 137. This is so, indeed, though they are still in the original packages. Sonneborn Bros. v. Cureton, 262 U. S. 506; American Steel & Wire Co. v. Speed, supra; Woodruff v. Parham, supra. For like reasons they may be subjected, when once they are at rest, to a non-discriminatory tax upon use or enjoyment. Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 267; Edelman v. Boeing Air Transport, Inc., 289 U. S. 249, 252; Monamotor Oil Co. v. Johnson, 292 U. S. 86, 93. The privilege of use is only one attribute, among many, of the bundle of privileges that make up property or ownership. Nashville, C. &" }, { "docid": "23025405", "title": "", "text": "be deemed a ‘compensating tax’ for the manufacturing tax imposed on its West Virginia competitors. . . . Here, too, manufacturing and wholesaling are not ‘substantially equivalent events’ such that the heavy tax on in-state manufacturers can be said to compensate for the admittedly lighter burden placed on wholesalers from out of State. Manufacturing frequently entails selling in the State, but we cannot say which portion of the manufacturing tax is attributable to manufacturing, and which portion to sales.” 467 U. S., at 642-643. See also Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 272 (1984). In light of the facially discriminatory nature of the multiple activities exemption, we conclude, as we did in Armco, that manufacturing and wholesaling are not “substantially equivalent events” such that taxing the manufacture of goods sold outside the State can be said to compensate for the State’s inability to impose a wholesale tax on those goods. Appellee also contends that its B & 0 tax is valid because of its asserted similarities to a tax and exemption system we have upheld. The State assessed a use tax on personal property used within the State but originally purchased elsewhere to compensate for the burden that a sales tax placed on similar property purchased within the State. See Henneford v. Silas Mason Co., 300 U. S. 577 (1937). Appellee’s reliance on Henneford v. Silas Mason Co., however, does not aid its cause. That case addressed a use tax imposed by the State of Washington on the “privilege of using within this state any article of tangible personal property.” The tax did not apply to “the use of any article of tangible personal property” the sale or use of which had already been taxed at an equal or greater rate under the laws of Washington or some other State. Id., at 580-581. We upheld the tax because, in the context of the overall tax structure, the burden it placed on goods purchased out-of-state was identical to that placed on an equivalent purchase within the State. This identical impact was no fortuity; it was guaranteed by the" }, { "docid": "22413023", "title": "", "text": "Great Northern R. Co.v. Minnesota, 278 U. S. 503, 509 (1929) (“We find nothing in the record to indicate that the tax under consideration, plus that already collected, exceeds ‘what would be legitimate as an ordinary tax on the property valued as part of a going concern, [or is] relatively higher than the taxes on other kinds of property.’ Pullman Co. v. Richardson, 261 U. S. 330, 339”). See also Pullman Co. v. Richardson, 261 U. S. 330, 339 (1923); Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453-455 (1918); United States Express Co. v. Minnesota, 223 U. S. 335 (1912); Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217 (1908). In Henneford, a 2% tax was imposed on the privilege of using products coming from other States. Excepted from the tax was any property, the sale or use of which had already been subjected to an equal or greater tax. The Court, speaking through Justice Cardozo, upheld the use tax, noting that “[w]hen the account is made up, the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates.” 300 U. S., at 583-584. See also Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64 (1963) (holding use tax burden went beyond sales tax and constituted invalid discriminatory burden on commerce); Scripto v. Carson, 362 U. S. 207 (1960) (upholding use tax as complement to sales tax). Justice Rehnquist, dissenting. Today we learn from the Court that a State runs afoul of the First Amendment proscription of laws “abridging the freedom of speech, or of the press” where the State structures its taxing system to the advantage of newspapers. This seems very much akin to protecting something so over-zealously that in the end it is smothered. While the Court purports to rely on the intent of the “Framers of the First Amendment,” I believe it safe to assume that in 1791 “abridge” meant the same thing it means today: to diminish or curtail. Not until the Court’s decision in this case, nearly" }, { "docid": "22052706", "title": "", "text": "was meant to end. The very purpose of the Commerce Clause was to create an area of free trade among the several States. That clause vested the power of taxing a transaction forming an unbroken process of interstate commerce in the Congress, not in the States. The difference in substance between a sales and a use tax was adverted to in the leading case sustaining a tax on the use after a sale had spent its interstate character: “A tax upon-a use so closely connected with delivery as to be in substance a part thereof might be subject to the same objections that would be applicable to a tax upon the sale itself.” Henneford v. Silas Mason Co., 300 U. S. 577, 583. Thus we are not dealing with matters of nomenclature even though they be matters of nicety. “The state court could not render valid, by misdescribing it, a tax law which in substance and effect was repugnant to the Federal Constitution; neither can it render unconstitutional a tax, that in its actual effect violates no constitutional provision, by inaccurately defining it.” Wagner v. City of Covington, 251 U. S. 95, 102. Though sales and use taxes may secure the same revenues and serve complementary purposes, they are, as we have indicated, taxes on different transactions and for different opportunities afforded by a State. A very different situation underlay Wisconsin v. J. C. Penney Co., 311 U. S. 435. The Wisconsin Supreme Court and this Court were concerned with an exaction on a transaction which the Wisconsin Court described one way and we another. We looked behind the labels to the thing described, and the thing — taxation of the distribution of income earned in Wisconsin — did not offend the Federal Constitution. That case affords no ground for rejecting the deliberate choice of a State to impose a tax on a transfer of ownership and sustaining it, where the transfer was made beyond the State limits, as a use tax on that property because the State might, so far as the Federal Constitution is concerned, have enacted a" }, { "docid": "18224599", "title": "", "text": "may not tax property located on the Fort Snelling Reservation. In the alternative he says, if the act levies a privilege tax, as applied to him, it deprives him of equal protection of the laws by imposing upon him a greater burden than that laid on residents of Minnesota, or residents of neighboring States. The argument that the tax is one on property is founded on the fact that it is measured by the cost of the motor car (less certain annual allowances for depreciation), and that it is in lieu of all other taxes thereon except wheelage taxes levied by municipalities. It is to be remarked, however, that a minimum tax is prescribed for cars of certain weights, irrespective of value; that the act levies the tax on vehicles “ using the public streets or highways in the State ”; and provides that they “ shall be privileged to use the public streets and highways on the basis and at the rates for each calendar year as follows . . .” The state court held that “ the tax is both a property tax and a privilege tax. It is a property tax in the sense that it exempts the vehicle licensed from other taxation as property. It is in lieu of other taxes. But it is equally . clear that it is a privilege tax. . . . The character of a privilege tax extends to the whole of the tax.” This Court, while bound by the state court’s decision as to the meaning and application of the law, decides for itself the character of the tax, and whether as applied to the appellant it affects his constitutional rights. We think it plain that the levy is an excise for the privilege of using the highways. It is denominated a privilege tax. The car cannot use the highways unless it is paid. The statute contains the usual provisions for registration, issuance and display of number plates, &c. Residents of other States who desire to use the highways for more than the period specified in certain sections extending the" }, { "docid": "5783093", "title": "", "text": "959, 78th Cong., 2d Sess., 1 (1944). See also the reference to “personal property taxes” in H. R. Rep. No. 1514, 78th Cong., 2d Sess., 2 (1944). The reports on the 1942 Act talked about “taxation of the property” and the possibility that “the personal property . . . may become hable for taxes in several States.” S. Rep. No. 1558, supra, n. 26, at 11; H. R. Rep. No. 2198, supra, n. 26, at 6. At the time of the 1962 Amendment, the reports continued to describe the taxes covered by § 514 as those “imposed upon property of a serviceman.” S. Rep. No. 2182, 87th Cong., 2d Sess., 1 (1962); H. R. Rep. No. 2126, 87th Cong., 2d Sess., 1 (1962). It has frequently been said that a use tax, like a sales tax, is an excise or privilege tax different in kind from a tax on property. E. g., Monamotor Oil Co. v. Johnson, 292 U. S. 86, 93; Bowman v. Continental Oil Co., 256 U. S. 642, 649. As the Connecticut Supreme Court has described the very tax here in question, “The use tax is not a tax on property but is described in the act as, and in fact is, in the nature of an excise tax upon the privilege of using, storing or consuming property.” Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 307, 57 A. 2d 128, 134. This distinction may sometimes be more formal than actual, cf. Henneford v. Silas Mason Co., 300 U. S. 577, 582, 586. But its long-time general acceptance supports the conclusion that when Congress talked about taxes on, or even “in respect of,” personal property, it did not thereby include use taxes. This conclusion is further buttressed by the close interconnection of sales and use taxes. See generally 3 State Taxation of Interstate Commerce, H. R. Rep. No. 565, 89th Cong., 1st Sess., 607-620 (1965). As a complement to the sales tax and an integral part of a single broad pattern of excise taxes, the use tax is not likely to have been grouped by" } ]

[ { "docid": "4239806", "title": "", "text": "990 F.2d 1252 (5th Cir. April 5,-1993) (per curiam), we held that “[t]he rules, although providing for ‘appeal decisions within 120 days,’ contain no language that grants a separate right ‘not to be punished at all if a proper appeal is not conducted.’ ... [T]he disciplinary rules do not contain a ‘substantive predicate’ mandating the grant of an appeal or any other outcome should the appeal decision not be rendered within 120 days_” Id. at 6. Because the 120-day rule does not satisfy the criteria set forth in Kentucky Dep’t of Corrections v. Thompson, it creates no protective liberty interest in being released from extended lockdown. Thus, the general rule that prisoners have no protected interest in a particular custodial classification applies, and Giovanni can state no cause of action under section 1983. McGruder v. Phelps, 608 F.2d 1023, 1026 (5th Cir.1979) (citing Fulford v. Phelps, 365 So.2d 575 (La.App.1978)). Moreover, where a liberty or property interest is infringed, the process which is due under the United States Constitution is that measured by the due process clause, not that called for by state regulations. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 539-41, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985). Mere failure to accord the procedural protections called for by state law or regulation does not of itself amount to a denial of due process. See, e.g., Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994); Brown v. Texas A & M University, 804 F.2d 327, 335 (5th Cir.1986); Levitt v. University of Texas at El Paso, 759 F.2d 1224, 1230-31 (5th Cir.), cert. denied,. 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985); Martin v. Blackburn, 581 F.2d 94, 94 (5th Cir.1978). Thus, in Jackson v. Cain, 864 F.2d 1235 (5th Cir.1989), a prisoner-plaintiff alleged “that a constitutional violation occurred because he was not accorded the level of process provided for in the DOC handbook.” Id. at 1251. We stated: “This argument must fail. A state’s failure to follow its own procedural regulations does not establish a violation of due process, because ‘constitutional minima may nevertheless" } ]

[ { "docid": "23676597", "title": "", "text": "the claims it is facing. Slade’s factual allegations do not give any notice that he is alleging a procedural due process violation. Nonetheless, even if we were to find that Slade’s complaint adequately presents a claim for a violation of his procedural due process right, we would find that the imposition of the one dollar charge does not violate that right. The Fourteenth Amendment provides that no “State [shall] deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV. Given this constitutional command, we pose two questions when reviewing a claimed procedural due process violation: “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citations omitted). Of course, due process “is flexible and calls for such procedural protections as the particular situation demands” in order “to minimiz[e] the risk of error.” Greenholtz v. Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1, 12-13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Furthermore, “[t]he amount of notice due depends on the context.” Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir.1997). The Supreme Court requires lower courts to consider three factors when determining if procedures are constitutionally sufficient: (1) the private interest to be affected by the action; (2) the risk of erroneous deprivation of that interest through the procedures that were used and the probable value of added procedures; and (3) the government’s interest, including the fiscal and administrative burdens of added procedures. Mathews, 424 U.S. at 335, 96 S.Ct. 893. The Jail concedes that Slade has a property interest in the one dollar per day that it removed from his account. This property interest, however, is limited because Virginia law provides that a pretrial detainee must be brought to trial within five months of a probable cause hearing, a fact that means the one dollar per day charge will be imposed" }, { "docid": "14856557", "title": "", "text": "invoke the procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment.” Id. at 711, 96 S.Ct. at 1165. Plaintiffs in this case have more than merely an interest in protecting their reputations and avoiding the stigma attached to failure to receive a high school diploma. They, too, as in Goss v. Lopez, supra, had a right conferred by state law to receive a diploma if they met the requirements imposed prior to 1978: completion of seventeen course credits and fulfillment of the State’s graduation requirements. In changing the diploma requirement, the governmental action by the School District deprived the individual of a right or interest previously held under state law. Plaintiffs thus have a liberty interest sufficient to invoke the procedural protections of the due process clause. Board of Educ. v. Ambach, supra 436 N.Y.S.2d at 572-573. The consequence of identifying a protected liberty interest is that governmental action cannot be used to deprive an individual of that interest without due process of law. Traditionally, a procedural due process right means “an opportunity to be heard on the factual basis underlying the loss of a liberty or property interest .... ” Anderson v. Banks, supra at 504. A determination of what process is due involves defining the appropriate contours of the “opportunity to be heard.” See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. This case does not fit into the traditional procedural due process mold. Plaintiffs here do not contest the factual basis underlying the loss of a liberty interest; in fact, they admit that they did not pass the M.C.T. Rather, they demand procedures which would provide sufficient notice of the M.C.T. to enable them to prepare adequately to satisfy the new requirement. We think that procedural due process protections are flexible enough to encompass notice of this kind. This approach has been followed by the Fifth Circuit and the New York State Supreme Court. In Mahavongsanan v. Hall, 529 F.2d 448 (5th Cir.1976), Georgia State University instituted a new degree requirement (consisting of a comprehensive examination) after plaintiff had begun" }, { "docid": "16677186", "title": "", "text": "“ten day” hearing mandated by the PFA Act, and that it was scheduled and agreement was reached on November 18, 1998, the day that Mr. Ferguson withdrew his PFA petition. The Court finds that, from November 9, 1998, through the date of the scheduled hearing, the defendants deprived plaintiffs Kelly Patterson and, perhaps, Abby Ferguson of their statutory rights to notice and to a court hearing providing a meaningful opportunity to be heard. Pursuant to the CPSL and the Juvenile Act, (which have been recognized as the exclusive procedures for state initiated deprivation of parental rights, In re J.R.W., In re M.L.), there should have been an emergency, ex parte court proceeding within 24 hours, followed by an informal court hearing, with notice to Mrs. Patterson and perhaps to Abby Ferguson, with meaningful opportunity to be heard, within 72 hours. Even under the PFA Act, there should have been court review of the emergency PFA orders of the district justice on the next business day, meaning November 9th for the first PFA petition (Abby’s) and November 10th for the second (Mr. Ferguson’s). Defendants do not really protest that they complied with state law, and plaintiffs rest their procedural due process claim entirely on defendants’ violation of state laws (the CPSL and the Juvenile Act) and procedures, particularly their failure to provide an emergency judicial hearing within 24 hours and a noticed hearing with opportunity to be heard within 72 hours of Abby’s being taken into protective custody. Some sort of process appears to have been afforded, however, as of the date of the scheduled hearing in the county courthouse. Minimum Constitutional Procedural Requirements Except for a narrow line of cases recognizing a state created liberty interest of prisoner’s where the state has failed to follow its own prison laws or administrative regulations, state law does not ordinarily define the parameters of due process for Fourteenth Amendment purposes; rather, the minimum, constitutionally mandated requirements of due process in a given context and case are supplied and defined by federal law, not by state law or regulations. Davis v. Scherer, 468 U.S." }, { "docid": "17685062", "title": "", "text": "interpretation of state law is not cognizable in federal habeas proceedings.). State laws, however, may create liberty interests protected by the Due Process Clause. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). In those situations, federal due process law sets the minimum procedures that are required before the state can deprive a person of that liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). When a state has a system of mandatory parole, such a liberty interest exists that implicates the procedural guarantees of the Due Process Clause. See Bd. of Pardons v. Allen, 482 U.S. 369, 373-74, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). Parole, however, is discretionary in Mississippi, so prisoners in the state have no liberty interest in parole. See Miss. Code Ann. §§ 47-7-3, 47-7-17; Smith v. Mississippi Parole Bd., 478 Fed.Appx. 97, 99 (5th Cir.2012); Irving v. Thigpen, 732 F.2d 1215, 1217 (5th Cir.1984). Wansley recognizes this, and argues instead that Mississippi law creates a liberty interest in a parole hearing. But an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause. See Olim v. Wakinekona, 461 U.S. 238, 250 n. 12, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); accord Ladd v. Stephens, 748 F.3d 637, 644 (5th Cir.2014) (holding that it is where there is ‘a significant substantive liberty interest [at stake]’ that a state law entitles the petitioner to a set of core procedural due process protections); Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir.2012) (noting, regarding the Due Process Clause, that the protected interests are substantive rights, not rights to procedure). We may only question states’ procedures when they are fundamentally inadequate to vindicate [a] substantive right[]. Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). Accordingly, when a prisoner has no liberty interest in obtaining parole ... he cannot complain of the constitutionality of procedural devices attendant to parole decisions. Orellana v. Kyle," }, { "docid": "16190475", "title": "", "text": "for purposes of the procedural due process inquiry. The Court therefore con-eludes that the removal of the children infringed upon the O’Donnell family’s integrity rights in satisfaction of the procedural due process test’s first prong. The second step in the procedural due process analysis requires a determination of whether Defendants provided Plaintiffs constitutionally adequate process before depriving them of their right to familial integrity. The law recognizes the state’s right to interfere with family relationships when necessary, so long as the state complies with procedural due process requirements. See, e.g., Doe v. Staples, 706 F.2d 985, 988-89 (6th Cir.1983); Doe v. State of Louisiana, 2 F.3d 1412, 1416-17 (5th Cir.1993); Martinez v. Mafchir, 35 F.3d 1486, 1489 (10th Cir.1994). See also Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (“[T]he deprivation by state action of a constitutionally protected interest in life, liberty, or property is not itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.”) (internal quotation marks and citations omitted). The Supreme Court has indicated that due process cannot be concretely defined. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands. Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by government action.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (internal quotation marks and alterations omitted). Three factors guide the determination of what process is due: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d" }, { "docid": "14202867", "title": "", "text": "are stripped of the rights they still retain while incarcerated. See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (finding that a prisoner must be provided due process before the revocation of “good time” credit for misconduct). In analyzing a procedural due process claim, we must first “determine whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.” Newman v. Beard, 617 F.3d 775, 782 (3d Cir.2010) (internal quotation marks and citation omitted). Although the interests protected by procedural due process are much broader than those protected by substantive due process, Bell v. Ohio State Univ., 351 F.3d 240, 249-50 (6th Cir.2003), if there is no constitutionally protected interest, our inquiry stops. If, however, we “determine that the interest asserted is protected by the Due Process Clause, the question then becomes what process is due to protect it.” Newman, 617 F.3d at 783 (internal quotation marks and citation omitted). Evans does not contend that his life or property is at issue. The question is whether he has a constitutionally protected liberty interest at stake. As previously noted, Evans’s claimed interest was not defined with particularity, but it seems clear that the idea being pursued is that, in being systematically misled as to his true maximum release date, Evans had a legitimate expectation of being released on a particular date and his expectation matured into a constitutionally protected liberty interest. According to our precedent, a prisoner holds a liberty interest triggering due process protection in two instances: when “state statutes and regulations create a liberty interest in freedom from restraint that imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” and when “severe changes in conditions of confinement amount to a grievous loss that should not be imposed without the opportunity for notice and an adequate hearing.” Renchenski v. Williams, 622 F.3d 315, 325 (3d Cir.2010) (internal quotation marks and citation omitted). We have characterized the first as a “so-called state-created liberty interest” and the" }, { "docid": "17685064", "title": "", "text": "65 F.3d 29, 32 (5th Cir.1995); see also Breshears v. Garrett, 143 Fed.Appx. 570, 572 (5th Cir.2005) (affirming district court’s dismissal of claim as frivolous because Texas prisoners had ‘no constitutionally protected right to parole or a parole hearing’). This is consistent with the way our sister circuits have addressed claims from state prisoners seeking to establish a constitutional right to a parole hearing when there is no state-created liberty interest in parole itself. See, e.g., Utley v. Rose, 201 F.3d 442 (6th Cir.1999) (unpublished table decision) (Since Utley has neither an inherent constitutional right to parole nor a protected liberty interest created by mandatory state parole laws, he cannot maintain a due process claim based upon the denial of a parole hearing.); Brandon v. D.C. Bd. of Parole, 823 F.2d 644, 648 (D.C.Cir.1987) (Appellant’s claim that he has a constitutionally protected liberty interest in a re-paróle hearing and thus a due process right to have the Board adhere to its regulations lacks support in law or logic.); Shango v. Jurich, 681 F.2d 1091, 1101 (7th Cir.1982) (If a right to a hearing is a liberty interest, and if due process accords the right to a hearing, then one has interpreted the Fourteenth Amendment to mean that the state may not deprive a person of a hearing without providing him with a hearing. Reductio ad absurdum.). The absence of a federal issue in Wans-ley’s situation is revealed by the following incongruity that would result from granting his petition: state law would serve as the source of both the liberty interest and the process due (that is, the parole hearing which is required under Wansley’s reading of state law). The latter, however should be a matter of federal law once a state-created liberty interest is at stake. Hicks v. Oklahoma, on which the district court relied, does not establish that there is a liberty interest in a parole hearing. That case involved the question of what the Due Process Clause required after a defendant was sentenced pursuant to a 40-year mandatory sentencing statute later held to be unconstitutional. 447 U.S. at" }, { "docid": "398273", "title": "", "text": "to which the committed person is entitled, it creates no additional liberty interest. State law is a source of substantive entitlements to property and liberty that the due process clause protects, though not the only source; the clause protects life and natural liberty, as well as state-created rights. Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 3048, 77 L.Ed.2d 694 (1983). But it is not the source of the procedural entitlements that constitute due process of law; the clause itself prescribes the procedures that the holder of the substantive entitlements that the clause protects is entitled to demand. Smith v. Shettle, supra, 946 F.2d at 1254. The question Villanova should have raised, therefore, is whether the due process clause requires a second certificate in a civil commitment case within 24 hours of the initial commitment. But the answer would be no, so he would still lose. No doubt some provision must be made for reexamining the committed person’s condition. He cannot be committed for life on the basis of psychiatric determinations made at the outset of the commitment. Psychiatry is not so exact a predictive science. But neither is the due process clause a straitjacket. Id. at 1255; cf. County of Riverside v. McLaughlin, supra, — U.S. at -, -, 111 S.Ct. at 1668-69, 1671. It leaves the details of the procedure for continuing evaluation of the committed person’s condition to the states. If 48 hours is not too long to detain a person on a police officer’s say-so, we do not think that 24 hours is too long to detain a person on the basis of a certification of two psychiatrists or other mental health professionals that he is an imminent danger to himself or others. We note one more fallacy in the plaintiff’s submission. He argues that the only thing that counts in determining probable cause is what the defendants who signed the commitment certificates knew. The contents of the petitions for commitment are therefore irrelevant, because there is no indication that the psychiatrists who signed the certificates had read the petitions, thus rendering inapplicable" }, { "docid": "12588610", "title": "", "text": "of their procedural due process rights. They base this change of course on footnote 2 of the DeShaney opinion, in which the Supreme Court declined to address Joshua’s untimely claim of “entitlement” to receive protective services in accordance with the terms of the statute. 109 S.Ct. at 1003 n. 2. The Does argue in this court that section 48.981 has vested them with a property interest in having the DSS investigate a report of child abuse within 24 hours. We disagree. While “the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money,” Board of Regents v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972), not every state or municipal law, regulation or ordinance creates a constitutionally protected entitlement. In resolving a claim based on procedural due process, we must be careful to distinguish the substantive right from the procedure designed to prevent its arbitrary deprivation. Justice Blackmun recently reiterated the importance of this distinction: “In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, — U.S. -, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (citing Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1913-14, 68 L.Ed.2d 420 (1981)). It is essential, therefore, to a proper analysis of a procedural due process claim, like that urged by the Does in this case, that the court not confuse substance with process. One cannot have a “property interest” (or a life or liberty interest, for that matter) in mere procedures because [p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a claim of entitlement.... The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right. Olim v. Wakinekona, 461" }, { "docid": "13974716", "title": "", "text": "determinations are not themselves liberty interests entitled to constitutional due process protection. Brandon does not have a constitutionally protected interest in having the Board adhere to its procedural requirements. Thus, even if the Board failed to comply with its regulations with regard to the conduct of his reparole hearings, as Brandon alleges, that failure did not violate Brandon’s federal constitutional right to due process of law. Such state procedural requirements must be enforced in state courts under state law. See Boothe v. Hammock, 605 F.2d 661, 664-65 (2d Cir.1979). Cf. Helms, 459 U.S. at 471, 103 S.Ct. at 871 (“The adoption of ... procedural guidelines [to channel the decision-making of prison officials] without more, suggests that it is these restrictions alone, and not those [that] federal courts might also impose under the [Due Process Clause], that the State chose to require.”); Greenholtz, 442 U.S. at 5 n. 2, 99 S.Ct. at 2103 n. 2 (suggesting that inmates could seek relief under state law for Board of Parole's departures from standard practice). We decline to “federalize” — indeed, “constitutionalize” — every deviation from state procedures. Having reached this conclusion, we note again that Brandon has not asked this court to review the district court’s determination that the District of Columbia’s parole system does not create a protectible liberty interest in parole release or reparóle. Nor have we undertaken that task. Accordingly, our decision today should not be understood as expressing an opinion on the merits of that aspect of the district court’s decision. We turn next to the other claim that Brandon premises on the Board’s alleged failure to adhere to its own procedures and policies — the violation of the equal protection clause of the Fifth Amendment. B. Brandon’s Equal Protection Claim The equal protection principles embodied in the Due Process Clause of the Fifth Amendment essentially direct “that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). These principles demand, at a minimum, that a municipality apply its laws in a rational" }, { "docid": "7629901", "title": "", "text": "the assistant principal, and the physical education teacher. The district court granted the school district’s motion to dismiss. Because the case was dismissed on the pleadings, all facts alleged in the complaint must be accepted as established. Rathborne v. Rathborne, 683 F.2d 914, 918 and n. 14 (5th Cir.1982). Dismissal is proper only if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would provide a basis for relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Corporal punishment of school children does not of itself constitute cruel and unusual punishment. The infliction of punishment may transgress constitutionally protected liberty interests, but, if the state affords the student adequate post-punishment remedies to deter unjustified or excessive punishment and to redress that which may nevertheless occur, the student receives all the process that is constitutionally due. Texas provides these common law traditional remedies. Woodard points out that the Supreme Court has required federal agencies to follow their own regulations. As the Court explained in United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979), however, the failure of an agency to follow its own regulations is not per se a denial of procedural due process. As in Caceres, the Constitution does not prescribe particular procedures that must be followed before the administrative action at issue here can be taken. The due process clause requires no greater adherence to extra-constitutional protections when adopted by state agencies than it does when they are adopted by federal agencies. Although the Supreme Court has not yet determined whether corporal punishment of a public school child may give rise to an independent cause of action to vindicate substantive rights under the due process clause, we have held that it does not. Woodard argues, however, that the assistant principal’s deviation from school regulations deprived her of substantive due process. Because corporal punishment would not have been administered if the regulation had been followed, the contention runs, this violation was not merely “technical,” and hence “procedural.” Woodard" }, { "docid": "17685063", "title": "", "text": "law creates a liberty interest in a parole hearing. But an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause. See Olim v. Wakinekona, 461 U.S. 238, 250 n. 12, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); accord Ladd v. Stephens, 748 F.3d 637, 644 (5th Cir.2014) (holding that it is where there is ‘a significant substantive liberty interest [at stake]’ that a state law entitles the petitioner to a set of core procedural due process protections); Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir.2012) (noting, regarding the Due Process Clause, that the protected interests are substantive rights, not rights to procedure). We may only question states’ procedures when they are fundamentally inadequate to vindicate [a] substantive right[]. Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). Accordingly, when a prisoner has no liberty interest in obtaining parole ... he cannot complain of the constitutionality of procedural devices attendant to parole decisions. Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir.1995); see also Breshears v. Garrett, 143 Fed.Appx. 570, 572 (5th Cir.2005) (affirming district court’s dismissal of claim as frivolous because Texas prisoners had ‘no constitutionally protected right to parole or a parole hearing’). This is consistent with the way our sister circuits have addressed claims from state prisoners seeking to establish a constitutional right to a parole hearing when there is no state-created liberty interest in parole itself. See, e.g., Utley v. Rose, 201 F.3d 442 (6th Cir.1999) (unpublished table decision) (Since Utley has neither an inherent constitutional right to parole nor a protected liberty interest created by mandatory state parole laws, he cannot maintain a due process claim based upon the denial of a parole hearing.); Brandon v. D.C. Bd. of Parole, 823 F.2d 644, 648 (D.C.Cir.1987) (Appellant’s claim that he has a constitutionally protected liberty interest in a re-paróle hearing and thus a due process right to have the Board adhere to its regulations lacks support in law or logic.); Shango v. Jurich, 681 F.2d 1091, 1101" }, { "docid": "398272", "title": "", "text": "F.2d 1387, 1400-05 (7th Cir.1990) (en banc). Furthermore, as far as we can make out the only significance to Villa-nova of the fact that he was not released after 24 hours failing the issuance of the second certificate required by the statute is that he thinks this requirement of state law gave him a “liberty” interest in freedom after 24 hours that he can enforce under the due process clause of the Fourteenth Amendment. This belief reflects the persistent fallacy that procedural requirements create substantive entitlements, although the Supreme Court and this court keep insisting they don’t. See Smith v. Shettle, 946 F.2d 1250, 1254 (7th Cir.1991), and cases cited there. This point may bear amplification. If a state provides, as Illinois has done, that a person cannot be committed who is not a menace to himself or to others, this creates a “liberty” interest of which the state cannot deprive a person without giving him due process of law. But if it specifies the particular process— one, two, or fifty certificates of dangerousness — to which the committed person is entitled, it creates no additional liberty interest. State law is a source of substantive entitlements to property and liberty that the due process clause protects, though not the only source; the clause protects life and natural liberty, as well as state-created rights. Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 3048, 77 L.Ed.2d 694 (1983). But it is not the source of the procedural entitlements that constitute due process of law; the clause itself prescribes the procedures that the holder of the substantive entitlements that the clause protects is entitled to demand. Smith v. Shettle, supra, 946 F.2d at 1254. The question Villanova should have raised, therefore, is whether the due process clause requires a second certificate in a civil commitment case within 24 hours of the initial commitment. But the answer would be no, so he would still lose. No doubt some provision must be made for reexamining the committed person’s condition. He cannot be committed for life on the basis of psychiatric determinations made" }, { "docid": "17685061", "title": "", "text": "65 L.Ed.2d 175 (1980), it found that Wansley has a liberty interest in having MDOC compute his sentence in accordance with the sentencing authority’s exercise of discretion, and that he was deprived of that liberty interest when he was denied a hearing. It also suggested that Wansley has a right, under the Equal Protection Clause, to have his sentence computed in the same way as similarly situated prisoners, although it appears not to have conclusively determined whether this right was violated. The district court thus granted the petition and ordered a parole hearing. This court stayed the order pending appeal. II. A federal court may issue a writ of habeas corpus only if a state prisoner is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A petition for federal habeas corpus relief based on an argument that state courts are incorrectly applying their own law thus is not a basis for relief. See Beazley v. Johnson, 242 F.3d 248, 261 (5th Cir.2001) ([T]he proper interpretation of state law is not cognizable in federal habeas proceedings.). State laws, however, may create liberty interests protected by the Due Process Clause. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). In those situations, federal due process law sets the minimum procedures that are required before the state can deprive a person of that liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). When a state has a system of mandatory parole, such a liberty interest exists that implicates the procedural guarantees of the Due Process Clause. See Bd. of Pardons v. Allen, 482 U.S. 369, 373-74, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). Parole, however, is discretionary in Mississippi, so prisoners in the state have no liberty interest in parole. See Miss. Code Ann. §§ 47-7-3, 47-7-17; Smith v. Mississippi Parole Bd., 478 Fed.Appx. 97, 99 (5th Cir.2012); Irving v. Thigpen, 732 F.2d 1215, 1217 (5th Cir.1984). Wansley recognizes this, and argues instead that Mississippi" }, { "docid": "22035062", "title": "", "text": "suit in the District Court, seeking damages for his SHU confinement. Discussion A. Liberty Interest in Not Being Placed in an SHU The initial issue is whether appellant has a liberty interest, protected by the Due Process Clause, in not being placed in an SHU. The Supreme Court has made clear that, with respect to a prisoner serving a sentence, not every aspect of restrictive confinement within a penal institution impairs a constitutionally protected liberty interest. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Moreover, as the Court has pointed out, “administrative segregation,” imposed for such purposes as protection of the prisoner’s own safety, does not impair an interest “independently protected by the Due Process Clause.” Id. at 468, 103 S.Ct. at 870; see also Russell v. Scully, 15 F.3d 219, 222 (2d Cir.1994) (suggesting that in absence of state law creating liberty interest, “strictly administrative” confinement in SHU after hearing and pending appeal does not violate due process). Nevertheless, Helms also makes clear that, under certain circumstances, state law can create a constitutionally protected liberty interest. Unfortunately, the Court’s choice of words in articulating the relevant circumstances has created some confusion as to the Court’s meaning. What is clear is that a liberty interest is created whenever state law identifies “specified substantive predicates” as prerequisites for the imposition of administrative segregation. Id., 459 U.S. at 472, 103 S.Ct. at 871 (emphasis added). For example, in Helms, Pennsylvania had provided by regulation that administrative segregation could be imposed upon a determination of “a threat of a serious disturbance” or “a serious threat to the individual or others.” Id. at 470 n. 6, 103 S.Ct. at 871 n. 6. Cf. Sher v. Coughlin, 739 F.2d 77, 81 (2d Cir.1984) (no liberty interest impaired by placement in restrictive confinement for purposes of reclassification where regulation accorded officials “unfettered discretion”). What is less clear is whether a liberty interest arises from state procedural requirements. Generally, state procedural requirements, without more, do not create federally enforceable liberty interests, see, e.g., Olim v. Wakinekona, 461 U.S. 238, 250-51 &" }, { "docid": "5778190", "title": "", "text": "process rights were not impinged upon by Garber’s failure to provide him with the actual written statements of the student- witnesses before his suspension. Louder-mill required only that Garber explain the evidence against Jones to him — as he unquestionably did (see the post-Loudermill decision in Leftwich v. Bevilacqua, 635 F.Supp. 238, 241 (W.D.Va.1986)). Jones’ other contention as to his pre-deprivation due process rights, that based on Section 24-12, is really a non-issue for two reasons: 1. Section 24-12’s state-prescribed procedures are not a measure of Due Process Clause rights. 2. Jones was not entitled to those procedures anyway, even under Illinois law. Each reason requires only brief discussion. Section 24-12 imposes stringent procedural requirements on school boards when removing or dismissing a tenured teacher. Jones urges those state law procedures, even though (or perhaps because) they are more extensive than the Due Process Clause requires, nevertheless define his entitlement as a matter of federal constitutional law. For that novel proposition Jones mistakenly cites Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) and Mazaleski v. Treusdell, 562 F.2d 701 (D.C.Cir.1977) — but each of those was a federal regulatory, and not a due process, case. Of course state law cannot authorize the deprivation of an interest protected by the Due Process Clause without the minimal procedural requirements imposed by that same clause. Loudermill, 105 S.Ct. at 1493. It is simply a non sequitur, however, to view stricter state law procedures as a ratchet tightening the Due Process Clause. Any such state procedural requirements remain only that, not independently cognizable in a Section 1983 lawsuit. What Jones’ counsel has done (as did the Colorado Supreme Court in the other case on which Jones relies, Department of Health v. Donahue, 690 P.2d 243, 249 (Colo.1984)) is to confuse the conclusive role state law plays in defining substantive property interests with the absence of any role state law plays in defining the procedural due process protections against deprivations of those property interests. Loudermill, 105 S.Ct. at 1491-93. But even on his own terms, Jones’ state law rights were" }, { "docid": "5430642", "title": "", "text": "therefore consider whether plaintiffs sustained a loss in substantive benefits when they were unable to attend school from January 13-24, 2000, after defendant Eicher informed plaintiffs they could not attend school “as long as they were nonresidents,” and the district denied them a hearing. Defendants claim that their denial of a due process hearing was not the cause in fact of plaintiffs’ failure to attend school on these days, because plaintiff D.L. stated that she and P.P. were too sick to drive the children to school on those days. The court believes plaintiffs have shown a genuine issue of material fact regarding whether defendants’ denial of a due process hearing resulted in a loss of substantive benefits when R.L. and J.L. were absent from school January 13-24, 2000. Accordingly, the court denies defendants’ motion for summary judgment as to plaintiffs’ IDEA claims. Plaintiffs’ motion for partial summary judgment on their IDEA claim is also denied. The court turns to plaintiffs’ arguments under the Due Process and Equal Protection Clauses. D. 42 U.S.C. § 1983 At the outset, the court notes that it is “beyond dispute that a plaintiff need not exhaust state administrative remedies before filing suit in federal court under § 1983.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 519 (10th Cir.1998). The court already found that plaintiffs were not required to exhaust their administrative remedies. However, even if there were such a requirement in these circumstances, the court finds that plaintiffs’ failure to appeal defendants’ denial of a due process hearing to the State BOE would not divest the court of subject matter jurisdiction over plaintiffs’ § 1983 claims. The court therefore turns to merits of plaintiffs’ claims. 1. Procedural Due Process To state a claim for a violation of procedural due process, plaintiffs must show that defendants deprived them of a liberty or property interest without due process of law. Even though “there is no constitutional right to an education at public expense,” a student’s legitimate entitlement to a public education “as a property interest which is protected by the Due Process Clause ... may" }, { "docid": "6172984", "title": "", "text": "306. We disagree. The only property interest at issue in this case is the legal cause of action itself, independent of the various procedural options available for pursuing the action. See Polk, 711 F.2d at 508-09; cf. McMenemy v. City of Rochester, 241 F.3d 279, 287-88 (2d Cir.2001) (“Although New York State law clearly requires a ‘competitive’ examination, the law does not create a cognizable property interest in a competitive examination. An examination is not an end in itself; it has value only because it may lead to something valuable.” (citing Bigby v. City of Chicago, 766 F.2d 1053, 1056 (7th Cir.1985))); Fusco v. Connecticut, 815 F.2d 201, 205-06 (2d Cir.1987) (“The opportunity granted abutting landowners and aggrieved persons to appeal decisions of planning and zoning commissions and zoning boards of appeal is purely procedural and does not give rise to an independent interest protected by the [Fourteenth [A]mendment.”). Our conclusion follows from the fact that procedural due process protects only important and substantial expectations in life, liberty, and property. See Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 783 (2d Cir.1991) (procedural due process does not protect “trivial and insubstantial interest[s]”). “Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (emphasis added); see Montgomery v. Carter County, Tennessee, 226 F.3d 758, 768 (6th Cir.2000) (“What the Due Process clauses of the Fifth and Fourteenth Amendments protect is ‘life, liberty, [and] property,’ not the procedures designed to protect life, liberty, and property.” (internal citation omitted) (alterations in original)). Here, the only substantive expectation that warrants constitutional recognition is the entitlement under New York law to remedy injuries resulting from discrimination proscribed by the Human Rights Law. See Ezekwo, 940 F.2d at 782 (“While state law defines the underlying substantive interest, ‘federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.’ ” (quoting Memphis Light," }, { "docid": "16677187", "title": "", "text": "November 10th for the second (Mr. Ferguson’s). Defendants do not really protest that they complied with state law, and plaintiffs rest their procedural due process claim entirely on defendants’ violation of state laws (the CPSL and the Juvenile Act) and procedures, particularly their failure to provide an emergency judicial hearing within 24 hours and a noticed hearing with opportunity to be heard within 72 hours of Abby’s being taken into protective custody. Some sort of process appears to have been afforded, however, as of the date of the scheduled hearing in the county courthouse. Minimum Constitutional Procedural Requirements Except for a narrow line of cases recognizing a state created liberty interest of prisoner’s where the state has failed to follow its own prison laws or administrative regulations, state law does not ordinarily define the parameters of due process for Fourteenth Amendment purposes; rather, the minimum, constitutionally mandated requirements of due process in a given context and case are supplied and defined by federal law, not by state law or regulations. Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Plaintiffs rely solely on the clear violation of state law, and make no attempt to show that the failure to follow state mandated procedures violated their constitutional rights to due process. This is not enough. See e.g., Doe v. Connecticut Dep’t of Child and Youth Services, 911 F.2d 868, 869 (2d Cir.1990) (violation of state law regarding removal of child under protective custody neither establishes due process violation under section 1983 nor de prives defendant of qualified immunity); Weller v. Dep’t of Soc. Serv., 901 F.2d 387, 392 (4th Cir.1990) (“Even if [the social services agency] did violate state law, it is well settled that violations of state law cannot provide the basis for a due process claim.”); Robison v. Via, 821 F.2d 913, 922-23 (2d Cir.1987) (violation of state law regarding removal of child under protective custody neither establishes due process violation under section 1983 nor deprives defendant of qualified immunity), citing Scherer and Loudermill. It is fair to say defendants do not seriously claim" }, { "docid": "22932560", "title": "", "text": "of adjustment of status cases, as provided in Part 246 of this chapter. 8 C.F.R. § 3.1(b) (1978). . “[I]n considering and determining cases before it . . . the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case.” 8 C.F.R. § 3.1(d)(1) (1978). See 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § l.lOe, at 1-75 (1981). . Having established that even illegal aliens within this country have a liberty interest protectible under the due process clause of the fifth amendment, 503 F.Supp. at 455, the district court looked to the federal regulations and Operations Instructions governing asylum claims to determine what process the plaintiffs were due. It went on to state that these procedures “clearly provide a good foundation for procedural due process even if they do not necessarily exhaust the requirements of due process or are not explicitly required by the Constitution,” id. at 456, and to suggest that departure from these procedures, “especially if willful, systematic, and cumulative, may amount to breach of the fundamental fairness which due process guarantees.” Id. at 455 (citation omitted). While not explicitly doing so, the court came very close to equating violations of INS regulations and operating procedures with denials of procedural due process. But see United States v. Floulis, 457 F.Supp. 1350, 1354 (W.D.Pa.1978) (“[W]e do not believe that the failure of the INS to comply with its regulations constitutes a per se denial of due process rendering the deportation proceedings constitutionally defective .... The contours of the due process clause are too deeply rooted in lasting constitutional principles to depend upon administrative regulations for the specific protections the clause affords. What is ‘fundamentally fair’ . . . cannot vary each time the Attorney General amends the immigrations regulations.”); Arnett v. Kennedy, 416 U.S. 134, 166-67, 94 S.Ct. 1633, 1650, 40 L.Ed.2d 15 (Powell, J., concurring in part) (objecting to the plurality’s conclusion “that the statute governing federal employment determines not only the nature of appellee’s property interest, but also the" } ]

[ { "docid": "22718484", "title": "", "text": "is not a departure from, and does not require modification of, the Court’s holdings in Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), and McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). The Court has made clear that “mixed-motives” cases, such as the present one, are different from pretext cases such as McDonnell Douglas and Burdine. In pretext cases, “the issue is whether either illegal or legal motives, but not both, were the ‘true’ motives behind the decision.” NLRB v. Transportation Management Corp., 462 U. S. 393, 400, n. 5 (1983). In mixed-motives cases, however, there is no one “true” motive behind the decision. Instead, the decision is a result of multiple factors, at least one of which is legitimate. It can hardly be said that our decision in this case is a departure from cases that are “inapposite.” Ibid. 1 also disagree with the dissent’s assertion that this approach to causation is inconsistent with our statement in Burdine that “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” 450 U. S., at 253. As we indicated in Transportation Management Corp., the showing required by Mt. Healthy does not improperly shift from the plaintiff the ultimate burden of persuasion on whether the defendant intentionally discriminated against him or her. See 462 U. S., at 400, n. 5. Because the Court of Appeals required Price Waterhouse to prove by clear and convincing evidence that it would have reached the same employment decision in the absence of the improper motive, rather than merely requiring proof by a preponderance of the evidence as in Mt. Healthy, I concur in the judgment reversing this case in part and remanding. With respect to the employer’s burden, however, the plurality seems to require, at least in most cases, that the employer submit objective evidence that the same result would have occurred absent the unlawful motivation. Ante, at 252. In my view, however, there is no special requirement that the employer carry its burden by objective" } ]

[ { "docid": "4225738", "title": "", "text": "had always been assigned work when work was available. With respect to consecutive years of service, he was the senior driver. The record does not disclose a previous instance of placing a senior driver on standby while junior drivers worked. Insofar as the present record discloses, the only trouble with Evans, from the company’s standpoint, was his persistent inquiry about whether he was paid as much as white drivers for equal work. The company’s act of placing him on standby while assigning work to junior drivers established proof of an adverse action. Thus Evans satisfied the second requirement for proving a prima facie case. The third element in Ross is causation: “that the adverse action would not have occurred ‘but for’ the protected conduct.” 759 F.2d at 366. A Title VII plaintiff will ordinarily ask a fact finder to infer causation from factual circumstances. The most probative indicators of causation at this stage of a trial often are unexplained acts by the employer. The Court emphasized the significance of unexplained adverse action against an employee in Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978): A prima facie case ... raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors____ And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. The most important act in the present record is unexplained: what caused the company to place Evans, a senior driver, on standby on the eve of a busy day? The company was unable in its brief or at oral argument to point us to any fact in the record that explains this action. Because we are instructed to “presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors,” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949-50, Evans satisfied the third" }, { "docid": "22267303", "title": "", "text": "See Gray v. University of Arkansas, 883 F.2d 1394, 1401 (8th Cir.1989) (\"An employer’s articulated reason for terminating a member of a protected class need not be a sound business reason, or even a fair one.... The only relevant inquiry is whether the decision was based on [a protected status].\"). Cf. Furnco, 438 U.S. at 577, 98 S.Ct. at 2949-50 (implying that irrational disparate treatment is not inevitably premised upon consideration of impermissible discriminatory factors). Under Title VII, the defendant does not have to prove why the differential treatment occurred; it is up to the plaintiff to prove why it did occur — and to prove that it was caused by intentional discrimination against a protected class. If, after trial, no motivation or reason for the differential treatment has been established by either side to a preponderance of the evidence, the judgment must be for the defendant. Of course, the plaintiff may argue that irrational or unexplained differential treatment is secretly motivated by illegal discrimination, and if the plaintiff persuades the fact finder of that, the plaintiff will satisfy that portion of his or her burden of proof in a Title VII disparate treatment claim. See Furnco, 438 U.S. at 578, 98 S.Ct. at 2950. Indeed, even punishment administered for violating a valid, facially nondiscriminatory policy may be motivated by an illegal discriminatory intent, and if so, it is actionable under McDonald v. San ta Fe Trail Transportation Co., 427 U.S. 273, 283, 96 S.Ct. 2574, 2580, 49 L.Ed.2d 493 (1975). However, it is the province of the fact finder to determine what inferences should fairly be drawn from the facts. Pullman-Standard, 456 U.S. at 289-90, 102 S.Ct. at 1790-91. (Rejecting a per se rule of presuming illegal discrimination in the absence of proof of actual discriminatory motive). An inference of illegal discrimination based upon protected class characteristics is not legally compelled by irrational or accidental disparate treatment between minority and non-minority employees. Indeed, even a finding that the reason given for the discipline was pretextual, does not compel such a conclusion, unless it is shown to be a pretext" }, { "docid": "7334132", "title": "", "text": "showing by the plaintiff raises an inference of unlawful discrimination only because of a presumption that these acts otherwise unexplained are more likely than not based on impermissible factors. Furnco Construction Corp. v. Waters, 438 U.S. at 577, 98 S.Ct. at 2949; Teamsters v. United States, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 14. If the plaintiff establishes a prima facie ease, a rebuttable presumption arises that the defendant unlawfully discriminated against the plaintiff and the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for defendants employment action. Furnco Construction Corp. v. Waters, supra; Board of Trustees of Keene State College v. Sweeney, supra. In articulating its reasons, the defendant must be clear and reasonably specific though he need not convince the court that he was actually motivated by those reasons. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Board of Trustees of Keene State College v. Sweeney, 439 U.S. at 25, 99 S.Ct. at 295; Nellis v. Brown County, 722 F.2d at 856. If the defendant carries this burden, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for its discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093; Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); Coates v. Johnson & Johnson, 756 F.2d 524, 530-31 (7th Cir.1985). A plaintiff can show the stated reasons were a pretext by evidence that nonminorities were not rejected for the same reasons. Other relevant evidence might include the defendant’s treatment of plaintiff prior to the complained of action and the defendant’s general policy and practice with respect to minorities. Further, statistics and racial slurs may be used to show pretext. McDonnell Douglas Corp. v. Green, 411 U.S. at 804, 93 S.Ct. at" }, { "docid": "14810610", "title": "", "text": "to create “a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949-50. Thus, in general, a plaintiff must show that she is a member of a protected group, that she is doing an adequate job, that she has been treated differently despite her performance, and that others have received the benefits she seeks. See, e.g., Riordan v. Kempiners, 831 F.2d 690, 696 (7th Cir.1987); Yarbrough v. Tower Oldsmobile Inc., 789 F.2d 508, 511 (7th Cir.1986); Box v. A & P Tea Co., 772 F.2d 1372, 1376-77 (7th Cir.1985); Babrocky v. Jewel Foods Co., 645 F.Supp. 1396, 1419 (N.D.Ind.1986). The establishment of a prima facie case raises an inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.... And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Furnco, 438 U.S. at 577, 98 S.Ct. at 2949-50. A plaintiff may prove her case using either direct or indirect evidence of discrimination. Because “[defendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it, and because most employment decisions involve an element of discretion,” most plaintiffs must rely on indirect and circumstantial evidence. Riordan, 831 F.2d at 697. With one exception, plaintiffs have not made it clear whether they consider their claims to be disparate impact or disparate treatment claims (they do explicitly denominate their shift change claim as one of disparate treatment). However, it appears that they wish their claims to be considered under the disparate treatment analysis which requires proof of discriminatory intent because they maintain in their brief that “intentional discrimination pervades” all their claims and because the cases they cite are almost exclusively disparate treatment cases. Furthermore, defendants consider plaintiffs to be raising disparate treatment claims. Accordingly, I will consider" }, { "docid": "5338684", "title": "", "text": "further allegations that he was actually treated differently from other employees that were similarly situated in all, or even some respects. The bare allegation that another employee was allowed to remain on disability leave while the Plaintiff was forced to return, with no other facts to suggest why either employee was on leave in the first place, does not create a plausible inference that the Defendants had been acting under the guise of a discriminatory policy or mechanism. Again, only in compelling circumstances will the “continuing violation” exception to toll the statute of limitation be applied, and the Court finds no such compelling circumstances here. C. As to Whether the Plaintiff Has Stated a Discrimination Claim The Court now turns to the Plaintiffs causes of action in the amended complaint. To establish a prima facie case for employment discrimination, the Plaintiff must present evidence to “raise as inference of discrimination ... [such that the Court can] presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978). Thus, the Court will scrutinize the employers’ conduct, policy, and practices to determine if the evidence proffered by the witness leads to the presumption that the acts of the Defendant, if otherwise unexplained, are more likely the result of a discriminatory motive and if so, the plaintiff has successfully met his or her burden. See id. The Plaintiff has asserted Title VII claims against MetLife, alleging that he was discriminated against based on his protected status, specifically, his: (i) race/color, and/or (ii) national origin. The Plaintiff has also brought disparate treatment claims under Section 1981 against MetLife, and against Im in his official capacity as a MetLife employee. In response, the Defendants contend that the Plaintiff has failed to state a claim under either Title VII or Section 1981 because the Amended Complaint does not allege with requisite specificity that the Plaintiff was singled out or otherwise treated differently because of his race/color, or alternatively, his national origin. The" }, { "docid": "4984809", "title": "", "text": "to an inference of unlawful discrimination. As the Court explained in Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), the prima facie case “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. [Citation omitted] It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. 101 S.Ct. at 1093-1095. 17. Although Womack admits that the promotion decision in 1979 was based upon his performance record, the court has applied the “burdens and order of presentation of proof” set forth in Burdine and concludes that Womack has failed to raise an inference that the promotion decision was based upon “unlawful considerations” or “impermissible factors.” The complained of promotion (from Accountant Grade 5 to Financial Accountant Grade 6 in 1979) was not a promotion for which Womack was required to make affirmative application and it is undisputed that a Grade 6 Financial Account position was available to Womack if Womack were qualified. Womack failed to adduce facts to demonstrate that he was qualified for promotion in 1979, and thus failed to establish a prima facie case of discrimination. In this case, Womack’s burden of establishing a prima facie case “merges” with his ultimate burden of persuading the court he has been the victim of intentional discrimination in that Shell has proffered Womack’s poor" }, { "docid": "22197144", "title": "", "text": "such evidence may serve as well to support a reasonable inference that discrimination was a motivating reason for the employer’s decision. As the Supreme Court has observed, “when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reasons, based his decision on an impermissible consideration such as [age].” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978). We find support from the recent en banc decision by the Third Circuit. In Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir.1996) (en banc), the court set forth the same standards and interpretation of Hicks as we do now. Chief Judge Dolores K. Sloviter wrote: [W]e have understood Hicks to hold that the elements of the prima facie case and disbelief of the defendant’s proffered reasons are the threshold findings, beyond which the jury is permitted, but not required, to draw an inference leading it to conclude that there was intentional discrimination. Id. at 1066-67. In sum, when the employer produces a nondiscriminatory reason for its actions, the prima facie case no longer creates a legal presumption of unlawful discrimination. The elements of the prima facie case remain, however, and if they are accompanied by evidence of pretext and disbelief of the defendant’s proffered explanation, they may permit the jury to find for the plaintiff. This is not to say that, for the plaintiff to succeed, simply proving pretext is necessarily enough. We emphasize that evidence of pretext will not by itself be enough to make a submissible case if it is, standing alone, inconsistent with a reasonable inference of age discrimination. Furthermore, as the Hicks Court explained, the plaintiff must still persuade the jury, from all the facts and circumstances, that the employment decision was based upon intentional discrimination. 509 U.S. at 511 n. 4, 113 S.Ct. at 2750 n. 4. Obviously, in all age discrimination cases, the plaintiff must produce sufficient evidence of the" }, { "docid": "11808077", "title": "", "text": "a matter of law. Because all of defendants’ proffered reasons were discredited, defendants were in a position of having offered no legitimate reason for their actions. In other words, defendants were in no better position than if they had remained silent, offering no rebuttal to an established inference that they had unlawfully discriminated against plaintiff on the basis of his race. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.... And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for [the adverse employment action] have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based [its] decision on an impermissible consideration such as race. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (citation omitted); see Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. In this circuit, if the plaintiff has met his or her burden of proof at the pretext stage — that is, if the plaintiff has proven by a preponderance of the evidence that all of the defendant’s proffered nondiscriminatory reasons are not true reasons for the adverse employment action — then the plaintiff has satisfied his or her ultimate burden of persuasion. No additional proof of discrimination is required. See Williams v. Valentec Kisco, Inc., 964 F.2d 723, 727-28 (8th Cir.1992) (rejecting the so-called “pretext-plus” approach); Adams v. Nolan, 962 F.2d 791, 795 & n. 7 (8th Cir.1992) (same); Brooks v. Monroe Systems for Business, Inc., 873 F.2d 202, 204 (8th Cir.) (under ADEA, submission of discredited reason for adverse employment action is itself evidence of discriminatory motive), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989); MacDissi v. Valmont" }, { "docid": "22052874", "title": "", "text": "adverse employment decision. Hicks, — U.S. at -, 113 S.Ct. at 2747; Chipollini 814 F.2d at 897. The plaintiff then has the opportunity to demonstrate that the employer’s stated reasons were not its true reasons but were a pretext for discrimination. Hicks, — U.S. at -, 113 S.Ct. at 2747; Chipollini, 814 F.2d at 897. He may do this through direct or circumstantial evidence of falsity or discrimination. Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 128 (3d Cir.1990); Chipollini, 814 F.2d at 898-99. Moreover, to defeat a summary judgment motion based on a defendant’s proffer of a nondiscriminatory reason, a plaintiff who has made a prima facie showing of discrimination need only point to evidence establishing a reasonable inference that the employer’s proffered explanation is unworthy of credence. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). A plaintiff is not required to produce evidence which necessarily leads to the conclusion “that the employer did not act for nondiscriminatory reasons.” Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). Ill Without holding that Sempier failed to establish a prima facie case, the district court questioned whether Sempier made out a pri-ma facie ease of discrimination. The district court doubted that Sempier had shown that he was qualified to work as the Chief Administrative Officer of J & H and doubted that he was replaced by a sufficiently younger employee to raise an inference of age discrimination. We note however that the prima facie case under the McDonnell Douglas-Burdine pretext framework is not intended to be onerous. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. The prima facie case merely “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978). A. We determine a plaintiffs qualifications for purposes of proving a prima facie case by an objective standard. Weldon v. Kraft," }, { "docid": "22739480", "title": "", "text": "defendant, on pain of losing the case, to come forward with explanations for its actions once a plaintiff has made out a prima facie ease of discrimination, “because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2948, 2949-50, 57 L.Ed.2d 957 (1978). Justice Rehnquist further explained: [W]e are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race. Id. As the Third Circuit, sitting en banc, recently observed, “The distinct method of proof in employment discrimination eases, relying on presumptions and shifting burdens of articulation and production, arose out of the Supreme Court’s recognition that direct evidence of an employer’s motivation will often be unavailable or difficult to acquire.” Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1071 (3d Cir.1996) (en banc). Frequently, acts of discrimination may be hidden or subtle; an employer who intentionally discriminates is unlikely to leave a written record of his illegal motive, and may not tell anyone about it. “There will seldom be ‘eyewitness’ testimony as to the employer’s mental processes.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). Because of those realities, plaintiffs are often obliged to build their cases entirely around circumstantial evidence. The unique proof problems that accompany discrimination eases are the genesis of the unique solutions that the Supreme Court has devised for those eases in McDonnell Douglas and its progeny. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S.Ct. 1775, 1801-02, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring) (“[Tjhe" }, { "docid": "17333369", "title": "", "text": "is replaced by minority, since replacement by another minority may be a pretextual device designed to disguise the act of discrimination.) The vital inquiry in the determination of a prima case is whether there is an inference of discrimination. The factors set out in Marks, like those set out in McDonnell, were established by the courts and are important because they raise an inference of discrimination, and thus a prima facie case, because “we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). In effect, the prima facie case is a presumption created by law that the employer discriminated, which may be rebutted by the employer. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Even where the facts of a case fail to meet the rigid four-prong test, a prima facie case may be established where plaintiff has introduced evidence that he was discharged from the position for which he was qualified “under circumstances which given rise to an inference of unlawful discrimination.” Id. at 253, 101 S.Ct. at 1093. See Jones v. Western Geophysical Co., 669 F.2d 280, 284 (5th Cir. 1982). In the present case, however, Mr. Ashagre has failed to introduce any evidence that he was discharged under circumstances that give rise to an inference of unlawful discrimination. Even assuming that Mr. Ashagre has made a prima facie showing of discrimination on the basis of his race and/or national origin, which would create a presumption of unlawful discrimination, he has failed to meet his ultimate burden. As previously noted, when a plaintiff successfully establishes a prima facie case, the burden shifts to the defendant “to-articulate some legitimate, nondiscriminatory reason for the employee’s [discharge].” McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. As explained by the Supreme Court in Burdine: The defendant • need not persuade the court that it was actually motivated by the proffered" }, { "docid": "22771663", "title": "", "text": "Maxfield v. Sinclair International, 766 F.2d 788, 793 (3d Cir.1985), cert. denied,—U.S.-, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). The McDonnell Douglas formula permits a plaintiff to rely, in the absence of direct evidence of discrimination, on a set of assumptions about the behavior of employers. The Supreme Court explained in the context of a race discrimination case: A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. See Teamsters v. United States, [431 U.S. 324,] 358 [97 S.Ct. 1843, 1866, 52 L.Ed.2d 396] n. 44 [ (1977) ]. And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race. Fumco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (“Fumco”) (emphasis in original). Similarly there arises a presumption of illegal discrimination when a qualified person in a protected age group is discharged and replaced by someone suffi ciently younger to raise an inference of age discrimination. Nevertheless once the defendant has “produce[d] admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus,” the presumption drops from the case and plaintiffs ultimate burden of persuasion includes the requirement to show that the defendant’s proffered reason is a pretext for discrimination, i.e., that the proffered reason is merely a fabricated justification for discriminatory conduct. Burdine, 450 U.S. at 257, 101 S.Ct. at 1095 (emphasis added). The plaintiff may meet this burden “either directly by persuading the court that a discriminatory reason more likely motivated the employer" }, { "docid": "22574971", "title": "", "text": "direct or circumstantial, to “demonstrate” that a protected characteristic “was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added); see also Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 (holding that summary judgment must be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). Although the employee need not establish a McDonnell Douglas prima facie ease to defeat a motion for summary judgment on a mixed-motive claim, setting forth a prima facie case of discrimination under McDonnell Douglas can aid the employee in showing that an illegitimate reason motivated the adverse employment decision. See Burdine, 450 U.S. at 254, 101 S.Ct. 1089 (explaining that the prima facie case “raises an inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors” (quoting Furnco Constr. Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978))); id. at 255, 101 S.Ct. 1089 n. 10 (noting that the prima facie case may continue to support an inference of discrimination even after a nondiscriminatory motive has been asserted). Other evidence — direct or circumstantial — that an illegitimate reason was a motivating factor for the decision will allow the employee to defeat the employer’s summary judgment motion in a mixed-motive case. In assessing whether an employee has demonstrated that an illegitimate reason was a motivating factor in the employer’s adverse decision, the court should also consider evidence presented by the employer that the protected characteristic was not a motivating factor for its employment decision. If the employee fails to present sufficient evidence for a jury to conclude that a discriminatory reason constituted a motivating factor in the adverse decision or, stated alternatively, if the employer succeeds in showing that the only motivating factors in its decision were legitimate and nondiscriminatory, the employer’s motion for summary judgment should" }, { "docid": "22556825", "title": "", "text": "qualifications — can be equally valuable. It is true, as appellees argue, that we have never yet been confronted with a prima facie case based entirely upon the plaintiffs superior qualifications. But we see nothing in Parker, nor any of our cases, that would suggest superior qualifications are not enough. Indeed, such an interpretation would be inconsistent both with Parker and with the essential purpose of the “background circumstances” test: determining when an employer’s conduct raises an inference of discrimination under the Supreme Court’s McDonnell Douglas/Burdine standard. Under that test, if a more qualified white applicant is denied promotion in favor of a minority applicant with lesser qualifications, we think that in itself raises an inference that the defendant is “that unusual employer who discriminates against the majority.” Parker, 652 F.2d at 1017. A rational employer can be expected to promote the more qualified applicant over the less qualified, because it is in the employer’s best interest to do so. And when an employer acts contrary to his apparent best interest in promoting a less-qualified minority applicant, it is more likely than not that the employer acted out of a discriminatory motive. The McDonnell Douglas/Bur-dine allocation of the burden of proof relies on this very presumption. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576-77, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978) (court should ask whether discriminatory motivation is “more likely than not,” and employer who acts irrationally is presumed to have such motivation). As the Supreme Court has observed, “we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting.” Id. at 577, 98 S.Ct. at 2949-50. Absent a legitimate reason for the employer’s action, then, such an irrational promotion raises an inference of discrimination against the better-qualified non-minority applicant. B. Mr. Harding’s Showing of Superior Qualifications At the summary judgment stage, the plaintiff bears the burden of showing that there is a genuine issue of material fact on the issue of superior qualifications, because he would have the burden" }, { "docid": "11784156", "title": "", "text": "omitted). As the Court explained in Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57. L.Ed.2d 957. (1978), the prima facie case “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. Burdina, 450 U.S. at 256, 101 S.Ct. at 1095 (citations omitted). Once plaintiff establishes a prima facie case of discrimination, the burden of production then shifts to the defendant employer to provide a legitimate non-discriminatory reason for the action taken. Id. If the defendant fails to proffer any legitimate nondiscriminatory reason for plaintiff’s expulsion, the court must enter judgment for the plaintiff because no issue of material fact remains in the case. Id. If, however, Defendant produces evidence that he rejected plaintiff for a legitimate non-discriminatory reason, the burden of persuasion then shifts back to the plaintiff. Id. The plaintiff retains the ultimate burden of persuasion in an employment discrimination ease. If the defendant employer offers evidence of a legitimate non-discriminatory reason for a plaintiff’s firing, plaintiff, in order to withstand a motion for summary judgment, must “demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [he] has been the victim of intentional discrimination.” Id. Generally, there are three ways in which an employment discrimination plaintiff may show that his employer’s proffered reasons for dismissing him are pretext. The employment discrimination plaintiff may demonstrate pretext by showing: (1) that the stated reasons for his firing had no basis in fact; (2) that the stated reasons for his firing were not the actual’reasons; and (3) that the stated reasons for his firing were insufficient to explain the discharge. See Chappell v. GTE Products Corp., 803 F.2d 261, 265 (6th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987); Wheeler v. McKinley Enterprises, 937 F.2d 1158 (6th Cir.1991)." }, { "docid": "22850007", "title": "", "text": "be educated as to the elements of a prima facie case. Recognizing that “direct evidence of discrimination is likely to be unavailable, and . . . the employer has the best access to the reasons that prompted him to fire, reject, discipline or refuse to promote the [employee],” the prima facie case requirement was designed to assist the employee in surmounting these evidentiary obstacles. Loeb v. Textron, Inc., 600 F.2d at 1014. Once an employee makes out a prima facie case “an inference of discrimination [arises] only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. . . . And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons . . ..” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). Thus, “[i]f the principle [sic] ingredients of plaintiff’s case are inferences that are to be derived from the underpinnings of the McDonnell Douglas-type prima facie case, the jury should be asked to make these findings.” Loeb v. Textron, Inc., 600 F.2d at 1018. However, as suggested by the court in Loeb, when a plaintiff introduces direct and/or circumstantial evidence of discrimination, instructing the jury about the elements of a prima facie case, in addition to being superfluous, may be confusing. That court stated: [It is likely that most cases will not] fit a ‘classic’ or ‘pure’ McDonnell Douglas paradigm .... At least two other types of cases seem likely. One is a case which simply does not fit the mold of the McDonnell Douglas formula, as where plaintiff’s evidence of discrimination is significantly different (for example, where plaintiff relies chiefly upon direct evidence of discriminatory motive in a letter or on an admission from defendant). The court should not force a case into a McDonnell Douglas format if to do so will merely divert the jury from the real issues; rather it should use its best judgment as" }, { "docid": "22951854", "title": "", "text": "of production, not persuasion, to the defendant once the plaintiff negates “the two most common legitimate reasons” for an employment decision: lack of qualifications or absence of a job vacancy. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396 (1977). A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.... [W]e know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer ... based his decision on an impermissible consideration such as race. Furnco, 438 U.S. at 577, 98 S.Ct. at 2949-50 (citation omitted). It should be clear that the McDonnell Douglas method of proving a prima facie case pertains primarily, if not exclusively, to situations where direct evidence of discrimination is lacking. It would be illogical, indeed ironic, to hold a Title VII plaintiff presenting direct evidence of a defendant’s intent to discriminate to a more stringent burden of proof, or to allow a defendant to meet that direct proof by merely articulating, but not proving, legiti mate, nondiscriminatory reasons for its action. Following these principles, this court has held that where a case of discrimination is proved by direct evidence, it is incorrect to rely on a McDonnell Douglas rebuttal. Lee v. Russell County Board of Education, 684 F.2d 769, 774 (11th Cir.1982). If the evidence consists of direct testimony that the defendant acted with a discriminatory motive, and the trier of fact accepts this testimony, the ultimate issue of discrimination is proved. Defendant cannot refute this evidence by mere articulation of other reasons; the legal standard changes dramatically: Once an [illegal] motive is proved to have been a significant or substantial factor in an employment decision, defendant can" }, { "docid": "10003867", "title": "", "text": "Rights Act, [2] that he was discharged without valid cause, and [3] that the employer continued to solicit applications for the vacant position.” Id. at 865. Failure to prove any one of these elements by a preponderance of the evidences mandates a dismissal of the plaintiffs suit. Morvay v. Maghielse Tool & Die Co., 708 F.2d 229, 233 (6th Cir.), cert. denied, 464 U.S. 1011, 104 S.Ct. 534, 78 L.Ed.2d 715 (1983). Case law subsequent to McDonnell Douglas has emphasized that the prima facie method “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. However articulated, the significance of the prima facie case is that it permits an “inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Thus, “[t]he central inquiry in evaluating whether the plaintiff has met his initial burden is whether the circumstantial evidence presented is sufficient to create an inference [of discrimination].” B. Schlei and P. Grossman, Employment Discrimination Law 247 (Supp.1983-84). The essence of a- disparate treatment case is that “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. See also Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Rowe, 690 F.2d at 92. Accordingly, “individual disparate treatment ... cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating" }, { "docid": "10003868", "title": "", "text": "450 U.S. at 253, 101 S.Ct. at 1094. However articulated, the significance of the prima facie case is that it permits an “inference of discrimination ... because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Thus, “[t]he central inquiry in evaluating whether the plaintiff has met his initial burden is whether the circumstantial evidence presented is sufficient to create an inference [of discrimination].” B. Schlei and P. Grossman, Employment Discrimination Law 247 (Supp.1983-84). The essence of a- disparate treatment case is that “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. See also Furnco, 438 U.S. at 577, 98 S.Ct. at 2949. Rowe, 690 F.2d at 92. Accordingly, “individual disparate treatment ... cases generally require indirect evidence from which an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’ individuals who are not within the plaintiff’s protected group.” B. Schlei & P. Grossman, supra, at 1291 (2d ed. 1983). A Title VII plaintiff supplies this indispensable comparative evidence at the prima facie stage through the last prong of the McDonnell Douglas test (as restated in Morvay) by identifying those individuals who are allegedly treated differently. See Hughes v. Chesapeake & Potomac Telephone Co., 583 F.Supp. 66, 69 (D.D.C.1983) (“Because no one replaced plaintiff when she was terminated, to make a prima facie case, plaintiff must show that non-minority employees with comparable records were not terminated.”). This explains the McDonnell Douglas Court’s articulation of this factor as requiring a showing “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824 (emphasis supplied). Proof that a Title VII plaintiff belongs to a racial minority, that he was qualified for his position, and that he" }, { "docid": "4984808", "title": "", "text": "alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id., at 802, 93 S.Ct. at 1824. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804, 93 S.Ct. at 1825. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. [Citation omitted] The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that [he] applied for an available position, for which [he] was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. As the Court explained in Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), the prima facie case “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. [Citation omitted] It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be" } ]

[ { "docid": "7644182", "title": "", "text": "of Macedonia (“FYROM”) have intervened and oppose the relief requested by Plaintiff and each claim an interest in the Property. Slovenia moves to dismiss the Complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that Plaintiff is not recognized as a sovereign state by the United States and, therefore, lacks the capacity to bring suit in a United States’ court and on the grounds that this case presents a nonjusticiable political question. Bosnia and Herzegovina, Croatia and-FYROM in their counterclaim and cross-claim ask for a declaration that the property is jointly owned by those states who are the successors to the SFRY and request the appointment of a custodian or receiver of the Property to preserve the Property for those ultimately found to be the successors in ownership. Further, and in contrast to the defendants, the United States and Slovenia, Bosnia and Herzegovina, Croatia and FYR-OM contend that while they “agree with Slovenia and the United States that plaintiffs capacity to bring its action is doubtful and that its action raises a specific nonjusticiable political issue, i.e., the rights of the successor states, inter se”, they, nevertheless, contend that “the case as a whole is justiciable and must not be dismissed”. Memorandum of Law of the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Republic of Macedonia in Response to the Statement of Interest of the United States and the Motion to Dismiss of the Republic of Slovenia at 3. The Court has carefully considered the submissions of the parties and the arguments of counsel, including the arguments made at a conference held on October 25, 1995 and, for the reasons set forth in the United States’ Statement of Interest and the decision of the Second Circuit in Can v. United States, 14 F.3d 160 (2d Cir.1994), Plaintiffs motion for a preliminary injunction is denied and this action (including any and all counterclaims and cross-claims) is hereby dismissed in its entirety on the grounds that the issues to be decided are non-justiciable political questions. The United States Supreme Court," } ]

[ { "docid": "17228705", "title": "", "text": "not amount to state succession). As a successor state, Slovenia is not legally bound by any contract executed by the former Yugoslavia unless Slovenia has voluntarily “assumed” the responsibilities of the predecessor state and “the other party or parties thereto agree or acquiesce.” Restatement (Third) of Foreign Relations Law § 210(3); see also Crabtree, 776 F.Supp. at 166; Ebenroth & Kemner, supra note 1, at 783 (noting that U.S. adopts view of succes-sorship summarized in Restatement). Yucyco does not allege that Slovenia has explicitly assumed Yugoslavia’s role as NFA Guarantor. Indeed, the amended complaint is devoid of any such factual allegations. Because Slovenia does not automatically succeed Yugoslavia as NFA Guarantor and there are no indications that Slovenia has voluntarily substituted itself as NFA Guarantor, Yucyco is not in privity with this defendant. To the extent Yucyco now argues that Slovenia is liable for an “equitable” share of the former state’s obligations under the Guaranty, such a claim poses a nonjusticiable political question. (PI. Mem. at 28). In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court identified some of the characteristics of a political question; Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discre-tion____ Id. at 217, 82 S.Ct. at 710. Courts have held that certain intractable issues involving state succession may pose such problems of justici-ability. See Can v. United States, 14 F.3d 160, 161 (2d Cir.1994) (finding claim of title to blocked assets nonjusticiable where U.S. government had not recognized North Vietnamese control of South Vietnam); Federal Republic of Yugoslavia v. Park-71 st Corp., 913 F.Supp. 191,194 (S.D.N.Y.1995) (dismissing action involving “issues of state succession, competing claims to the property of a former state, [and] the allocation of the former state’s property among successors”). Matters involving state succession do not always present" }, { "docid": "7828527", "title": "", "text": "eventual basis for a more final United States foreign policy regarding successor-ship. Finally, equitable considerations would allow continued deference and postponement of plaintiffs’ claims. Plaintiffs have stressed that SFRY political upheaval, American-Yugoslavian tensions, and even Yugoslavian dissolution were foreseeable at the time of the three lease extensions in August-October 1991: At the time the SFRY tenants extended their leases, the SFRY ivas on the verge of breaking up, and relations between the United States and the SFRY were rapidly deteriorating.... [B]y June 1991, ... the United States had suspended economic assistance to the SFRY. Since these events preceded the signing of the lease extensions by several months, FRY cannot credibly assert that the actions taken by the United States government a year later were unforeseeable.... “[I]n June 1991, two of the six Yugoslav republics, Croatia and Slovenia, voted to secede from the [SFRY]. By July, the country was on the brink of a full-fledged civil war. Over that summer, violence erupted, which ultimately led to a bloody ethnic war.” Pis.’ Mem.Opp. FRY at 9, 11 n. 7 (emphases altered) (quoting 767 Third Avenue Assocs. v. United States, 48 F.3d at 1577 (plaintiffs’ alterations)). Clearly, plaintiffs could have anticipated the risk of politically-generated delays in rent collection due to the growing instability of their long-term SFRY tenants. While this consideration does not insulate defendants from liability, it does lessen the degree of unfairness present in delaying plaintiffs’ quest for relief. There is always some inequity in requiring an aggrieved party to wait for justice. Compared to the case of a plaintiff who could not have anticipated political delay, however, there is less of the sort of gross inequity that might compel a court to adjudicate otherwise non-justieia-ble political questions. This holding does not bar plaintiffs from court permanently. While this court cannot commit to hypothetical future rulings, a proper explanation of the present holding requires some elaboration of its limits. Plaintiffs’ claims may become justiciable in one of two situations. First, if the executive branch declares a clear national policy on SFRY successor allocations, and ceases to wait for inchoate international" }, { "docid": "17964308", "title": "", "text": "therefore lacks standing, and (2) the adjudication of these claims would require the Court to address non-justiciable political questions relating to the dissolution of the SFRY. They assert, moreover, that the loans at issue were made from the currency reserves of the central bank of the former SFRY in furtherance of a governmental export program and therefore are assets of the SFRY. In defendants’ submission, to permit plaintiff, allegedly an instrumentality of the FRY (S & M), to recover would provide these assets to the FRY (S & M) in derogation of the rights of the four other putative successors of the SFRY. One of the defendants, moreover, has asserted counterclaims by which it seeks to hold Jugobanka liable for alleged confiscation by the FRY (S & M) of its assets located in the territory of the FRY (S & M). Background The Parties As noted, Jugobanka is a banking corporation organized under the laws of the FRY (S & M). It contends that it is the sole successor to DD Belgrade, formerly United, which were organized under the laws of the SFRY. The defendants in three of the actions (the “Slovenijales Actions”) are Slovenijales D.D. (“Slovenijales”) and three of its affiliates, U.C.F. International Trading, Inc. (“UCF”), SK Products Corp. (“SK”), and Euro International Pty., Ltd. (“Euro”). Although Slovenijales now is a privately owned manufacturing and export corporation organized under the laws of the Republic of Slovenia, its roots are found in the Communist past of the former SFRY. It was organized in 1948 as a “state-owned republic commercial enterprise.” It was reconstituted as a “socially-owned” company in 1974 before being privatized in 1996. Its affiliates, UCF, SK and Euro, all are organized under the laws of western nations. The defendants in the fourth action (the “Sidex Action”) are Sidex International Furniture Corporation (“Sidex”), Sipad Export-Import Sarajevo (“SEI”), S.O.U.R. Sipad, Sarajevo (“SOUR”), and Sipad Holding Sarajevo (“SHS”). SEI is organized under the laws of, and owned by, the Federation of Bosnia and Herzegovina (“FBH”). Sidex is a New York corporation and wholly owned subsidiary of SEI. SOUR was a “composite" }, { "docid": "7828507", "title": "", "text": "SFRY liabilities among the five state defendants in this action. 1. Judiciary Limitations: Successor-ship & Allocations Among Successors Limitations on judicial competence and role are the bases of the second and third factors: “a lack of judicially discoverable and manageable standards for resolving” the claims and “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” respectively. Succession determinations are inherently political, destined to be decided in negotiation, international institutions, arbitration, war, etc. In dismissing claims of successorship to the assets of the defunct South Vietnamese regime, Can established that successorship is the classic sort of political question that courts cannot decide: [Cjourts have no standards for judging a claim of succession to a former sovereign, even where that succession is only to property rather than to government power. The recognition of any rights of succession to a foreign sovereign’s power or property is in the first instance constitutionally committed to the executive branch of government, not to the judiciary. 14 F.3d at 163. In each of the SFRY asset/liability cases, a critical factor in the court’s political question analysis has been whether resolution of the case necessarily required judicial resolution of politically disputed successorship questions. Courts have been willing to adjudicate SFRY cases that could progress without adjudication of such questions. Because Sage Realty featured no successorship arguments at all, it remained nothing more than a basic action for unpaid rent, and the court awarded summary judgment to the plaintiff landlord of the tenant Yugoslav bank expelled from United States. 1998 WL 702272. Beogradska Banka found various issues to be non-justiciable political questions but denied summary judgment because, with factual uncertainty regarding whether the disputed assets ever actually were SFRY assets, the case might not require the court to address the political questions. 1998 WL 661481, at *8, *10. Each of the other SFRY asset/liability cases was dismissed as presenting non-justiciable political questions because each would have required the court to determine the extent of at least one of the new states’ successorship rights or responsibilities. See Jugobank, 2 F.Supp.2d at 415-17 (granting" }, { "docid": "7828510", "title": "", "text": "‘equitably’ apportion Slovenia’s liability, if any.... [Resolution of [plaintiffs’] claims would require this Court to make policy determinations — including, for example, apportionment of responsibility among the five new republics — for which the Court is ill-suited and “of a kind clearly for nonjudicial discretion.” 984 F.Supp. at 219 (quoting Baker, 369 U.S. at 217, 82 S.Ct. at 710). Other courts in this district have concurred that even where defendants’ successorship to the SFRY is established, allocation of SFRY assets and liabilities among multiple successors remains entirely unclear, and a judicial finding of liability based on the successors’ SFRY inheritances therefore would present non-justiciable political questions. Beogradska Banka, after noting that “judges in this District have held that claims by the FRY[ ] and other successor states to assets of the former SFRY present nonjusticiable political questions,” 1998 WL 661481, at *6, rejected the suggestion that court could “determine whether a plaintiff can recover assets from a defendant but only on the condition that the plaintiff cannot be awarded the assets because such an award would, involve a political question,” id. at *9. See also Jugobank, 2 F.Supp.2d at 416 (“[Ultimate allocation of assets and liabilities of the former SFRY among the successor states is a political question.” (citation omitted)). These precedents illustrate that this court cannot avoid the political questions of SFRY successorship by adjudicating liability but staying any efforts to allocate that liability among the state defendants, as plaintiffs suggested, see Pis.’ Dec. 29, 1998 Letter Brief. Moreover, the political questions that this case presents, and that international processes are better suited to determine, include not only each successor’s percentage of SFRY liabilities, but also each successor’s date of successorship to the liabilities now at issue. The three 1991 lease extensions commenced during the same year as Yugoslav civil war, SFRY dissolution, and various SFRY successors’ declarations of independence. Given the rancor and hostilities surrounding the SFRY dissolution process, it is far from clear that each of the state defendants actually enjoyed use of the SFRY diplomatic premises in New York right up until its formal date of" }, { "docid": "7828504", "title": "", "text": "but is a political question that is reserved to the Executive Branch.” Tr. at 67; see also U.S. Mem. at 9. As against the SFRY tenants, the United States does not object to continuation of this case, U.S. Mem. at 10-12, but reiterates that no judgment now could be enforced against the state defendants. Tr. at 70-71. II. Discussion A. Non-Justiciable Political Questions During the SFRY’s transition to a number of sovereign states, this judicial district has seen several cases of disputed claims to SFRY assets and liabilities (collectively, “SFRY asset/liability cases”). See Sage Realty Corp. v. Jugobanka, D.D., No. 95 Civ. 0323(RJW), 1998 WL 702272 (S.D.N.Y. Oct.8, 1998) (landlord’s claim for unpaid rent against tenant Yugoslav bank expelled from United States); Beogradska Banka A.D. Belgrade v. Interenergo, Inc. (‘Beogradska Banka ”), No. 97 Civ. 2065(JGK), 1998 WL 661481 (S.D.N.Y. Sept.24,, 1998) (FRY bank’s claim of succession to SFRY bank and loans it held); Jugobank A.D. Belgrade v. Sidex Int’l Furniture Corp. (“Jugobank ”), 2 F.Supp.2d 407 (S.D.N.Y.1998) (FRY bank’s claim of succession to SFRY bank and debt obligations it held); Yucyco, Ltd. v. Republic of Slovenia, 984 F.Supp. 209 (S.D.N.Y.1997) (creditor’s claim against Slovenia on SFRY contracts); Yucyco, Ltd. v. Republic of Croatia, No. 96 Civ. 5559(DC), 1997 WL 728173 (S.D.N.Y. Nov.19, 1997) (companion ease to id., holding same as against Croatia); Fed. Republic of Yugoslavia v. Park-7 1st Corp. (“Park-71st”), 913 F.Supp. 191 (S.D.N.Y.1995) (FRY’s claim to SFRY-owned New York apartment). Despite the political upheaval underlying the SFRY asseUliability cases, not all have featured non-justiciable political questions. “[P]olitical question doctrine must be cautiously invoked, and the law is clear that the fact that a case touches on foreign affairs does not, without more, imply that the case involves a politi cal question.” Can v. United States, 14 F.3d 160, 168 (2d Cir.1994); see also Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir.1995) (“Although ... cases present issues that arise in a politically charged context, that does not transform them into cases involving nonjustieiable political questions.”). Cases pose non-justiciable political questions only to the extent that they pose" }, { "docid": "2595808", "title": "", "text": "FEINBERG, Circuit Judge: On its face, this case concerns nothing more than a garden-variety landlord-tenant dispute. Plaintiffs (the landlords) are seeking to recover unpaid rent for offices leased to the former Socialist Federal Republic of Yugoslavia (SFRY) for use as consular offices in New York. Unfortunately for the landlords, the SFRY has ceased to exist. Beginning in 1991, the SFRY faced political upheaval and military conflict that eventually led to its disintegration. As a result, the SFRY has been replaced by five successor states: Slovenia, Croatia, Bosnia-Herzegovina, Macedonia, and the Federal Republic of Yugoslavia which is composed of Serbia and Montenegro (FRY). (Successors or successor states). A by-product of this conflict has been a number of civil suits in this country involving the SFRY, its agencies and state-owned companies, and the successor states, regarding their assets and liabilities in the United States. The landlords are suing the former SFRY and the five successor states. The landlords appeal from a judgment of the United States District Court for the Southern District of New York, Constance B. Motley, J., holding that the issues of whether any or all of defendant states succeed to the liabilities of the SFRY, and, if so, in what proportion, raise political questions that a federal court is not competent to decide. Instead of simply dismissing, however, the court issued an indefinite stay of the action. For the reasons set forth below, we affirm the district court’s decision as to justiciability, vacate the stay order and remand to the district court with instructions to enter a judgment for defendants and dismiss the complaint. I. Background A. Dissolution of the SFRY and Emergence of Successor States Much has been written about the sad events in the Balkans in the last decade leading to the breakup of the former SFRY and the emergence of the successor states. For the purposes of this appeal, we see no need to add to the volumes of print on the subject except to cite those facts pertinent to the appeal. Slovenia and Croatia formally declared independence in June 1991. Macedonia issued a declaration of" }, { "docid": "7828530", "title": "", "text": "and 56 as bases for dismissal. It is unclear what rule properly could dispose of a case presenting political questions of national succession. In some cases, the nature of the parties’ submissions determines the choice of dismissal rule. Compare, e.g., Beogradska Banka, 1998 WL 661481, at *1 (holding that because motions “rely upon materials outside the pleadings, the Court will treat the defendants’ motion as one for summary judgment pursuant to Fed. R.Civ.P. 56 rather than a motion to dismiss”) with Yucyco, Ltd. v. Republic of Slovenia, 984 F.Supp. at 219 (granting motions to dismiss because plaintiff “is unable to state a claim against Slovenia_Ac-cordingly, all claims against Slovenia must be dismissed.”). Alternatively, a court holding that a case should be dismissed because it presents political succession questions may sidestep the question of exactly which rule applies to that dismissal, even when the court clearly states which rule applies to another dismissal holding in the same case. See, e.g., Can v. United States, 820 F.Supp. 106, 116 (S.D.N.Y.1993) (“[T]he motion ... for an order dismissing this action pursuant to Rule 12(b)(1) ... for lack of subject matter jurisdiction is granted. Further, the Court finds that plaintiffs’ claims present nonjusticiable political questions that may not properly be decided by the judicial branch.” (emphasis added)), aff'd, 14 F.3d 160, 162 (2d Cir.1994) (“We ... affirm the judgment of the district court on political-question grounds, and do not reach ... the district court’s ... conclusion that it lacked subject matter jurisdiction.”). The confusion as to which dismissal rule applies to political questions of national succession is understandable because no dismissal type truly comports with the temporary nature of the non-justiciability. Dismissal with prejudice would eliminate plaintiffs’ ability to return to federal court for the necessary eventual adjudication; dismissal without prejudice would yield wasteful repetition of litigation efforts and would jeopardize plaintiffs’ ability to return. See infra Part II.D.2. 2. Stay Order as Procedure for Deferring to Determination of Another Sovereign The more accurate view of how political questions of national succession impact a case procedurally is that they lead not to a dismissal" }, { "docid": "7828513", "title": "", "text": "defendants dismissed and with the case allowed to proceed as against the SFRY tenant defendants. U.S. Mem. at 10-12. The United States position is informative, especially as to existing United States foreign policy, but not binding, especially as to legal doctrine, because: justiciability goes to the constitutional and prudential limits of the judicial power. While the views of the executive branch often will have an important bearing on a court’s determination, especially where the concern is possible conflict with a coordinate branch of government, they are not conclusive.... As Justice Brennan wrote, “[t]he Executive Branch ... cannot by simple stipulation change a political question into a cognizable claim.” Jugobank, 2 F.Supp.2d at 416 (S.D.N.Y.1998) (quoting First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 788-89, 92 S.Ct. 1808, 32 L.Ed.2d 466 (1972) (Brennan, J., dissenting), and noting that “[t]his aspect of Justice Brennan’s dissent ... commanded a majority of the Court”). Conversely, “even an assertion of the political question doctrine by the Executive Branch, entitled to respectful consideration, would not necessarily preclude adjudication.” Kadic, 70 F.3d at 250. Even if the executive branch could waive prudential separation of powers concerns, it cannot waive constitutionally-based limits on judicial role. Executive branch acquiescence does not dispel many rationales for non-justiciability, such as the threat of judicial inconsistency, judicial overreaching past its prudent and constitutional role, and the lack of judicial competence to decide such political matters under manageable legal standards. Protection of the United States’ asserted interest in avoiding judicial allocations among SFRY successors requires that this court avoid adjudicating liability at all. While this view may be contrary to the executive branch’s legal conclusion, it is consistent with the executive branch’s political conclusion. To the extent that the state defendants succeeded to SFRY assets and liabilities, it would be problematic for this court to forbid them from participating in an action creating SFRY liabilities that they would inherit. As the FRY asked, “who would defend the actionf,] ... conduct the diseoveryf,] ... conduct the defense[,] ■... [or] pay for the defense? Suppose one state is delegated to do" }, { "docid": "7828511", "title": "", "text": "would, involve a political question,” id. at *9. See also Jugobank, 2 F.Supp.2d at 416 (“[Ultimate allocation of assets and liabilities of the former SFRY among the successor states is a political question.” (citation omitted)). These precedents illustrate that this court cannot avoid the political questions of SFRY successorship by adjudicating liability but staying any efforts to allocate that liability among the state defendants, as plaintiffs suggested, see Pis.’ Dec. 29, 1998 Letter Brief. Moreover, the political questions that this case presents, and that international processes are better suited to determine, include not only each successor’s percentage of SFRY liabilities, but also each successor’s date of successorship to the liabilities now at issue. The three 1991 lease extensions commenced during the same year as Yugoslav civil war, SFRY dissolution, and various SFRY successors’ declarations of independence. Given the rancor and hostilities surrounding the SFRY dissolution process, it is far from clear that each of the state defendants actually enjoyed use of the SFRY diplomatic premises in New York right up until its formal date of independence; conversely, it may not be clear that each nation ceased availing itself of all SFRY privileges on any particular date of independence. Consequently, any one date, even one the United States officially recognizes as a date of independence, may not be the exact date on which an SFRY successor’s responsibility for SFRY lease liabilities terminated. Croatia, for example, argues that by the time the 1991 lease extensions all took effect, “fighting already had occurred and Croatia already had declared its independence of the SFRY,” and “the premises in question were never made available to Croatia or the other successors” than the FRY. Croatia MenrSupp.Mot. Dismiss at 8 n. 4, 9. The FRY counters that Croatia, after declaring independence, continued to negotiate “a continuation of the former Yugoslavia except in ... a looser structure.” Tr* at 64. These questions regarding dates of successorship would thrust political questions directly into the liability phase of adjudication. Similarly, this court cannot adopt the United States proposal to define the political questions more narrowly, with only the five state" }, { "docid": "7828503", "title": "", "text": "former SFRY, but those interests have not yet been determined by the executive. Tr. at 66-67; see also U.S. Mem. at 3-4. The executive branch has not reached a final determination on these succession issues because, it explains, “the question of how assets and liabilities located in the United States should then be allocated to the various successors ... must be determined by international negotiation, and that international negotiation has not yet concluded.” Tr. at 70. “The present policy of the United States is to encourage the successors to the SFRY to reach an internationally negotiated settlement of these issues. Until those negotiations succeed, or until allocation of assets and liabilities is settled politically in some other way, claims raising these issues are unsuitable for judicial resolution.” U.S. Mem. at 9-10. As against the state defendants, the United States concludes that this case is non-justiciable because “the manner in which assets and liabilities of a former state are to be allocated amongst one or more successors is not a question for the courts to decide, but is a political question that is reserved to the Executive Branch.” Tr. at 67; see also U.S. Mem. at 9. As against the SFRY tenants, the United States does not object to continuation of this case, U.S. Mem. at 10-12, but reiterates that no judgment now could be enforced against the state defendants. Tr. at 70-71. II. Discussion A. Non-Justiciable Political Questions During the SFRY’s transition to a number of sovereign states, this judicial district has seen several cases of disputed claims to SFRY assets and liabilities (collectively, “SFRY asset/liability cases”). See Sage Realty Corp. v. Jugobanka, D.D., No. 95 Civ. 0323(RJW), 1998 WL 702272 (S.D.N.Y. Oct.8, 1998) (landlord’s claim for unpaid rent against tenant Yugoslav bank expelled from United States); Beogradska Banka A.D. Belgrade v. Interenergo, Inc. (‘Beogradska Banka ”), No. 97 Civ. 2065(JGK), 1998 WL 661481 (S.D.N.Y. Sept.24,, 1998) (FRY bank’s claim of succession to SFRY bank and loans it held); Jugobank A.D. Belgrade v. Sidex Int’l Furniture Corp. (“Jugobank ”), 2 F.Supp.2d 407 (S.D.N.Y.1998) (FRY bank’s claim of succession to SFRY" }, { "docid": "7828505", "title": "", "text": "bank and debt obligations it held); Yucyco, Ltd. v. Republic of Slovenia, 984 F.Supp. 209 (S.D.N.Y.1997) (creditor’s claim against Slovenia on SFRY contracts); Yucyco, Ltd. v. Republic of Croatia, No. 96 Civ. 5559(DC), 1997 WL 728173 (S.D.N.Y. Nov.19, 1997) (companion ease to id., holding same as against Croatia); Fed. Republic of Yugoslavia v. Park-7 1st Corp. (“Park-71st”), 913 F.Supp. 191 (S.D.N.Y.1995) (FRY’s claim to SFRY-owned New York apartment). Despite the political upheaval underlying the SFRY asseUliability cases, not all have featured non-justiciable political questions. “[P]olitical question doctrine must be cautiously invoked, and the law is clear that the fact that a case touches on foreign affairs does not, without more, imply that the case involves a politi cal question.” Can v. United States, 14 F.3d 160, 168 (2d Cir.1994); see also Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir.1995) (“Although ... cases present issues that arise in a politically charged context, that does not transform them into cases involving nonjustieiable political questions.”). Cases pose non-justiciable political questions only to the extent that they pose “questions ... beyond the competence and proper institutional role of the federal courts.” Jugobank, 2 F.Supp.2d at 415. Factors that are “[p]rominent on the surface of any case held to involve a political question” include the following six: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), quoted in Kadic, 70 F.3d at 249, and Can, 14 F.3d at 163. All of the above six factors would be present in a judicial allocation of" }, { "docid": "17228730", "title": "", "text": "for Objective Standards, 17 U. Pa. J. Int’l Econ. L. 753 (1996); Marc Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 Am. J. Int’l L. 569 (1992). . Plaintiff brought a separate action against the Republic of Croatia, certain Croatian banks, and Chase on July 24, 1996 based on circumstances arising from the Croatian Exchange. See Yucyco v. Republic of Croatia, et al., 96 Civ. 5559(DC), 1997 WL 728173 (S.D.N.Y.1997). . On May 30, 1992, President Bush issued Executive Order 12808, which provided that: [T]he actions and policies of the Governments. of Serbia and Montenegro, acting under the name of the Social Federal Republic of Yugoslavia or the Federal Republic of Yugoslavia, ... constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. 57 Fed.Reg. 23299 (1992). President Bush ordered that all property and interests in the name of the Social Federal Republic of Yugoslavia or the Federal Republic of Yugoslavia (Serbia-Montenegro) be blocked. OFAC prepared its list in accordance with this Executive Order. . In its amended complaint, Yucyco alleges that: Defendant Republic of Slovenia purports to be a successor in interest to the Socialist Federal Republic of Yugoslavia with respect to the rights and obligations of some or all of the Obligors under the NFA. As a state which was part of the guarantor at the time of the NFA, Defendant Republic of Slovenia is liable as a successor in interest under the NFA Guaranty. (Am.Compl^ 3). . Slovenia clearly does not fall within the NFA’s definition of \"Obligor\"; it is not a bank or banking institution and was not a party to the NFA. Although Slovenia also probably does not technically fit within either of the other categories of \"Yugoslav Entity,” as it is not an \"Agency” or a “business entity,” it does make sense to treat Slovenia as a \"Yugoslav Entity” for these purposes. The purpose of the distinction between QWAE’s and QPRE's apparently was to give banks and other financial institutions or business entities from Yugoslavia or from one of" }, { "docid": "7828508", "title": "", "text": "asset/liability cases, a critical factor in the court’s political question analysis has been whether resolution of the case necessarily required judicial resolution of politically disputed successorship questions. Courts have been willing to adjudicate SFRY cases that could progress without adjudication of such questions. Because Sage Realty featured no successorship arguments at all, it remained nothing more than a basic action for unpaid rent, and the court awarded summary judgment to the plaintiff landlord of the tenant Yugoslav bank expelled from United States. 1998 WL 702272. Beogradska Banka found various issues to be non-justiciable political questions but denied summary judgment because, with factual uncertainty regarding whether the disputed assets ever actually were SFRY assets, the case might not require the court to address the political questions. 1998 WL 661481, at *8, *10. Each of the other SFRY asset/liability cases was dismissed as presenting non-justiciable political questions because each would have required the court to determine the extent of at least one of the new states’ successorship rights or responsibilities. See Jugobank, 2 F.Supp.2d at 415-17 (granting motions to dismiss, as non-justi-eiable political questions, claims to debt obligations based on plaintiff FRY bank’s alleged succession to SFRY bank’s assets); Yucyco, Ltd. v. Republic of Slovenia, 984 F.Supp. at 217 (granting motions to dismiss, as non-justiciable political questions, claims by plaintiff creditor against Slovenia on SFRY contracts); Yucyco, Ltd. v. Republic of Croatia, 1997 WL 728173, at *1 (companion case to id., holding same as against Croatia); Park-71st, 913 F.Supp. at 193-95 (dismissing, as non-justiciable political question, claim by plaintiff FRY to SFRY-owned apartment). Yucyco, in many ways the most factually on-point of the SFRY asset/liability cases, held that even though “Slovenia clearly constitutes a successor state” to the SFRY, 984 F.Supp. at 217, the court could not adjudicate claims against Slovenia as an SFRY successor because of the political questions entailed in apportioning liability among all the SFRY successors: While the international norm may arguably be that a successor state should be held liable for a share of its predecessor’s liabilities, plaintiff has not offered any basis by which this Court may" }, { "docid": "7828529", "title": "", "text": "processes, then it will have eliminated much of the rationale for non-justiciability. Second, if there remains no political resolution of the outstanding succession issues, then plaintiffs eventually would be entitled to return to court for adjudication of their claims. Continued judicial refusal to adjudicate would not be warranted, for example, at a future date when the dust has settled on the aftermath of Yugoslav succession, when political efforts to resolve the outstanding succession issues have collapsed, and when the United States has failed to recognize the futility of awaiting a nonexistent international resolution of those issues. In such a situation, with little to which courts could defer, the judiciary would reclaim its familiar role as the im perfect forum of last resort for resolving disputes. Because that situation is not on the present horizon, however, deference to non-judicial resolution of the political questions remains appropriate and plaintiffs’ claims remain non-justiciable. D. Procedure for Political Succession Questions: Abstention Stay, not Dismissal 1. Lack of an Established Dismissal Procedure The state defendants variously offer Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 56 as bases for dismissal. It is unclear what rule properly could dispose of a case presenting political questions of national succession. In some cases, the nature of the parties’ submissions determines the choice of dismissal rule. Compare, e.g., Beogradska Banka, 1998 WL 661481, at *1 (holding that because motions “rely upon materials outside the pleadings, the Court will treat the defendants’ motion as one for summary judgment pursuant to Fed. R.Civ.P. 56 rather than a motion to dismiss”) with Yucyco, Ltd. v. Republic of Slovenia, 984 F.Supp. at 219 (granting motions to dismiss because plaintiff “is unable to state a claim against Slovenia_Ac-cordingly, all claims against Slovenia must be dismissed.”). Alternatively, a court holding that a case should be dismissed because it presents political succession questions may sidestep the question of exactly which rule applies to that dismissal, even when the court clearly states which rule applies to another dismissal holding in the same case. See, e.g., Can v. United States, 820 F.Supp. 106, 116 (S.D.N.Y.1993) (“[T]he motion ... for an order dismissing" }, { "docid": "2595835", "title": "", "text": "court’s justiciability analysis, the political question doctrine is essentially a constitutional limitation on the courts. Just as “Congress may not confer jurisdiction on Art. Ill federal courts to render advisory opinions, or to entertain friendly suits,” it may not require courts “to resolve ‘political questions,’ because suits of this character are inconsistent with the judicial function under Art. III.” Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Thus, where adjudication would force the court to resolve “political questions,” the proper course for the courts is to dismiss. Baker, 369 U.S. at 217, 82 S.Ct. 691 (suggesting that where one of the political question factors is inextricable from the case, dismissal is appropriate); Powell, 395 U.S. at 512, 89 S.Ct. 1944; DaCosta v. Laird, 471 F.2d 1146, 1154, 1157 (2d Cir.1973) (dismissal appropriate where no judicially discoverable standards); Moore, Federal Practice § 101.116; see also Goldwater v. Carter, 444 U.S. 996, 1005, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (plurality) (directing district court to dismiss complaint because it presented nonjusticiable political question); Yucyco, 984 F.Supp. at 219; Federal Republic of Yugoslavia, 913 F.Supp. at 195. Accordingly, that is what should be done here. Conclusion We affirm the district court’s decision as to justiciability. However, we vacate the stay, remand to the district court, and direct it to dismiss the complaint. . See, e.g., Interpamil GMBH v. Collectibles, Inc., No. 97 CIV. 9076, 1999 WL 1043960 (S.D.N.Y. Nov.16, 1999); Sage Realty Corp. v. Jugobanka D.D., No. 95 CIV. 0323, 1998 WL 702272 (S.D.N.Y. Oct.8, 1998); Beogradska Banka A.D. Belgrade v. Interenergo, Inc., No. 97 CIV. 2065, 1998 WL 661481 (S.D.N.Y. Sept.24, 1998); Jugobank A.D. Belgrade v. Sidex Int’l Furniture Corp., 2 F.Supp.2d 407 (S.D.N.Y.1998); Yucyco Ltd. v. Republic of Slovenia, 984 F.Supp. 209 (S.D.N.Y.1997); Federal Republic of Yugoslavia v. Park-71st Corp., 913 F.Supp. 191 (S.D.N.Y.1995). . Macedonia was not admitted to the United Nations until April 1993. Woodward at 412. Recognition of Macedonia by most EU states did not come until December 1993, and the United States recognized Macedonia in February 1994. ." }, { "docid": "7828509", "title": "", "text": "motions to dismiss, as non-justi-eiable political questions, claims to debt obligations based on plaintiff FRY bank’s alleged succession to SFRY bank’s assets); Yucyco, Ltd. v. Republic of Slovenia, 984 F.Supp. at 217 (granting motions to dismiss, as non-justiciable political questions, claims by plaintiff creditor against Slovenia on SFRY contracts); Yucyco, Ltd. v. Republic of Croatia, 1997 WL 728173, at *1 (companion case to id., holding same as against Croatia); Park-71st, 913 F.Supp. at 193-95 (dismissing, as non-justiciable political question, claim by plaintiff FRY to SFRY-owned apartment). Yucyco, in many ways the most factually on-point of the SFRY asset/liability cases, held that even though “Slovenia clearly constitutes a successor state” to the SFRY, 984 F.Supp. at 217, the court could not adjudicate claims against Slovenia as an SFRY successor because of the political questions entailed in apportioning liability among all the SFRY successors: While the international norm may arguably be that a successor state should be held liable for a share of its predecessor’s liabilities, plaintiff has not offered any basis by which this Court may ‘equitably’ apportion Slovenia’s liability, if any.... [Resolution of [plaintiffs’] claims would require this Court to make policy determinations — including, for example, apportionment of responsibility among the five new republics — for which the Court is ill-suited and “of a kind clearly for nonjudicial discretion.” 984 F.Supp. at 219 (quoting Baker, 369 U.S. at 217, 82 S.Ct. at 710). Other courts in this district have concurred that even where defendants’ successorship to the SFRY is established, allocation of SFRY assets and liabilities among multiple successors remains entirely unclear, and a judicial finding of liability based on the successors’ SFRY inheritances therefore would present non-justiciable political questions. Beogradska Banka, after noting that “judges in this District have held that claims by the FRY[ ] and other successor states to assets of the former SFRY present nonjusticiable political questions,” 1998 WL 661481, at *6, rejected the suggestion that court could “determine whether a plaintiff can recover assets from a defendant but only on the condition that the plaintiff cannot be awarded the assets because such an award" }, { "docid": "7828512", "title": "", "text": "independence; conversely, it may not be clear that each nation ceased availing itself of all SFRY privileges on any particular date of independence. Consequently, any one date, even one the United States officially recognizes as a date of independence, may not be the exact date on which an SFRY successor’s responsibility for SFRY lease liabilities terminated. Croatia, for example, argues that by the time the 1991 lease extensions all took effect, “fighting already had occurred and Croatia already had declared its independence of the SFRY,” and “the premises in question were never made available to Croatia or the other successors” than the FRY. Croatia MenrSupp.Mot. Dismiss at 8 n. 4, 9. The FRY counters that Croatia, after declaring independence, continued to negotiate “a continuation of the former Yugoslavia except in ... a looser structure.” Tr* at 64. These questions regarding dates of successorship would thrust political questions directly into the liability phase of adjudication. Similarly, this court cannot adopt the United States proposal to define the political questions more narrowly, with only the five state defendants dismissed and with the case allowed to proceed as against the SFRY tenant defendants. U.S. Mem. at 10-12. The United States position is informative, especially as to existing United States foreign policy, but not binding, especially as to legal doctrine, because: justiciability goes to the constitutional and prudential limits of the judicial power. While the views of the executive branch often will have an important bearing on a court’s determination, especially where the concern is possible conflict with a coordinate branch of government, they are not conclusive.... As Justice Brennan wrote, “[t]he Executive Branch ... cannot by simple stipulation change a political question into a cognizable claim.” Jugobank, 2 F.Supp.2d at 416 (S.D.N.Y.1998) (quoting First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 788-89, 92 S.Ct. 1808, 32 L.Ed.2d 466 (1972) (Brennan, J., dissenting), and noting that “[t]his aspect of Justice Brennan’s dissent ... commanded a majority of the Court”). Conversely, “even an assertion of the political question doctrine by the Executive Branch, entitled to respectful consideration, would not necessarily preclude" }, { "docid": "17964307", "title": "", "text": "OPINION KAPLAN, District Judge. In the early part of the 1990’s, the secession of Slovenia, Croatia, and Bosnia and Herzogovina led to the dissolution of the Socialist Federated Republic of Yugoslavia (“SFRY”). Tidal forces driven by ethnic, religious, and nationalistic rivalries in the wake of that collapse have inflicted an extended period of strife on the region. These four actions are part of that turmoil. Jugobanka A.D. Belgrade (“Jugobanka”), a banking corporation organized under the laws of the Federal Republic of Yugoslavia (Serbia & Montenegro) (“FRY (S & M)”), claims to be the successor of Jugobanka United Bank (“United”) and Jugobanka D.D. Belgrade (“DD Belgrade”), both of which were organized under the laws of the SFRY. It here sues to collect ostensibly ordinary commercial debts and guarantees contracted by the defendants with United and DD Belgrade prior to the dissolution of the SFRY. The defendants contend that the concededly defaulted obligations may not be pursued here because (1) Jugobanka is an agency or instrumentality of the FRY (S & M), an unrecognized foreign state, and therefore lacks standing, and (2) the adjudication of these claims would require the Court to address non-justiciable political questions relating to the dissolution of the SFRY. They assert, moreover, that the loans at issue were made from the currency reserves of the central bank of the former SFRY in furtherance of a governmental export program and therefore are assets of the SFRY. In defendants’ submission, to permit plaintiff, allegedly an instrumentality of the FRY (S & M), to recover would provide these assets to the FRY (S & M) in derogation of the rights of the four other putative successors of the SFRY. One of the defendants, moreover, has asserted counterclaims by which it seeks to hold Jugobanka liable for alleged confiscation by the FRY (S & M) of its assets located in the territory of the FRY (S & M). Background The Parties As noted, Jugobanka is a banking corporation organized under the laws of the FRY (S & M). It contends that it is the sole successor to DD Belgrade, formerly United, which" }, { "docid": "2595836", "title": "", "text": "it presented nonjusticiable political question); Yucyco, 984 F.Supp. at 219; Federal Republic of Yugoslavia, 913 F.Supp. at 195. Accordingly, that is what should be done here. Conclusion We affirm the district court’s decision as to justiciability. However, we vacate the stay, remand to the district court, and direct it to dismiss the complaint. . See, e.g., Interpamil GMBH v. Collectibles, Inc., No. 97 CIV. 9076, 1999 WL 1043960 (S.D.N.Y. Nov.16, 1999); Sage Realty Corp. v. Jugobanka D.D., No. 95 CIV. 0323, 1998 WL 702272 (S.D.N.Y. Oct.8, 1998); Beogradska Banka A.D. Belgrade v. Interenergo, Inc., No. 97 CIV. 2065, 1998 WL 661481 (S.D.N.Y. Sept.24, 1998); Jugobank A.D. Belgrade v. Sidex Int’l Furniture Corp., 2 F.Supp.2d 407 (S.D.N.Y.1998); Yucyco Ltd. v. Republic of Slovenia, 984 F.Supp. 209 (S.D.N.Y.1997); Federal Republic of Yugoslavia v. Park-71st Corp., 913 F.Supp. 191 (S.D.N.Y.1995). . Macedonia was not admitted to the United Nations until April 1993. Woodward at 412. Recognition of Macedonia by most EU states did not come until December 1993, and the United States recognized Macedonia in February 1994. . See also Security Council Resolution 777, September 19, 1992, recommending that the FRY cannot automatically continue the membership of the former SFRY and must apply for membership. Woodward at 407. . In Baker, the Court stated that: Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discre-lion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U.S. at 217, 82 S.Ct. 691. . The FRY does not appeal from the district court's ruling staying its cross-claim. . Public debt is defined as debt" } ]

[ { "docid": "13195437", "title": "", "text": "only have been intelligently determined by competent medical experts. However, we do not know if the jury did decide the right ear was burned. It was not essential for it to do so in order to return a verdict for the plaintiff because there was evidence that an electric shock may leave no external signs upon a body at all. Even if the jury did conclude that the right ear of Forbes was burned, it was clearly competent to do so on the basis of this evidence and all the other evidence presented. The demand for a positive assertion by Dr. Leary that the wound was definitely a burn ignores “the cautious manner of physicians”, Christie v. Callahan, supra [75 U.S.App.D.C. 133, 124 F.2d 831], and such an assertion was clearly not necessary in this action to support the jury verdict. Chicago, M. & St. P. Ry. Co. v. Moore, 8 Cir., 166 F. 663, 23 L.R.A.,N.S., 962; Wigmore on Evidence, 3rd Ed. § 2090. The defendants also contend that the district court committed reversible error in allowing the introduc tion of testimony regarding electricity and in denying defendants’ motion to strike all such testimony from the record. We find no merit in this contention. The other evidence in the case clearly reveals the relevancy and materiality of this testimony. See Bartkoski v. Pittsburgh & Lake Erie R. Co., 3 Cir., 1949, 172 F.2d 1007. Also, the trial judge was exceedingly cautious in the proper presentation of the testimony on electricity. A final contention of the .defendants is that the damages awarded by the jury were grossly excessive. In previous decisions we have reviewed the action of the trial court only to determine whether or not it committed an abuse of discretion in denying a new trial on the ground that the damages awarded by the jury were grossly excessive. McCoy v. Cate, 1 Cir., 1941, 117 F.2d 194; New York, N. H. & H. R. Co. v. Zermani, 1 Cir., 1952, 200 F.2d 240, certiorari denied, 1953, 345 U.S. 917, 73 S.Ct. 729. What constitutes an abuse of discretion" } ]

[ { "docid": "11362713", "title": "", "text": "or substitute its own judgment for that of the jurors, for to do so would violate a constitutional privilege to have the fair verdict of the jury and not the fair judgment of the court.” * * * The rule is: The trial judge will not interfere with a jury’s verdict simply because it is greater than his own estimate. Only where the verdict is so grossly excessive as to shock the conscience of the court and clearly manifest that it was the result of caprice, passion, partiality, prejudice, corruption, or other improper motives, will the court intervene. In determining whether a verdict is excessive it must be remembered that the maximum amount which a jury might properly award as damages under the evidence in a personal injury case cannot be determined with any degree of certainty, and must be largely a matter of judgment. The view most favorable to the plaintiff must be inferred from the evidence, and if there is substantial evidence to sustain the verdict it will not be disturbed. Consideration can properly be given to the impaired purchasing power of money and the increased cost of living. The idea behind providing money compensation for personal injuries is to provide something of value for the injury. Jennings v. McCowan, 215 S.C. 204, 55 S.E.2d 522, 531, 532. Money, and of more importance, what it will buy, is the only recompense the law can make available in this case. Quoting Judge Parker in Virginian Ry. Co. v. Armentrout, 166 F.2d 400, 407, 4 A.L.R.2d 1064 (4th Cir. 1948), in reversing an award for excessiveness: Ordinarily, of course, the amount of damages is for the jury, and whether a verdict should be set aside as excessive is a matter resting in the discretion of the trial judge. This, however, is not an arbitrary but a sound discretion, to be exercised in the light of the record in the case and within the amounts prescribed by reason and experience; and where a verdict is so excessive that it cannot be justified by anything in the record or of which the" }, { "docid": "22057168", "title": "", "text": "be had as may be just under the circumstances.” . First Circuit: Ballard v. Forbes, 1954, 208 F.2d 883. Third Circuit: Wooley v. Great Atlantic & Pacific Tea Co., 1960, 281 F.2d 78; Trowbridge v. Abrasive Co. of Philadelphia, 1951, 190 F.2d 825. Fourth Circuit: Virginia Ry. Co. v. Armentrout, 1948, 166 F.2d 400, 4 A.L.R. 2d 1064. Sixth Circuit: Sebring Trucking Co. v. White, 1951, 187 F.2d 486. Seventh Circuit: Bucher v. Krause, 1952, 200 F.2d 576, certiorari denied Krause v. Bucher, 1953, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404. Ninth Circuit: Siebrand v. Gossnell, 1956, 234 F.2d 81; Southern Pac. Co. v. Guthrie, 1951, 186 F.2d 926; Department of Water and Power of City of Los Angeles v. Anderson, 1938, 95 F.2d 577; Cobb v. Lepisto, 1925, 6 F.2d 128. Tenth Circuit: Smith v. Welch, 1951, 189 F.2d 832. D. C. Circuit: Boyle v. Bond, 1951, 88 U.S.App.D.C. 178, 187 F.2d 362; cf. Hulett v. Brinson, 1956, 97 U.S.App.D.C. 139, 229 F.2d 22. . See Southern Pac. Co. v. Zehnle, 9 Cir., 1947, 163 F.2d 453; Snowden v. Matthews, 10 Cir., 1947, 160 F.2d 130; Earl W. Baker & Co. v. Lagaly, 10 Cir., 1944, 144 F.2d 344, 154 A.L.R. 1098. . Dimick v. Schiedt, 1935, 293 U.S. 474, 488, 55 S.Ct. 296, 79 L.Ed. 603. . Dimick v. Schiedt, supra, 293 U.S. at pages 491-492, and note 2, 55 S.Ct. at page 303; Moore’s Federal Practice, Vol. 6, p. 3828; Riddell, New Trial at the Common Law, 26 Yale L.J. 49 (1916); Blume, Review of Facts in Jury Cases— The Seventh Amendment, 20 J.Am.Jud. Soc’y 130, 131 (1936); Comment, Federal Appellate Review of Excessive or Inadequate Damage Awards, 28 Fordham L.Rev. 500, 503 (1959); Comment, Federal Review of Excessive Verdicts, 30 Texas L.Rev. 242, 245 n. 27 (1951); Comment, 32 Mich.L.Rev. 387, 391 (1934); 65 Harv.L.Rev. 1064, 1065 (1952). . While the Court in Dimick v. Sehiedt concluded that there was some English precedent for remittur, it did not state whether in England the trial judge had the power to grant the remittitur. Since the" }, { "docid": "11167684", "title": "", "text": "excessive. * * * While the matter is not properly before us we observe in passing that the verdict cannot properly be said to be ‘monstrous’ nor such as ‘shocks the judicial conscience’, and that maniestly was the view of the trial court.” 213 F.2d at page 437. . Kilmer v. Gustason, 5 Cir., 1954, 211 F.2d 781, where the court said: “Appellants also assert that the judgments are excessive, and should for that reason be reversed, citing several Iowa cases to support the charge of excessiveness. A federal appellate court, however, does not undertake to determine whether a verdict is excessive in fact, but only whether the district court abused its discretion as a matter of law in granting or refusing a new trial on the ground of excessiveness. [Citing cases.] Certainly it can not be said that these judg- ments are so inordinately excessive as to be contrary to reason, or the result of sympathy, passion, or prejudice, so as to render them excessive in law.” At pages 783-784. Brest v. Philadelphia Transportation Co., 3 Cir., 1954, 216 F.2d 331, where the court said: “It is to be borne in mind that our function on an appeal is not the same as that of the trial judge. In his discretion he may order a new trial if he thinks a verdict excessive. Fed.R.Civ.P. 59(a), 28 U.S.C.A. In this case the trial judge thought that the verdict was more than he would have given but was not sufficiently excessive to shock his conscience. As this Court has stated in Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825, 830, we will not substitute our judgment for that of the trial court as to whether the verdict is excessive. Our function is to determino whether the verdict is so grossly excessive as to justify reversal on the ground that the denial of the motion for a new trial constituted an abuse of discretion. Ibid. We find no abuse of discretion in what the trial court did here.” Chicago, Rock Island & Pacific Ry. Co. v. Kifer, 10" }, { "docid": "22576691", "title": "", "text": "Cir., 117 F.2d 596, wherein it was held that any large verdict’ will always impel a careful search of the record for prejudicial error. Such an approach we think is misleading, for the existence or non-existence of procedural error in the trial of a cause should seldom be decisive of the propriety of the size of the verdict. There are, however, many decisions of relatively recent date, with which we find ourselves in accord, which meet head on the problem at hand and conclude that a court of review may, with propriety, ascertain whether the trial court abused its discretion in failing to grant a new trial because of an excessive verdict. Cobb v. Lepisto, 9 Cir., 6 F.2d 128; Southern Pac. Co. v. Guthrie, 9 Cir., 180 F.2d 295, on rehearing, 9 Cir., 186 F.2d 926, certiorari denied 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343; Covey Gas & Oil Co. v. Checketts, 9 Cir., 187 F.2d 561; Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R. 2d 1064; see also, Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825, 830; Consumers Power Co. v. Nash, 6 Cir., 164 F.2d 657, 660; dissenting opinions of Judge Holmes ill Sunray Oil Corp. v. All-britton, 5 Cir., 187 F.2d 475, on rehearing 188 F.2d 751. These decisions, we believe, are representative of the correct view with respect to appellate authority to review the trial court’s discretion. If that discretion be abused, this court will not be powerless to act. The question still remains, however, as to whether the power should be exercised in the present case. In undertaking this determination we are, in many respects, on an uncharted course, for damages assessed by a jury are largely discretionary with it. Thus, to reverse the judgment we must conclude that the trial court has abused its discretion in failing to conclude that the jury abused its discretion in returning a verdict of the magnitude of the one here involved. Judge Learned Hand considered this problem in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463," }, { "docid": "22057142", "title": "", "text": "the “facts” otherwise than “according to the rules of the common law.” This question the Supreme Court has expressly reserved for future determination. See Neese v. Southern Railway, supra. And there the matter stands for the present. The Rulings in Other Circuits After some changes of position, mostly by way of overruling earlier cases denying the power of review, the First, Third, Fourth, Sixth, Seventh, Ninth, Tenth and the District of Columbia Circuits “now recognize that they may reverse a judgment even though the only basis for review is the inadequacy or excessiveness of the verdict.” Moore, Vol. 6, pp. 3836-9. Recently, the Fifth Circuit appears to agree with the others. Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914; Phoenix Indemnity Co. v. Givens, 5 Cir., 1959, 263 F.2d 858, 863; cf. Sunray Oil Corp. v. Allbritton, 5 Cir., 1951, 187 F.2d 475. Even the Eighth Circuit has started to wobble a bit. See St. Louis Southwestern Ry. Co. v. Ferguson, 1950, 182 F.2d 949. We need not pause to consider in detail the rules formulated in the various Circuits to implement the exercise of the power of review. That there is, at least on the surface, a wide difference of opinion need not surprise us. Common phrases are such as: “grossly excessive,” “inordinate,” “shocking to the judicial conscience,” “outrageously excessive,” “so large as to shock the conscience of the court,” “monstrous,” and many others. See, e. g., Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F. 2d 825, 830; Whiteman v. Pitrie, supra, 220 F.2d at page 919; Sunray Oil Corp. v. Allbritton, 5 Cir., 1951, 188 F.2d 751; Russell v. Monongahela Ry., 3 Cir., 1958, 262 F.2d 349, 352; United States v. Grigalauskas, 1 Cir., 1952,-195 F.2d 494, 498; Ballard v. Forbes, 1 Cir., 1954, 208 F.2d 883, 888; Covey Gas & Oil Co. v. Checketts, 9 Cir., 1951, 187 F.2d 561, 563. In some cases the very amount of the verdict is said to justify the inference that the verdict was brought about by passion or prejudice, although it seems to us that this" }, { "docid": "22057167", "title": "", "text": "590, 95 N.W.2d 269. Wyoming: Borzea v. Anselmi, 1952, 71 Wyo. 348, 258 P.2d 796; Northwest States Utilities Co. v. Ashton, 1937, 51 Wyo. 168, 65 P.2d 235. . See Miller v. Maryland Casualty Co., 2 Cir., 1930, 40 F.2d 463, 464-465; Moore’s Federal Practice, Vol. 6, p. 3825. . See Southern Pac. Co. v. Guthrie, 9 Cir., 1951, 186 F.2d 926. . Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825; Southern Pac. Co. v. Guthrie, supra; Richter and Forer, Federal Employers’ Liability Act, 1952, 12 F.R.D. 13, 67; cf., Bainbrich v. Hammond Iron Works, supra; Wetherbee v. Elgin, Joliet & Eastern Ry., 7 Cir., 1951, 191 F.2d 302, 310. . 28 U.S.C. Section 2106. It provides: “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” . First Circuit: Ballard v. Forbes, 1954, 208 F.2d 883. Third Circuit: Wooley v. Great Atlantic & Pacific Tea Co., 1960, 281 F.2d 78; Trowbridge v. Abrasive Co. of Philadelphia, 1951, 190 F.2d 825. Fourth Circuit: Virginia Ry. Co. v. Armentrout, 1948, 166 F.2d 400, 4 A.L.R. 2d 1064. Sixth Circuit: Sebring Trucking Co. v. White, 1951, 187 F.2d 486. Seventh Circuit: Bucher v. Krause, 1952, 200 F.2d 576, certiorari denied Krause v. Bucher, 1953, 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404. Ninth Circuit: Siebrand v. Gossnell, 1956, 234 F.2d 81; Southern Pac. Co. v. Guthrie, 1951, 186 F.2d 926; Department of Water and Power of City of Los Angeles v. Anderson, 1938, 95 F.2d 577; Cobb v. Lepisto, 1925, 6 F.2d 128. Tenth Circuit: Smith v. Welch, 1951, 189 F.2d 832. D. C. Circuit: Boyle v. Bond, 1951, 88 U.S.App.D.C. 178, 187 F.2d 362; cf. Hulett v. Brinson, 1956, 97 U.S.App.D.C. 139, 229 F.2d 22. . See Southern Pac. Co. v. Zehnle, 9" }, { "docid": "22090736", "title": "", "text": "judgment affirming the judgment of the District Court. It is so ordered. Petitioner’s complaint sought damages of $250,000. This was amended with leave of the trial judge to $305,000 after the jury-returned its verdict in that amount. The Court of Appeals rejected the railroad’s grounds of appeal addressed to liability and to the dismissal of a third-party claim of the railroad against the contracting company which furnished a boom truck used by the track gang. None of those questions was brought here. All 11 courts of appeals have held that nothing in the Seventh Amendment precludes appellate review of the trial judge’s denial of a motion to set aside an award as excessive. Boyle v. Bond, 88 U. S. App. D. C. 178, 187 F. 2d 362 (1951); Compania Trasatlantica Espanola, S. A. v. Melendez Torres, 358 F. 2d 209 (C. A. 1st Cir. 1966); Dagnello v. Long Island R. Co., 289 F. 2d 797 (C. A. 2d Cir. 1961); Russell v. Monongahela R. Co., 262 F. 2d 349, 352 (C. A. 3d Cir. 1958); Virginian R. Co. v. Armentrout, 166 F. 2d 400 (C. A. 4th Cir. 1948); Glazer v. Glazer, 374 F. 2d 390 (C. A. 5th Cir. 1967); Gault v. Poor Sisters of St. Frances, 375 F. 2d 539, 547-548 (C. A. 6th Cir. 1967); Bucher v. Krause, 200 F. 2d 576, 586-587 (C. A. 7th Cir.1952); Bankers Life & Cas. Co. v. Kirtley, 307 F. 2d 418 (C. A. 8th Cir. 1962); Covey Gas & Oil Co. v. Checketts, 187 F. 2d 561 (C. A. 9th Cir. 1951); Barnes v. Smith, 305 F. 2d 226, 228 (C. A. 10th Cir. 1962). The standard has been variously phrased: “Common phrases are such as: ‘grossly excessive,’ ‘inordinate,’ ‘shocking to the judicial conscience,’ ‘outrageously excessive,’ ‘so large as to shock the conscience of the court,’ ‘monstrous,’ and many others.” Dagnello v. Long Island R. Co., supra, at 802. Mr. Justice Harlan, dissenting. I think it clear that the only issue which might conceivably justify the presence of this case in this Court is whether a United States Court of" }, { "docid": "11167685", "title": "", "text": "Co., 3 Cir., 1954, 216 F.2d 331, where the court said: “It is to be borne in mind that our function on an appeal is not the same as that of the trial judge. In his discretion he may order a new trial if he thinks a verdict excessive. Fed.R.Civ.P. 59(a), 28 U.S.C.A. In this case the trial judge thought that the verdict was more than he would have given but was not sufficiently excessive to shock his conscience. As this Court has stated in Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825, 830, we will not substitute our judgment for that of the trial court as to whether the verdict is excessive. Our function is to determino whether the verdict is so grossly excessive as to justify reversal on the ground that the denial of the motion for a new trial constituted an abuse of discretion. Ibid. We find no abuse of discretion in what the trial court did here.” Chicago, Rock Island & Pacific Ry. Co. v. Kifer, 10 Cir., 1954, 216 F.2d 753, certiorari denied 348 U.S. 917, 75 S. Ct. 299, where the court said: “A Circuit Court of Appeals may not review the action of a District Court in granting a motion for a new trial on the ground the damages awarded by the jury were excessive, because that is an error of fact. [Citing Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S. Ct. 252, 77 L.Ed. 439.] Our province is limited to determining whether the trial court, in denying the motion, abused its discretion. Ordinarily, it will not be held that the trial court abused its disere tion in denying a motion for new trial on the ground that the verdict was excessive, unless it affirmatively appears that it resulted from bias, prejudice, or passion.” 216 F.2d at pages 756-757. . Neese v. Southern Railway Co., 76 S.Ct. 131. Cf. also Snyder v. United States, 76 S.Ct. 191, where the appellate court (United States v. Guyer, 4 Cir., 1954, 218 F.2d 266) had reduced non-jury" }, { "docid": "22576690", "title": "", "text": "some comparatively recent decisions denying the right to review; the exercise of the trial court’s discretion. Scott v. Baltimore & O. R. Co., 3 Cir., 151 F.2d 61; McCoy v. Cate, 1 Cir., 117 F.2d 194. Some of these cases appear to reach the rather astounding conclusion that there is no power to- review an alleged abuse of the lower court’s discretion. Recognizing the emasculatory effect of such a doctrine on their reviewing function, some courts have resorted to “accepted” bases of review. Thus, in Earl W. Baker & Co. v. Lagaly, 10 Cir., 144 F.2d 344, 154 A.L.R. 1098 and Snowden v. Matthews, 10 Cir., 160 F.2d 130, the court indicated that passion and-prejudice on the part of the jury could, in the case of an excessive verdict, be inferred from the enormity of the sum awarded. This court has rejected such a rationale. See Wetherbee v. Elgin, Joliet and Eastern Ry. Co., supra and cases there cited. Another inventive process offered to justify review is found in Sinclair Refining Co. v. Tompkins, 5 Cir., 117 F.2d 596, wherein it was held that any large verdict’ will always impel a careful search of the record for prejudicial error. Such an approach we think is misleading, for the existence or non-existence of procedural error in the trial of a cause should seldom be decisive of the propriety of the size of the verdict. There are, however, many decisions of relatively recent date, with which we find ourselves in accord, which meet head on the problem at hand and conclude that a court of review may, with propriety, ascertain whether the trial court abused its discretion in failing to grant a new trial because of an excessive verdict. Cobb v. Lepisto, 9 Cir., 6 F.2d 128; Southern Pac. Co. v. Guthrie, 9 Cir., 180 F.2d 295, on rehearing, 9 Cir., 186 F.2d 926, certiorari denied 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343; Covey Gas & Oil Co. v. Checketts, 9 Cir., 187 F.2d 561; Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R. 2d 1064; see" }, { "docid": "17867430", "title": "", "text": "jury as to the measure of damages under the law of Washington, and warned them not to consider any distress, sorrow or mental suffering caused by the death of the daughter. Appellant moved for a directed verdict upon the close of the evidence and, after verdict, for a judgment notwithstanding the verdict or, in the alternative, for a new trial upon the grounds inter alia that “there is no sufficient or substantial evidence to support the amount of the jury’s verdict”, and that “the verdict is excessive and appears to have been given under the influence of passion and prejudice.” The able and experienced trial judge reviewed the evidence in the face of these contentions and found no cause to grant a new trial. The judgment would not be set aside in the Supreme Court of Washington as being excessive, unless it affirmatively appeared that the amount of the verdict was the result of passion or prejudice, or so grossly exceeded a just award that this result must be presumed. Scholz v. Leuer, 1941, 7 Wash.2d 76, 109 P.2d 294; Sweeten v. Pacific Power & Light Co., supra, 88 Wash. 679, 153 P. 1054. It is unnecessary now to determine whether state law should govern the scope of review of the amount awarded in a diversity case, cf. Guaranty Trust Co. of N. Y. v. York, supra, 326 U.S. at pages 111-112, 65 S.Ct. at pages 1470-1471, 89 L.Ed. 2079; Minneapolis, St. P. & S. S. M. R. Co. v. Moquin, 1931, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243; Covey Gas & Oil Co. v. Checketts, 9 Cir., 1951, 187 F.2d 561, since here identical criteria rule the review of an award in both this and the State Court. Southern Ry. — Carolina Division v. Bennett, 1914, 233 U.S. 80, 87, 34 S.Ct. 566, 58 L.Ed. 860; Bradley Min. Co. v. Boice, 9 Cir., 1951, 194 F.2d 80, 83; Southern Pac. Co. v. Guthrie, 9 Cir., 186 F.2d 926, 930-933, certiorari denied, 1951, 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343. We find nothing in the record" }, { "docid": "22576692", "title": "", "text": "also, Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825, 830; Consumers Power Co. v. Nash, 6 Cir., 164 F.2d 657, 660; dissenting opinions of Judge Holmes ill Sunray Oil Corp. v. All-britton, 5 Cir., 187 F.2d 475, on rehearing 188 F.2d 751. These decisions, we believe, are representative of the correct view with respect to appellate authority to review the trial court’s discretion. If that discretion be abused, this court will not be powerless to act. The question still remains, however, as to whether the power should be exercised in the present case. In undertaking this determination we are, in many respects, on an uncharted course, for damages assessed by a jury are largely discretionary with it. Thus, to reverse the judgment we must conclude that the trial court has abused its discretion in failing to conclude that the jury abused its discretion in returning a verdict of the magnitude of the one here involved. Judge Learned Hand considered this problem in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463, 465, where he said: “We must in effect decide whether it was within the bounds of tolerable conclusion to say that the jury’s verdict was in- the bounds of tolerable conclusion. To decide cases by such tenuous unrealities seems to us thoroughly undesirable; parties ought not to be bound by gossamer strands; judges ought not to engage in scholastic refinements.” Since this statement, little has been suggested in the way of concrete guide posts. We are told that if the verdict is “grossly excessive,” Southern Pac. Co. v. Guthrie, supra, or “monstrous,” Affolder v. New York, Chicago & St. L. R. Co., 339 U. S. 96, 101, 70 S.Ct. 509, 94 L.Ed. 683, a failure to set it aside is an abuse of discretion. While these suggested premises amount to more than “tenuous unrealites,” they are little more than comparatives dependent for their meaning upon the facts of each case, the nature of the damages, the wrong to be remedied. After full consideration, we conclude that, under the facts of this case, the trial court" }, { "docid": "22057141", "title": "", "text": "of Appeals * * * without reaching the constitutional challenge to that court’s jurisdiction to review the denial by the trial court of a motion for a new trial on the ground that the verdict was excessive. Even assuming such appellate power to exist under the Seventh Amendment, we find that the Court of Appeals was not justified, on this record, in regarding the denial of a new trial, upon a remittitur of part of the verdict, as an abuse of discretion. For apart from that question, as we view the evidence we think that the action of the trial court was not without support in the record, and accordingly that its action should not have been disturbed by the Court of Appeals.” We infer from this that the essence of the problem before us now is not whether the statute creating the appellate powers of the federal Courts of Appeals is not sufficiently broad, but whether the Seventh Amendment should be construed as forbidding this particular species of appellate review as a “reexamination” of the “facts” otherwise than “according to the rules of the common law.” This question the Supreme Court has expressly reserved for future determination. See Neese v. Southern Railway, supra. And there the matter stands for the present. The Rulings in Other Circuits After some changes of position, mostly by way of overruling earlier cases denying the power of review, the First, Third, Fourth, Sixth, Seventh, Ninth, Tenth and the District of Columbia Circuits “now recognize that they may reverse a judgment even though the only basis for review is the inadequacy or excessiveness of the verdict.” Moore, Vol. 6, pp. 3836-9. Recently, the Fifth Circuit appears to agree with the others. Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914; Phoenix Indemnity Co. v. Givens, 5 Cir., 1959, 263 F.2d 858, 863; cf. Sunray Oil Corp. v. Allbritton, 5 Cir., 1951, 187 F.2d 475. Even the Eighth Circuit has started to wobble a bit. See St. Louis Southwestern Ry. Co. v. Ferguson, 1950, 182 F.2d 949. We need not pause to consider in detail the" }, { "docid": "1938274", "title": "", "text": "crane operator, was improper because of the risk that the operator might inadvertently release the brake and drop the bucket. And the evidence could be viewed to indicate that the operator used this method on many lowerings over a considerable period of time, creating a condition of unseaworthiness. The jury was thoroughly and accurately instructed on the Usner issue, and we find no reversible error in the other aspects of the unseaworthiness charge. The cases counsel that an unseaworthiness verdict returned by a properly charged jury ordinarily should not be disturbed. See, e. g., Mahnich v. Southern Steamship Co., supra, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; Earles v. Union Barge Line Corp., supra, 486 F.2d at 1104. Heeding that advice, we affirm on the issue of liability. IV. Atlantic argues that the jury’s award of $300,000 to compensate Edynak for his injuries was clearly excessive, and that the trial judge should therefore have granted Atlantic’s motion for a new trial. We undertake our examination of this contention with the knowledge that our standard of review is severely limited. The question of the excessiveness of a verdict is primarily a matter to be addressed to the sound discretion of the district judge, and we may not disturb his determination unless a “manifest abuse of discretion” be shown. Wooley v. Great Atlantic & Pacific Tea Co., 281 F.2d 78, 80 (3d Cir. 1960); see Moore v. Swenfurth, 368 F.2d 317 (3d Cir. 1966). Stated another way, we may reverse the determination of the district judge and grant a new trial only if the verdict is “so grossly excessive as to shock the judicial conscience.” Russell v. Monongahela Ry. Co., 262 F.2d 349, 352 (3d Cir. 1958). It is simply not our function to assess what would constitute fair recompense for the injuries sustained by the plaintiff; our duty is instead to ascertain whether the trial judge, weighing all the evidence on damages, “has exercised his considered judgment as to a rational verdict in a judicial manner.” Id. See generally Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 409 F.2d" }, { "docid": "22057144", "title": "", "text": "is just another way of saying the verdict is too high. Chief Judge Parker in the Fourth Circuit case of Virginian Ry. Co. v. Armentrout, 1948, 166 F.2d 400, 407, 4 A.L.R.2d 1064, states that the discretion exercised by the trial judge must be “sound” and not “arbitrary,” and that it must be “exercised in the light of the record in the case and within the limits prescribed by reason and experience.” The Seventh Amendment The Seventh Amendment reads: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” From the very early days of the Republic trial judges seem to have assumed they had power to set aside verdicts and grant new trials on the sole ground that they were excessive, despite the fact that common law trial judges in England, prior to the adoption of the Seventh Amendment in 1791, exercised no such power, as motions for new trials were not addressed to the trial judges. And it must be borne in mind that the federal as well as the .state judges in 1791 were familiar with English and Colonial precedents. So far as we are aware, the first occasion for authoritative comment to serve as a precedent arose in 1822 when Mr. Justice Story, sitting on circuit, authorized a remittitur in Blunt v. Little, Fed.Cas.No.1,578, 3 Mason 102. From that time to this, federal trial judges have had the unchallenged power to set aside verdicts as excessive and grant new trials, and they have also exercised the salutary power to deny the motion for a new trial provided plaintiff accepted a reduced amount of recovery on remittitur. Until the landmark case of Dimick v. Sehiedt, 1935, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, involving the Question of whether additur was permissible, there appears to have been no extended research into the practices and procedures of" }, { "docid": "465013", "title": "", "text": "Local Rule 18 this case is decided without oral argument. . See Silverman v. Travelers Insurance Company, 5 Cir. 1960, 277 F.2d 257, 260, where we said: “To show an abuse of-discretion by the trial judge, appellants cite Louisiana cases in which the appellate court affirmed a larger verdict than the jury awarded in the instant case. But federal juries are not bound by the amounts Louisiana juries and Louisiana courts have awarded for wrongful death. Each federal jury determines the facts in the case before it and, under the Seventh Amendment, the jury’s verdict cannot be re-examined; although the district court, in its discretion, may set aside the verdict and grant a new trial.” . Grunenthal v. Long Island R. Co., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed. 2d 309 (1969). As footnoted in the majority opinion: “The standard has been variously phrased: ‘Common phrases are such as: “grossly excessive,” “inordinate,” “shocking to the judicial conscience,” “outrageously excessive,” “so large as to shock the conscience of the court,” “monstrous”, and many others.’ Dagnello v. Long Island R. Co., supra, at 802.” (Referring to a 1961 2nd Circuit case at 289 F.2d 797.) As more fully expressed in the dissent: “If we reverse, it must be because of an abuse of discretion. If the question of excessiveness is close or in the balance, we must affirm. The very nature of the problem counsels restraint. Just as the trial judge is not called upon to say whether the amount is higher than he personally would have awarded, so are we appellate judges not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand. We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law." }, { "docid": "22090737", "title": "", "text": "Virginian R. Co. v. Armentrout, 166 F. 2d 400 (C. A. 4th Cir. 1948); Glazer v. Glazer, 374 F. 2d 390 (C. A. 5th Cir. 1967); Gault v. Poor Sisters of St. Frances, 375 F. 2d 539, 547-548 (C. A. 6th Cir. 1967); Bucher v. Krause, 200 F. 2d 576, 586-587 (C. A. 7th Cir.1952); Bankers Life & Cas. Co. v. Kirtley, 307 F. 2d 418 (C. A. 8th Cir. 1962); Covey Gas & Oil Co. v. Checketts, 187 F. 2d 561 (C. A. 9th Cir. 1951); Barnes v. Smith, 305 F. 2d 226, 228 (C. A. 10th Cir. 1962). The standard has been variously phrased: “Common phrases are such as: ‘grossly excessive,’ ‘inordinate,’ ‘shocking to the judicial conscience,’ ‘outrageously excessive,’ ‘so large as to shock the conscience of the court,’ ‘monstrous,’ and many others.” Dagnello v. Long Island R. Co., supra, at 802. Mr. Justice Harlan, dissenting. I think it clear that the only issue which might conceivably justify the presence of this case in this Court is whether a United States Court of Appeals may constitutionally review the refusal of a district court to set aside a verdict for excessiveness. The Court purports not to decide that question, preferring to rest its decision upon the alleged correctness of the District Court’s action in the circumstances of this case. Like my Brother Stewart, I am at an utter loss to understand how the Court manages to review the District Court’s decision and find it proper while at the same time proclaiming that it has avoided decision of the issue whether appellate courts ever may review such actions. Even assuming that this feat of legal gymnastics has been successfully performed, I believe that the correctness of this particular District Court decision, a matter whose proper resolution depends upon a detailed examination of the trial record and which possesses little if any general significance, is not a suitable issue for this Court. Accordingly, I think it appropriate to vote to dismiss the writ as improvidently granted, even though the case formally is here on an unlimited writ. See my dissenting opinion" }, { "docid": "22057143", "title": "", "text": "rules formulated in the various Circuits to implement the exercise of the power of review. That there is, at least on the surface, a wide difference of opinion need not surprise us. Common phrases are such as: “grossly excessive,” “inordinate,” “shocking to the judicial conscience,” “outrageously excessive,” “so large as to shock the conscience of the court,” “monstrous,” and many others. See, e. g., Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F. 2d 825, 830; Whiteman v. Pitrie, supra, 220 F.2d at page 919; Sunray Oil Corp. v. Allbritton, 5 Cir., 1951, 188 F.2d 751; Russell v. Monongahela Ry., 3 Cir., 1958, 262 F.2d 349, 352; United States v. Grigalauskas, 1 Cir., 1952,-195 F.2d 494, 498; Ballard v. Forbes, 1 Cir., 1954, 208 F.2d 883, 888; Covey Gas & Oil Co. v. Checketts, 9 Cir., 1951, 187 F.2d 561, 563. In some cases the very amount of the verdict is said to justify the inference that the verdict was brought about by passion or prejudice, although it seems to us that this is just another way of saying the verdict is too high. Chief Judge Parker in the Fourth Circuit case of Virginian Ry. Co. v. Armentrout, 1948, 166 F.2d 400, 407, 4 A.L.R.2d 1064, states that the discretion exercised by the trial judge must be “sound” and not “arbitrary,” and that it must be “exercised in the light of the record in the case and within the limits prescribed by reason and experience.” The Seventh Amendment The Seventh Amendment reads: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” From the very early days of the Republic trial judges seem to have assumed they had power to set aside verdicts and grant new trials on the sole ground that they were excessive, despite the fact that common law trial judges in England, prior to the" }, { "docid": "11362714", "title": "", "text": "properly be given to the impaired purchasing power of money and the increased cost of living. The idea behind providing money compensation for personal injuries is to provide something of value for the injury. Jennings v. McCowan, 215 S.C. 204, 55 S.E.2d 522, 531, 532. Money, and of more importance, what it will buy, is the only recompense the law can make available in this case. Quoting Judge Parker in Virginian Ry. Co. v. Armentrout, 166 F.2d 400, 407, 4 A.L.R.2d 1064 (4th Cir. 1948), in reversing an award for excessiveness: Ordinarily, of course, the amount of damages is for the jury, and whether a verdict should be set aside as excessive is a matter resting in the discretion of the trial judge. This, however, is not an arbitrary but a sound discretion, to be exercised in the light of the record in the case and within the amounts prescribed by reason and experience; and where a verdict is so excessive that it cannot be justified by anything in the record or of which the court can take judicial notice, it is the duty of the judge to set it aside. See also 3 Barron & Holtzoff Federal Practice and Procedure (Wright Ed.) § 1304. Under all the facts appearing, the verdict is clearly not excessive, nor does it shock the conscience of the Court. Defendant has also asked the Court to consider remittitur of a portion of the verdict. Asking this Court to exercise its discretion as “the thirteenth juror,” Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 353 (4th Cir. 1941), defendant says that the verdict is “unduly liberal in view of the credible medical evidence regarding the plaintiff’s future progress and diminishing disability.” First of all, it is not the function of the trial judge to say which of the experts is more credible. “A medical expert may be asked to give the court the benefit of his medical knowledge so far as it may be relevant and material to an issue before the court * * Thornton v. Victory Carriers, Inc., 338 F.2d 959," }, { "docid": "23108524", "title": "", "text": "same power and duty which the trial judge has to set aside any verdict and grant a new trial when he is of the opinion the verdict is against the weight of evidence, is that which the trial court frequently exercises in ordering a new trial, or in conditioning denial of a new trial on a remittitur because, in the opinion of the court, the amount of the verdict is against the weight of the evidence. But this power and duty belongs exclusively to the trial judge. It is not for us to give directions in such a case, even although he may have declined to take action, such as we consider we would have done had we been in his place. United States v. Socony-Vacuum Oil Co., supra. We are convinced that even if we assume, as we do, that Cobb v. Lepisto, supra, and Virginian Ry. Co. v. Armentrout, supra, were correctly decided, we cannot here reverse the action of the trial court unless the verdict can be said to be “grossly excessive”, or as stated in the Affolder case, “monstrous”. We think that the verdict in this case cannot be so characterized. The judgment is affirmed. . The requested instruction approved in Gulf, C. & S. F. R. Co. v. Moser, 275 U. S. 133, 135, 48 S.Ct. 49, 50, 72 L.Ed. 200, referred to “the highest net rate of interest”. The most recent opinion on the question of an appropriate interest is Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 407, 4 A.L.R.2d 1064, which called 3% interest “a conservative estímate of return”. . In addition to the cases there cited are the following, to the same effect: Feltman v. Sammond, 82 U.S.App.D.C. 4.04, 166 F.2d 213; Reid v. Nelson, 5 Cir., 154 F.2d 724; Chicago & N. W. Ry. Co. v. Green, 8 Cir., 164 F.2d 55; Herzig v. Swift & Co., 2 Cir., 154 F.2d 64. . In the Department of Water and Power ease, supra, the court found the verdict not to be “grossly excessive”. . “That it might be desirable" }, { "docid": "22254241", "title": "", "text": "v. Red Cab Co., supra, 303 U.S. at 289, 58 S.Ct. at 590. Furthermore, we acknowledge readily the danger of depriving a plaintiff of a possible right to a jury trial. But the day has long gone in this circuit when a jury has had the last word on the size of personal injury awards. “This court has succinctly and frequently stated that the question of excessiveness of a verdict is primarily a matter to be addressed to the sound discretion of the trial court.” Russell v. Monongahela Ry. Co., 262 F.2d 349, 352 (3d Cir. 1958). Moreover, we have indicated that the trial court should not permit a jury verdict to stand where there has been a “showing that the jury was biased or acted capriciously or unreasonably.” Derewecki v. Pennsylvania R. Co., 353 F.2d 436, 444 (3d Cir. 1965). Nor is the court of appeals without responsibility in reviewing the verdict. In Grunenthal v. Long Island R. Co., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed. 2d 309 (1968), the Supreme Court discussed the Second Circuit’s standard of review announced in Dagnello v. Long Island R. Co., 289 F.2d 797, 806 (2d Cir. 1961): “[W]e appellate judges [are] not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand. We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law.” We read Dagnello, however, as requiring the Court of Appeals in applying this standard to make a detailed appraisal of the evidence bearing on damages. The Court stated that this standard has been variously phrased as “ ‘grossly excessive,’ ‘inordinate,’ ‘shocking to the judicial conscience,’ ‘outrageously excessive,’ ‘so large as to shock the conscience of the court,’ ‘monstrous.’ ” 393 U.S. 159," } ]

[ { "docid": "22468136", "title": "", "text": "by the Tax Court. That Court, on April 5, 1948, found that the proceeds of the transaction constituted income and that no part of it was chargeable to transfer of good will. It assessed a deficiency in excess profits taxes of $124,073.01 for the year 19-13. This is a petition to review the order. In the main, the issue is: Did the sale of the inventory on hand, the lease of the premises, and the transfer ■of the. enumerated accessories constitute, in whole or in part, a capital transaction? II Scope of Review Consideration of the questions involved turns upon the scope of our review of the decision of the Tax Court. By recent statutory enactment, Internal Revenue Code, Section 1141(a), as amended by Section 36, Public Law 773, 80th Congress, Second Session, 26 U.S. C.A. § 1141(a), it is decreed that this Court’s jurisdiction to review shall be “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury”. This reads into the Internal Revenue Code the provision of the Federal Rules of Civil Procedure that: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. In the application of this rule and of the equity rule, which prior to the adoption of the Federal Rules of Civil Procedure governed review of equity cases only and which the rules made of universal application in all civil cases, United States v. United States Gypsum Company, 1948, 333 U.S. 364, 394, 68 S.Ct. 525, reviewing courts have emphasized the importance of the conclusions of the trial judge which derive from his opportunity to pass upon the credibility of the witnesses. And they have declined to resolve a conflict in the testimony of witnesses their own way. Davis v. Schwartz, 1895, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289; Adamson v. Gilliland, 1917, 242 U.S. 350, 353, 37" } ]

[ { "docid": "7039736", "title": "", "text": "of Internal Revenue v. P. G. Lake, Inc., 1958, 356 U.S. 260, 266, 78 S.Ct. 691, 695, 2 L.Ed. 2d 743, 749. Affirmed. . This is discussed in considerable detail by us in Sun Properties v. United States, 5 Cir., 1955, 220 F.2d 171. Its application and expression are found in many situations. Of course, all speak in terms that a motive to minimize taxes is not improper. Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Higgins v. Smith, 1940, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406; Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Commissioner of Internal Revenue v. Tower, 1946, 327 U.S. 280, 288, 66 S.Ct. 532, 90 L.Ed. 670; United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 455, 70 S.Ct. 280, 94 L.Ed. 251; Mill Ridge Coal Co. v. Patterson, 1959, 5 Cir., 264 F.2d 713, certiorari denied 361 U.S. 816, 80 S.Ct. 57, 4 L.Ed.2d 63; W. H. Armston Co. v. Commissioner, 1951, 5 Cir., 188 F.2d 531; Ernest W. Brown, Inc. v. Commissioner, 2 Cir., 1958, 258 F.2d 829; Gilbert v. Commissioner, 2 Cir., 1957, 248 F.2d 399, 404-406; Weller v. Commissioner, 3 Cir., 1959, 270 F.2d 294, 296-297. . The Texas Insurance Board Examiner’s Annual Report (June 30, 1955) on Consolidated defines group credit insurance: “The business classified as group credit insurance consists of master group policy contracts made directly with the home office, issued to loan and/or commercial institutions as the sole beneficiaries. The contract provides for payment to the creditor [policyholder] the amount of indebtedness owed by a borrower in the event of the [borrower’s] demise or disability. The insured creditor [policyholder] is required to furnish the company each month with a statement of the aggregate outstanding balances covered under the contract and other pertinent information.” The finance company is then at one and the same time a lender, a policyholder and the sole beneficiary of the policy. The policies here required that the policyholder apply the amounts received on the indebtedness" }, { "docid": "5402866", "title": "", "text": "a taxpayer has the legal right to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits; United States v. Isham, 17 Wall. 496, 506, 21 L.Ed. 728; Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 79 L.Ed. 596; Commissioner v. Tower, 327 U.S. 280, 288, 66 S.Ct. 532, 90 L.Ed. 670, and that the taxpayer’s motive to avoid taxation will not establish liability if the transaction does not do so without it. United States v. Cummins Distilleries Corp., 6 Cir., 166 F.2d 17, 20; Chisholm v. Commissioner, 2 Cir., 79 F.2d 14, 15, 101 A.L.R. 200, certiorari denied Helvering v. Chisholm, 296 U.S. 641, 56 S.Ct. 174, 80 L.Ed. 456; United States v. Cumberland Public Service Co., 338 U.S. 451, 455, 70 S.Ct. 280, 94 L.Ed. 251. It is equally well settled that this principle does not prevent the Government from going behind the form which the transaction takes and ascertaining the reality and genuineness of the component parts of the transaction in order to determine whether the transaction is really what it purports to be or is merely a formality without substance which for tax purposes can and should be disregarded. Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Minnesota Tea Co. v. Helvering, 302 U.S. 609, 58 S.Ct. 393, 82 L.Ed. 474; Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L. Ed. 406; Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Bazley v. Commissioner, 331 U.S. 737, 67 S.Ct. 1489, 91 L.Ed. 1782; Tennessee, Alabama & G. Ry. Co. v. Commissioner, 6 Cir., 187 F.2d 826. The question accordingly presented is not whether the overall transaction, admittedly carried out for the purpose of avoiding taxes, actually avoided taxes which would have been incurred if the transaction had taken a different form, but whether the stock dividend was a stock dividend in substance as well as in form. No question is raised about the legality of the declaration of the dividend." }, { "docid": "9958370", "title": "", "text": "National Banking Associations, from 2130-C, Revised March, 1960, issued by the Comptroller of the Currency, Treasury Department. . The House Ways and Means Committee, reported, H.Rep. No. 1337, 83d Cong., 2d Sess., p. A106; 3 U.S.C.Cong. & Adm. News (1954) 4244: “Sec. 333 incorporates in the bill rules for treatment of the problem raised in the decisions of Commissioner [of Internal Revenue] v. Court Holding Co. (324 U.S. 331, 65 S.Ct. 707 [89 L.Ed. 981]) and U. S. v. Cumberland Public Service Co. (338 U.S. 451, 70 S.Ct. 280 [94 L. Ed. 251]) and the numerous related cases. These decisions concern the question of whether the corporation or a shareholder effected a sale of property in connection with a liquidation. Under the decision in the Cumberland Pub-lie Service Co. case, supra, it is indicated that in the case of an actual distribution in liquidation of the corporation prior to an actual sale by the shareholders a single tax (is) imposed at the shareholder level. Accordingly, under present law, the tax consequences arising from sales made in the course of liquidation depend primarily upon the formal manner in which transactions are arranged. The possibility that double taxation may occur in such cases results in causing the problem to be a trap for the unwary. “Your committee intends in Sec. 333 to provide a definitive rule which will eliminate any uncertainty.”" }, { "docid": "9456661", "title": "", "text": "of corporate assets following distribution should realistically be attributed to the stockholders or to the corporation. Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 affirming 1949, 83 F.Supp. 843, 113 Ct.Cl. 460. Other courts have tested completed dividend transactions under the “business purpose” doctrine of Gregoxy v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, when it appeared that distributions of property were sham transactions made only to avoid taxes. Commissioner of Internal Revenue v. Transport Trading & Terminal Corp., 2 Cir., 1949, 176 F.2d 570. This court has decided related problems. American Telegraph & Cable Co. v. United States, 1925, 61 Ct.Cl. 326, certiorari denied, 1926, 271 U.S. 660, 46 S.Ct. 473, 70 L.Ed. 1137; Guinness v. United States, 1947, 73 F.Supp. 119, 109 Ct.Cl. 84; Rudco Oil & Gas Co. v. United States, 1929, 82 F.Supp. 746, 113 Ct.Cl. 206; Cumberland Public Service Co. v. United States, supra; Telephone Directory Advertising Co. v. United States, 1956, 142 F.Supp. 884, 135 Ct.Cl. 670. The question presented by the case at bar is yet another aspect of the over-all problem, the question being whether the fact of liquidation prior to the actual collection of the accounts receivable prevents their being realized by and taxed to the corporation even though the corporation itself earned the money and fully perfected its right to receive the money prior to liquidation. The resolution of this problem must start with the decision of the Supreme Court in General Utilities & Operating Co. v. United States, 1935, 296 U.S. 200, 56 S.Ct. 185, 80 L.Ed. 154, a case which concerned the distribution by a corporation of appreciated stock as a dividend in kind to its stockholders. Relying on United States v. Kirby Lumber Co., 1931, 284 U.S. 1, 52 S.Ct. 4, 76 L.Ed. 131, the Commissioner declared a taxable gain to the utility corporation upon the distribution of the stock in payment of a dividend. The" }, { "docid": "9456660", "title": "", "text": "thereon as transferee of the corporation. In the individual income tax return filed by the plaintiff and his wife for the calendar year 1955 showing his gain on the liquidation and dissolution of the corporation, the plaintiff included the accounts receivable of $192,052.08 at face value among the assets he received in exchange for his capital stock. On June 24, 1958, the plaintiff, as transferee of the corporation, filed a timely claim for refund with the Commissioner. The claim was disallowed in full and this suit was filed. Through the years, transfers of money and property between related corporations or between corporations and individual stockholders have produced an entire series of tax problems for the courts and the Congress. When these transfers take the fox-m of dividends in kind and when subsequent to distribution the property is sold or otherwise converted into money by the stockholders the px'oblems and the solutions become highly complex. Twice in recent years the Supreme Court has addressed itself to one aspect of the general problem in determining whether sales of corporate assets following distribution should realistically be attributed to the stockholders or to the corporation. Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 affirming 1949, 83 F.Supp. 843, 113 Ct.Cl. 460. Other courts have tested completed dividend transactions under the “business purpose” doctrine of Gregoxy v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, when it appeared that distributions of property were sham transactions made only to avoid taxes. Commissioner of Internal Revenue v. Transport Trading & Terminal Corp., 2 Cir., 1949, 176 F.2d 570. This court has decided related problems. American Telegraph & Cable Co. v. United States, 1925, 61 Ct.Cl. 326, certiorari denied, 1926, 271 U.S. 660, 46 S.Ct. 473, 70 L.Ed. 1137; Guinness v. United States, 1947, 73 F.Supp. 119, 109 Ct.Cl. 84; Rudco Oil & Gas Co. v. United States, 1929, 82 F.Supp. 746, 113 Ct.Cl. 206; Cumberland Public Service" }, { "docid": "7039735", "title": "", "text": "of reasonableness of the premiums or the reasonableness of the Taxpayer’s using this route to insure outstanding indebtedness. For our purposes, we may accept it as reasonable. At the same time we fully concur in the finding of the District Court that this was not what it appeared to be: a stock purchase with earnings from the stockholder’s insurance business being returned as corporate dividends. What the Taxpayer did in fact — as it was entitled as a business concern to do — was to purchase insurance and receive back as a return of premiums that part of the premiums not needed for claims and claims administration. That the return was cast in the shape of a corporate dividend was to make it appear to be something other than what it was in fact. It was not earnings. It was the return of an unused, unneeded premium. It was the return to the policyholder of money which the insurer bound itself to deliver. “These arrangements” with these fictional dividends are “to us transparent devices.” Commissioner of Internal Revenue v. P. G. Lake, Inc., 1958, 356 U.S. 260, 266, 78 S.Ct. 691, 695, 2 L.Ed. 2d 743, 749. Affirmed. . This is discussed in considerable detail by us in Sun Properties v. United States, 5 Cir., 1955, 220 F.2d 171. Its application and expression are found in many situations. Of course, all speak in terms that a motive to minimize taxes is not improper. Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Higgins v. Smith, 1940, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406; Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Commissioner of Internal Revenue v. Tower, 1946, 327 U.S. 280, 288, 66 S.Ct. 532, 90 L.Ed. 670; United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 455, 70 S.Ct. 280, 94 L.Ed. 251; Mill Ridge Coal Co. v. Patterson, 1959, 5 Cir., 264 F.2d 713, certiorari denied 361 U.S. 816, 80 S.Ct. 57, 4 L.Ed.2d 63; W. H. Armston Co. v." }, { "docid": "7320900", "title": "", "text": "by 1950. They started the enterprise acquiring land for homes development in Downey, California, in mid 1950, and having organized the corporations Aldon Homes, Inc., to do the actual work of development they organized 16 so-called alphabet corporations to function substantially the same as the multiple corporations in this case. After thorough consideration of all the circumstances and contentions, the Tax Court concluded “that the 16 alphabet corporations * * * were not organized for any purpose other than the obtaining of tax benefits; that they did not carry on the business activities which resulted in the profits from the development of Tract 17169, nor any substantial business 'activities and consequently did not earn the income in question; that though legal entities in form, for purposes of taxation they were unreal and sham,' and are to be disregarded.” In reaching its conclusion, the Tax Court recognized as axiomatic the right of taxpayers “to mold business transactions in a manner as to minimize the incidence of taxation” and’that “no taxpayer is obligated to pay more tax than the law demands of him.” United States v. Isham, 17 Wall. 496, 84 U.S. 496, 21 L.Ed. 728; Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251. But on the other hand, the Court declared as settled law that “the incidence of taxation depends upon the substance of a transaction” and that “to permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress.” Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981. As was earlier stated in Gregory v. Helvering, supra, [293 U.S. 465, 55 S.Ct. 268] “to hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.” In National Investors Corp. v. Hoey, 2 Cir., 144 F.2d 466, 468, Judge Learned" }, { "docid": "15794533", "title": "", "text": "was one in form only, incorporated for the sole purpose of avoiding taxes and having no legitimate business purpose, masquerading under the corporate form, and accordingly not a bona fide corporation.” Whether for tax purposes several acts constitute separate and distinct transactions or are integrated steps in a single transaction is a question of fact. United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251; Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; Houck v. Hinds, 10 Cir., 215 F.2d 673. We agree with the Tax Court’s ultimate finding of fact that the conveyance of the land “to Hollywood Subdivision, Inc.; the issuance of the stock of Hollywood Subdivision, Inc., to petitioner; the transfer of such stock by petitioner to Hollywood Terrace, Inc., and the receipt by petitioner of a note in the sum of $175,000 were component parts of a single transaction, by which petitioner effected a sale of land in the ordinary course of business.” With regard to the contention that, though reporting the entire income for the transaction for the tax year 1948, petitioner may now change his choice of that year and have the income redistributed through the successive years in which he received installment payments on his note, the decision of the Tax Court is clearly upheld by the Supreme Court in Pacific National Co. v. Welch, 304 U.S. 191, 58 S.Ct. 857, 82 L.Ed. 1282. In that case taxpayer wished to recompute on the installment method a return using an inept application of the deferred payment method. It was conceded that if taxpayer could recompute it would result in lower taxes, but the court said the method used by taxpayer fairly reflected income. The court also stated at pages 194-195 of 304 U.S., at page 858 of 58 S.Ct.: “Change from one method to the other, as petitioner seeks, would require recomputation .and readjustment of tax liability for subsequent years and impose burdensome uncertainties upon the administration of the revenue laws. It would operate to enlarge the statutory period" }, { "docid": "21180024", "title": "", "text": "gain from the sale of property incident to liquidation of such a subsidiary, and this irrespective of whether the sale was made by the subsidiary before liquidation or by the parent thereafter. If the subsidiary sold before liquidating, it was subject to the same tax as any other seller; if the parent sold after the liquidation, the same tax would normally be payable, since § 113(a) (15) provided that in such cases the basis of the property to the distributee should, generally speaking, remain what it had been to the transferor; and there would be no tax on gain from the liquidation itself. Parent and 80% owned subsidiary were thus freed from one of the two taxes imposed in other cases when sale at a gain preceded liquidation at a gain, and hence from any need to seek means which often were cumbersome and sometimes impractical in an effort to avoid one of them. See C. I. R. v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945); United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 (1950). H.R. 8300, as reported by the Ways and Means Committee on March 9, 1954 (83d Cong.2d Sess., H.R.Rep. 1337), contained comprehensive new provisions dealing with corporate liquidations,' pp. 4238-4253, The basic approach was “to limit taxation at the time of complete or partial liquidation of the corporation to amounts distributed which are reflected in the basis of the assets in the hands of the liquidating corporation,” p. 4238. Because of this, no special provision with respect to the liquidation of a wholly owned subsidiary was needed. To deal with the Court Holding — Cumberland problem the Committee sought to provide “a definitive rule which will eliminate any uncertainty,” p. 4244, by stating that no gain should be recognized to a corporation upon the sale of an asset if the sale was made after adoption of a plan of liquidation and the liquidation was completed within the taxable year in which the sale occurred or the succeeding taxable year. The new provisions" }, { "docid": "14331258", "title": "", "text": "50 S.Ct. 169, 74 L.Ed. 504. . United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 455, 70 S.Ct. 280, 282, 94 L.Ed. 251. . . Helvering v. Horst, 1940, 311 U.S. 112, 118, 61 S.Ct. 144, 85 L.Ed. 75; Seattle Renton Lumber Co. v. United States, 9 Cir., 1943, 135 F.2d 989; Lum v. Commissioner, 3 Cir., 1945, 147 F.2d 356; United States v. Cummins Distilleries Corp., 6 Cir., 1948, 166 F.2d 17, 20; Commissioner of Internal Revenue v. First State Bank, 5 Cir., 1948, 168 F.2d 1004, 1007-1009; Twin Oaks Company v. Commissioner, 9 Cir., 1950, 183 F.2d 385, 387. . Regulation 111, Sec. 29.52-1, 26 Code of Federal Regulations, 1949, ed., p. 328. “A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued.” . Regulation 111, Sec. 29.22 (a)-20, 26 Code of Federal Regulations, 1949 cd., p. 176. . Regulation 111, Subpart (F), Sec. 29.3797-2, 26 Code of Federal Regulations, p. 696. . Coast Carton Co. v. Commissioner, 9 Cir., 1945, 149 F.2d 739; Kaufmann v. Commissioner, 3 Cir., 1949, 175 F.2d 28; Jones v. Grinnell, 10 Cir., 1950, 179 F.2d 873; Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981. . Jones v. Grinnell, supra, 179 F.2d at page 874. . Cases such as Raybestos-Manhattan, Inc., v. United States, 1935, 296 U.S. 60, 56 S.Ct. 63, 80 L.Ed. 44, and United States v. Joliet & Chicago Ry. Co., 1942, 315 U.S. 44, 62 S.Ct. 442, 86 L.Ed. 658, do not apply. In them the Court hold that the corporation had merely ordered a dividend payable to another, and, as Mr. Justice Douglas stated in the latter case, “The umbilical cord between it and its shareholders (had) not been cut.” United States v. Joliet & Chicago Ry. Co., supra, 315 U.S. at page 49, 62" }, { "docid": "11316940", "title": "", "text": "to himself as a shareholder the lands of the corporation and its production equipment. The existence of the corporation was terminated the following year (on May 24, 1944) with the filing of a final certificate of dissolution with the Secretary of State of Washington. The problem here is not whether negotiation by a corporation for a sale of its assets, followed by the formality of a distribution in kind and a shareholders’ sale, motivated solely by a purpose to avoid a tax to the corporation, is in substance a sale by the corporation, as in Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981, and United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251. Nor are we here concerned with an attempt of a going concern to avoid a tax on the sales of its products by the ritual of a paper transfer of such products to shareholders as dividends, followed by sales of such products in the ordinary course of the corporation’s business, as in United States v. Lynch, 9 Cir., 192 F.2d 718. Here the taxpayer for some time intended to dissolve the corporation and thereafter carry on the business as an individual. If pursuant to this long-avowed intention the crops in question were distributed to the taxpayer in the course of liquidation, the circumstances afford no occasion to disregard the form of the transaction and impute subsequent sales of the fruit to the corporation. Cf. Wurtsbaugh v. Commissioner of Internal Revenue, 5 Cir., 187 F.2d 975. The problem here is simply whether the distribution was made. The taxpayer argues that the resolutions of May 31 and July 17, in themselves, worked a complete and final dissolution of the corporation and that title to the corporate assets thereupon vested automatically in the taxpayer as sole shareholder. We think not. We agree with the Tax Court that the resolutions had no such effect under the laws of Washington, Rem.Rev.Stat. § 3803-48 et seq., and that they were clearly not intended to effect a present" }, { "docid": "7320901", "title": "", "text": "than the law demands of him.” United States v. Isham, 17 Wall. 496, 84 U.S. 496, 21 L.Ed. 728; Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251. But on the other hand, the Court declared as settled law that “the incidence of taxation depends upon the substance of a transaction” and that “to permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress.” Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981. As was earlier stated in Gregory v. Helvering, supra, [293 U.S. 465, 55 S.Ct. 268] “to hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.” In National Investors Corp. v. Hoey, 2 Cir., 144 F.2d 466, 468, Judge Learned Hand pointed out that “to be a separate jural person for purposes of taxation, a corporation must engage in some industrial, commercial, or other activity besides avoiding taxation: in other words, that the term ‘corporation’ will be interpreted to mean a corporation which does some ‘business’ in the ordinary meaning; and that escaping taxation is not ‘business’ in the ordinary meaning.” See Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499; Jackson v. Commissioner, 2 Cir., 1956, 233 F.2d 289; National Carbide Corp. v. Commissioner, 336 U.S. 422, footnote 20, 69 S.Ct. 726, 93 L.Ed. 779. Deficiencies had been assessed against Aldon Homes, Inc. and also against each of the alphabet corporations there created, but on the review in the Tax Court, that Court sustained the deficiencies under Section 45 and did not rule on the question here involved. The decisions of the District Court in this case and of the Tax Court in the Aldon Homes, Inc. case are in accord as to the conclusion that the multiple corporations" }, { "docid": "23279683", "title": "", "text": "(5 Cir. 1965); United States v. Lynch, 192 F.2d 718 (9 Cir. 1951), cert. den., 343 U.S. 934, 72 S.Ct. 770, 96 L.Ed. 1342 (1952); Commissioner of Internal Revenue v. Transport Trading & Terminal Corp., 176 F.2d 570 (2 Cir. (1949), cert. den., 338 U.S. 955, 70 S.Ct. 493; 94 L.Ed. 1341 (1950); Fox v. Harrison, 145 F.2d 521 (7 Cir. 1944); Bard-Parker Co. v. Commissoner of Internal Revenue, 218 F.2d 52 (2 Cir. 1954), cert. den., 349 U.S. 906, 75 S.Ct. 582, 99 L.Ed. 1242 (1955). In the Court Holding case, the Supreme Court, in reversing a decision by this Court, said (324 U.S. at 333-334, 65 S.Ct. at 708): “The Tax Court concluded from these facts that, despite the declaration of a ‘liquidating dividend’ followed by the transfers of legal title, the corporation had not abandoned the sales negotiations; that these [liquidating dividends] were mere formalities designed ‘to make the transaction appear to be other than what it was’, in order to avoid tax liability. ****** “The incidence of taxation depends upon the substance of a transaction. The tax consequences which arise from gains from a sale of property are not finally to be determined solely by the means employed to transfer legal title. * * * A sale by one person cannot be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title. To permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress.” The petitioners insist that, even if we recognize that Bruce, Jr. was merely their agent and impute his acts to them, they are entitled to capital gains treatment. They stress that they did no more than completely liquidate Warehouse corporation, which entitled them to a capital gain under section 331. The sale to Water of Warehouse’s operating assets should not be treated as a taxable event, the petitioners argue, because of section 337. The “general rule” pronounced by section 337" }, { "docid": "8164811", "title": "", "text": "bestowed by § 337(a). We cannot agree. The purpose of § 337 (a) was to eliminate the formal problem created by Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981, and United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251, by achieving uniformity of tax treatment for the sale of assets by a liquidating corporation and the sale of assets by shareholders to whom the assets had been distributed in liquidation. Section 337 was thus intended to erase a formalistic inequity and not to create one. We find no suggestion or intimation that it was ever contemplated that a cash basis taxpayer was to receive unequal and advantageous treatment over an accrual basis taxpayer through his ability to avoid the consequences of an anticipatory assignment of earned income. We conclude that the commissioner was within his authority in computing income by the method selected; that the proceeds of the assignment of these construction contracts constituted recognized income to the liquidating corporation. Respondents contend, for three reasons, that even accepting corporate liability for the tax in question, they may not be held liable as transferees of the corporation’s assets under § 6201 of the Internal Revenue Code, 26 U.S.C.A. § 6201. First they assert that the United States does not have the status of a creditor since no ninety-day letter was sent to the corporation. However, the government need not take futile assessment action against a taxpayer without assets. Ginsberg v. Commissioner of Internal Revenue, 2 Cir. 1962, 305 F.2d 664; Flynn v. Commissioner of Internal Revenue, 5 Cir. 1935, 77 F.2d 180. With respect to the procedural requirement of notice of deficiency, H. Conference Rep. No. 356 (1939-1 Cum.Bull., Part 2, 361, 372) states the intention of Congress very explicitly as follows: “Section 274(a) [predecessor of Sections 6212 and 6213 of the 1954 Code] requires notice of a deficiency in a tax to be sent the taxpayer before further proceedings for collection of the tax liability are continued. The section, however, in terms" }, { "docid": "9958369", "title": "", "text": "was designed to eliminate. It points out that had the loans receivable here been sold at book or net value rather than at face value, no income would have been realized. It asserts that all that this decision will accomplish will be to emphasize the importance of specifying a net value sales price in the sale of assets pursuant to a plan of liquidation. We do not regard this accomplishment as purely formal and without substantial effect. The price paid by a purchaser for accounts receivable will affect the extent to which he himself can write off bad debts or take deductions for a bad debt reserve upon the accounts purchased. The ability of a liquidating corporation to transfer accounts receivable at face value with no tax consequences to itself would seem to result in its ability to confer a tax advantage upon its transferee : an advantage analogous to a stepped-up basis for an asset sold. Affirmed. . See, e. g., Item 27(d), page 7, of Instructions for Preparation of Reports of Condition by National Banking Associations, from 2130-C, Revised March, 1960, issued by the Comptroller of the Currency, Treasury Department. . The House Ways and Means Committee, reported, H.Rep. No. 1337, 83d Cong., 2d Sess., p. A106; 3 U.S.C.Cong. & Adm. News (1954) 4244: “Sec. 333 incorporates in the bill rules for treatment of the problem raised in the decisions of Commissioner [of Internal Revenue] v. Court Holding Co. (324 U.S. 331, 65 S.Ct. 707 [89 L.Ed. 981]) and U. S. v. Cumberland Public Service Co. (338 U.S. 451, 70 S.Ct. 280 [94 L. Ed. 251]) and the numerous related cases. These decisions concern the question of whether the corporation or a shareholder effected a sale of property in connection with a liquidation. Under the decision in the Cumberland Pub-lie Service Co. case, supra, it is indicated that in the case of an actual distribution in liquidation of the corporation prior to an actual sale by the shareholders a single tax (is) imposed at the shareholder level. Accordingly, under present law, the tax consequences arising from sales made" }, { "docid": "5766793", "title": "", "text": "avoid taxes. “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596 (1935). What the law does not permit a taxpayer to do in seeking to avoid taxes is to cast transactions in forms when there is no economic reality behind the use of the forms. “The incidence of taxation depends upon the substance of a transaction. To permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress.” Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981 (1945). See Gregory v. Helvering, supra, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596; Union Planters National Bank v. United States, 426 F.2d 115, 117 (6th Cir.), cert. denied, 400 U.S. 827, 91 S.Ct. 53, 27 L.Ed.2d 56 (1970). As the Tax Court and the taxpayer correctly analyze, taxpayer’s tax liability for the 1965 income of Mid-Western depends upon whether the August, 1965, transfer of taxpayer’s Mid-Western stock to Rousseau and Santeiro was in substance a sale or whether that transaction was a diversionary tactic, lacking economic substance, in a distribution of Mid-Western’s assets to taxpayer. See Davant v. C.I.R., 366 F.2d 874, 880-82 (5th Cir. 1966), cert. denied, 386 U.S. 1022, 87 S.Ct. 1370, 18 L.Ed.2d 460 (1967). The question whether the August, 1965, transaction was in substance a sale or a distribution was a ques tion of fact, see United States v. Cumberland Public Service Co., 338 U.S. 451, 454, 70 S.Ct. 280, 94 L.Ed. 251 (1950), Commissioner of Internal Revenue v. Court Holding Co., supra, 324 U.S. at 333-34, 65 S.Ct. 707, Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248 (1943), Genecov v. United States, 412 F.2d 556, 561 (5th Cir. 1969), O’Neill v. Commissioner of" }, { "docid": "6948944", "title": "", "text": "capital gain, to taxpayer. The Tax Court upheld the Commissioner’s determination. Palmer v. Commissioner of Internal Revenue, April 22, 1965, 44 T.C. 92. The government concedes that if taxpayer had, without more, sold the property to the company for $5,000, he would have realized no gain, regardless of the property’s market value; and if the company had then made a contract and sold it for more, the gain would have been the company’s. Cf. United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251. We need not decide whether this concession is correct. “The incidence of taxation depends upon the substance of a transaction. The * * * transaction must be viewed as a whole, and each step, from the commencement of negotiations to the consummation of the sale, is relevant. A sale by one person cannot be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title.” Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981. In the present case, the Tax Court could reasonably find that taxpayer made the $35,000 sale before transfer, and could, thus, properly attribute the gain to him. Cf. Commissioner of Internal Revenue v. Court Holding Co., supra. This may seem unfortunate in view of the substantial financial identity of taxpayer and the company, but if a party bifurcates his fiscal self he must take all the consequences, not merely those that are agreeable. Affirmed." }, { "docid": "23279682", "title": "", "text": "since in numerous situations the form by which a transaction is effected does influence or control its tax consequences. # •X’ if \"X* “Each case must be decided on its own merits by examining the form and substance of the transactions and the purpose of the relevant tax provisions to determine whether recognition of the form of the transaction would defeat the statutory purpose.” (Emphasis added.) Congress has provided in great detail what the tax consequences of a reorganization or partial or complete liquidation of a corporation should be. The tax consequences of this transaction must be judged by those standards because to allow the “sale” to Bruce, Jr. to divert our attention from the tax policies enacted by Congress would be to exalt form above all other criteria. He served no function other than to divert our attention and avoid tax. Stated another way, his presence served no legitimate nontax-avoidance business purpose. Cf. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707 (1945); Campbell v. Wheeler, 342 F.2d 837 (5 Cir. 1965); United States v. Lynch, 192 F.2d 718 (9 Cir. 1951), cert. den., 343 U.S. 934, 72 S.Ct. 770, 96 L.Ed. 1342 (1952); Commissioner of Internal Revenue v. Transport Trading & Terminal Corp., 176 F.2d 570 (2 Cir. (1949), cert. den., 338 U.S. 955, 70 S.Ct. 493; 94 L.Ed. 1341 (1950); Fox v. Harrison, 145 F.2d 521 (7 Cir. 1944); Bard-Parker Co. v. Commissoner of Internal Revenue, 218 F.2d 52 (2 Cir. 1954), cert. den., 349 U.S. 906, 75 S.Ct. 582, 99 L.Ed. 1242 (1955). In the Court Holding case, the Supreme Court, in reversing a decision by this Court, said (324 U.S. at 333-334, 65 S.Ct. at 708): “The Tax Court concluded from these facts that, despite the declaration of a ‘liquidating dividend’ followed by the transfers of legal title, the corporation had not abandoned the sales negotiations; that these [liquidating dividends] were mere formalities designed ‘to make the transaction appear to be other than what it was’, in order to avoid tax liability. ****** “The incidence of taxation depends upon the" }, { "docid": "2696502", "title": "", "text": "311 of the Internal Revenue Act of 1954 applied a similar rule to non-liquidating distributions to shareholders. Each of the sections uses the word “property”. Section 311 also refers to “stock” distributions. Neither section refers to “income.” The committee report on section 311, Senate Report No. 1622, 83rd Congress, 2nd Sess. 247, U.S. Code Cong, and Admin.News 1954, p. 4884 states that section 311 was not intended “to change existing law with respect to attribution of income of shareholders to their corporation as exemplified for example in the case of Commissioner [of Internal Revenue] v. First State Bank of Stratford,” (5 Cir. 1948, 168 F.2d 1004, 7 A.L.R.2d 738). As to section 336, the same view was taken in Williamson v. United States, in the Court of Claims, (1961) 292 F.2d 524. The easiest way to sell an incorporated business has always been to have the corporation sell its assets for cash or equivalent and then to distribute the proceeds to its shareholders in liquidation. In such a case before the 1954 Code, where the corporation had a low basis for its assets and the stockholders had low bases for their stock, this method involved a double tax — one on the corporation on its gain and a second on the shareholders on their g’ain. Attempt was then made to have stockholders liquidate their corporation first, securing to them direct ownership of its assets and then sell the assets to a purchaser. Commissioner of Internal Revenue v. Court Holding Co., (1945) 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 held that this did not avoid the double tax if the corporation had first negotiated the sale. Subsequently, United States v. Cumberland Public Service Co., (1950) 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 held that if the corporation at all times refused to negotiate for the sale to the ultimate purchaser, and the stockholders themselves had only agreed to sell to the ultimate purchaser and the stockholders themselves had only agreed to sell the assets after receiving them in liquidation, then there was only one tax on the" }, { "docid": "9432279", "title": "", "text": "or some other type of partnership, or whether it was essentially intended to be a contract for employment fixing a contingent fee of a percentage of the profits as compensation. In Nelson v. Seaboard Surety Co., 8 Cir., 269 F.2d 882, a case involving Minnesota law, we held that there was no arbitrary test for determining the intent of the parties to enter into a partnership and that each case must turn on its own facts. We also held that the fact that the parties agreed they were not partners was not conclusive and that it was the substance of their agreement when considered as a whole in the light of all the evidence and not the form which controls. See 68 C.J.S. Partnership § 24b, p. 444. In determining the taxability of a transaction, we are concerned with the substance of the transaction as reflected by the evidence as a whole, rather than with the form employed. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 381, 334, 65 S.Ct. 707, 89 L.Ed. 981; Schoenberg v. Commissioner, supra, 302 F.2d pp. 918-919; Lannan v. Helm, 8 Cir., 221 F.2d 725, 736; Meier v. Commissioner, 8 Cir., 199 F.2d 392, 395. Commissioner v. Court Holding Co., supra, and United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251, illustrate the great weight given to trial courts’ determinations upon fact issues relating to the real substance of a transaction. In Court Holding Co., a corporation agreed to sell assets to a third party. Before the sale was completed, it was discovered the taxes could be avoided by distributing the property to the corporation’s two stockholders as liquidation dividends. This was done and the shareholders proceeded to sell the property to the same third party. The Supreme Court upheld the Tax Court’s finding that the sale was made by the corporation; that the true nature of the transaction was disguised by mere formalism. United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251, involved much the same facts. This" } ]

[ { "docid": "6764507", "title": "", "text": "made after the date set for producing the discovery. (Pis’ Resp. to Mot. for Prot. Ord., p. 3). It is true that, generally, a motion for protective order must be made prior to the date set for the discovery. Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 414 (M.D.N.C.1991). In this case, though, the United States filed a dispositive motion before the time for producing the discovery had expired, on March 21, 2003. Because the dispositive motion has the potential to dispose of the case without the need for further discovery, it falls within the court’s discretion to stay discovery pending resolution of the dispositive motion. Chavous, 201 F.R.D. at 2; Simpson, 121 F.R.D. at 263. . The Tilleys also state in their seventh' claim (Compl., HVI(d)(7)) that \"a valid assessment does not exist as a matter of law.” The Tilleys do not, however, provide any explanation or argument in support of this claim in their brief in opposition to summary judg ment. (See, e.g., Pis’ Resp., p. 2 (not listing this claim as one of the \"factual issues in dispute” in this case)). Therefore, the court finds this claim abandoned, or, at most, subsumed into the related claims discussed in the text. (See Compl., ¶ VI(d)(2) & (6)). . Neither the Tilleys nor the United States provides the court with a hard-copy of this letter, therefore, the court will assume ar-guendo that the letter contains the precise wording as represented by the Tilleys in their brief. . Several additional cases cited by the Tilleys in their brief do not detract from application of this expansive approach. For instance, in Commissioner v. Shapiro, 424 U.S. 614, 622 n. 7, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976), the Supreme Court avoided the issue of whether a proper demand letter was sent, finding instead that a subsequent notice of levy satisfied the statutory demand requirements to make collection valid. See also Martinez v. United States, 669 F.2d 568 (9th Cir.1981) (providing no rule on what language constitutes a \"demand,” but merely stating that at a minimum, before levy, the taxpayer must be" } ]

[ { "docid": "7095479", "title": "", "text": "occupied only one paragraph out of the defendants’ twenty-six page brief in support of their motion to dismiss and was not mentioned at all in either the defendants’ reply or oral arguments in further support of that motion. Although Ideal suggests that this court ruled on the issue of a stay sub silentio, this court does not make a practice of ruling on issues sub silentio, preferring to rule expressly — and on the merits — whenever possible. Under the circumstances, the court finds that its failure to address the defendants’ alternative motion for a stay is a sufficiently “exceptional” circumstance that it is appropriate for the court to address expressly now, on the defendants’ motion to reconsider, whether or not proceedings should be stayed, at least as to some of Ideal’s claims. C. Standards For A Stay Of Proceedings Although the parties argued what standards are applicable to a motion to reconsider an interlocutory order, and whether or not the motion to amend mooted all or any part of the motion to reconsider, they did not make any attempt to articulate the standards applicable to a stay of proceedings. The court, however, finds that it is those standards that are of particular importance here, where the ultimate question is whether all or any part of this litigation should be stayed. A district court’s power to stay an action pending on its docket is “incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). More specifically, various courts have recognized an “international abstention doctrine,” pursuant to which a United States district court may stay proceedings pending disposition of a substantially similar case in a foreign court. See, e.g., Mutual Service Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1324 (11th Cir.2004) (citing Turner Entertainment Co. v. Degeto Film GmbH, 25 F.3d 1512, 1521 (11th Cir.1994), as “enunciating” the doctrine in the Eleventh" }, { "docid": "23451359", "title": "", "text": "escrow completely avoids the risk that dissenters' contributions could be used improperly, it eliminates any valid constitutional objection to the procedure and thereby provides an adequate remedy.” Id., at 809. We held that even if the entire agency fee remained in escrow throughout arbitration, objectors (who are deprived of the use of what may be their property pending the outcome of the dispute) had an independent, enforceable interest in the prompt and proper resolution of their objections. Inevitably limiting the utility of exhaustion in relieving the courts of the task of adjudicating agency-fee disputes is the nonbinding character of Hudson arbitration, a characteristic on which the dissent centrally relies. See post, at 880, 881, 882, 883-885. Our recognition of the right of objectors to proceed directly to court does not detract from district courts’ discretion to defer discovery or other proceedings pending the prompt conclusion of arbitration. See, e. g., Landis v. North American Co., 299 U. S. 248, 254-255 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.”). Justice Breyer, with whom Justice Stevens joins, dissenting. In Teachers v. Hudson, 475 U. S. 292 (1986), this Court held that “the constitutional requirements for the Union’s collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.” Id., at 310 (emphasis added). The Court added that, if the “impartial decisionmaker” is an arbitrator, that arbitrator’s decision would not bind a court in a subsequent court action. Id., at 308, n. 21 (“arbitrator’s decision would not receive preclusive effect in any subsequent § 1983 action”). Cf. ante, at 874-875, and n. 3 (treating procedural requirements set forth in" }, { "docid": "21729797", "title": "", "text": "drafts(s), wire transfer advice(s), notice(s) and/or eonfirmation(s), debit notice(s), credit notice(s), and letters relating to any payment of retainer, fees and/or costs for or on behalf of Douglas R. Colkitt.” Memorandum Of Law In Support Of Motion To Compel Compliance With Subpoena Duces Tecum Served Upon Womble, Carlyle, San-dridge, & Rice, P.L.L.C. (“P.Mot.”) at Exhibit B. At approximately the same time, GFL issued similar subpoenas in the Middle District of Florida as well as the Eastern District of Pennsylvania. D. Mot. Stay & Opp. at 15. Before filing its motion to compel in this court, GFL filed motions to compel compliance with those subpoenas in Florida and Pennsylvania. Id. The Eastern District of Pennsylvania, on December 2, 2002, dismissed the action without prejudice and ordered GFL to re-file its motion in the Middle District of Pennsylvania because “there are still outstanding motions before the Judge in the case giving rise to the judgment in the United States District Court for the Middle District of Pennsylvania.” Id. at Exhibit 1, n. 1. GFL re-filed its motion to compel in the Middle District of Pennsylvania as ordered, where it is currently pending. The Middle District of Florida, however, entered an Order enforcing the subpoena, but limited it to the period Judge McClure had previously set for discovery. Id. at Exhibit 6, n. 2. DISCUSSION Womble Carlyle’s Motion to Stay A court has broad discretion to stay all proceedings in an action pending resolution in a proceeding currently pending in another court. Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, counsel, and for litigants.” Id. at 254-55, 57 S.Ct. 163; Nat’l Shopmen Pension Fund, et al. v. Folger Adam Sec., Inc., 274 B.R. 1, 3 (D.D.C.2002)(citing Air Line Pilots Ass’n v. Miller, 523 U.S. 866, 879 n. 6, 118 S.Ct. 1761, 140 L.Ed.2d 1070 (1998)). This is best done by the “exercise of" }, { "docid": "18557474", "title": "", "text": "principles relevant to our disposition of the motions before us. A. Standard; Burden of Proof The power of a federal court to stay proceedings before it was set out by Justice Cardozo in Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936). The Court noted that the power to stay proceedings is incidental to the power inherent in any court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. Id. at 254, 57 S.Ct. at 165 (citations omitted). Even as it provides the authority to stay cases, however, Landis counsels careful, if not reluctant, use of the power: Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.... We must be on our guard against depriving the processes of justice of their suppleness of adaptation to varying conditions _ Even so, the burden of making out the justice and wisdom of a departure from the beaten track lay heavily on the petitioners, suppliants for relief, and discretion was abused if the stay was not kept within the bounds of moderation. Id. at 256, 57 S.Ct. at 166. In Landis, the Court concluded that stays imposed pending determination of a dispositive suit then pending before it were “drastic and unusual.” Id. at 257, 57 S.Ct. at 167. The moderation directed by Landis led the court in Wedgeworth v. Fibreboard Corp., 706 F.2d 541 (5th Cir.1983) to conclude that stays in favor of solvent code-fendants who were joint tortfeasors pending resolution of the Manville bankruptcy proceeding were unjustified. See also McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir.1982) (“stay orders will be reversed when they are found to be immoderate or of an indefinite duration”); CTI-Container Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284, 1288-90 (11th Cir.1982)" }, { "docid": "21844844", "title": "", "text": "effect pending the reexamination proceedings instituted by the defendants with the PTO. On January 11, 2002, the plaintiffs filed a motion to lift the stay. The plaintiffs assert that the defendants have delayed the PTO’s ruling on the first request for reexamination concerning the validity of the plaintiffs’ patent by filing the two additional requests for reexamination on September 24, 2001 and October 12, 2001, and that maintaining the stay presents a tactical disadvantage to the plaintiffs. Pis.’ Mot. at 1. The defendants counter that their requests for reexamination are proper and that this court should maintain the stay until the PTO renders its decision. Defs.’ Opp’n. at 23-24. At the court’s request, the defendants notified the court that on June 17, 2002, the PTO merged the second and third accepted requests under 37 C.F.R. § 1.565. Defs.’ Status Report dated June 17, 2002 (including the PTO’s voucher, dated June 17, 2002). III. ANALYSIS A.Legal Standard for Lifting a Stay When circumstances have changed such that the court’s reasons for imposing the stay no longer exist or are inappropriate, the court may lift the stay. Purolite Int’l, Ltd. v. Rohm & Hass Co., 24 U.S.P.Q.2d 1857 (E.D.Pa.1992); Rohm & Haas Co. v. Brotech Corp., 24 U.S.P.Q.2d 1369 (D.Del.1992). A trial court has broad discretion to stay all proceedings in an action pending the resolution of independent proceedings elsewhere. Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Air Line Pilots Ass’n v. Miller, 523 U.S. 866, 879 n. 6, 118 S.Ct. 1761, 140 L.Ed.2d 1070 (1998) (quoting Landis, 299 U.S. at 254-55, 57 S.Ct. 163). Indeed, “[a] trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.”" }, { "docid": "19003391", "title": "", "text": "with established scheduling orders related to “merits” discovery, and that Defendants are not entitled to a stay of. such discovery. II. Discussion A. Stay of Discovery Proceedings “Special problems are presented when conduct that is the basis for civil antitrust claims is also the subject of criminal or administrative proceedings. Indeed, disclosure of a criminal or administrative investigation fre quently triggers the filing of civil actions ... The criminal charges should ordinarily be tried first, not only because of the requirements of the Speedy Trial Act but also because Fifth Amendment claims tend to disrupt civil discovery. A general stay of all activities in the civil litigation pending completion of the criminal case will rarely be appropriate, however.” Manual For Complex Litigation 3d, § 33.14 at 306. Courts have noted that “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with the economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Texaco, Inc. v. Borda, 383 F.2d 607, 608 (3d Cir.1967) (quoting Landis v. North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936)). In considering a stay, courts have looked to the five factors discussed in Golden Quality Ice Cream Co. v. Deerfield Specialty, 87 F.R.D. 53 (E.D.Pa.1980): plaintiffs’ interest and potential prejudice, burden on the defendants, burden on the Court, burden on non-parties, and the public interest. After considering the interests of the parties, together with the Court’s effort to bring complex litigation to an early disposition, as well as the factors set forth in Golden Quality Ice Cream, supra, the Court concludes that any stay of discovery would be inappropriate in these proceedings. The parties do not dispute that the criminal proceedings have concluded for each defendant in these civil actions, and Defendants have not identified any pending criminal proceedings against any of their officers, agents, or employees. Defendants’ contention that discovery" }, { "docid": "5074564", "title": "", "text": "to any evidence that would create a material question of fact on this issue. Therefore, on the issue of whether District Three is a racially gerrymandered district, the United States’ request for additional discovery must be DENIED. Nevertheless, the United States has also requested limited discovery on the issue of whether District Three can be upheld under a strict scrutiny analysis. Such limited discovery is appropriate. Consequently, Defendant-Intervenor United States’ Rule 56(f) motion to continue is GRANTED IN PART. The parties have thirty (30) days from the date of this order within which to conduct discovery on matters relevant to a strict scrutiny analysis of District Three. Finally, Defendant-Intervenor United States has requested the Court stay further proceedings in this matter pending the decisions of the Supreme Court in Bush and Shaw. In Landis v. North Am. Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 165-66, 81 L.Ed. 153 (1936), the Supreme Court held that courts have the power to stay proceedings in one action pending the decision of another action. The Court reasoned that the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even bal-ance_ Especially in cases of extraordinary public moment, the individual may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted. Id. at 254-56, 57 S.Ct. at 166. However, adequate grounds do not exist for the issuance of a stay in this matter. First, although Bush v. Vera and Shaw v. Hunt will undoubtedly enhance the increasing body of equal protection jurisprudence that began with Shaw v. Reno, the recent Supreme Court decisions in Hays and Miller have provided this Court with an adequate analytical framework to evaluate Plaintiffs’ claims. Moreover, the public welfare will be better promoted by the immediate" }, { "docid": "16960620", "title": "", "text": "sue based pursuant to contractual provisions without also complying with the contract’s arbitration provision. Id. at 413-14. This Court need not hold as a matter of law whether equitable estoppel may or may not be invoked to compel arbitration of claims against a non-signatory to a contract in the D.C. Circuit. Even if such an argument were available in this Circuit, none of DSMCi’s remaining claims against Convera turn on this Court’s interpretation of the agreement between DSMCi and NGTL. Convera’s motion to compel is therefore denied. V. NGTL’s Motion to Stay Pending Arbitration NGTL has moved to stay this litigation pending the resolution of the arbitration between DSMCi and NGTL. DSMCi opposes this motion, and while Convera initially expressed no opinion, Convera now consents to this motion. This Court does have the authority and discretion to stay this case pending the prompt resolution of the arbitration in question. See, e.g., Air Line Pilots Assoc. v. Miller, 523 U.S. 866, 876 n. 6, 118 S.Ct. 1761, 140 L.Ed.2d 1070 (1998) (“Our recognition of the right of objectors to proceed directly to court does not detract from district courts’ discretion to defer discovery or other proceedings pending the prompt conclusion of arbitration.”); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 21 n. 23, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“In some cases, of course, it may be advisable to stay litigation among the non-arbitrating parties pending the outcome of the arbitration. That decision is one left to the district court ... as a matter of its discretion to control its docket.”); Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.”). NGTL argues that the following factors weigh in favor of" }, { "docid": "21729798", "title": "", "text": "to compel in the Middle District of Pennsylvania as ordered, where it is currently pending. The Middle District of Florida, however, entered an Order enforcing the subpoena, but limited it to the period Judge McClure had previously set for discovery. Id. at Exhibit 6, n. 2. DISCUSSION Womble Carlyle’s Motion to Stay A court has broad discretion to stay all proceedings in an action pending resolution in a proceeding currently pending in another court. Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, counsel, and for litigants.” Id. at 254-55, 57 S.Ct. 163; Nat’l Shopmen Pension Fund, et al. v. Folger Adam Sec., Inc., 274 B.R. 1, 3 (D.D.C.2002)(citing Air Line Pilots Ass’n v. Miller, 523 U.S. 866, 879 n. 6, 118 S.Ct. 1761, 140 L.Ed.2d 1070 (1998)). This is best done by the “exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis v. North American Co., 299 U.S. at 255, 57 S.Ct. 163. The party requesting such a stay must make out a clear case of hardship or inequity in order to prevail. Id. See also Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir.1983). But, “[t]he right to proceed in court should not be denied except under the most extreme circumstances.” Id. Womble Carlyle urges this Court to stay plaintiffs motion to compel compliance with its subpoena pending resolution of a similar subpoena at issue in one of the federal courts of Pennsylvania because “it would be most appropriate for the Middle District of Pennsylvania to judge the propriety of Plaintiffs subpoena ... and, it would serve the interests of efficiency and judicial economy [as well as] avoid the possibility of inconsistent results on the same issue.” D. Mot. Stay & Opp. at 17-18. As noted above, the party requesting a stay of a pending action must establish" }, { "docid": "5385372", "title": "", "text": "have been dismissed because Robodial.org was not joined as a party under Federal Rule of Civil Procedure 19. Appellants’ Br. 24. Federal Rule of Civil Procedure 19(a)(1) provides: A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. When a person “who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Fed.R.Civ.P. 19(b). The State’s failure to include Robodial.org as a defendant in this case did not affect the district court’s ability to adjudicate the claims raised against Henson, Russell, and Universal Elections. Robodi-ahorg’s absence from the case neither impairs its ability to protect its interest nor leaves the existing parties “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” Fed.R.Civ.P. 19(a)(1)(B). In summary, appellants have failed to demonstrate that their motion to dismiss should have been granted. Rather, the district court properly evaluated and denied defendants’ motion to dismiss. C. Appellants next suggest that the district court erred by denying their motion to stay the proceedings pending resolution of partially parallel criminal proceedings. This argument also fails. “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “Because" }, { "docid": "161855", "title": "", "text": "777 n. 1. On the collateral estoppel issue, the Fourth Circuit held: Plainly, the respondeat superior doctrine and the business use exception are not identical issues. While respondeat superior requires the existence of an employer-employee relationship, the business use exception has no such element. Thus, an individual like Forkwar who was acting “in the business of’ J & J but who is an independent contractor rather than employee would be subject to the [Empire] Policy's exclusion without falling under the doctrine of respondeat superior. Id. at 778. D. The Instant Litigation On October 1, 2012, Defendants filed their pending Motion for Summary Judgment. Doe. No. 9. Defendants contend that Progressive Northern is entitled to summary judgment on the grounds of res judicata and interpretation of the relevant Policy provisions and MCS-90 endorsement. Defendants also contend Progressive Classic Insurance Company (Progressive Classic) is entitled to judgment as a matter of law on the sole basis that it was not providing any coverage to J & J Logistics on the date of the accident, and it did not issue any policy to J & J Logistics until June 24, 2005. Id. at 6 n. 1, Ex. C. Plaintiff does not dispute Defendants’ contention with respect to Progressive Classic. Plaintiff filed a Motion to Stay these proceedings on October 29, 2012 on the grounds that he intends to file a motion to vacate or revise the state court judgment. Doc. No. 12. Both Motions have been fully briefed and are ripe for the Court’s consideration. II. MOTION TO STAY “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Id. at 254-55, 57 S.Ct. 163. Plaintiff argues that the Court should stay this case pending the outcome of" }, { "docid": "21642385", "title": "", "text": "Stay Wells also appeals United States Magistrate Judge Paul A. Zoss’s Order denying Wells’s Motion For A Partial Stay. Wells seeks to “stay all fact discovery and stay adjudication of all legal issues other than those presented in the parties’ cross-motions for summary judgment on the duty to defend.” Wells argues that without a stay, Travelers’s pursuit of the relief sought in this action will effectively undercut Wells’s defense of the underlying actions and align the insurers with Pillsbury and Eskimo Pie in the underlying claims. Wells specifically contends that the denial of its motion was clearly erroneous and contrary to law in the following regards: 1. In failing to consider the well-established jurisprudence governing issues of indemnity in declaratory actions between an insurer and its insured. 2. In holding that Wells Dairy has not established prejudice which cannot be accommodated by other rulings and procedures in the present case. 3. In holding that granting Wells Dairy a partial stay would be inequitable to Defendants. 4. In holding that judicial efficiency and economy would not best be served by granting Wells Dairy’s motion. Wells’s Mot. at 1-2. The issue of the appropriateness of staying declaratory relief actions concerning insurance coverage pending resolution of the underlying state cases is a question that is controlled by federal civil procedure. The power of a district court to stay an action pending on its docket is “incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). More specifically, district courts have discretion to dismiss or stay an action for declaratory judgment. See Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). However, that discretion is not unbounded. A decision to dismiss or stay must rest on “considerations of practicality and wise judicial administration.” Id. at 288, 115 S.Ct. 2137; see Allstate Ins. Co. v. Brown, 920 F.2d 664, 667 (10th" }, { "docid": "18390520", "title": "", "text": "of a pending similar action, the court has considered the pending motion as a request for a stay as well as a motion to dismiss or transfer. Under 28 U.S.C. 1404(a) a District Court may transfer any civil action to any other district or division where it might have been brought for the convenience of the parties and in the interest of justice. To transfer this action to the U.S. District Court for the Northern District of Illinois will not avoid the duplicity of the actions. This court cannot under § 1404(a) transfer the action to the Circuit Court of Cook County. The court denies Centronics’ Motion to Transfer. The court also denies Centronics’ Motion to Dismiss. This court may, however, for reasons of comity and efficiency stay an action when a suit is pending in a state court between the same parties which will conveniently and authoritatively dispose of the issues in dispute between the federal litigants. The Court has clearly stated that: ... the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. Kansas City Southern Ry. v. United States, 282 U.S. 760, 763 [51 S.Ct. 304, 305, 75 L.Ed. 684]; Enelow v. New York Life Ins. Co., 293 U.S. 379, 382 [55 S.Ct. 310, 811, 79 L.Ed. 440]. Landis, et al. v. North America Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 165, 81 L.Ed. 153 (1936). The propriety of a stay is a decision which is largely committed to the “carefully considered judgment” of the district court. Colorado River Water Conservation District, et al. v. United States, 424 U.S. 800, 818, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976); Will v. Calvert Fire Ins. Co., 437 U.S. 655, 663, 98 S.Ct. 2552, 2558, 57 L.Ed.2d 504 (1978). The First Circuit in Puerto Rico International Airlines Inc. v." }, { "docid": "4831221", "title": "", "text": "VII (Unjust Enrichment) asks the court to reward LG for any financial gains that the defendants obtained through their unlawful use of the contested patents. A bevy of motions is now before the court. In their opposition to LG’s motion for partial summary judgment, the defendants argue that this case should be stayed pending litigation that is currently underway in Japan. See Defs.’ Opp’n at 20. The court will deny this request. Tanaka, a citizen of Japan, argues that this court has no jurisdiction over him, as he lacks minimum contacts with this forum. The court will grant his motion to dismiss. LG moved for partial summary judgment on Count II, which asks the court to recognize the Korean judgment under the doctrine of comity. For reasons discussed below, this motion will be granted in part and denied in part. Finally, the defendants moved for dismissal of Counts V, VI and VII under the doctrine of forum non conveniens. The court will deny this motion without prejudice. III. ANALYSIS A. The Court Declines the Defendants’ Request to Stay All Proceedings Pending an Outcome in the Japanese Litigation This court has the discretionary power to stay this action pending the outcome of foreign litigation. This authority is “incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Ronar, Inc. v. Wallace, 649 F.Supp. 310, 318 (S.D.N.Y.1986) (citing Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (Cardozo, J.)). “For the most part,” however, “federal courts are reluctant to decline jurisdiction solely on the basis of concurrent proceedings in another jurisdiction.” Christ v. Cormick, 2007 WL 2022053, at *7 (D.Del. July 10, 2007) (citing Evergreen Marine Corp. v. Welgrow Int’l Inc., 942 F.Supp. 201, 207 (S.D.N.Y.1996)); see also Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 926 (D.C.Cir.1984) (“[P]arallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously.”); Finova Capital Corp. v. Ryan Helicopters, U.S.A. Inc.," }, { "docid": "21844845", "title": "", "text": "exist or are inappropriate, the court may lift the stay. Purolite Int’l, Ltd. v. Rohm & Hass Co., 24 U.S.P.Q.2d 1857 (E.D.Pa.1992); Rohm & Haas Co. v. Brotech Corp., 24 U.S.P.Q.2d 1369 (D.Del.1992). A trial court has broad discretion to stay all proceedings in an action pending the resolution of independent proceedings elsewhere. Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Air Line Pilots Ass’n v. Miller, 523 U.S. 866, 879 n. 6, 118 S.Ct. 1761, 140 L.Ed.2d 1070 (1998) (quoting Landis, 299 U.S. at 254-55, 57 S.Ct. 163). Indeed, “[a] trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.” Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 863-64 (9th Cir.1979). Logically, the same court that imposes a stay of litigation has the inherent power and discretion to lift the stay. Purolite Int’l, Ltd., 24 U.S.P.Q.2d at 1857; Rohm & Haas Co., 24 U.S.P.Q.2d at 1369. B.Legal Standard for Ripeness Before a court may consider the merits of a case, the court must determine whether the case is ripe for review so that it has subject-matter jurisdiction. Tari v. Collier County, 56 F.3d 1533, 1535-36 (11th Cir.1995). The Supreme Court has held that Article Ill’s case-or-controversy requirement prohibits courts from issuing advisory opinions or decisions based on hypothetical facts or abstract issues. Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The ripeness doctrine asks “whether the case has been brought at a point so early that it is not yet clear whether a real dispute to be resolved exists between the parties.” 15 Moore’s Federal Practice 3d § 101.70[2]. In other words, the ripeness doctrine’s “basic rationale" }, { "docid": "5385373", "title": "", "text": "failure to include Robodial.org as a defendant in this case did not affect the district court’s ability to adjudicate the claims raised against Henson, Russell, and Universal Elections. Robodi-ahorg’s absence from the case neither impairs its ability to protect its interest nor leaves the existing parties “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” Fed.R.Civ.P. 19(a)(1)(B). In summary, appellants have failed to demonstrate that their motion to dismiss should have been granted. Rather, the district court properly evaluated and denied defendants’ motion to dismiss. C. Appellants next suggest that the district court erred by denying their motion to stay the proceedings pending resolution of partially parallel criminal proceedings. This argument also fails. “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “Because of the frequency with which civil and regulatory laws overlap with criminal laws, American jurisprudence contemplates the possibility of simultaneous or virtually simultaneous parallel proceedings and the Constitution does not mandate the stay of civil proceedings in the face of criminal proceedings.” Ashworth v. Albers Med., Inc., 229 F.R.D. 527, 530 (S.D.W.Va.2005). Stays generally are not granted before an indictment has issued. Id. at 531 n. 3 (citing Trs. of Plumbers & Pipefitters Nat’l Pension Fund v. Transworld Mech, Inc., 886 F.Supp. 1134, 1139 (S.D.N.Y.1995)); State Farm Mut. Auto. Ins. Co. v. Beckham-Easley, No. 01-cv-5530, 2002 WL 31111766, at *2 (E.D.Pa. Sept. 18, 2002) (quoting Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F.Supp.2d 523, 527 (D.N.J.1998)); In re Par Pharm., Inc. Sec. Litig., 133 F.R.D. 12, 13 (S.D.N.Y.1990). The district court’s denial of defendants’ motion to stay is in keeping with the bulk of judicial authority, which holds that stays are generally not granted before indictments have issued. The court’s decision to deny the motion to stay was particularly appropriate where, as here," }, { "docid": "11449788", "title": "", "text": "June 26, 1953, plaintiff restated its motion in the Chicago action, as follows: to stay the trial of the Chicago case until after all matters in the Delaware case had been disposed of. Defendants having evinced an intention to take depositions, respondent indicated that such depositions would be stayed until further order. No order was actually entered. No depositions have been taken. On February 11,1954, Zenith and Rauland filed an amendment to their counterclaim, in which they make detailed allegations as to damages said to have been sustained by them as a result of the conspiracy charged against the counter-defendants, and they ask for summons to issue against various cross-defendants named in the said amendment, and that damages be assessed, including treble damages, for violation of the anti-trust laws , as well as costs of suit and attorneys’ fees as provided by statute. On June 15, 1954, Judge Igoe sustained a motion by Zenith and Rauland to permit them forthwith to proceed with discovery and to take depositions under the Federal Rules of Civil Procedure. This is the order now under attack in this proceeding. An important distinction exists between the power of a court to stay proceedings pending before it and the propriety of using that power, which calls for a weighing of competing interests and the maintenance of an even balance. Landis v. North American Co., 299 U.S. 248, at page 254, 57 S.Ct. 163, 81 L.Ed. 153. The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. The power to order that proceedings be stayed to abide proceedings in another court is not limited to situations where the parties to the two causes are the same and the issues identical. On the other hand, a determination of the propriety of using such a power in a given situation requires that the suppliant for such a stay must make out a clear case of hardship or inequity in being required to" }, { "docid": "16960621", "title": "", "text": "of objectors to proceed directly to court does not detract from district courts’ discretion to defer discovery or other proceedings pending the prompt conclusion of arbitration.”); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 21 n. 23, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“In some cases, of course, it may be advisable to stay litigation among the non-arbitrating parties pending the outcome of the arbitration. That decision is one left to the district court ... as a matter of its discretion to control its docket.”); Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.”). NGTL argues that the following factors weigh in favor of staying this litigation: the outcome of arbitration could limit or narrow the issues before this Court, the outcome of this case could have prece-dential effect on the arbitration, judicial economy, avoiding the risk of inconsistent determinations on the same factual issues, and the strong national policy in favor of arbitrating disputes. NGTL’s Mot. to Stay at 1-2. NGTL makes two arguments with regard to preclusive effect and the relationship between arbitration and litigation. First, NGTL argues that this Court should stay this litigation because the issues before this Court will be narrowed by the result of the arbitration. NGTL’s Mot. to Stay at 1; NGTL’s Supp. Mem. of 4/23/02 at 1. Second, NGTL argues that this Court should stay this litigation “in order to guard against the possible precedential effect that an adverse court ruling in this litigation could have on the parallel arbitration.” NGTL’s Reply at 7. NGTL’s first argument that decisions made by the arbitrator of DSMCi’s claims against NGTL will have a preclusive effect in this Court is unpersuasive. This Court recognizes" }, { "docid": "161856", "title": "", "text": "not issue any policy to J & J Logistics until June 24, 2005. Id. at 6 n. 1, Ex. C. Plaintiff does not dispute Defendants’ contention with respect to Progressive Classic. Plaintiff filed a Motion to Stay these proceedings on October 29, 2012 on the grounds that he intends to file a motion to vacate or revise the state court judgment. Doc. No. 12. Both Motions have been fully briefed and are ripe for the Court’s consideration. II. MOTION TO STAY “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). “How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Id. at 254-55, 57 S.Ct. 163. Plaintiff argues that the Court should stay this case pending the outcome of a motion to revise and vacate the Maryland Circuit Court’s judgment in favor of J & J Logistics. Plaintiff states that “[b]ased on information that was learned after the state court judgment, it is Fork-war’s position that J & J Logistics obtained its judgment by fraud.” Doc. No. 12 at 2. The record indicates that such a motion has yet to be filed, and Plaintiff makes no representations as to the anticipated length of its requested stay. Furthermore, Plaintiff has failed to articulate the specific grounds underlying its allegar tions of fraud. The Court believes, however, that even if Plaintiff files such a motion, he is unlikely to succeed in vacating or revising the state court’s judgment. Under Maryland Rule 2-535(b), a Circuit Court “may exercise revisory power and control over the judgment in ease of fraud, mistake, or irregularity.” As explained by the Court of Appeals of Maryland, the showing of fraud in this context must establish “extrinsic” rather than “intrinsic” fraud: [It is] settled beyond question that an enrolled decree will not be" }, { "docid": "23263331", "title": "", "text": "which relief can be granted for the same reasons as discussed in Part II.A.5. above. k- State law causes of action against the G-P defendants, the 8k Lumber defendants, and the Gonzales defendants The district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law claims for the same reasons given in Part II.A.6. above. See Gibbs, 383 U.S. at 726, 86 S.Ct. 1130. D. The Hahns’ contention that they were denied the opportunity for discovery 1. Standard of review Trial courts have broad discretion and inherent power to stay discovery until preliminary questions that may dispose of the case are determined. See Landis v. North Am. Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 81 L.Ed. 153 (1936). When reviewing a district court’s decision to limit discovery, we will intervene only if the decision was an abuse of discretion resulting in substantial prejudice. See Emmons v. McLaughlin, 874 F.2d 351, 356-57 (6th Cir.1989). 2. The district court did not abuse its discretion in limiting discovery The Hahns assert that the district court erred in not allowing them the opportunity to conduct discovery. In a preliminary order dated December 1, 1997, the district court declared that “discovery will be stayed pending resolution of the pending Motion to Dismiss or for summary judgment, which is now at issue. If plaintiffs believe that they need discovery to respond to any future motions for summary judgment, they shall so move.” Despite being represented by counsel at that time, the Hahns did not state any need for discovery until April 21, 1998, which was a month after the district court had granted summary judgment in favor of Star Bank. More importantly, the facts that the Hahns claim that they needed to discover have no relevance to the dispositive legal issues in question. They sought to correct any and all misstatements made by the district court and the various defendants. Because the information they were seeking would not have salvaged their claims, substantial prejudice did not result from the district court’s limitation on discovery. III. CONCLUSION For all of" } ]

[ { "docid": "17928850", "title": "", "text": "subsections of section 523 merely because one subsection precludes discharge of penalties owed to the government. Palmer v. Levy (In re Levy), 951 F.2d 196, 199 (9th Cir.1991); see also In re Dahlstrom, 129 B.R. at 246 (“There is nothing in the language of § 523(a) or its legislative history to indicate that subsection (a)(7) was intended to preclude private entities from pursuing nondischargeability of judgments of punitive. damages under other subsections.”). Britton argues as well that excepting punitive damages from discharge in bankruptcy contravenes the “fresh start” goals of the bankruptcy process. However, as the Supreme Court has noted, while the “fresh start” is “a central purpose of the [Bankruptcy] Code,” this opportunity is limited to the “ ‘honest but unfortunate debtor.’ ” Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). The Bankruptcy Code has other goals, such as protecting certain classes of creditors; among such creditors are those whom the debtor has harmed by egregious conduct. In Grogan, the Supreme Court held that the “preponderance of the evidence,” rather than the “clear- and-convincing evidence” standard applies to the section 523 exceptions. The Court observed, “[w]e think it unlikely that Congress, in fashioning the standard of proof that governs the applicability of these provisions would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Grogan, 111 S.Ct. at 659. Section 523(a)(6) reflects a similar concern for the victims of “willful and malicious injury.” Britton also argues that because the states have differing standards for the award of such damages, holding that punitive damages are nondischargeable under section 523(a)(6) would frustrate the goal of a uniform bankruptcy law. However, while state courts apply state law in awarding punitive damages, “since 1970 ... the issue of nondischargeability has been a matter of federal law governed by the terms of the Bankruptcy Code.” Grogan, 111 S.Ct. at 658. There is thus no uniformity problem. III. Award of" } ]

[ { "docid": "11766096", "title": "", "text": "the rights that the State of Texas had against Debtor under the Bankruptcy Code”), cert. denied, 502 U.S. 938, 112 S.Ct. 371, 116 L.Ed.2d 323 (1991); In re Norris, 107 B.R. at 596 (surety claim against debtor subrogat-ed to tax authority’s nondisehargeability right under § 523(a)(1)) and eases cited therein. As summarized by the court in Norris, the courts reason that [a] debtor who fails to pay taxes before bankruptcy usually bears the burden of that failure after bankruptcy by being ha-ble for a nondischargeable tax debt. However, if the debt to the surety is discharge-able, then the debtor can choose not to pay taxes with the knowledge that he can escape liability by filing bankruptcy and discharging the surety’s claim.... A debtor’s fresh start is not overburdened by excepting a surety’s subrogation claim from the discharge. The debtor’s fresh start is the same; he owes the same amount of nondischargeable tax debt; the only difference is whether the debtor owes the debt to the government or the surety. Id. Similarly, the debtor in this ease would be responsible after bankruptcy for a nondis-chargeable claim under § 523(a)(4). The public policy behind the exceptions to discharge for breach of fiduciary duty is punitive in nature and intended to discourage improper conduct, ensuring that relief intended for honest debtors does not inure to the benefit of the dishonest. See generally In re St. Laurent, 991 F.2d 672, 678-79 (11th Cir.1993); Birmingham Trust Nat. Bank v. Case, 755 F.2d 1474, 1477 (11th Cir.1985); In re Hunter, 771 F.2d 1126, 1130 (8th Cir.1985). This intent would be easily frustrated if the debtor in this case were simply able to avoid the liability by allowing the surety to cover the debt and then discharging the debt to the surety in bankruptcy. In re Norris, 107 B.R. at 596. In concluding that the surety was subrogated to the nondischarge-ability rights of the debtor’s former employer under § 523(a)(4), one court stated “ ‘the act should be liberally construed so as to prevent the discharge in bankruptcy of a liability which would not exist but for" }, { "docid": "16966725", "title": "", "text": "re Gee, 156 B.R. 291, 295 (Bankr.W.D.Wash.1993), aff'd in part and rev’d in part, 173 B.R. 189 (9th Cir.BAP 1994). We can think of no reason consistent with section 523 and the purposes of the Bankruptcy Code to permit a standardless, unmeasurable, emotional, and nonlegal concept such as compassion to negate an identifiably and legally wrongful act. The “subjective considerations” referred to in In re Littleton, 942 F.2d 551 (9th Cir.1991) were not used by the court to determine “just cause or excuse,” but only to measure whether the debtor’s acts would have necessarily produced harm— Cecchini’s third element. Id. at 555. Here, the separate question of whether Steven’s acts would cause harm was decided against Steven by the bankruptcy court in a specific finding. As a matter of law, Steven Bammer’s unprincipled behavior cannot be regarded as “just.” To do so would be inconsistent with the basic policy of granting discharge of debts, which is to give the “honest but unfortunate debtor a fresh start.” Brown v. Felsen, 442 U.S. 127, 128, 99 S.Ct. 2205, 2208, 60 L.Ed.2d 767 (1979). In 1991, the Supreme Court shed light on how this concept of an honest but unfortunate debtor works in the context of section 523, calling it a limitation, and saying, ‘We think it unlikely that Congress, in fashioning the standard of proof that governs the applicability of [section 523(a) ], would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991). We then held in In re Britton, 950 F.2d at 606, that the Supreme Court’s concerns articulated in Grogan against giving the perpetrators of fraud a fresh start over their victims are applicable when deciding pursuant to section 523(a)(6) whether an injury was malicious. Id. In so holding, we stated that a goal of the Bankruptcy Code is to protect certain classes of creditors whom a debtor has harmed by egregious conduct. What Steven Bammer did in this case was neither honest nor" }, { "docid": "11149084", "title": "", "text": "within this circuit as to whether punitive damage awards may be excepted from discharge under section 523(a)(6). See In re Dvorak, 118 B.R. 619 (Bankr.N.D.Ill.1990) (case thoroughly discusses the split of authority). One line of cases holds that excepting punitive damages from discharge is contrary to the express goal of providing the debtor a fresh start in bankruptcy, and it over-compensates the creditor for his injury. See, e.g., In re Alwan Bros. Co., 105 B.R. 886, 890 (Bankr.C.D.Ill.1989); In re Schmidt, 36 B.R. 834, 836-837 (Bankr.D.Minn.1984). Some of these cases note that excepting punitive damages from discharge under section 523(a)(6) for creditors other than governmental entities is contrary to Congressional intent. Matter of Suter, 59 B.R. 944, 947 (Bankr.N.D.Ill.1986); Alwan Bros., 105 B.R. at 891. The rationale is that in section 523(a)(7), Congress created a specific exception to the discharge of non-compensatory damages only for governmental entities. Matter of Suter, 59 B.R. 944, 947 (Bankr.N.D.Ill.1986). If Congress had intended to except other noncompensa- tory damages from discharge for individuals, it would have done so. The other line of cases allows punitive damage awards to be excepted from discharge. In bankruptcy there are goals which the court seeks to further, such as protecting certain classes of creditors; among such creditors are those whom the debtor has harmed by egregious conduct. In re Britton, 950 F.2d 602, 606 (9th Cir.1991). Many cases have held that punitive damage awards for willful and malicious conduct are excepted from discharge under section 523(a)(6). McGuffey, 145 B.R. 582; Dvorak, 118 B.R. 619; In re Miera, 926 F.2d 741 (8th Cir.1991); In re Adams, 761 F.2d 1422 (9th Cir.1985) (all liabilities arising from willful and malicious conduct are excepted from discharge); Stokes v. Ferris, 150 B.R. 888 (W.D.Tex.1992). Treble damages awarded under RICO are considered to be punitive in nature. Moravian Dev. Corp. v. Dow Chemical Co., 651 F.Supp. 144, 149-150 (E.D.Penn.1986) (a review of the legislative history of RICO indicates that Congress intended for damages assessed under RICO to be punitive in nature); Gentry v. Resolution Trust Company, 937 F.2d 899, 910 (3d Cir.1991) (“there is" }, { "docid": "1199221", "title": "", "text": "“are allowed in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future.” In re Dvorak, 118 B.R. 619, 629 (Bankr.N.D.Ill.1990) (citing Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353 (1978)). There is currently a split of authority, including the bankruptcy judges \"within this Circuit, as to whether punitive damage awards may be excepted from discharge under 11 U.S.C. § 523. See In re Dvorak, 118 B.R. 619 (Bankr.N.D.Ill.1990); In re Guy, 101 B.R. 961, 996 (Bankr.N.D.Ind.1988). One line of cases holds that excepting punitive damages from discharge is contrary to the express goal of providing the debtor a fresh start in bankruptcy and overcompensates the creditor for his injury. See, e.g., In re Alwan Bros. Co., 105 B.R. 886, 890 (Bankr.C.D.Ill.1989); In re Schmidt, 36 B.R. 834, 836-37 (Bankr.D.Minn.1984). Some of these cases reason that excepting punitive damages from discharge under § 523(a) for creditors other than governmental entities is contrary to Congressional intent. In re Suter, 59 B.R. 944, 947 (Bankr.N.D.Ill.1986); Alwan Bros. Co., 105 B.R. at 891. The rationale is that in § 523(a)(7) Congress created a specific exception to the discharge of non-compensatory damages only for governmental entities. Suter, 59 B.R. at 947. Further, it is said that, if Congress had intended to except other non-compensatory damages from discharge for individuals, it would have done so. Another line of cases allows punitive damage awards to be excepted from discharge. See In re Wien, 155 B.R. 479, 489 (Bankr.N.D.Ill.1993). In bankruptcy, there are goals which Congress has sought to further, such as protecting certain classes of creditors. Among such protected creditors are those whom the debtor has harmed by egregious conduct. Id. (citing In re Britton, 950 F.2d 602, 606) (9th Cir.1991)). Many cases have held that punitive damage awards for willful and malicious conduct are excepted from discharge under § 523(a)(6). In re McGuffey, 145 B.R. 582 (Bankr.N.D.Ill.1992); Dvorak, 118 B.R. 619; In re Miera, 926 F.2d 741 (8th Cir.1991); In re Adams, 761 F.2d 1422 (9th Cir.1985); Stokes v. Ferris," }, { "docid": "1094887", "title": "", "text": "the language and structure of § 523(a) as a whole indicate that Congress did intend to allow punitive damages awarded to private litigants to be excepted from discharge under certain circumstances. Some courts note that nothing in the text or history of § 523(a) indicates that Congress intended § 523(a)(7) to preclude non-governmental creditors from seeking to have debts declared nondischargeable under other subsections of § 523(a), such as § 523(a)(6). In re Levy, 951 F.2d 196, 199 (9th Cir.1991); Dahlstrom, 129 B.R. at 246. In addition, some courts have contrasted the language of § 523(a)(6) with the language of § 523(a)(2) to support their conclusion that punitive damage awards may be nondis-chargeable under § 523(a)(6). See Dahlstrom, 129 B.R. at 246-47; Nix, 92 B.R. at 170. Section 523(a)(2), which concerns debts obtained by fraud or misrepresentation, provides, in pertinent part, that a debt is excepted from discharge “to the extent obtained by ... false pretences, a false representation, or actual fraud.” 11 U.S.C. § 523(a)(2)(A) (emphasis added). Several courts have held that the phrase “to the extent obtained by” in § 523(a)(2) limits nondischargeability under that section to the amount the debtor actually obtained through fraudulent means, and therefore precludes nondischargeability of punitive damages under § 523(a)(2). See, e.g., In re Ellwanger, 105 B.R. 551, 555 (9th Cir.BAP 1989); Matter of Larson, 79 B.R. 462, 465 (Bankr.W.D.Mo.1987); Matter of Suter, 59 B.R. 944, 946-47 (Bankr.N.D.Ill.1986); In re Record Co., Inc., 8 B.R. 57, 60 (Bankr.S.D.Ind.1980). The Dahlstrom and Nix courts point out that § 523(a)(6) contains no such limiting language. Dahlstrom 129 B.R. at 247; Nix, 92 B.R. at 170. Those courts therefore hold that both compensatory and punitive damages flowing from a debtor’s willful and malicious conduct are nondischargeable under § 523(a)(6). Dahlstrom, 129 B.R. at 247; Nix, 92 B.R. at 170. Furthermore, several courts state that excepting punitive damage awards from discharge under § 523(a)(6) does not contravene the Bankruptcy Code’s “fresh start” policy. These courts point out that the “fresh start” provided by the Bankruptcy Code is reserved for the “honest but unfortunate debtor.” Dahlstrom, 129" }, { "docid": "10439192", "title": "", "text": "Congress did not intend, however, that the amount of such debt or claim, including the theories of recovery for such conduct, was to be limited by the section. C. Policy Considerations Sound policy also supports our decision. First, in the absence of the fraud that gave rise to the nondischargeable, compensatory portion of the debt, there would be no liability for punitive damages. “To discharge.an ancillary debt which would not exist but for a nondischargeable debt seems erroneous.” In re Roberti, 201 B.R. at 623 (quoting In re Weinstein, 173 B.R. 258, 273-75 (Bankr.E.D.N.Y.1994)) (internal quotations omitted). Second, our result is consistent with the “fresh start” policy of the bankruptcy code. As the Supreme Court has stated, “the opportunity for a completely unencumbered new beginning [is limited]” to the “honest but unfortunate debtor.” Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659-60. Where a debtor has committed fraud under the code, he is not entitled to the benefit of a policy of liberal construction against creditors. Id.; Birmingham, Trust, 755 F.2d at 1477. Cf. In re Braen, 900 F.2d 621, 625 (3d Cir.1990) (“Although it is true that the bankruptcy laws were generally intended to give troubled debtors a chance, the nondischarge-ability exceptions reflect Congress’ belief that debtors do not merit a fresh start to the extent that their debts fall within § 523.”), cert. denied, 498 U.S. 1066, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991). We think it unlikely that Congress, in excepting fraud from dis-chargeability, “would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Grogan, 498 U.S. at 287, 111 S.Ct. at 659. Furthermore, the amount of actual damages in consumer fraud cases, although significant to the plaintiffs, is often not large. Without including treble damages in the non-dischargeable debt, victims of fraud will have even greater difficulty obtaining competent legal representation to pursue adversarial actions in bankruptcy court and prevent fraudulent debtors from using the Bankruptcy Code to evade lawful state judgments. Finally, we observe that our decision is consistent with the punitive damages at" }, { "docid": "18802748", "title": "", "text": "exceptions to discharge is necessary to avoid frustrating the bankruptcy statute’s basic policy of giving the honest debtor a new beginning. Caspers v. Van Horne (In re Horne), 823 F.2d 1285, 1287 (8th Cir.1987) (“[EJvidence presented must be viewed consistent with congressional intent that exceptions to discharge be narrowly construed against the creditor and liberally against the debtor, thus effectuating the fresh start policy of the Code.”); Cross v. Murphy & Robinson Inv. Company (In re Cross), 666 F.2d 873, 879-80 (5th Cir.1982); Dawley v. Gould (In re Gould), 73 B.R. 225, 227 (Bankr.N.D.N.Y.1987); Congress Financial Corp. v. Levitan (In re Levitan), 46 B.R. 380, 383 (Bankr.E.D.N.Y.1985). The burden of proving that a debt comes within one of the statutory exceptions to dischargeability is upon the party opposing discharge of the debt. Benich v. Benich (In re Benich), 811 F.2d 943, 945 (5th Cir.1987); In re Danns, supra, 558 F.2d at 116. Cf., Bankruptcy Rule 4005 (burden of proof to sustain objection to discharge is on plaintiff). The Supreme Court recently held that the standard of proof for 11 U.S.C. § 523(a) dis- chargeability exceptions is the preponderance of the evidence standard. Grogan v. Garner, — U.S. -, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991). A. The 11 U.S.C. § 523(a)(2)(A) Exception To Dischargeability Plaintiff contends that Defendant defrauded her of the equity in her home and that accordingly Defendant’s debt to her must be declared nondischargeable under 11 U.S.C. § 523(a)(2)(A). This provision provides that a bankruptcy discharge does not relieve the debtor from any debt for obtaining money by “false pretenses, a false representation, or actual fraud”. This provision and its predecessors under prior bankruptcy statutes have been consistently held to require proof that a debtor be guilty of positive fraud, or fraud in fact, involving moral turpitude or intentional wrong; implied fraud, or fraud in law without the imputation of bad faith or immorality is just not enough. Neal v. Clark, 95 U.S. 704, 709, 24 L.Ed. 586, 5 Otto 704 (1877); In re Hunter, supra, 780 F.2d at 1579; Gabellini v. Rega, 724 F.2d 579," }, { "docid": "10439191", "title": "", "text": "dischargeability is an ‘all or nothing’ proposition.”). The Supreme Court’s dicta in Grogan v. Garner, 498 U.S. 279, 282 n. 2, 111 S.Ct. 654, 657 n. 2, 112 L.Ed.2d 755 (1991), is not to the contrary. In Grogan, the Court specifically declined to address the question presently before us: “whether § 523(a)(2)(A) excepts from discharge that part of a judgment in excess of the actual value of money or property received by a debtor by virtue of fraud.” Id. While the Court recognized that such a proposition was “arguable,” it expressly avoided deciding the issue. The Court’s mere acknowledgment of an arguable position not only is dicta, but also does not suggest any future direction of the Court. As a practical matter, the Grogan Court actually reinstated a district court’s decision that a state court judgment for fraud, including punitive and compensatory damages, was nondisehargeable under § 523(a)(2)(A). We therefore conclude from the legislative history that Congress intended with § 523(a)(2)(A) to create an exception for a type of debt caused by limited, culpable conduct. Congress did not intend, however, that the amount of such debt or claim, including the theories of recovery for such conduct, was to be limited by the section. C. Policy Considerations Sound policy also supports our decision. First, in the absence of the fraud that gave rise to the nondischargeable, compensatory portion of the debt, there would be no liability for punitive damages. “To discharge.an ancillary debt which would not exist but for a nondischargeable debt seems erroneous.” In re Roberti, 201 B.R. at 623 (quoting In re Weinstein, 173 B.R. 258, 273-75 (Bankr.E.D.N.Y.1994)) (internal quotations omitted). Second, our result is consistent with the “fresh start” policy of the bankruptcy code. As the Supreme Court has stated, “the opportunity for a completely unencumbered new beginning [is limited]” to the “honest but unfortunate debtor.” Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659-60. Where a debtor has committed fraud under the code, he is not entitled to the benefit of a policy of liberal construction against creditors. Id.; Birmingham, Trust, 755 F.2d at 1477. Cf. In" }, { "docid": "22792396", "title": "", "text": "the same conduct as necessitated an award of compensatory damages, notwithstanding the 1984 amendment to § 523(a)(2)(A). Section 523(a)(2)(A), therefore, excepts from discharge that part of a judgment for fraud consisting of punitive damages. This holding comports with the “fresh start” policy of the Bankruptcy Code. While a “central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt[,]’ ... the [Bankruptcy Code] limits the opportunity for a completely new beginning to the ‘honest but unfortunate debtor.’ ” Grogan, 498 U.S. at 286-87, 111 S.Ct. at 659 (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed.1230 (1934)) (emphasis added); see also Williams v. United States Fidelity & Guar. Co., 236 U.S. 549, 554-55, 35 S.Ct. 289-290, 59 L.Ed. 713 (1915). Punitive damages are imposed upon defendants who are culpable in the extreme, not upon the merely honest but unfortunate. Manley, 135 B.R. at 147. The general policy that exceptions to discharge are to be construed strictly against the creditor and liberally in favor of the debtor likewise applies to honest debtors only. Gerlach, 897 F.2d at 1052; In re Van Horne, 823 F.2d 1285, 1287 (8th Cir.1987); see also In re Dvorak, 118 B.R. 619, 631 (Bankr.N.D.Ill.1990) (finding that Bankruptcy Code’s fresh start policy should have no application to debtor who has committed a nondischargeable act so grievous that after a full trial on the merits the trier of fact finds punitive damages appropriate). While protecting honest debtors, the Bankruptcy Code also seeks to protect creditors whom the debtor has harmed by “egregious conduct.” In re Britton, 950 F.2d 602, 606 (9th Cir.1991). Moreover, the fraud exceptions to discharge exist to punish the debtor for committing fraud. See Birmingham Trust Nat’l Bank, 755 F.2d at 1477. Accordingly, the malefic debtor may not hoist the Bankruptcy Code as protection from the full consequences of fraudulent conduct. Cf. TranSouth" }, { "docid": "18520212", "title": "", "text": "under the circumstances of this case will not contravene the “fresh start” policy of the Bankruptcy Code, which was designed to protect the honest debtor. The debtor attempting to abuse the proceedings of bankruptcy is not entitled to the complete medley of Bankruptcy Code protections. The Bankruptcy Code thereby attempts to discourage such abuse. “Fraudulent conduct is best discouraged, not only by denying discharge, but also by ... [recognizing that] the creditor who has been defrauded is entitled to all of its rights under the contract, including reasonable attorney fees.” In re Sears (Pacific Bancorporation v. Sears), 102 B.R. 781, 785 (Bankr.S.D.Cal.1989) (quoting Chase Manhattan Bank v. Birkland, 98 B.R. 35, 37 (Bankr.W.D.Wash.1988)). The protective policy of Section 523(d) will not be weakened by enforcement of the Note’s attorney’s fee provision. There are several sections in the Bankruptcy Code which are designed to ensure that a debtor in a dischargeability proceeding will not be unfairly disadvantaged. First, Section 523(d) itself allows an honest debtor to defend against a dischargeability action without regard to the cost of attorney’s fees. Second, a creditor seeking an exception to discharge carries a substantial burden, having to prove that the debtor’s conduct meets all of the requirements of a Section 523 discharge. In re Crosslin, 14 B.R. 656, 658 (Bankr.M.D.Tenn.1981). This is made more difficult because exceptions to discharge are strictly construed by the courts. See Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed. 717 (1915). Third, Section 524(c)-(d) establishes an exhaustive, court-monitored procedure that must be followed before a settlement between a debtor and creditor will be approved by the court. Any settlement agreement will be strictly scrutinized. Forced settlements arising from the disparate strengths of the creditor and debtor, typically disadvantageous to the debtor, will not receive court approval. III. CONCLUSION After examining the plain language of Section 523 and the policy of the Bankruptcy Code, in general, and Section 523, in particular, we hold that a creditor successful in a dischargeability proceeding may recover attorney’s fees when such fees are provided for by an enforceable contract between" }, { "docid": "11149085", "title": "", "text": "other line of cases allows punitive damage awards to be excepted from discharge. In bankruptcy there are goals which the court seeks to further, such as protecting certain classes of creditors; among such creditors are those whom the debtor has harmed by egregious conduct. In re Britton, 950 F.2d 602, 606 (9th Cir.1991). Many cases have held that punitive damage awards for willful and malicious conduct are excepted from discharge under section 523(a)(6). McGuffey, 145 B.R. 582; Dvorak, 118 B.R. 619; In re Miera, 926 F.2d 741 (8th Cir.1991); In re Adams, 761 F.2d 1422 (9th Cir.1985) (all liabilities arising from willful and malicious conduct are excepted from discharge); Stokes v. Ferris, 150 B.R. 888 (W.D.Tex.1992). Treble damages awarded under RICO are considered to be punitive in nature. Moravian Dev. Corp. v. Dow Chemical Co., 651 F.Supp. 144, 149-150 (E.D.Penn.1986) (a review of the legislative history of RICO indicates that Congress intended for damages assessed under RICO to be punitive in nature); Gentry v. Resolution Trust Company, 937 F.2d 899, 910 (3d Cir.1991) (“there is convincing authority that Congress authorized civil RICO's powerful treble damages provision to serve a punitive purpose”). Therefore, statutorily calculated punitive damage awards, including RICO treble damages may be held nondischargeable under section 523(a)(6). In re Nix, 92 B.R. 164 (Bankr.N.D.Tex.1988) (treble damages under RICO were nondischargeable under section 523(a)(6)). While the “fresh start” is “a central purpose of the [Bankruptcy] Code,” this opportunity is limited to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 285, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). This line of cases emphasizes that it is the nature of the debtor's conduct and not the nature of the liability which determines whether a debt is excepted from discharge pursuant to section 523(a)(6). Stokes v. Ferris, 150 B.R. at 393; see also Miera, 926 F.2d at 745; McGuffey, 145 B.R. at 594. This line of cases provides that: The very purpose of Section 523(a)(6) is in fact to penalize the" }, { "docid": "22792397", "title": "", "text": "not upon the merely honest but unfortunate. Manley, 135 B.R. at 147. The general policy that exceptions to discharge are to be construed strictly against the creditor and liberally in favor of the debtor likewise applies to honest debtors only. Gerlach, 897 F.2d at 1052; In re Van Horne, 823 F.2d 1285, 1287 (8th Cir.1987); see also In re Dvorak, 118 B.R. 619, 631 (Bankr.N.D.Ill.1990) (finding that Bankruptcy Code’s fresh start policy should have no application to debtor who has committed a nondischargeable act so grievous that after a full trial on the merits the trier of fact finds punitive damages appropriate). While protecting honest debtors, the Bankruptcy Code also seeks to protect creditors whom the debtor has harmed by “egregious conduct.” In re Britton, 950 F.2d 602, 606 (9th Cir.1991). Moreover, the fraud exceptions to discharge exist to punish the debtor for committing fraud. See Birmingham Trust Nat’l Bank, 755 F.2d at 1477. Accordingly, the malefic debtor may not hoist the Bankruptcy Code as protection from the full consequences of fraudulent conduct. Cf. TranSouth Fin. Corp., 931 F.2d at 1508 (stating that debtor attempting to abuse the proceedings of bankruptcy not entitled to the complete medley of bankruptcy protections). We limit our holding to § 523(a)(2)(A) only. We have no occasion to review the bankruptcy court’s determinations under § 523(a)(4). Moreover, we decline to decide whether the punitive damage portion of the judgment against St. Laurent would be excepted from discharge under § 523(a)(6). Section 523(a)(6) exempts from discharge debts “for willful and malicious injury by the debtor....” The Owners did not seek a determination of whether St. Laurent’s conduct, which the state court found deserving of punitive damages, amounted to “willful and malicious injury” as required by § 523(a)(6). The bankruptcy court therefore did not consider dischargeability under § 523(a)(6); nor do we. We are compelled, however, to address briefly concerns raised by § 523(a)(7). Section 523(a)(7) exempts from discharge any debt “to the extent that such debt is for a fine, penalty or forfeiture payable to and for the benefit of a governmental unit....” Several courts have" }, { "docid": "11149086", "title": "", "text": "convincing authority that Congress authorized civil RICO's powerful treble damages provision to serve a punitive purpose”). Therefore, statutorily calculated punitive damage awards, including RICO treble damages may be held nondischargeable under section 523(a)(6). In re Nix, 92 B.R. 164 (Bankr.N.D.Tex.1988) (treble damages under RICO were nondischargeable under section 523(a)(6)). While the “fresh start” is “a central purpose of the [Bankruptcy] Code,” this opportunity is limited to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 285, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934)). This line of cases emphasizes that it is the nature of the debtor's conduct and not the nature of the liability which determines whether a debt is excepted from discharge pursuant to section 523(a)(6). Stokes v. Ferris, 150 B.R. at 393; see also Miera, 926 F.2d at 745; McGuffey, 145 B.R. at 594. This line of cases provides that: The very purpose of Section 523(a)(6) is in fact to penalize the debtor for his misdeeds where he has acted willfully and maliciously against another entity, and thus the allowance of punitive damages is not inconsistent with the purpose of the Code in such an instance. Dvorak, 118 B.R. at 631 (citations omitted). This Court holds that a debtor who has engaged in a continuing course of willful and malicious intentional conduct is not entitled to discharge statutorily calculated treble damages by use of the fresh start provided by the Bankruptcy Code. Under the facts of the present case it cannot be argued that Wien was either an honest or unfortunate debtor. The treble damage provision of RICO is intended to deter egregious conduct, such as the conduct engaged in by Wien. Katahn was able to meet the burden of proving that Wien engaged in willful and malicious conduct, and this Court will not undermine the effect of RICO by allowing the discharge of the district court’s award of treble damages. In order for a debt to be held non-dis-chargeable under section 523(a)(6), “the creditor has the" }, { "docid": "1094888", "title": "", "text": "“to the extent obtained by” in § 523(a)(2) limits nondischargeability under that section to the amount the debtor actually obtained through fraudulent means, and therefore precludes nondischargeability of punitive damages under § 523(a)(2). See, e.g., In re Ellwanger, 105 B.R. 551, 555 (9th Cir.BAP 1989); Matter of Larson, 79 B.R. 462, 465 (Bankr.W.D.Mo.1987); Matter of Suter, 59 B.R. 944, 946-47 (Bankr.N.D.Ill.1986); In re Record Co., Inc., 8 B.R. 57, 60 (Bankr.S.D.Ind.1980). The Dahlstrom and Nix courts point out that § 523(a)(6) contains no such limiting language. Dahlstrom 129 B.R. at 247; Nix, 92 B.R. at 170. Those courts therefore hold that both compensatory and punitive damages flowing from a debtor’s willful and malicious conduct are nondischargeable under § 523(a)(6). Dahlstrom, 129 B.R. at 247; Nix, 92 B.R. at 170. Furthermore, several courts state that excepting punitive damage awards from discharge under § 523(a)(6) does not contravene the Bankruptcy Code’s “fresh start” policy. These courts point out that the “fresh start” provided by the Bankruptcy Code is reserved for the “honest but unfortunate debtor.” Dahlstrom, 129 B.R. at 245 (quoting Grogan v. Garner, 498 U.S. 279, -, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991)). They therefore conclude that the “fresh start” policy has no application in cases where the debtor has “committed a nondischargeable act that is so grievous that after a full trial on the merits, [a trier of fact] awarded punitive damages.” Guy, 101 B.R. at 996; see also Dvorak, 118 B.R. at 631 (quoting In re Johnson, 120 B.R. 461, 469 (Bankr.N.D.Ind.1990)). According to these courts, the very purpose of § 523(a)(6) is to penalize debtors who commit willful and malicious acts. Dvorak, 118 B.R. at 631 (quoting Johnson, 120 B.R. at 469); Guy, 101 B.R. at 996. Thus, the language of § 523(a)(6) is considered to override the Code’s “fresh start” policy. Dahlstrom, 129 B.R. at 245. Finally, a few courts have supported the holding that punitive damage awards may be nondischargeable under § 523(a)(6) by referring to the United States Supreme Court case of Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d" }, { "docid": "3100935", "title": "", "text": "Under 11 U.S.C. § 523(a)(2)(B), a debt is non-dischargeable in bankruptcy where it was obtained by a writing: (1) that is materially false; (2) respecting the debt- or’s or an insider’s financial condition; (3) on which the creditor to whom the debt is liable for such, money, property, services, or credit reasonably relied; and (4) that the debtor caused to be made or published with the intent to deceive. The objecting creditor has the burden of proving each of these elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). If any one of these elements is not met, the debt is dischargeable. Moreover, courts generally construe the statutory exceptions to discharge in bankruptcy “liberally in favor of the debtor,” and recognize that “ ‘[t]he reasons for denying a discharge ... must be real and substantial, not merely technical and conjectural.’ ” In re Tully, 818 F.2d 106, 110 (1st Cir.1987) (quoting Dilworth v. Boothe, 69 F.2d 621, 624 (5th Cir.1934)); see also Boyle v. Abilene Lumber, Inc. (Matter of Boyle), 819 F.2d 583, 588 (5th Cir.1987). This narrow construction ensures that the “honest but unfortunate debtor” is afforded a fresh start. Birmingham Trust Nat’l Bank v. Case, 755 F.2d 1474, 1477 (11th Cir.1985); see also Caspers v. Van Home, 823 F.2d 1285, 1287 (8th Cir.1987) (“[E]vidence presented must be viewed consistent with congressional intent that exceptions to discharge be narrowly construed against the creditor and liberally against the debtor, thus effectuating the fresh start policy of the Code.”). We confine our analysis in this case to the district court’s reversal of the bankruptcy court’s finding that the fourth element under 11 U.S.C. § 523(a)(2)(B), “intent to deceive,” was not met. Whether a debtor in bankruptcy acted with the requisite “intent to deceive” under § 523(a)(2)(B) is an issue of fact, and the bankruptcy court’s findings as to this issue are reviewed by both the district and appellate courts under the clearly erroneous standard. See Matter of Martin, 963 F.2d 809, 814 (5th Cir.1992); In re Liming, 797 F.2d 895," }, { "docid": "3100936", "title": "", "text": "Abilene Lumber, Inc. (Matter of Boyle), 819 F.2d 583, 588 (5th Cir.1987). This narrow construction ensures that the “honest but unfortunate debtor” is afforded a fresh start. Birmingham Trust Nat’l Bank v. Case, 755 F.2d 1474, 1477 (11th Cir.1985); see also Caspers v. Van Home, 823 F.2d 1285, 1287 (8th Cir.1987) (“[E]vidence presented must be viewed consistent with congressional intent that exceptions to discharge be narrowly construed against the creditor and liberally against the debtor, thus effectuating the fresh start policy of the Code.”). We confine our analysis in this case to the district court’s reversal of the bankruptcy court’s finding that the fourth element under 11 U.S.C. § 523(a)(2)(B), “intent to deceive,” was not met. Whether a debtor in bankruptcy acted with the requisite “intent to deceive” under § 523(a)(2)(B) is an issue of fact, and the bankruptcy court’s findings as to this issue are reviewed by both the district and appellate courts under the clearly erroneous standard. See Matter of Martin, 963 F.2d 809, 814 (5th Cir.1992); In re Liming, 797 F.2d 895, 897 (10th Cir.1986); In re Long, 114, F.2d 875, 877-78 (8th Cir.1985); see also Birmingham Trust, 755 F.2d at 1477 (applying clearly erroneous standard to bankruptcy court’s finding of “reckless disregard of truth” under § 523(a)(2)(A)). “Because a determination concerning fraudulent intent depends largely upon an assessment of the credibility and demeanor of the debtor, deference to the bankruptcy court’s factual findings is particularly appropriate.” In re Burgess, 955 F.2d 134, 137 (1st Cir.1992) (citing Williamson v. Fireman’s Fund Ins. Co., 828 F.2d 249, 252 (4th Cir.1987)); see also Martin, 963 F.2d at 814; see generally Bankruptcy Rule 8013. The district court therefore acts as an appellate court in reviewing a bankruptcy court’s factual findings. To ensure proper deference to the bankruptcy court, we in turn must review de novo a district court’s holding that a bankruptcy court’s factual findings were clearly erroneous. See In re Sublett, 895 F.2d 1381, 1384 (11th Cir.1990) (“‘[A]s the second court of review,’ this Court’s review of the district court’s decision is entirely de novo.”) (quoting Wegner v. Grunewaldt," }, { "docid": "22792398", "title": "", "text": "Fin. Corp., 931 F.2d at 1508 (stating that debtor attempting to abuse the proceedings of bankruptcy not entitled to the complete medley of bankruptcy protections). We limit our holding to § 523(a)(2)(A) only. We have no occasion to review the bankruptcy court’s determinations under § 523(a)(4). Moreover, we decline to decide whether the punitive damage portion of the judgment against St. Laurent would be excepted from discharge under § 523(a)(6). Section 523(a)(6) exempts from discharge debts “for willful and malicious injury by the debtor....” The Owners did not seek a determination of whether St. Laurent’s conduct, which the state court found deserving of punitive damages, amounted to “willful and malicious injury” as required by § 523(a)(6). The bankruptcy court therefore did not consider dischargeability under § 523(a)(6); nor do we. We are compelled, however, to address briefly concerns raised by § 523(a)(7). Section 523(a)(7) exempts from discharge any debt “to the extent that such debt is for a fine, penalty or forfeiture payable to and for the benefit of a governmental unit....” Several courts have determined that § 523(a)(7) restricts nondischargeability of noncompensatory damages solely to those “fine[s], penalties] or forfeiture[s]” payable to the government. See, e.g., In re Alwan Brothers Co., 105 B.R. 886, 891 (Bankr.C.D.Ill.1989) (holding that punitive damages awarded to private litigant are dischargeable); In re Suter, 59 B.R. at 947 (addressing dischargeability of treble damages under RICO). Our precedents have implicitly rejected this reasoning by upholding punitive damage awards as nondischargeable under § 523(a)(6). See In re Yanks, 931 F.2d at 42-43; In re Latch, 820 F.2d 1163, 1166 (11th Cir.1987). Moreover, we agree with the Ninth Circuit’s explanation that “[i]n-jured private plaintiffs are not precluded from relying on the exceptions set forth in other subsections of section 523 merely because one subsection precludes discharge of penalties owed to the government.” Britton, 950 F.2d at 606; see also In re Dahlstrom, 129 B.R. 240, 246 (Bankr.D.Utah 1991) (“There is nothing in the language of § 523(a) or its legislative history to indicate that subsection (a)(7) was intended to preclude private entities from pursuing nondischargeability judgments of" }, { "docid": "18552901", "title": "", "text": "absolutely clear. Yet, they continued to accrue charges and make no payments to American Express. Meanwhile, American Express took reasonable action in notifying the Diaz’s that their credit privileges were revoked. Although Roddenberry indicated debts incurred prior to unconditional revocation of a cardholder’s right to use and possess that card may be dischargeable (emphasis added), it is the honest but unfortunate debtor Congress intended to protect through the Bankruptcy Code. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Collins, 946 F.2d 815, 816-817 (11th Cir.1991); TranSouth Fin. Corp. of Fla. v. Johnson, 931 F.2d. 1505, 1508 (11th Cir.1991). Congress concluded that the creditor’s interest in recovering full payment of debts pursuant to 11 U.S.C. § 523(a) outweighed the debtor’s interest in a completely fresh start. Grogan, 498 U.S. at 285-87, 111 S.Ct. at 659. By creating the fraud exceptions to discharge, Congress sought to discourage fraudulent conduct and ensure that relief intended for honest debtors does not inure to the benefit of dishonest ones. Collins, 946 F.2d at 816-817; Birmingham Trust Nat. Bank v. Case, 755 F.2d 1474, 1477 (11th Cir.1985). In other words, the intent was to give the honest but unfortunate debt- or a fresh start, not the dishonest and fraudulent debtor a jump start. As the Supreme Court stated in Grogan: We think it unlikely that congress, in fashioning the standard of proof that governs the applicability of these provisions, would have favored the interest in giving the perpetrators of fraud a fresh start over the interest in protecting the victims of fraud. Grogan, 498 U.S. at 287, 111 S.Ct. at 659. Although creditors should not be rewarded for negligence, likewise debtors contemplating bankruptcy who continue incurring charges without payment to their creditors should not be rewarded. On June 1,1992, Nelly Diaz conferred with a Mend to assist her in seeking bankruptcy counsel of behalf of herself and her husband. At that time, the Diaz’s contemplated bankruptcy protection while continuing to accrue charges to their American Express account and had made no payments since April 28, 1992. Accordingly, the Diaz’s" }, { "docid": "22245435", "title": "", "text": "evidence. See Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Normally, “exceptions to discharge [are to] be narrowly construed against the creditor and liberally against the debtor, thus effectuating the fresh start policy of the Code.” Van Horne, 823 F.2d at 1287. However, “[t]he Bankruptcy-Code has long prohibited debtors from discharging liabilities incurred on account of their fraud, embodying a basic policy animating the Code of affording relief only to an ‘honest but unfortunate debtor.’ ” Cohen v. de la Cruz, 523 U.S. 213, -, 118 S.Ct. 1212, 1216, 140 L.Ed.2d 341 (1998) (citations omitted). “[F]raud may be proved by direct as well as circumstantial evidence, since palpable evidence of the mental state of an individual is rarely, if ever, available.” In re Fenninger, 49 B.R. 307, 310 (Bankr.E.D.Pa.1985). Additionally, Merchants’ mistake in failing to terminate the home equity line of credit after releasing the security has no bearing on the presence or absence of fraud on the part of Jerome Moen. See In re Marlar, 142 B.R. 304, 306 (Bankr. E.D.Ark.1992); In re Karelin, 109 B.R. 943, 948 (9th Cir. BAP 1990). In this case, the bankruptcy court took its cue from the United States Supreme Court’s decision in Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), and looked to the Restatement (Second) of Torts (1976), for guidance in determining whether Jerome Moen’s conduct met the elements of a cause of action under section 523(a)(2)(A). In Field v. Mans, in the context of ruling that a creditor’s reliance must be “justifiable” under section 523(a)(2)(A) in order to place a debt beyond discharge, the Supreme Court opined: Since the District Court treated Mans’s conduct as amounting to fraud, we will look to the concept of “actual fraud” as it was understood in 1978 when that language was added to § 523(a)(2)(A). Then, as now, the most widely accepted distillation of the common law of torts was the Restatement (Second) of Torts (1976), published shortly before Congress passed the [Bankruptcy Reform] Act [of 1978]. Field v. Mans, 516 U.S. at 70," }, { "docid": "1199222", "title": "", "text": "944, 947 (Bankr.N.D.Ill.1986); Alwan Bros. Co., 105 B.R. at 891. The rationale is that in § 523(a)(7) Congress created a specific exception to the discharge of non-compensatory damages only for governmental entities. Suter, 59 B.R. at 947. Further, it is said that, if Congress had intended to except other non-compensatory damages from discharge for individuals, it would have done so. Another line of cases allows punitive damage awards to be excepted from discharge. See In re Wien, 155 B.R. 479, 489 (Bankr.N.D.Ill.1993). In bankruptcy, there are goals which Congress has sought to further, such as protecting certain classes of creditors. Among such protected creditors are those whom the debtor has harmed by egregious conduct. Id. (citing In re Britton, 950 F.2d 602, 606) (9th Cir.1991)). Many cases have held that punitive damage awards for willful and malicious conduct are excepted from discharge under § 523(a)(6). In re McGuffey, 145 B.R. 582 (Bankr.N.D.Ill.1992); Dvorak, 118 B.R. 619; In re Miera, 926 F.2d 741 (8th Cir.1991); In re Adams, 761 F.2d 1422 (9th Cir.1985); Stokes v. Ferris, 150 B.R. 388 (W.D.Tex.1992), aff'd, 995 F.2d 76 (5th Cir.1993). The latter line of cases emphasizes that it is the nature of the debtor’s conduct and not the nature of the liability which determines whether a debt is excepted from discharge pursuant to § 523(a). Stokes v. Ferris, 150 B.R. at 393; see also Miera, 926 F.2d at 745; McGuffey, 145 B.R. at 594. While the “fresh start” is “a central purpose of the [Bankruptcy] Code,” this opportunity is limited to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (citation omitted). In re Guy reasoned persuasively that ... punitive damages flow from the primary debt just as do attorneys fees and interest, and should not be simply excised from the judgment because this court might feel those damages are too harsh. The entire judgment should either be given collateral estoppel effect, or it should not be given such effect. If the Debtor thought the District Court was erroneous, he should have exercised his" } ]

[ { "docid": "21496056", "title": "", "text": "neglect of counsel, or have required a showing of plain error. In the first group are Dennis v. United States, 177 F.2d 195 (4th Cir.); Birtch v. United States, 173 F.2d 316 (4th Cir.) ; Moore v. Aderhold, 108 F.2d 729 (10th Cir.), and Crowe v. United States, 175 F.2d 799 (4th Cir.). The court in Mitchell v. United States, 103 U.S.App.D.C. 97, 254 F.2d 954, considered a failure to appeal, and an effective assistance of counsel argument under circumstances where it appeared that an appeal was not perfected because the retained attorney was not paid. The court held that such refusal by the attorney to appeal was not ground for vacating the sentence. The court cited Dennis v. United States, supra, but qualified it to the extent that a failure to appeal would not be ground for vacating a sentence if no plain error was shown. The court then found that there was no plain error in the original trial. Other cases do not refuse relief entirely but require a showing of plain error to justify consideration of renewing the right to appeal.' This group includes Mitchell v. United States, supra, and also Dodd v. United States, 321 F.2d 240 (9th Cir.), where the court specifically sets up the plain error requirement in a reversal and remand to the trial court. See also Miller v. United States, Ninth Circuit, 1964, 339 F.2d 581. In Boruff v. United States, 310 F.2d 918 (5th Cir.), the accused was represented by appointed counsel who apparently assumed that his duties terminated on the sentencing of accused, and no further representation was undertaken. The court there considered the non-representation of accused during the ten day period, and held that his right of counsel extended through the exercise by him of his right to appeal. The court in the cited case also considered possible errors in the original proceedings, and actually held that venue had been improperly laid as advanced by the appellant as an error in the trial proceedings. Thus the court actually used the plain error test. We have recently considered in several" } ]

[ { "docid": "1180771", "title": "", "text": "the offense relevant, as articulated in Colts. Recently, the Supreme Court reviewed a State of Wisconsin conviction which revoked a defendant’s driver’s license for sixty days because of his refusal to submit to a breathalyzer test. Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Although the majority opinion relied upon the fourth amendment in vacating the conviction, a dissenting opinion stressed the dual considerations first articulated in Colts and Baldwin: Although the seriousness of the prescribed sanctions is a valuable objective indication of the general normative judgment of the seriousness of the offense, Baldwin v. New York, 399 U.S. 66, 68, 90 S.Ct. 1886, 1887, 26 L.Ed.2d 437 (1970) (plurality opinion), other evidence is available and should not be ignored. United States v. Craner, 652 F.2d 23, 24-27 (CA 9 1981); United States v. Woods, 450 F.Supp. 1335, 1340 (Md.1978); Brady v. Blair, 427 F.Supp. 5, 9 (SD Ohio 1976). 104 S.Ct. at 2104 (White, J., dissenting). Therefore, a strict adherence to the six month threshold does not control the disposition of this case, and we are required to make a judgment as to the seriousness of the offense of DWI. Federal courts are in agreement that Baldwin did not hold that the maximum potential sentence is the sole criterion by which to determine if an offense is petty. Baldwin, 399 U.S. at 69, 90 S.Ct. at 1888 n. 6; District of Columbia v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 663, 81 L.Ed. 843 (1937); United States v. Craner, 652 F.2d 23, 25 (9th Cir.1981); United States v. Sanchez-Meza, 547 F.2d 461, 464 (9th Cir. 1976); United States v. Thomas, 574 F.Supp. 197, 198 (D.D.C.1983); United States v. Woods, 450 F.Supp. 1335, 1340 (D.Md.1978); Brady v. Blair, 427 F.Supp. 5, 10 (S.D.Ohio 1976). Just as relevant in the determination is the factor of the nature of the offense. Colts, 282 U.S. at 73, 51 S.Ct. at 53. For instance, in United States v. Craner, 652 F.2d 23, 24 (9th Cir.1981), the defendant was convicted at a bench trial of DWI in Yosemite National" }, { "docid": "22976656", "title": "", "text": "Board pursuant to Section 9(h) of the Taft-Hartley Act, 29 U.S.C.A. § 159(h), there is no apparent reason forgiving these words a narrower meaning in a questionnaire preliminary to an investigation for access to classified information. Compare the definition of “membership” in Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 55-56, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961); Konigsberg v. State Bar of Cal., 366 U.S. 36, 46-47, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); Barenblatt v. United States, 360 U.S. 109, 130, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Frasier v. United States, 267 F.2d 62, 65-66 (1st Cir. 1959), with the definition of “membership” in a statute making “membership” a crime: Scales v. United States, 367 U.S. 203, 222, 229-230, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Noto v. United States, 367 U.S. 290, 298-300, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961). . See Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Putnam v. United States, 162 U.S. 687, 690-691, 16 S.Ct. 923, 40 L.Ed. 1118 (1896). Compare Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). . Neely v. United States, 300 F.2d 67 (9th Cir. 1962), and cases cited. . Sells v. United States, 262 F.2d 815, 824 (10th Cir. 1958), cert. denied 360 U.S. 913, 79 S.Ct. 1298, 3 L.Ed.2d 1262; Travis v. United States, 247 F.2d 130, 134-135 (10th Cir. 1957), reversed on other grounds, 364 U.S. 631, 81 S.Ct. 858, 5 L.Ed.2d 340. . Fed.R.Crim.P. 8(a). . See Fed.R.Crim.P. 14; Pierce v. United States, 160 U.S. 355, 356, 16 S.Ct. 321, 40 L.Ed. 454 (1896); Steinhardt Bros. & Co. v. United States, 191 F. 798, 799 (2d Cir. 1911); Terry v. United States, 120 F. 483, 484 (4th Cir. 1903). . Fisher v. United States, 231 F.2d 99, 103 (9th Cir. 1956). See also Sells v. United States, 262 F.2d 815, 824 (10th Cir. 1958), cert. denied 360 U.S. 913, 79 S.Ct. 1298, 3 L.Ed.2d 1262, and authorities cited." }, { "docid": "13030067", "title": "", "text": "PER CURIAM: Although the procedural situation is somewhat confused because of the multiple and alternative nature of appellant’s motions in the District Court, what we consider to be before us is essentially an appeal from that court’s action in denying leave to appeal in forma pauperis because the petition was filed after the time had expired in which a notice of appeal from a criminal conviction may be filed. Rule 37(a) (2), Fed. R.Crim.P. There being no issue of fact as to the failure to file an appeal within the prescribed time, the District Court’s action was correct under United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), and we affirm it. This affirmance is, however, without prejudice to appellant’s filing in due course a new motion under 28 U.S.C. § 2255 seeking the vacation and re-entry of his sentence. The reconciliation of Robinson with the seeming equities of the convicted defendant whose failure to appeal in the 10-day period is not his fault has elicited varying responses. Desmond v. United States, 333 F.2d 378 (1st Cir. 1964); Boruff v. United States, 310 F.2d 918 (5th Cir. 1962); Calland v. United States, 323 F.2d 405 (7th Cir. 1963); Dodd v. United States, 321 F.2d 240 (9th Cir. 1963). Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Within our own circuit there has been a comparable disparity of approach. Compare Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964), with Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). In the record before us there appear to be allegations that appellant’s counsel, retained for his defense at the trial, never apprised him of his right to file a notice of appeal, or of the time within which that right must be exercised. If true, and if unexplained, this impresses us as such an extraordinary inattention to a client’s interests as to amount to ineffective assistance of counsel cognizable under Section 2255. A motion under that statute containing such' allegations, and otherwise entertainable by the court," }, { "docid": "12363877", "title": "", "text": "the state court’s decision, a federal court will not ordinarily reexamine upon writ of habeas corpus the questions thus adjudicated.” That was said in a-case in which it appeared that the decision of the state court had gone off on a point of practice; and, although in the case at bar it does not affirmatively appear that the “state court has considered and adjudicated the merits,” it also does not appear that it has not. Exactly the same question was presented upon the petition for certiorari as was presented to the District Court upon habeas corpus: that is, whether it is enough for a convicted person to show that the state court may have refused to consider the constitutional question. Perhaps it is possible that, the Supreme Court refused to review the decision because it thought that a record upon habeas corpus might be different; although it appears to us that this is extremely unlikely. At any rate, no different record has in fact been presented,. and, unless we are altogether to disregard the action of the court of last resort in the very case itself, the denial ought to be conclusive. Order affirmed. McKane v. Durston, 153 U.S. 684, 687, 14. S.Ct. 913, 38 L.Ed. 867; District of Columbia v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 81 L.Ed. 843; Carter v. Illinois, 329 U.S. 173, 175, 67 S.Ct. 216, 91 L.Ed. 172. Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739." }, { "docid": "23151978", "title": "", "text": "Cir.), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1965). See also the numerous cases collected in Annot., 21 A.L.R.3d 819, 822-29 (1968). . See McGee v. International Life Ins. Co., 355 U.S. 220, 224, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); W. B. Worthen Co. v. Thomas, 292 U.S. 426, 431-432, 54 S.Ct. 816, 78 L.Ed. 1344 (1934); Freeland v. Williams, 131 U.S. 405, 413-420, 9 S.Ct. 763, 33 L.Ed. 193 (1889). . Graham v. Goodcell, 282 U.S. 409, 426, 51 S.Ct. 186, 75 L.Ed. 415 (1931) (cause of action for an amount due) ; Forbes Pioneer Boat Line v. Everglades Drainage Dist., 258 U.S. 338, 339, 42 S.Ct. 325, 66 L.Ed. 647 (1922) (cause,of action for tolls unlawfully collected) ; Angle v. Chicago, St. M. & O. Ry., 151 U.S. 1, 25-26, 14 S.Ct. 240, 38 L.Ed. 55 (1894) (cause of action for damages). See also Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 78 L.Ed. 342 (1933). . We intimate no view as to the situation of counsel and their clients inter se. . Milliken v. Gleason, 332 F.2d 122, 123 (1st Cir. 1964), cert. denied, 379 U.S. 1002, 85 S.Ct. 723, 13 L.Ed.2d 703 (1965); Smith v. United States, 83 F.2d 631, 639 (8th Cir. 1936); United States v. Robinson, 103 F.2d 713, 715 (9th Cir. 1939); United States v. Daubendiek, 25 F.R.D. 50, 54 (N.D.Iowa 1959); Steinmasel v. United States, 202 F.Supp. 335, 337 (D.S.D.1962). See also the eases cited infra note 99. See also Strong v. United States, 155 F.Supp. 468 (D.Mass. 1957), appeal dismissed, 356 U.S. 226, 78 S.Ct. 709, 2 L.Ed.2d 712 (1958). . Hahn v. Gray, supra note 20, 92 U.S.App.D.C. at 190, 203 F.2d at 626; Slocumb v. Gray, supra note 16, 86 U.S.App.D.C. at 8, 179 F.2d at 34; Van Horne v. Hines, supra note 20, 74 App.D.C. at 216, 122 F.2d at 209; Barnett v. Hines, supra note 16, 70 App.D.C. at 220, 105 F.2d at 99. . See, e. g., Insurance Agents’ Int’l v. NLRB, 104 U.S.App.D.C. 218, 260 F.2d 736 (1958)," }, { "docid": "21336691", "title": "", "text": "cannot do. Dodd v. United States, 321 F.2d 240, 243 (9th Cir. 1963); Black v. United States, 269 F.2d 38, 41-42 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960). Entrapment is a defense which must be raised at the trial, and taken up on direct appeal. It is not an issue which can be raised to attack a judgment collaterally under § 2255. Turner v. United States, 262 F.2d 643 (8th Cir. 1959); United States v. Lyons, 256 F.2d 749 (2d Cir.), cert, denied 358 U.S. 911, 79 S.Ct. 240, 3 L.Ed.2d 232 (1958); Stanley v. United States, 239 F.2d 765 (9th Cir. 1957); Anderson v. United States, 338 F.2d 618 (9th Cir. decided November 24, 1964). Grounds which were apparent when appellant appealed from her conviction cannot thereafter be made the basis for an attack on a motion to set aside judgment and sentence. Medrano v. United States, 315 F.2d 361 (9th Cir.), cert. denied 375 U.S. 854, 84 S.Ct. 114, 11 L.Ed.2d 81 (1963). The government first raises objection to jurisdiction, because Title 28 U.S.C. § 2255 affords relief only to “[a] prisoner in custody * * * claiming the right to be released.” The government cites Heflin v. United States, 358 U.S. 415, 420, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). There a majority of the Court said: “A motion for relief under 28 U.S.C. § 2255 is available only to attack a sentence under which a prisoner is in custody. That is what the statute says. That is what the legislative history shows. That is what federal courts * * * have unanimously concluded.” Cf.: United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952); McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934); Smith v. United States, 259 F.2d 125 (9th Cir. 1958); Miller v. United States, 256 F.2d 501 (9th Cir. 1958); Toliver v. United States, 249 F.2d 804 (9th Cir. 1957); Hoffman v. United States, 244 F.2d 378 (9th Cir. 1957); Williams v. United States, 236 F.2d 894" }, { "docid": "22430865", "title": "", "text": "as allowing of only three eases: “When narcotics have been administered, when many are engaged against the female, and when a strong man attacks one who has not arrived at the age of puberty,” and another as adding “resistance until the helpless female faints from fatigue,” and the dread of instant murder. See also State v. Hoffman, 1938, 228 Wis. 235, 280 N.W. 357, 359, upon which appellant relies, where the court recognized that “fear of death or great bodily harm,” “fear of great personal injury,” “fear that ‘so overpowers her that she dares not resist,’ ” etc., would nullify consent, but found the facts insufficient to show the existence of such fear. Other authorities cited, Jordan v. Commonwealth, 1938, 169 Va. 898, 194 S.E. 719; State v. Shults, 1938, 43 N.M. 71, 85 P.2d 591; State v. Ellison, 1914, 19 N.M. 428, 144 P. 10; State v. Armijo, 1920, 25 N.M. 666, 187 P. 553; Mares v. Territory, 1901, 10 N.M. 770, 65 P. 165, go to the necessity of corroboration and the insufficiency of the particular circumstantial evidence, differing in important respects from that shown here, for this purpose. Miller, Criminal Law (1934) 295; 1 Wharton, Criminal Law (12th Ed. 1932) § 701. Appellant’s contention is obviously untenable, that the Kidwell case is distinguishable from this one, in respect to the necessity and sufficiency of corroboration, because the prosecutrix in that case was under the age of consent. Hillman v. United States, 9 Cir. 1911, 192 F. 264, 272, cert. denied, 1912, 225 U.S. 699, 32 S.Ct 834, 56 L.Ed. 1263; Chetkovitch v. United States, 9 Cir. 1931, 53 F.2d 26. 3 Wigmore, Evidence (3d Ed. 1940) § 1003, and authorities cited in note 3; Thompson-Starrett Co. v. Warren, 1912, 38 App.D.C. 310, 315; cf. Martin v. United States, 1942, 75 U.S.App.D.C. 399 127 F.2d 865. Alford v. United States, 1931, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624; District of Columbia v. Clawans, 1937, 300 U.S. 617, 630, 57 S.Ct. 660, 81 L.Ed. 843; United States v. Glasser, 7 Cir., 1940, 116 F.2d 690, 702," }, { "docid": "7747326", "title": "", "text": "statute of limitations. See note 3, supra. . United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). . Advisory Committee Note to Fed.R.App.P. 3. . See, e. g., Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 165-166 (2d Cir. 1946) (service of notice of appeal on party sought to be made the appellee does not constitute filing). There are, too, cases rejecting oral notices of appeal made in open court by the intended appellant or in his presence, though they appear in the transcript of the proceedings. B. g., United States v. Isabella, 251 F.2d 223, 226 (2d Cir. 1958) ; United States v. Temple, 372 F.2d 795, 799 (4th Cir. 1966), cert. denied, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967) ; Smith v. United States, 425 F.2d 173, 174-175 (9th Cir. 1970). . Advisory Committee Note to Fed.R.App.P. 3. . Jordan v. United States Dist. Court, 98 U.S.App.D.C. 160, 162-163, 233 F.2d 362, 364-365, vacated on other grounds, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (1956) (petition for mandamus in court of appeals) ; Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969) (application for extension of time to file notice of appeal) ; Richey v. Wilkens, 335 F.2d 1, 4-5 (2d Cir. 1964) (notice of appeal in court of appeals rather than district court) ; Frace v. Russell, 341 F.2d 901, 902 (3d Cir.), cert. denied, 382 U.S. 863, 86 S.Ct. 127, 15 L.Ed.2d 101 (1965) (“brief for appeal” in court of appeals) ; Holley v. Capps, 468 F.2d 1366, 1367-1368 (5th Cir. 1972) (motion for certificate of probable cause in habeas corpus proceeding) ; Riffle v. United States, 299 F.2d 802 (5th Cir. 1962) (letter to judge of court of appeals) ; Carter v. Campbell, 285 F.2d 68, 71-72 (5th Cir. 1960) (application to court of appeals for leave to proceed on original record, and grant of such leave) ; O’Neal v. United States, 272 F.2d 412, 413 (5th Cir. 1959) (appeal bond) ; Davis v. Department of Corrections, 446 F.2d 644," }, { "docid": "464734", "title": "", "text": "including dismissal of a complaint for want of jurisdiction, can be considered a motion within Fed.R.Civ.P. 59(e) for purposes of Fed.R.App.P. 4(a). See Graddy v. Bonsal, 375 F.2d 764 (2d Cir. 1967) (per curiam) ; Vine v. Beneficial Finance Co., Inc., supra, 374 F.2d 627, 632 (2d Cir.), cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967) ; Woodham v. American Cystoscope Co., 335 F.2d 551, 555-556 (5th Cir. 1964) ; Gainey v. Brotherhood of Ry. & S. S. Clerks, etc., supra, 303 F.2d 716, 718 (3d Cir. 1962) ; 9 J. Moore, Federal Practice, supra, f 204.12 [1], at 951. . See, e. g., Bowman v. Loperena, 311 U.S. 262, 266, 61 S.Ct. 201, 85 L.Ed. 177 (1940) ; United States v. Seminole Nation, 299 U.S. 417, 421, 57 S.Ct. 283, 81 L.Ed. 316 (1937) ; Morse v. United States, 270 U.S. 151, 153-154, 46 S.Ct. 241, 70 L.Ed. 518 (1926) ; Kingman v. Western Manufacturing Co., 170 U.S. 675, 678, 18 S.Ct. 786, 42 L.Ed. 1192 (1898) ; Texas & P. Ry. Co. v. Murphy, 111 U.S. 488, 489, 4 S.Ct. 497, 28 L.Ed. 492 (1884) : Brockett v. Brockett, 43 U.S. (2 How.) 238, 241, 11 L.Ed. 251 (1844). Accord, Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 149-150, 63 S.Ct. 133, 87 L.Ed. 146 (1942) ; Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 137-138, 57 S.Ct. 382, 81 L.Ed. 557 (1937). . See, e. g., State Farm Mutual Auto Insurance Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956) (per curiam), reversing 225 F.2d 876 (9th Cir. 1955) ; United States v. Ellicott, 223 U.S. 524, 538-539, 32 S.Ct. 334, 56 L.Ed. 535 (1912) ; United States v. Certain Land, etc., 322 F.2d 866, 869 (3d Cir. 1963) ; Altvater v. Battocletti, 300 F.2d 156, 158 (4th Cir. 1962) ; Piatek v. Government Services, Inc., 111 U.S.App.D.C. 308, 296 F.2d 430 (1961) (per curiam) ; Safeway Stores, Inc. v. Coe, 78 U.S.App. D.C. 19, 136 F.2d 771, 773 (1943) ; 6A J. Moore, Federal" }, { "docid": "22199176", "title": "", "text": "491, 494; Wilson v. Lanagan, 1 Cir., 99 F.2d 544, 546; George v. Wiseman, 10 Cir., 98 F.2d 923, 928; Tomlinson v. United States, 68 App.D.C. 106, 93 F.2d 652, 656, 114 A.L.R. 1315; Ginsberg v. United States, 5 Cir., 96 F.2d 433, 436; Centoni v. United States, 9 Cir., 69 F.2d 624, 625; Dundee Petroleum Co. v. Clay, 8 Cir., 267 F. 145, 150; Armour & Co. v. Kollmeyer, 8 Cir., 161 F. 78, 80, 16 L.R. A.,N.S., 1110; Drexel v. True, 8 Cir., 74 F. 12, 13; 12 Am.Jur. 449-450. 22 C.J. 910, § 1114; City of Chicago v. Le Moyne, 7 Cir., 119 F. 662, 668; Turner v. United States, 5 Cir., 66 F. 280, 282; Chicago G. W. R. Co. v. Robinson, 8 Cir., 101 F.2d 994; United States v. Park Avenue Pharmacy, Inc., 2 Cir., 56 F.2d 753, 756; Benway v. People of Michigan, 6 Cir., 26 F.2d 168, 169, 170; West v. United States, 8 Cir., 15 F.2d 916, 917. District of Columbia v. Clawans, 300 U.S. 617, 632, 57 S.Ct. 660, 81 L.Ed. 843; Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624; Blitz v. United States, 153 U.S. 308, 312, 14 S.Ct. 924, 38 L.Ed. 725; Storm v. United States, 94 U.S. 76, 85, 24 L.Ed. 42; Rea v. Missouri, 84 U.S., 17 Wall. 532, 542, 543, 21 L.Ed. 707; Shama v. United States, 8 Cir., 94 F.2d 1, 5; Hartzell v. United States, 8 Cir., 72 F.2d 569, 585; Heard v. United States, 8 Cir.. 255 F. 829, 832. See and compare Holmes v. Goldsmith, 147 U.S. 150, 164, 13 S.Ct. 288, 37 L.Ed. 118; Miller v. United States, 8 Cir., 21 F.2d 32, 36; Williams v. United States, 8 Cir., 265 F. 625; Salerno v. United States, 8 Cir., 61 F.2d 419, 424; Hartzell v. United States, 8 Cir., 72 F.2d 569, 580, 585; Morgan v. United States, 8 Cir., 98 F.2d 473, 477. Diehl v. United States, 8 Cir., 98 F.2d 545, 547; Muench v. United States, 8 Cir., 96 F.2d 332, 336; Walker" }, { "docid": "11986565", "title": "", "text": "properly been received in evidence but a majority of the full court ruled otherwise on the basis of Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (en banc 1961). . Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959). . United States v. Ewell, supra note 11, 383 U.S. at 120, 86 S.Ct. at 776. . See United States v. Ewell, supra note 11, 383 U.S. at 121-123, 86 S.Ct. 773; Hedgepeth v. United States, supra note 9, 364 F.2d at 687. . See supra note 15. . Edmonds v. United States, 106 U.S.App.D.C. 373, 375-378, 273 F.2d 108, 110-113 (en banc 1959), cert. denied 362 U. S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012 (1960); Warde v. United States, 81 U.S. App.D.C. 355, 158 F.2d 651 (1946). Compare Milton v. United States, 71 App.D.C. 394, 110 F.2d 556 (1940). See also Orth v. United States, 252 F. 569 (4th Cir. 1918); Heller v. United States, 57 F.2d 627 (7th Cir.), cert. denied 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298 (1932) ; United States v. Grunewald, 164 F.Supp. 644 (S.D.N.Y.1958); People v. Corbo, 17 A.D.2d 351, 234 N.Y.S.2d 662 (1962); Rafferty v. State, 91 Tenn. 655, 16 S.W. 728 (1891). See generally McCormick, Evidence, § 131 (1954); Annot. 5 A.L.R.2d 1404 (1949). . See the cases cited supra note 20. . Compare, e. g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). . Compare, e. g., Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). . Compare, e. g., Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Spevack v. Klein, 3S5 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). . Compare, e. g., Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)." }, { "docid": "2123266", "title": "", "text": "S.Ct. 769, 27 L. Ed.2d 781 (1971); (per curiam); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971) (per curiam). . Muskrat v. United States, 219 U.S. 346, 351-353, 31 S.Ct. 250, 55 L.Ed. 246 (1911) (interpreting Hayburn’s Case, 2 Dall. 409, 1 L.Ed. 436 (1972). . North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). . See id. . See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151-152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). . 263 F.Supp. 327 (N.D.Ala. 1966), aff’d 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam). . See Singleton v. Board of Commissioners, 356 F.2d 771 (5th Cir. 1966). . 263 F.Supp. 327, 330 quoting Henderson v. United States, 339 U.S. 816, 823, 70 S.Ct. 843, 94 L.Ed. 1302 (1950). . Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam). . 52 F.R.D. 389 (D.Conn. 1971). . Compare Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968); Kelly v. Wyman, 294 F.Supp. 887, 890 (S.D.N.Y. 1968) (3-judge court) aff’d sub nom. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). . See Vaughan v. Bower, 313 F.Supp. 37, 40 (D. Ariz.) (3-judge court), aff’d, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970); Cypress v. Newport News General & Nonsectarian Hosp. Ass’n, 375 F.2d 648, 657 (4th Cir. 1967). . See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971) (per curiam) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). . The majority opinion may be read to hold broadly that the judicial immunity doctrine presents no obstacle to the maintenance of" }, { "docid": "15410486", "title": "", "text": "the tardiness was excusable. . F.R.Crim.P. 37(a) (1). . United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). But see Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). . United States v. Robinson, supra note 4. But see Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) ; Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964); Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). . Petitioner’s affidavit served adequately as a notice of appeal, and if submitted in time conferred the jurisdiction essential to our entertaining the appeal he desires. See Belton v. United States, 104 U.S.App.D.C. 81, 84, 259 F.2d 811, 814 (en banc 1958); Shannon v. United States, 93 U.S.App.D.C. 4, 6-7, 206 F.2d 479, 481-482 (1953); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941). Cf. Kirksey v. United States, 94 U.S.App.D.C. 393, 219 F.2d 499 (1954), cert. denied 358 U.S. 848, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958). . Advisory Committee’s Note to F.R.Crim.P. 37(a) (2) ¶ 5. . See Coppedge v. United States, 369 U.S. 438, 441-442, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). . F.R.Crim.P. 32(a) (2). . Ibid. . Unless the right is intelligently and effectively waived, the defendant must be represented by counsel when sentence is imposed. Mempa v. Rhay, 389 U.S. 128, 129, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Daniel v. United States, 107 U.S.App.D.C. 110, 112, 274 F.2d 768, 770 (1960), cert. denied 366 U.S. 970, 81 S.Ct. 1935, 6 L.Ed.2d 1260 (1961); Gadsden v. United States, 96 U.S.App.D.C. 162, 165, 223 F.2d 627, 630 (1955); McKinney v. United States, 93 U.S.App.D.C. 222, 225, 208 F.2d 844, 847 (1953). And see 18 U.S.C. § 3006A(c); F.R.Crim.P. 44(a). . See, e. g., Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 186 n. 5, 295 F.2d 171, 173 n. 5 (1961); Smith v. United States, 106 U.S.App.D.C. 169, 170," }, { "docid": "22978733", "title": "", "text": "266, 80 S.Ct. 725, 733 (1960). But this is not a case of property right distinctions. The defense concedes that Mrs. Maxwell possessed a proprietary interest in the house; that Maxwell himself only shared a room there with his two younger brothers; and that no landlord-tenant relationship existed between Maxwell and his parents. Mrs. Maxwell had control of the premises, undiminished by any kind of a less-than-fee interest possessed by Maxwell. This fact stands in contrast to the hotel or rental situations. See Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Klee v. United States, 53 F.2d 58 (9 Cir. 1931). The situation strikes us as being no different, factually, than if Mrs. Maxwell herself had brought the coat, it being properly in her possession, to the authorities. They came to the home, it is true, but they obtained the coat by freely allowed access to the house, by freely given directions as to its location, and by freely permitted acquisition of it by the officers and departure with it in their hands. Roberts v. United States, supra, 332 F.2d 892, 896-897 (8 Cir. 1964); Burge v. United States, 342 F.2d 408, 413-414 (9 Cir. 1965); Rees v. Peyton, 341 F.2d 859, 861-863 (4 Cir. 1965); United States v. Guido, 251 F.2d 1, 3-4 (7 Cir. 1958), cert. denied 356 U. S. 950, 78 S.Ct. 915, 2 L.Ed.2d 843; Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958), cert. denied 357 U.S. 930, 78 S.Ct. 1375, 2 L.Ed. 2d 1372; Fredricksen v. United States, 105 U.S.App.D.C. 262, 263, 266 F.2d 463, 464 (1959); Morales v. United States, 344 F.2d 846 (9 Cir. 1965); United States ex rel. McKenna v. Myers, 232 F.Supp. 65, 66 (E.D.Pa.1964)." }, { "docid": "12947814", "title": "", "text": "not for another.” Awkard v. United States, 122 U.S.App.D.C. 165, 170, 352 F.2d 641, 646 (1965). Since the adoption in 1901 of 14 D.C.Code § 305, this court has never expressly determined whether the term “crime” in that statute encompasses so-called petty offenses to which the right of trial by jury does not apply. Indeed, on two occasions we have indicated that the question is an open one. Jones v. United States, 119 U.S.App.D.C. 213, 214-215 n. 4, 338 F.2d 553, 554-555 n. 4 (1964) (per curiam); Sanford v. United States, 69 App.D.C. 44, 46, 98 F.2d 325, 327 (1938) (per curiam). We have held that § 305 does not apply to convictions involving violations of municipal ordinances. Clawans v. District of Columbia, 61 App.D.C. 298, 62 F.2d 383 (1932). In so holding, we relied on Schick v. United States, 195 U.S. 65, 70, 24 S.Ct. 826, 49 L.Ed. 99 (1904), where the Supreme Court construed the word “crimes” in the jury trial provision of Article III of the Constitution as excluding petty offenses. Clawans, supra, 61 App.D.C. at 299, 62 F.2d at 384. Thus the rationale of our holding in Clawans is not based on the fact that the impeachment evidence admitted there involved municipal ordinances, but rather that the violations of municipal ordinances, being petty offenses, were not triable to a jury and thus were not included in the “crimes” referred to in § 305. In the present case the prosecutor was permitted by the trial court, over the objection of defense counsel, to impeach appellant’s credibility by referring to thirteen prior convictions of petty offenses — vagrancy, disorderly conduct and soliciting prostitution. Although these are District of Columbia Code offenses, as distinguished from municipal ordinances, none of them is triable by jury. 16 D.C.Code § 705(b) (Supp. V, 1966). See District of Columbia v. Clawans, 300 U.S. 617, 625-629, 57 S.Ct. 660, 81 L.Ed. 843 (1937). Consequently § 305 is not applicable to them. Our holdings in Murray v. United States, 53 App.D.C. 119, 288 F. 1008, cert. denied, 262 U.S. 757, 43 S.Ct. 703, 67 L.Ed." }, { "docid": "3549361", "title": "", "text": "supra; Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967); Watt v. Page, 452 F.2d 1174 (10th Cir. 1972), cert. denied 405 U.S. 1070, 92 S.Ct. 1520, 31 L.Ed.2d 803 (1972); Dennis v. Dees, supra; United States ex rel. Diamond v. Social Service Department, 263 F.Supp. 971 (E.D.Pa.1967); Commonwealth v. Keeler, 216 Pa.Super. 193, 264 A.2d 407 (1970); Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970); People v. Shaw, 381 Mich. 467, 164 N.W.2d 7 (1969); People v. Zapata, 220 Cal.App.2d 903, 34 Cal. Rptr. 171 (1963), cert. denied 377 U.S. 406, 84 S.Ct. 1633, 12 L.Ed.2d 495 (1964); Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946); Collins v. State, 70 Okl.Cr. 340, 106 P.2d 273 (1940); Shultz v. State, 131 Fla. 757, 179 So. 764 (1938). Contra: Hall v. Cox, 324 F.Supp. 786 (W.D.Va.1971); Xanthull v. Beto, 307 F.Supp. 903 (S.D.Tex. 1970); McFalls v. Peyton, 270 F.Supp. 577 (W.D.Va.1967), aff’d 401 F.2d 890 (4th Cir. 1968), cert. denied 394 U.S. 951, 89 S.Ct. 1292, 22 L.Ed.2d 486 (1969). . We do not decide the breadth of the term “prison clothing.” Clearly any attire with the word “jail” or “sheriff” stenciled on it is “prison clothing.” . See, e. g., Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (dictum that indigent prisoners are not entitled to appointed counsel in habeas corpus action). See also Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, rehearing denied 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200 (1963) (dissenting opinion of Mr. Justice Harlan at 361-362). Cf. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) which holds that although the state need not provide criminal appeals (McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894)), any right to appeal that it does provide must be equally available to rich and poor alike." }, { "docid": "16824993", "title": "", "text": "upon trials for crimes against the United States. If an accused is not represented by counsel upon his trial, and has not competently and intelligently waived his constitutional right, it has been held that no valid conviction and sentence may result. No issue is raised as to any deprivation of appellant’s right to counsel upon his trial; that question has been settled against him in previous habeas corpus proceedings. The contention here is that appellant had a constitutional right to be provided with counsel for the prosecution of a motion to correct the sentence and judgment. At common law there was no review of criminal cases as a matter of right, and due process does not require the right of appeal. The right to counsel afforded by the Sixth Amendment is expressly limited to “criminal prosecutions”, and the motion before us, though arising from a criminal prosecution, may not be classified within the constitutional mandate. We do not think the Fifth and Sixth Amendments require representation by counsel, or an intelligent waiver thereof, in the presentation of a motion to correct judgment and sentence. Affirmed. Buie v. United States, 5 Cir., 127 F.2d 367, and cases there cited. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. Nivens v. Hudspeth, 10 Cir., 105 F.2d 756, certiorari denied 317 U.S. 628, 63 S.Ct. 42. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867; District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843. Cf. Moore v. Aderhold, 10 Cir., 108 F.2d 729; Errington v. Hudspeth, 10 Cir., 110 F.2d 384, 127 A.L.R. 1467, certiorari denied 310 U.S. 638, 60 S.Ct. 1087, 84 L.Ed. 1407." }, { "docid": "22794617", "title": "", "text": "1963); Remmer v. United States, 205 F.2d 277, 287-288 (9th Cir. 1953); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 233 (1947) ; See also Sentilles v. Inter-Carribbean Shipping Corp., 361 U.S. 107, 110, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959); Lavender v. Kurn, 327 U.S. 645, 652, 66 S.Ct. 740, 90 L.Ed. 916 (1946); Tennant v. Peoria & P. U. Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944). . Byrnes v. United States, 327 F.2d 825, 829 n.5a (9th Cir. 1964); Bolen v. United States, 303 F.2d 870, 874 (9th Cir. 1962); Cape v. United States, 283 F.2d 430, 433 (9th Cir. 1980); Elwert v. United States, 231 F.2d 928, 933, 935 (9th Cir. 1956); Schino v. United States, 209 F.2d 67, 72 (9th Cir. 1953); Remmer v. United States, 205 F.2d 277, 287-288 (9th Cir. 1953). . See notes 13 and 19. In Mull v. United States, 402 F.2d 571, 575 (9th Cir. 1968), and Armstrong v. United States, 327 F.2d 189, 194-195 (9th Cir. 1964), we held that it was not error to refuse to instruct the jury that where the evidence was susceptible of two reasonable constructions, one pointing to guilt, the other to innocence, the jury must adopt the latter. But in Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967), we reversed a conviction because, in our view, two equally valid inferences from the evidence were possible and the jury failed to draw the inference favoring the defendant. . E. g., Dirring v. United States, 328 F.2d 512, 515 (1st Cir. 1985); United States v. Press, 336 F.2d 1003, 1010 (2d Cir. 1964) ; United States v. Tutino, 269 F.2d 488, 490 (2d Cir. 1959) ; United States v. Allard, 240 F.2d 840, 841 (3d Cir. 1957) ; White v. United States, 279 F.2d 740, 748 (4th Cir. 1960); United States v. Comer, 288 F.2d 174, 175 (6th Cir. 1961); Corbin v. United States, 253 F.2d 646, 648-649 (10th Cir. 1958). See also 8 J. Moore, Federal Practice, ¶ 29.06, at 29-21 n.6 (1958) ; Comment," }, { "docid": "2231706", "title": "", "text": "the fact. * * * He contends, however, that the state trial judge should have assumed such from his dispute over fees with his own retained counsel and should have appointed counsel for him sua sponte. We find no merit in this contention. See State ex rel. Dych v. Bomar, 213 Tenn. 699, 378 S.W.2d 772 (1964); Horton v. Bomar, 335 F.2d 583 (CA 6, 1964); McCoy v. Bomar, 333 F.2d 959 (CA 6, 1964). The principle stated in Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), that counsel must be provided where constitutionally required regardless of whether the defendant so requests, does not apply where the defendant has been represented throughout the trial by retained counsel and there is no indication that he is unable, rather than unwilling, to pay counsel fees.” 340 F.2d at 595. In Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1955), the Supreme Court said: “It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. See, e.g., McKane v. Durston, 153 U.S. 684, 687-688, [14 S.Ct. 913, 38 L.Ed. 867]. But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.” 351 U.S. at 18, 76 S.Ct. at 590. In McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), Mr. Justice Harlan said: “An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review.” (Emphasis supplied.) 153 U.S. at 687, 14 S.Ct. at" }, { "docid": "7606572", "title": "", "text": "U.S.App.D.C. 144, 397 F.2d 705 (1968). . Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). . Sibron v. New York, supra note 4, 392 U.S. at 47, 88 S.Ct. 1889; Perry v. United States, 118 U.S.App.D.C. 360, 361, 336 F.2d 748, 749 (1964). . Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Miller v. United States, 116 U.S.App.D.C. 45, 46, 320 F.2d 767, 768 (1963) (opinion of Chief Judge Bazelon); Bailey v. United States, 135 U.S.App.D.C. 95, at 99, 100, 416 F.2d 1110, at 1114, 1115 (1969); Austin v. United States, 134 U.S.App.D.C. 259, 414 F.2d 1155 (1969). . Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 868, 40 L.Ed. 1051 (1896). . Jackson v. United States, 134 U.S.App.D.C. 18, 412 F.2d 149, 153 (1969). . Sibron v. New York, supra note 4, 392 U.S. at 66-67, 88 S.Ct. at 1904. . Our decision in Green v. United States, 104 U.S.App.D.C. 23, 259 F.2d 180 (1958), cert. denied, 359 U.S. 917, 79 S. Ct. 594, 3 L.Ed.2d 578 (1959), would not support such a finding. There we commented on flight as an element of probable cause in the case of a man who fled when police approached his companion, a known narcotic addict. He was arrested, not for the narcotic offenses for which he was subsequently charged, but for attempted unlawful entry into the house of a stranger as he tried to escape. . The police did in fact uncover narcotics in Apartment 502, and other arrests were made. . Carrado v. United States, 93 U.S.App. D.C. 183, 192, 210 F.2d 712, 721-722 (1953), cert. denied Atkins v. United States, 347 U.S. 1018, 1020, 74 S.Ct. 874, 98 L.Ed. 1140 (1954), Smith v. United States, 349 U.S. 932, 758 S.Ct. 777, 99 L.Ed. 1262 (1955). . United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). . Hedgepeth v. United States (Hedgepeth I), 124 U.S.App.D.C. 291, 293, 364 F.2d 684, 686 (1966). . Blunt v." } ]

[ { "docid": "982437", "title": "", "text": "regards it as final. He believes he has already entered a valid judgment; he intends to have nothing further to do with the case. It is true that he must perform another act (entry of judgment) if the -appellate court remands the case, but the same is true whenever a district court is reversed on appeal. IV. By way of review, we have found that the trial court has yet to enter a judgment on the merits, so we must dismiss the Government’s appeal from the decision entered September 20, 1972. In regard to the second appeal, the trial court’s refusal to enter a judgment is an appealable order properly before this court for review. We have concluded it was error to refuse to enter judgment on a document separate from the opinion. Consequently we remand this case with directions to enter judgment on a separate document. The bank’s motion to dismiss the second appeal is denied. Costs will be taxed to the Government. Remanded with directions. . No. 73-2106. . Rule 4, Federal Rules of Appellate Procedure, gives an appellant sixty days after judgment to file his notice of appeal. It is obviously more than sixty days from September 20, 1972, to April 5, 1973. The sixty-day deadline is terminated by filing a timely motion for new trial or judgment n. o. v. But Rule 50(b) of the Federal Rules of Civil Procedure requires one to move for judgment n. o. v. within ten days after judgment; here appellant’s motion was filed October 4, fourteen days after the trial court’s “opinion and judgment.” Rule 59(b) is worded differently, requiring one to “serve” his motion for new trial within ten days of judgment. The Government argues that its motion was indeed served upon the bank within ten days, and that should suffice. We need not treat this argument because we have concluded that the September 20 decision is not a valid judgment. . No. 73-3751. . After oral argument appellee bank submitted two post-1963 cases to support its view that Rule 58, even as amended, is satisfied by a judgment" } ]

[ { "docid": "6163116", "title": "", "text": "plaintiff within ten days of the entry of judgment. This, however, does not end our inquiry. Our jurisdiction over the appeal from judgment (as opposed to the appeal from the denial of the motion itself) depends on whether we characterize the “Motion For Alternative Relief’ as one brought under Rule 59(e) or Fed.R.Civ.P. 60(b). A motion for relief from judgment under Rule 60(b), unlike a motion to amend a judgment under Rule 59(e), does not toll the 30-day appeal period. Browder, 434 U.S. at 263 n. 7, 98 S.Ct. at 560 n. 7; Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1513 (1st Cir.1991). Our inquiry into the character of the motion is a functional one: “nomenclature should not be exalted over substance.” Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st Cir.1988) (quoting Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2nd Cir.1982)); 7 Moore’s Federal Practice ¶ 60.30[1] (1992). The caption “Motion for Alternative Relief,” does not describe a motion under either Rule 59 or Rule 60. One of the claims for relief, remitti-tur of an excessive verdict, is a classic Rule 59 claim. The other claims, surprise and misconduct, are specifically referred to in Rule 60(b), and the defendants appear to rely on Rule 60(b)(1) in their memorandum to the district court. Rule 59 provides that a new trial may be granted in a jury action for any reason for which new trials were granted at common law. The rule creates the opportunity to correct a broad panoply of errors, in order to prevent injustice. 11 Wright & Miller, Federal Practice and Procedure: Civil §§ 2803, 2805 (1973). In an early case under Rule 59, the Supreme Court described the breadth of the rule: The motion for a new trial may invoke the discretion of the court in so far as it is bottomed on the claim that the verdict is against the weight of the evidence, that the damages are excessive, or, that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out" }, { "docid": "22888142", "title": "", "text": "Cortez, Jr. They are the defendants in a separate action in the Eastern District of Pennsylvania at No. 71--49 instituted by plaintiff Stradley to recover the $150,000. judgment. (It was apparently in the course of this latter action that Stradley discovered the alleged “error” which gave rise to his motion to amend the docket in this action). The district court denied the companies’ motion to intervene in this proceeding on the ground that, having refused plaintiffs request to amend the docket, the motion to intervene was moot. In light of our disposition of this case, we need not consider whether the district court erred in not allowing Aetna and Brokers to intervene. Whether or not intervention was moot in light of the district court’s decision, it is clearly mooted by our disposition. We neither reach nor decide any fact question at issue in the pending action between Stradley and Aetna and Brokers at No. 71 — 49. . During the course of this appeal, Stradley moved to dismiss on the ground that the district court’s May 10, 1974 order was not appealable. In light of our holding that the new trial order is to be treated as final for purposes of appeal, we deny the plaintiff’s separate motion to dismiss. . The exception to the general rule that an order granting a new trial is not appealable applies to actions in excess of the district court’s power under both Fed.R.Civ.P. 59 and 60. Hand v. United States, 441 F.2d 529, 530, n. 1. (5th Cir. 1971) (Rule 60), Rinieri v. News Syndicate Co., Inc., 385 F.2d 818, 821-22 (2d Cir. 1967), (Rule 60), see Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 543, n. 5 (2d Cir. 1963) (Rule 60). Wright & Miller, Federal Practice and Procedure: Civil § 2818 (Rule 59) & 2871 (Rule 60). . Fed.R.Civ.P. 6(b) provides that a district court “ . . . may not extend the time for taking any action under rules . . . 59(b), (d) and (e), 60(b) . except to the extent and under the conditions stated in" }, { "docid": "22925515", "title": "", "text": "Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Only those motions properly filed under Rule 59, however, toll the time to appeal under Rule 4(a)(4). Appellant’s motion was styled motion for reconsideration. It requested that the District Court reconsider its decision to set aside summary judgment, thereby allowing the case to proceed to trial. Although motions for reconsideration are often treated as Rule 59 motions, appellant’s motion was not one that is contemplated by Rule 59. Rule 59 states that a new trial may be granted, or “the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” Fed.R.Civ.P. 59(a). Appellant’s motion was not a motion for a new trial, since a trial had already been granted at appellee’s request. It was also not a motion to alter or amend the judgment. The original judgment had been set aside and no new judgment had been issued. Therefore, there was no judgment that could be altered. The District Court had granted appellee’s Rule 60(b) motion for relief from summary judgment, and had granted appel-lee a new trial. Although a motion to reconsider a decision to grant a new trial may be considered by the District Court, it is not a motion under Rule 59, and, therefore, does not toll the time to appeal. The appeal was therefore timely filed. We next turn to the question of whether the order granting a trial is an appealable order. This Court has held that an order granting a new trial under Rule 60(b) is appealable if the District Court acted under Rule 60(b)(6) without the power to do so. Although generally an appeal is not allowed from a non-final order, there is “a reasonably well grounded common-law exception to the final-judgment rule where the district court acts without the power to do so.” Fuller v. Quire, 916 F.2d 358, 360 (6th Cir.1990). In Fuller, this Court held that in order to determine whether a" }, { "docid": "16496869", "title": "", "text": "Paso, Texas, and in Kansas City, Missouri.” On December 8, 1988, the district court granted Saudi’s motion and entered a final judgment dismissing Forsythe’s case. The court found that Saudi was a “foreign state” and that none of the exceptions to immunity enumerated in the FSIA applied. Alternatively, the court concluded that forum non conveniens required that the suit be prosecuted in Saudi Arabia. Forsythe promptly filed a “Motion for New Trial,” which the district court denied. He now appeals the order denying his motion for new trial. Our first task is to identify the character of Forsythe’s postjudgment motion. This determination will then define our role in reviewing the district court’s denial of the motion. Forsythe styled his postjudgment motion a “Motion for New Trial,” without designating one of the Federal Rules of Civil Procedure. Both Fed.R.Civ.P. 59(e) and Fed.R.Civ.P. 60(b) may offer a party the relief that Forsythe sought: a change in the court’s judgment. The rules differ in two important respects, however. First, a Rule 59(e) motion must be served no later than ten days after entry of the judgment. Rule 60(b) motions may be filed during a much longer period of time — up to one year after judgment for certain stated grounds, and “within a reasonable time” for all remaining grounds. Second, a Rule 59(e) motion to alter or amend a judgment tolls the time period for filing a notice of appeal from the judgment; a Rule 60(b) motion does not. Fed.R.App.P. 4(a)(4). Our en banc decision in Harcon Barge Co. v. D & G Boat Rentals, Inc. established a bright-line test for characterizing a motion that questions the substantive correctness of a judgment. A motion served within ten days after judgment, which in effect requests the district court to alter or amend the judgment, will be treated as a Rule 59(e) motion. Harcon Barge, 784 F.2d 665, 667-69 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The district court entered its order and final judgment on December 8, 1988. Forsythe served his motion within the ten-day time limit" }, { "docid": "22200138", "title": "", "text": "motions, that the parties briefed and argued the merits of the dismissal). Plaintiffs failure to name the April 11, 2000 dismissal order in her notice of appeal is, at most, harmless error under the circumstances of this case, and we will not view it as an obstacle to our jurisdiction. See Am. Employers Ins. Co. v. Metro Regional Transit Auth., 12 F.3d 591, 594-95 (6th Cir.1993) (concluding that failure to identify underlying judgment in second notice of appeal that named only the denial of a post-judgment motion was harmless error); Boburka v. Adcock, 979 F.2d 424, 426 (6th Cir.1992) (holding that failure to name a directed verdict in notice of appeal from the denial of post-judgment motions did not defeat jurisdiction when appellant’s interest in appealing the directed verdict was clear from appellant’s briefs to the Court); Petru v. City of Berwyn, 872 F.2d 1359, 1361-62 (7th Cir.1989) (treating notice of appeal from denial of Rule 59(e) motion as encompassing earlier judgment where the appellant’s intent to appeal judgment was clear and appellee suffered no prejudice); 11 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2818, at 192-93 (2d ed.1995) (“if an appeal is erroneously taken from the denial of the motion, rather than from the judgment, the court will treat the appeal as being from the judgment”). But cf. United States v. Universal Mgmt. Servs., Inc., Corp., 191 F.3d 750, 756 (6th Cir.1999) (finding no appellate jurisdiction over denial of a motion to reconsider where the notice of appeal named only the prior order granting summary judgment). II. DISMISSAL OF PLAINTIFF’S SECOND AMENDED COMPLAINT We review de novo the district court’s order granting a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Fed. R.Civ.P. 12(b)(6). Hammons v. Norfolk S. Corp., 156 F.3d 701, 704 (6th Cir.1998). We must accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff. Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th" }, { "docid": "2638492", "title": "", "text": "We therefore conclude that the district court did not abuse its discretion in granting permanent relief from the 50 square feet requirement. All in all, we conclude that the modifications (including those in the amending order of March 27, 1995) allowed by the district court are suitably tailored to the changed circumstances confronting the state. III. We next consider appellants’ procedural objections. A. The first procedural issues concern the state’s July 13, 1994, motion, pursuant to Fed.R.Civ.P. 59(e) and 60(b), to alter or amend the court’s June 28, 1994, order. We will treat the state’s motion as a Rule 59(e) motion since it was “served not later than 10 days after entry of the judgment.” See Fed. R.Civ.P. 59(e); Campbell v. Bartlett, 975 F.2d 1569, 1580 n. 15 (10th Cir.1992) (“Motions served within 10 days of judgment ‘ordinarily will fall under Rule 59(e),’ while motions served later fall under Rule 60(b).”) (quoting Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992)). 1. Appellants argue that Rule 59(e) provided no basis for the district court to grant the state’s motion to amend the June 1994 order insofar as it related to authorized population levels in the new dormitories. We disagree. A court may grant relief under Rule 59(e) to “correct manifest errors of ... fact upon which the judgment is based.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2810.1, at 125 (1995). In its June 1994 order the district court said that it would not grant relief for population levels beyond 125% of SOC in the new dormitories because it believed that the state had never operated them with inmate numbers in excess of 125% of SOC. Upon reviewing the state’s motion to alter or amend the June 1994 order, the district court realized that it had erroneously overlooked evidence that the state had indeed operated new dormitories at levels between 130 and 140% of SOC. Having discovered its mistake about the facts that led to" }, { "docid": "23229023", "title": "", "text": "issue of material fact that would support a judgment for the Appellants. The court granted the motions by a summary judgment on the merits. The Appellants filed a motion for a new trial or to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59. The district court made a minor amendment to its previous order but denied the Rule 59 motion in all other respects. The Appellants now timely appeal. II. The Union argues that the district court abused its discretion in treating the complaint filed in the Appellants’ second action as a motion under Rule 60(b)(1). The Appellants contend that this court has no jurisdiction to hear the Union’s statute-of-limitations contention because it failed to file a cross-appeal from the district court’s denial of its motions for reconsideration of the order treating the complaint as a Rule 60(b) motion and for interlocutory review. Generally, “a cross-appeal is required to support modification of the judgment, but ... arguments that support the judgment as entered can be made without a cross-appeal.” C. Wright, A. Miller, and E. Cooper, 15A Federal Practice and Procedure § 3904,195-96 (1992). A cross-appeal is unnecessary even where the argument being raised has been explicitly rejected by the district court. United States v. Hilger, 867 F.2d 566, 567 (9th Cir.1989) (although in granting defendant’s motion for dismissal district court specifically rejected defendant’s argument of improper venue, upon plaintiff’s appeal, defendant could support dismissal on the venue ground without cross-appeal as he was not seeking any relief greater than dismissal); Bullard v. Sercon Corp., 846 F.2d 463, 467 (7th Cir. 1988) (appellees may properly advance jurisdictional argument as an additional ground to support judgment in their responsive brief, even though argument was not raised below). Appellants rely upon Radio WHKW, Inc. v. Yarber, 838 F.2d 1439 (5th Cir.1988), and Alaska Industrial Bd. v. Chugach Electric Ass’n, Inc., 356 U.S. 320, 78 S.Ct. 735, 2 L.Ed.2d 795 (1958), in support of their argument that a cross-appeal was necessary in this case. Radio WHKW, however, is inapposite. That case deals with the application of Mississippi’s jurisdictional" }, { "docid": "5654814", "title": "", "text": "substance, the court rested its decision on FERC’s scrutiny of the same transactions, the so-called filed rate doctrine, and the terms of the settlement agreement and power contract between Norwood and New England Power. II. DISCUSSION 1. At the threshold of this appeal is a substantial claim by New England Power that a procedural error by Norwood de prives us of jurisdiction to consider Nor-wood’s main claims. After the district court entered its decision and judgment, Nomood filed a timely motion under Fed. R.Civ.P. 59(e) to alter or amend the judgment; after this was denied, it filed a notice of appeal in this court challenging the denial. Norwood then filed a motion under Fed.R.Civ.P. 60(b) for relief from the judgment on grounds of newly discovered evidence and, in the alternative, moved for a second time under Fed. R.Civ.P. 59(e) to alter or amend the judgment. The district court denied both of the new motions, and Norwood then filed an amended notice of appeal challenging the denial of its post-judgment motions; but Nomood did not mention in either its original or amended notice of appeal the district court’s original decision and judgment. New England Power points out that Nomood’s brief is directed almost entirely to the original decision and judgment from which it says that Nomood did not appeal. The law on this issue is less clear than the cases claim it to be. On the one hand, courts often say that a notice of appeal that names only a post-judgment order as the subject of the appeal does not bring the original judgment before the appellate court. E.g., Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir.1991). On the other hand, because in such cases the failure to name the underlying judgment is usually a slip of the pen and rarely causes any prejudice to the other side, courts then go through endless contortions to rescue the technically defaulted portion of the appeal. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2818, at 192-93 & n. 11 (2d ed.1995) (collecting cases)." }, { "docid": "4463652", "title": "", "text": "of Pa., 7 F.3d 332, 337 (3d Cir.1993); see also Ortho Pharm. Corp. v. Amgen, Inc., 887 F.2d 460, 463 (3d Cir.1989) (“We agree with Amgen that we must determine from its substance and not from its form whether we should treat Ortho’s motion as a motion for reconsideration under Fed.R.Civ.P. 59(e) or a motion to modify a preliminary injunction under Fed.R.Civ.P. 62(c).”). While “[t]he purpose of a motion to reconsider under Fed.R.Civ.P. 59(e) is to relitigate the ‘original issue,’ ” Ortho, 887 F.2d at 463, “[a] motion to modify a preliminary injunction is meant only to relieve inequities that arise after the original order.” Favia, 7 F.3d at 338. Thus, a motion that merely seeks to relitigate the issues underlying the original preliminary injunction order is subject to Rule 59(e)’s ten-day limit, while a motion that in substance is based on new circumstances that have arisen after the district court granted the injunction may be filed at any time before entry of a final judgment. If we did not look at the substance of the motion, a preliminary injunction would forever be subject to challenge and appeal. See Sierra On-Line, Inc., 739 F.2d at 1418 n. 4. In Sierra On-Line, the appellant conceded that it had presented no new matter in its motion for reconsideration. We declined to treat the district court’s order denying the motion for reconsideration as an order refusing to dissolve the preliminary injunction, explaining: “The evident purpose of [Section 1292(a)(1) ] is to permit review of orders made in response to claims of changed circumstances, not to extend indefinitely the time for appeal from a preliminary injunction by the simple device of seeking to vacate it or modify it.” 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3924, at 88 (1977). As a general rule, therefore, the denial of a motion to modify or dissolve an injunction, or to reconsider a request for an injunction, will be appealable only if the motion raises new matter not considered when the injunction was first issued. Id. Thus, our task is" }, { "docid": "23216045", "title": "", "text": "of fact and to amend the judgment accordingly), or to Rule 59 (for a new trial or to alter or amend the judgment) of the Federal Rules of Civil Procedure, and it commences anew from the denial of such motion. Fed.R.App.P. 4(a)(4). As a general rule, the untimely filing of such motions will not toll the running of the delay period for appeal. Browder v. Director, Illinois Department of Corrections, 434 U.S. at 264-65, 98 S.Ct. at 561; Martin v. Wainwright, 469 F.2d 1072, 1073 (5th Cir. 1972), cert denied, 411 U.S. 909, 93 S.Ct. 1538,36 L.Ed.2d 199 (1973). However, an exception to this rule has been recognized allowing an appeals court to assume jurisdiction of an untimely appeal when there is a showing of “unique circumstances” that would render it unfair to dismiss the appeal. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 285, 9 L.Ed.2d 261 (1962); Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979). See Eady v. Foerder, 381 F.2d 980 (7th Cir. 1967); 4 C. Wright & A. Miller, Federal Practice and Procedure; — Civil § 1168 (1969). The Federal Rules of Civil Procedure establish a strict ten day delay period for the serving of motions under Rule 52 and Rule 59(b) and (e). Fed.R.Civ.P. 52(b), 59(b) & (e). These periods, too, are jurisdictional, see Martin v. Wainwright, 469 F.2d at 1073, and cannot be extended in the discretion of the district court. Fed.R. Civ.P. 6(b). As Wright & Miller point out, however, the “unique circumstances” doctrine has been used by circuit courts of appeal to temper the strict requirements of Rule 6(b), and to allow untimely appeal, when the appellant has reasonably relied upon a district court’s erroneous extension of the time allowed for filing Rule 52 or Rule 59 motions, or its entertaining of such motions despite their untimeliness. 4 Wright & Miller, supra, § 1168. In the instant case, the appellant’s motion for a new trial was served some thirty-four days after the entry of final judgment in the district court" }, { "docid": "1514874", "title": "", "text": "on the merits. We have already reviewed the merits, and we dismiss the appeal of the denial of the new trial motion. A motion to alter or amend judgment pursuant to Rule 59(e), however, is appealable. E.g., Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 811 (9th Cir.1981); Weems v. McCloud, 619 F.2d 1081, 1098 (5th Cir.1980). A district court’s decision not to amend or alter judgment may be overturned only for an abuse of discretion. Weems, 619 F.2d at 1098. Because appellants’ motion for amendment or alteration of judgment merely restated the arguments raised in their motion for a new trial, however, we need not review it as we have already decided the underlying merits of the case. See Blair v. Delta Air Lines, Inc., 344 F.Supp. 367, 368 (S.D.Fla.1972), aff'd, 477 F.2d 564 (5th Cir.1973). VI. CONCLUSION With the exception of the Bidco-Tomball project, we affirm the district court’s summary judgment holding that the transactions between the appellants and appellees were not securities within the meaning of the federal securities laws. With regard to the Bidco-Tomball project, we reverse the district court’s summary judgment and remand for trial because fact issues as to security status remain. The intervening Supreme Court decision in Sedima causes us to reverse the district court’s summary judgment dismissing appellants’ civil RICO claims. These claims are remanded to the district court for trial. We also hold that the district court did not abuse its discretion in denying appellants’ motion to amend their original complaint. Finally, we hold that the district court’s denial of appellants’ motion for a new trial is not appeal-able. Cast in the alternative as a motion to amend and alter judgment, appellants’ motion, though appealable, merely restates the same attack on the merits. We, therefore, dismiss the appeal on this issue as well. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. . We are puzzled at appellants’ insistence, both in their briefs and at oral argument, that we apply the standard of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), to decide this issue. Under" }, { "docid": "11582836", "title": "", "text": "motion is considered. In Jarvis v. Regan, 833 F.2d 149 (9th Cir.1987) we stated: The appellants first claim that, because they sought to amend their complaint prior to the filing of a responsive pleading, they were entitled to amend their complaint as a matter of right. Fed.R.Civ.P. 15(a). However, in the present case, a final judgment was entered on April 11, 1984, two days before the appellants sought to amend their complaint. Where a final judgment is entered following dismissal of an action, the plaintiff no longer has the right to amend the complaint as a matter of course. (Citations omitted.) Under these circumstances the appellants’ amendment could be made only by leave of the court. 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1483 at 414 (1971). Id. at 154-55. Today, we find it consistent with Jarvis and consistent with our policy of promoting the finality of judgments to adopt the requirement that, once judgment has been entered in a case, a motion to amend the complaint can only be entertained if the judgment is first reopened under a motion brought under Rule 59 or 60. The district court did not err in striking the Lindauers’ motion for leave to file a second amended complaint. CONCLUSION The district court’s order is AFFIRMED. . The Lindauers’ Notice of Appeal states that they appeal \"from the Order denying Plaintiffs’ Motion For New Trial, and striking Plaintiffs’ Motion for Leave to File Second Amended Complaint.\" However, their brief presents for review only two issues: (1) the timeliness of their motion for leave to file a second amended complaint; and (2) whether the district court erred in striking that motion. The Lindauers' brief does not make any argument concerning the denial of their motion for a new trial. \"It is well established in this Circuit that claims which are not addressed in the appellant’s brief are deemed abandoned.” Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.1988). Thus, we review only the district court's order striking the Lin-dauers' motion for leave to file a second amended complaint." }, { "docid": "22925514", "title": "", "text": "summary judgment. The analysis of timeliness does not, however, end with that calculation. Prior to its notice of appeal, the appellant filed a “motion for reconsideration.” Although motions for reconsideration are not specifically called for in the Federal Rules of Civil Procedure, this Court has considered such motions before, holding that they are properly treated as motions to alter or amend a judgment under Rule 59(e). See Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.1979). If appellant’s motion is thus treated under Rule 59, then it triggers Appellate Rule 4(a)(4), which states that when a party files a Rule 59 motion to alter or amend, the time for appeal shall not run until the district court enters an order on that motion. “A notice of appeal filed before the disposition of [a timely Rule 59 motion] shall have no effect.” Fed.R.App.P. 4(a)(4). The Supreme Court has made clear that “a subsequent notice of appeal is ... ineffective if it is filed while a timely Rule 59 motion is still pending.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Only those motions properly filed under Rule 59, however, toll the time to appeal under Rule 4(a)(4). Appellant’s motion was styled motion for reconsideration. It requested that the District Court reconsider its decision to set aside summary judgment, thereby allowing the case to proceed to trial. Although motions for reconsideration are often treated as Rule 59 motions, appellant’s motion was not one that is contemplated by Rule 59. Rule 59 states that a new trial may be granted, or “the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” Fed.R.Civ.P. 59(a). Appellant’s motion was not a motion for a new trial, since a trial had already been granted at appellee’s request. It was also not a motion to alter or amend the judgment. The original judgment had been set aside and no new judgment had been" }, { "docid": "1514873", "title": "", "text": "a motion for a new trial, Fed.R.Civ.P. 59(a), or in the alternative to amend and alter judgment, Fed.R.Civ.P. 59(e). These motions also were dismissed. Appellants now seek our review of their denial. Ordinarily, a district court’s decision not to grant a new trial under Rule 59(a) is not appealable. State Nat’l Bank of El Paso v. U.S., 488 F.2d 890, 898 (5th Cir.1974). An appeal of the denial of a Rule 59(a) motion for a new trial merely restates the attack on the merits of the final judgment. It is from the final judgment that the appeal should be taken. See Urti v. Transport Commercial Corp., 479 F.2d 766, 769 (5th Cir.1973); 11 Wright & Miller, Federal Practice and Procedure: Civil § 2818 & n. 44. The only exception to this rule is when “new matters arise after the entry of the judgment.” 11 Wright & Miller at § 2818 & n. 45. This case does not fit within the exception. Appellants’ motion for a new trial for the most part merely restated their appeal on the merits. We have already reviewed the merits, and we dismiss the appeal of the denial of the new trial motion. A motion to alter or amend judgment pursuant to Rule 59(e), however, is appealable. E.g., Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 811 (9th Cir.1981); Weems v. McCloud, 619 F.2d 1081, 1098 (5th Cir.1980). A district court’s decision not to amend or alter judgment may be overturned only for an abuse of discretion. Weems, 619 F.2d at 1098. Because appellants’ motion for amendment or alteration of judgment merely restated the arguments raised in their motion for a new trial, however, we need not review it as we have already decided the underlying merits of the case. See Blair v. Delta Air Lines, Inc., 344 F.Supp. 367, 368 (S.D.Fla.1972), aff'd, 477 F.2d 564 (5th Cir.1973). VI. CONCLUSION With the exception of the Bidco-Tomball project, we affirm the district court’s summary judgment holding that the transactions between the appellants and appellees were not securities within the meaning of the federal securities laws. With" }, { "docid": "23216046", "title": "", "text": "980 (7th Cir. 1967); 4 C. Wright & A. Miller, Federal Practice and Procedure; — Civil § 1168 (1969). The Federal Rules of Civil Procedure establish a strict ten day delay period for the serving of motions under Rule 52 and Rule 59(b) and (e). Fed.R.Civ.P. 52(b), 59(b) & (e). These periods, too, are jurisdictional, see Martin v. Wainwright, 469 F.2d at 1073, and cannot be extended in the discretion of the district court. Fed.R. Civ.P. 6(b). As Wright & Miller point out, however, the “unique circumstances” doctrine has been used by circuit courts of appeal to temper the strict requirements of Rule 6(b), and to allow untimely appeal, when the appellant has reasonably relied upon a district court’s erroneous extension of the time allowed for filing Rule 52 or Rule 59 motions, or its entertaining of such motions despite their untimeliness. 4 Wright & Miller, supra, § 1168. In the instant case, the appellant’s motion for a new trial was served some thirty-four days after the entry of final judgment in the district court — well beyond the ten day period provided in Rule 59. Thus, it must be held to have been untimely and insufficient to have interrupted the running of the sixty day delay period for appeal. Application of the “unique circumstances” doctrine would be particularly inappropriate with regard to this appellant. Having waited, with no apparent good reason, for more than three times the allowable delay period before serving her motion for a new trial, and having faced the appellee’s objection to the untimeliness of her motion (an objection raised within the sixty day period allowed for appeal), she was clearly on notice that her motion was not timely and that the delay period for appeal had not been interrupted, and any reliance she might have placed on the district court’s entertaining of her motion can hardly be characterized as reasonable. 4 Wright & Miller, supra, § 1168, at 641 & n. 22. Since the applicable delay period has run, this court is without jurisdiction to hear this appeal and must therefore dismiss it. APPEAL DISMISSED." }, { "docid": "11709301", "title": "", "text": "first consider the threshold issue of our jurisdiction. Nobby Lobby argues that this Court lacks jurisdiction because the City did not perfect a timely appeal. Under Rule 4(a)(1) of the Federal Rules of Appellate Procedure, a party must file its notice of appeal within thirty days after the date of entry of the judgment or order from which it appeals. If the party files a timely motion under Rule 59 of the Federal Rules of Civil Procedure to alter or amend the judgment or for a new trial, however, “the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.” Fed. R.App.P. 4(a)(4). Nobby Lobby contends that the City’s second motion to reconsider, filed May 8, 1991, failed to toll the time period for filing its notice of appeal. If true, the City’s June 14, 1991 appeal would be untimely for all orders except the denial of the City’s motion to recuse, which itself is not a final appealable order. See infra note 3. In general, a second motion to reconsider does not interrupt the thirty-day period to appeal a judgment where the second motion raises “ ‘substantially the same grounds as urged in the earlier motion.’ ” Charles L.M. v. Northeast Indep. Sch. Dist., 884 F.2d 869, 870 (5th Cir.1989) (quoting Ellis v. Richardson, 471 F.2d 720, 721 (5th Cir.1973) (per curiam)). Thus, if the City’s second motion to reconsider merely re-urged grounds asserted in its first motion, the later motion could not toll the appeal period. In fact, the second motion did, in large part, re-urge arguments made in the City’s April 11, 1991 “Motion to Reconsider, Motion to Alter or Amend and Alternatively for New Trial.” Nevertheless, in the second motion, the City also moved the district judge to recuse himself, vacate the existing judgment, and grant a new trial because of newly discovered evidence, allegedly demonstrating that the judge had a financial interest in the outcome of the suit. Despite the similarities between the City’s two motions, the first motion" }, { "docid": "1514871", "title": "", "text": "their motion for leave to amend their original complaint. Appellants insist that the district court abused its discretion in denying this motion. Rule 15(a) allows a party to amend its pleadings at least once as a matter of course anytime before a responsive pleading is served or at anytime within twenty days after the initial pleading has been served. At other times, a party must seek the court’s permission to amend its pleadings. As the time for amending the initial complaint as a matter of right had passed in this case, appellants sought permission to do so from the district court. Ordinarily permission “shall be freely given when justice so requires.” Fed.R. Civ.P. 15(a). The policy underlying Rule 15(a) is one in favor of liberal amendment. Thompson v. New York Life Insurance Co., 644 F.2d 439, 444 (5th Cir.1981). Nevertheless, a motion to amend the initial complaint is within the discretion of the district court and is subject to reversal on appeal only when that discretion has been abused. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). A district court should ordinarily allow a party to file an amended complaint. Acceptable reasons to deny such an amendment are undue delay, bad faith, dilatory motives, repeated failures to cure deficiencies by prior amendment, undue prejudice to the opposing party, or the futility of amendment. Union Planters Nat’l Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir.1982). The district court exercises its discretion by determining whether there is justification for not permitting a party to amend its complaint, not by denying permission to do so for no reason at all. See id. In this case, the district court found that appellants’ amended complaint merely restated and clarified the allegations of the original complaint. Amendment would not have had any effect favorable to the appel lants upon the district court’s later judgment. Thus, the district court was within its discretion in denying appellant’s motion. V. APPELLANTS’ MOTION FOR A NEW TRIAL OR TO AMEND JUDGMENT After the district court had granted summary judgment for appellees, appellants made" }, { "docid": "22888143", "title": "", "text": "May 10, 1974 order was not appealable. In light of our holding that the new trial order is to be treated as final for purposes of appeal, we deny the plaintiff’s separate motion to dismiss. . The exception to the general rule that an order granting a new trial is not appealable applies to actions in excess of the district court’s power under both Fed.R.Civ.P. 59 and 60. Hand v. United States, 441 F.2d 529, 530, n. 1. (5th Cir. 1971) (Rule 60), Rinieri v. News Syndicate Co., Inc., 385 F.2d 818, 821-22 (2d Cir. 1967), (Rule 60), see Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 543, n. 5 (2d Cir. 1963) (Rule 60). Wright & Miller, Federal Practice and Procedure: Civil § 2818 (Rule 59) & 2871 (Rule 60). . Fed.R.Civ.P. 6(b) provides that a district court “ . . . may not extend the time for taking any action under rules . . . 59(b), (d) and (e), 60(b) . except to the extent and under the conditions stated in them.” . The intervenors’ motion was denied by the order of May 10, 1974. It appears from the record that intervenors’ “Answer to [Plaintiff’s] Motion to Amend Judgment” was submitted together with the motion to intervene. The district court docket, however, is silent with respect to the filing of intervenors’ “Answer” and the exhibits attached thereto. We can infer that the “Answer” was never filed because the “Motion to Intervene” was denied. Accordingly we do not consider intervenors’ “Answer” and attached exhibits on this appeal. We note with disapproval that the appellants, who sought intervention before the district court and who prepared the appendix on this appeal, included in that appendix their entire “Answer” and attached exhibits, consisting of almost 200 pages. No indication was given that these documents had not been filed in the district court and, hence, could not be considered by us. . We would expect that a motion would normally be accompanied by an affidavit or otherwise reflect matters under oath. Cf. Thornton v. United States, 493 F.2d 164 (3d Cir." }, { "docid": "1986721", "title": "", "text": "(1st Cir.1970). Appellants’ reliance on Urti v. Transport Commercial Corp., 479 F.2d 766 (5th Cir.1973) and Little v. Bankers Life & Cos. Co., 426 F.2d 509 (5th Cir.1970), for a different rule is completely misplaced. In those cases—unlike here—a timely motion for new trial had been made, Fed.R.Civ.P. 59(a), calling into question the weight of the evidence. Urti, 479 F.2d at 769; Little, 426 F.2d at 511. Thus, notwithstanding that the losing party had neglected to move for an instructed verdict at the close of all the evidence, the Fifth Circuit conducted a limited review of the sufficiency claim to determine the propriety of the district court’s denial of the motion for new trial. Urti, 479 F.2d at 769; Little, 426 F.2d at 511. The same praxis obtains in this circuit. See, e.g., Freeman, 865 F.2d at 1343; Systemized, 732 F.2d at 1036-37; R & R Assoc., 726 F.2d at 38 & n. 2. But, defendants—who never moved under Rule 50(b) for judgment n.o.v. or under Rule 59(a) for retrial of the section 1983 claims—take no solace from this rule. See Fugitt v. Jones, 549 F.2d 1001, 1004 (5th Cir.1977) (plain tiffs failure to make either a proper motion for directed verdict or a timely motion for new trial precludes even limited Urti-type review of alleged absence of evidence). The frock, not fitting, cannot be worn. There is a second reason, too, why appellants’ sufficiency-of-the-evidence quest is procedurally defaulted. Although they filed a posttrial motion under Rule 59(e), that motion did not challenge the adequacy of the evidence generally, but dealt solely with the matter of double damages (i.e., the pendent state-law claims). Appellants neglected seasonably to invoke either Rule 50 or Rule 59(a) on sufficiency grounds. Thus, defendants are weaving a new pattern in the course of this appeal; they are presenting us with a question— the sufficiency of the evidence to sustain the verdict — which was never presented at a meaningful time or in a meaningful way to the district court. That is ultracrepidarian, and wrong: on appeal, “we have regularly declined to consider points which were" }, { "docid": "1514872", "title": "", "text": "83 S.Ct. 227, 9 L.Ed.2d 222 (1962). A district court should ordinarily allow a party to file an amended complaint. Acceptable reasons to deny such an amendment are undue delay, bad faith, dilatory motives, repeated failures to cure deficiencies by prior amendment, undue prejudice to the opposing party, or the futility of amendment. Union Planters Nat’l Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir.1982). The district court exercises its discretion by determining whether there is justification for not permitting a party to amend its complaint, not by denying permission to do so for no reason at all. See id. In this case, the district court found that appellants’ amended complaint merely restated and clarified the allegations of the original complaint. Amendment would not have had any effect favorable to the appel lants upon the district court’s later judgment. Thus, the district court was within its discretion in denying appellant’s motion. V. APPELLANTS’ MOTION FOR A NEW TRIAL OR TO AMEND JUDGMENT After the district court had granted summary judgment for appellees, appellants made a motion for a new trial, Fed.R.Civ.P. 59(a), or in the alternative to amend and alter judgment, Fed.R.Civ.P. 59(e). These motions also were dismissed. Appellants now seek our review of their denial. Ordinarily, a district court’s decision not to grant a new trial under Rule 59(a) is not appealable. State Nat’l Bank of El Paso v. U.S., 488 F.2d 890, 898 (5th Cir.1974). An appeal of the denial of a Rule 59(a) motion for a new trial merely restates the attack on the merits of the final judgment. It is from the final judgment that the appeal should be taken. See Urti v. Transport Commercial Corp., 479 F.2d 766, 769 (5th Cir.1973); 11 Wright & Miller, Federal Practice and Procedure: Civil § 2818 & n. 44. The only exception to this rule is when “new matters arise after the entry of the judgment.” 11 Wright & Miller at § 2818 & n. 45. This case does not fit within the exception. Appellants’ motion for a new trial for the most part merely restated their appeal" } ]

[ { "docid": "12046477", "title": "", "text": "the question. Thus, the Government’s attempt to rebut the defense evidence of intoxication. It’s not being offered for the truth of the matter stated therein and you are not to infer that there was another incident involving the accused that night or speculate, in anyway, what the accused was really talking about. After the final arguments, the military judge instructed the members on the elements of the offense. In connection therewith, he advised them on the law of principals in order to deal with the government theory that appellant was aiding and abetting the other man who attacked Hazelton. The judge also informed the members that evidence of voluntary intoxication was relevant to their determination about appellant’s intent. II In United States v. Kelson, 3 M.J. 139 (C.M.A. 1977), this Court considered the validity of a Rule of Practice before Army Courts-Martial, which had been promulgated by the Secretary of the Army. This Rule required: “As soon as practicable after service of charges, ... a defense counsel who wishe[d] to present a motion or other pleading w[ould] prepare and furnish [it] to the trial counsel” and “provide a copy to the trial judge.” The military judge concluded that a defense motion to dismiss a charge on grounds of multiplicity had not been submitted in compliance with this rule. However, on appeal this Court decided that the rule “established a condition precedent to appellant’s right to raise motions” which was “inconsistent with the procedural rule set forth in the Manual.” Id. at 140. The applicable provision in the Manual for Courts-Martial stated that motions to dismiss “should ordinarily be asserted ... before a plea is entered; but failure to assert them at that time does not constitute a waiver of the defense or objection.” See para. 67a, Manual, supra. Since the Army Rule of Practice imposed an additional requirement of timeliness, it burdened counsel in a manner not authorized by the Manual for Courts-Martial, so the Rule was invalid. Mil.R.Evid. 304(d)(2) provides that “[m]otions to suppress” an accused’s statements “shall be made by the defense prior to submission of a plea.”" } ]

[ { "docid": "1109200", "title": "", "text": "a trial date for March 21. The defense submitted an additional request for witnesses, which was denied by the military judge. The Article 39(a) session adjourned and reconvened on March 9, when the defense made an additional motion for two witnesses to testify in extenuation and mitigation. This motion was denied by the military judge. Trial counsel noted the Government’s efforts relating to the sanity board and observed that the defense counsel had cancelled a scheduled interview with one of the psychiatrists involved in the sanity board evaluation. The Article 39(a) session was adjourned at this time and reconvened on March 26 when the trial counsel observed that the defense had expressed a desire that appellant be examined by a second civilian psychiatrist. The appellant had previously been examined by a civilian psychiatrist located in the Philippines. The Article 39(a) session was then adjourned and reconvened on March 29, when the accused submitted a motion to dismiss on the basis he had been denied a speedy trial. This motion was denied by the military judge. Although the speedy trial issue was raised and litigated during the original hearing, it was not raised during the rehearing. Government counsel submit that the failure to raise a speedy trial issue during a. rehearing as it relates to an original hearing constitutes a waiver of such issue upon further appellate review. See United States v. Sloan, 22 U.S.C.M.A. 587, 48 C.M.R. 211 (1974); see generally United States v. Flint, 1 M.J. 428 (C.M.A.1976). However, we need not now resolve that issue as the record before us, which includes the transcript of the original hearing, reflects that appellant was accorded a speedy trial. In the present case the appellant was in continuous confinement from the date of his apprehension on October 13, 1972, to the date of the speedy trial motion, which was made on March 29, 1973. As the previous Article 39(a) sessions dealt with the preliminary matters, they were not the functional equivalents of a trial for the purpose of assessing the period of pretrial confinement. United States v. Cole, 3 M.J. 220," }, { "docid": "12136940", "title": "", "text": "M.J. 326, 331 n. 4 (C.M.A.1987). See also Palmiter, 20 M.J. at 99-100 (Everett, C.J., concurring). The parties have spent much effort arguing the legality of Colonel Rust’s and Major Biankini’s “no contact” orders. It should be clear from the Palmiter rule that the abstract legality of these orders is not a threshold issue. If orders or other actions independently violate law or regulation, that may be a reason to infer a punitive intent or reject an asserted nonpunitive objective. See United States v. Villamil-Perez, 32 M.J. 341, 343 (C.M.A.1991) (posting of incident report on bulletin board violated Army regulation). However, an otherwise lawful action still violates Article 13, if it is intended as punishment or does not reasonably relate to a legitimate nonpunitive governmental objective. Issues of pretrial punishment are not waived, either expressly before trial or by failure to raise them at trial. See Cruz, 25 M.J. at 330-331 (failure to raise); Palmiter, 20 M.J. at 96 (express pretrial “waiver”). However, a servicemember’s failure to complain of conditions before trial is “strong evidence” that the member has not been illegally punished. Palmiter, 20 M.J. at 97. See also United States v. Huffman, 40 M.J. 225, 227 (C.M.A.1994); United States v. James, 28 M.J. 214, 216 n. 4 (C.M.A.1989). Neither the Court of Appeals for the Armed Forces nor this Court has formally stated the standard of review for trial rulings on Article 13 issues. The government suggests our standard of review should be de novo. We agree. In our view, the nonwaivable nature of Article 13 violations is more consistent with a de novo review than with an abuse of discretion standard. But see United States v. Phillips, 38 M.J. 641, 642 (A.C.M.R.1993) (abuse of discretion standard applied to Article 13 ruling). As with other types of trial rulings, we will defer to the findings of fact by the military judge unless they are clearly erroneous. United States v. Burris, 21 M.J. 140, 144 (C.M.A.1985). However, as with unlawful command influence issues, whether unlawful pretrial punishment flows from those facts is a question of law for this Court." }, { "docid": "1076114", "title": "", "text": "Villamil-Perez, 32 M.J. 341, 344 (C.M.A. 1991); United States v. Hatchett, 33 M.J. 839, 843 (A.C.M.R.1991); Fitzsimmons, 33 M.J. at 711 n. 4. The right to the effective assistance of counsel extends to all phases of the court-martial, including the post-trial and appellate proceedings. United States v. Holt, 33 M.J. 400 (C.M.A.1991). In reviewing allegations of ineffectiveness of counsel, this court utilizes the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). United States v. Scott, 24 M.J. 186 (C.M.A. 1987). First, the defendant must show that counsel’s performance was so deficient that counsel was not functioning as “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel is “strongly presumed to have rendered adequate assistance.” Id. at 690, 104 S.Ct. at 2066. Counsel errors must be so serious that the defendant is deprived of a fair trial. Id. Failure of the defense counsel to raise the issue of pretrial punishment “absent some properly disclosed sentence consideration, comes perilously close to inadequate representation by counsel.” Cruz, 25 M.J. at 330 (citing Scott, 24 M.J. at 186). C. Analysis The concession of an Article 13 violation by the trial counsel in this case makes it unnecessary for us to decide factually whether the asserted pretrial treatment of the appellant amounted to illegal pretrial punishment. See Moore, 32 M.J. at 775 n. 1 (court bound by trial counsel’s concession of an Article 13 violation). We will assume that a violation of Article 13 occurred in this case. In order to determine if additional credit is appropriate in this case, we must first decide whether the defense counsel’s conduct in agreeing that thirty days was appropriate credit was ineffective representation. Having reviewed the entire record and the competing affidavits, we find that the trial defense counsel’s affidavit is credible and forthright. We conclude that the appellant has failed to meet his burden of showing ineffectiveness of counsel in this case. Strickland, 466 U.S. at 687, 104 S.Ct. at" }, { "docid": "7463315", "title": "", "text": "allegation. The United States Court of Military Appeals and this Court have unequivocally condemned conduct by those in positions of authority which result in needless military degradation, or public denunciation or humiliation of an accused. United States v. Cruz, 25 M.J. 326 (C.M.A.1987); United States v. Villamil-Perez, 32 M.J. 341 (C.M.A.1991); United States v. Fitzsimmons, 33 M.J. 710 (A.C.M.R.1991); United States v. Hatchett, 33 M.J. 839 (A.C.M.R.1991). We do so again here and will provide the appellant with meaningful relief in our decretal paragraph. In light of the relief we will grant to the appellant we need not address his other assignment of error. The findings of guilty are affirmed. Using our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to reassess the sentence, based on the error noted, the entire record, and United States v. Sales, 22 M.J. 305 (C.M.A.1986), the Court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for six months, and reduction to the grade of Private El. Senior Judge De GIULIO concurs. . Article 13, UCMJ, provides in part, \"No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him____” [emphasis added.] ARKOW, Judge (dissenting): Appellant, in an unsworn statement during the sentencing phase of the trial, indicated that he was humiliated by his first sergeant at a unit formation after he returned from an unauthorized absence. Trial defense counsel, during his argument on sentence, asked the military judge that this be “fairly considered prior punishment under Article 13, UCMJ,” and that it be taken into consideration when adjudging a sentence. Nothing further was submitted to the court on the issue although the appellant’s company commander was called as a rebuttal witness by the government. Thereafter, the military judge, without comment, adjudged a sentence which was considerably less than the maximum. I believe it is incorrect to decide the issue of whether there was an Article 13, UCMJ, violation for two reasons. First, appellant waived the issue at trial by failing to litigate it." }, { "docid": "12048981", "title": "", "text": "that, to the government and/or the enlisted members. Finally, the local rules upon which both the trial counsel and military judge relied uses the term “normally” which indicates that the “Rule” is merely procedural in nature and not one upon which such an important right is to be forfeited by the mere passage of an arbitrarily selected five day period. Reasonableness is implicit in the application of this rule. Almost two decades ago, Chief Judge Fletcher noted that: No rule of procedure is any better than the mind of the judicial officer who will exercise discretion as to its application. A practice rule is not a military order to be obeyed without reason. Justice and its components create a delicate balance between the rights of either the government or the accused and a need for justifying summary judicial action, in this case, proceeding to trial. Justice dictates that “rights” and “speed” are not in a state of equality; “now” must always fall before a relevant motion. Timeliness is relative only where it places one of the parties at a disadvantage; this was not the case here. United States v. Kelson, 3 M.J. 139, 142 (C.M.A.1977) (Chief Judge Fletcher concur ring in result). More recently, this court observed that: As the Court of Military Appeals made clear in United States v. Williams, 23 M.J. 362 (C.M.A.1987), “there are limits to what a judge may do by local requirements or rules of practice.” United States v. Webster, 24 M.J. at 99 (C.M.A. 1987). United States v. Wiggers, 25 M.J. 587, 594 (A.C.M.R.1987) (Footnote omitted). Traditionally, a military accused, with the advice and assistance of counsel, personally determines who will be his counsel, the forum which will try his case, his plea, and whether to testify. Such determinations are fundamental. Under the circumstances of this case, we can find no inconvenience would have resulted, no additional expense would have been incurred, and no unnecessary delay would have been experienced in the convening of the court. Here, to treat this particular request for enlisted members as untimely and therefore waived, is to place form" }, { "docid": "12128635", "title": "", "text": "a “serious” violation of the statute. Also, the issue arose during a period in the development of military law when pretrial confinement was not reviewed by military magistrates with judicial training. See Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). Moreover, Army defense counsel then were not assigned as they are now to legal organizations separate from and independent of a local staff judge advocate office. Compare United States v. Kitchens, 31 C.M.R. 175 (C.M.A.1961), with Army Regulation 27-10, Legal Services: Military Justice, para. 6-3 (18 March 1988). In the last two decades, this court has occasionally followed the mandate of Johnson and sometimes permitted appellants to raise the issue for the first time on appeal. See United States v. Peacock, 19 M.J. 909 (A.C.M.R.), petition denied, 20 M.J. 205 (C.M.A.1985); United States v. Travier, 42 C.M.R. 427 (A.C.M.R.1970). Conversely, and consistent with the general rule stated in Roberts, supra, we have also found waiver in the appellant’s failure to present the issue to the trial court. United States v. Huelskamp, 21 M.J. 509 (A.C.M.R.1985); United States v. Martinez, 19 M.J. 744 (A.C.M.R.1984), petition denied, 21 M.J. 27 (C.M.A.1985). The United States Air Force Court of Military Review has been similarly unreceptive to post-trial litigation of Article 13 issues. United States v. Gambini, 10 M.J. 618 (A.F.C.M.R.1980), sentence reversed on other grounds, 13 M.J. 423 (C.M.A.1982); United States v. Henry, 41 C.M.R. 946 (A.F.C.M.R.1969), petition denied, 41 C.M.R. 403 (C.M.A.1970). The distinguishing feature between those cases in which review was granted and those in which the issue was deemed waived has been the egregiousness of the governmental action alleged to violate the statute. The distinction is more apparent than real, however, since the appellant’s post-trial materials had to be examined before the issue was determined to have been waived. In our view, this is not strictly a rejection of appellant’s assignment of error for failure to raise it in a timely manner. We believe a more definitive rule should be operative and accordingly call appellate counsel’s attention to the following language in Judge Cox’s opinion in United States v. Palmiter: If," }, { "docid": "7463317", "title": "", "text": "Second, although not litigated, the matter was presented to and considered by the military judge as a mitigating matter. This Court has held in a number of cases that a failure to raise an Article 13, UCMJ, violation at trial waives the issue on appeal. United States v. Walker, 27 M.J. 878 (A.C.M.R.), aff'd, 28 M.J. 430 (C.M.A.1989); United States v. Huelskamp, 21 M.J. 509 (A.C.M.R.1985); United States v. Martinez, 19 M.J. 744 (A.C.M.R.1984), petition denied, 21 M.J. 27 (C.M.A.1985). However, in United States v. Cruz, 25 M.J. 326 (C.M.A.1987), other circumstances militated against applying the waiver rule. An Article 13, UCMJ, violation should be litigated by moving for appropriate relief prior to sentencing. Appellant sought no such relief. Further, as appellant’s un sworn statement cannot be considered as evidence on this issue, this Court should not conclude that the matter was properly raised at trial. United States v. Smith, 23 M.J. 744 (A.C.M.R.1987). An unsworn statement is, however, a proper means of bringing before the trial court matters that could serve to mitigate the punishment to be adjudged. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 1001(c). I presume that the military judge gave proper weight to the information presented in appellant’s unsworn statement as there is nothing in the record to show otherwise. United States v. Montgomery, 42 C.M.R. 227, 231 (C.M.A.1970). Appellant chose this avenue to obtain a favorable sentence from the military judge rather than litigating the issue at trial. It appears this approach was successful and he should not be given additional sentence relief by raising the matter again on appeal. United States v. DiMatteo, 19 M.J. 903 (A.C.M.R.1985). I would affirm the findings and the sentence. . The maximum authorized punishment was a dishonorable discharge, confinement for eighteen months, total forfeitures, and reduction to El. Appellant was sentenced to a bad conduct discharge, confinement for six months, forfeiture of $500 pay per month for six months, and reduction to El." }, { "docid": "3675147", "title": "", "text": "a sex offender having a specific restriction.” Instead, counsel chose to focus on the appellant’s low risk for recidivism and used a defense psychologist to present the information to the members. Additionally, the issue was not raised through the appellant’s un-sworn testimony because he was very upset with the members’ findings and refused to make an oral statement and could only be convinced to submit a previously written statement that did not discuss sex offender registry impact. Given the fact that the appellant’s sentence did not include confinement, it is quite apparent trial defense counsel argued the points in mitigation very well. Her rationale for not wanting to highlight the sex offender registry was reasonable. Sexual Offender Registration In his second issue, the appellant claims the military judge abused his discretion by not permitting the trial defense counsel to discuss the impact of sex offender registry during sentencing. During presen-tencing, trial counsel made a motion in li-mine, asking the judge to prohibit trial defense counsel from discussing the effects of sex offender registration. The SDC argued that all states have some form of sex offender registry and such an outcome was a reasonable inference from the appellant’s conviction. The military judge ruled sex offender registration was a collateral matter and went to facts not in evidence before the court. “We review a military judge’s decision whether to instruct on a specific collateral consequence of a sentence for abuse of discretion.” United States v. Boyd, 55 M.J. 217, 220 (C.A.A.F.2001) (citing United States v. Perry, 48 M.J. 197, 199 (C.A.A.F.1998)). The abuse of discretion standard is strict and involves “more than a mere difference of opinion.” United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F.2000). The challenged action “must be ‘arbitrary, fanciful, clearly unreasonable’ or ‘clearly erroneous.’” Id. (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F.1997); United States v. Travers, 25 M.J. 61, 62 (C.M.A.1987)). As a general proposition, collateral consequences of a particular sentence are not relevant to a court-martial proceeding. United States v. Quesinberry, 31 C.M.R. 195, 198 (C.M.A.1962) (“In sum, the rule which is applicable here" }, { "docid": "1067349", "title": "", "text": "Article 32 tapes may be the result of his friendship for the court-reporter. (5) Mr. Yustas failed to interview or request Janette Scott and Elliott Ditto for the Article 32, UCMJ, hearing, and failed to adequately question them at trial. (6) Mr. Yustas and MAJ Olgin misled and coerced the appellant into signing one or more stipulations of fact. (7) Mr. Yustas, the former “chief prosecutor” at Fort Knox, may have had too close of a relationship with the government to be an aggressive advocate for the appellant. (8) Major Olgin continued to represent the appellant post-trial after becoming aware of the appellant’s allegations of ineffective assistance of counsel directed against him; such continued contacts may have been for the purpose of producing evidence against the appellant. (9) Counsel argued against the appellant’s interests during the sentencing proceedings. WHEREAS, an appellant may raise claims of ineffectiveness of counsel through appellate defense counsel pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982); and WHEREAS, this Court has previously established procedures for resolution of allegations of ineffectiveness of counsel pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982). See Rule 15.3(d) United States Army Court of Military Review, Internal Rules of Practice and Procedure (1 May 1992); United States v. Burdine, 29 M.J. 834 (A.C.M.R.1989), and United States v. Ingham, 36 M.J. 990, 995-96 (A.C.M.R.1993). ORDERED: That appellate government counsel will cause this Order to be transmitted to Major Dennis Olgin and Mr. Vincent Yustas, and that said trial defense counsel will each file with this Court within thirty (30) days of the date of this Order an affidavit addressing each allegation of ineffectiveness raised by the appellant through his appellate defense counsel. Date: 10 June 1993 CF: JALS-DA JALS-GA JALS-CRZ JALS-CCZ JALS-CCR JALS-CR2 JALS-CR3 JALS-CR4 JALS-CR5 . He has also alleged that the court-martial lacked jurisdiction because the military judge was designated in violation of the Appointments Clause of the Constitution, an issue decided adversely to him by the Court of Military Appeals. United States v. Weiss, 36 M.J. 224 (C.M.A.1992), cert. granted, — U.S. —, 113 S.Ct. 2412," }, { "docid": "7463316", "title": "", "text": "Article 13, UCMJ, provides in part, \"No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him____” [emphasis added.] ARKOW, Judge (dissenting): Appellant, in an unsworn statement during the sentencing phase of the trial, indicated that he was humiliated by his first sergeant at a unit formation after he returned from an unauthorized absence. Trial defense counsel, during his argument on sentence, asked the military judge that this be “fairly considered prior punishment under Article 13, UCMJ,” and that it be taken into consideration when adjudging a sentence. Nothing further was submitted to the court on the issue although the appellant’s company commander was called as a rebuttal witness by the government. Thereafter, the military judge, without comment, adjudged a sentence which was considerably less than the maximum. I believe it is incorrect to decide the issue of whether there was an Article 13, UCMJ, violation for two reasons. First, appellant waived the issue at trial by failing to litigate it. Second, although not litigated, the matter was presented to and considered by the military judge as a mitigating matter. This Court has held in a number of cases that a failure to raise an Article 13, UCMJ, violation at trial waives the issue on appeal. United States v. Walker, 27 M.J. 878 (A.C.M.R.), aff'd, 28 M.J. 430 (C.M.A.1989); United States v. Huelskamp, 21 M.J. 509 (A.C.M.R.1985); United States v. Martinez, 19 M.J. 744 (A.C.M.R.1984), petition denied, 21 M.J. 27 (C.M.A.1985). However, in United States v. Cruz, 25 M.J. 326 (C.M.A.1987), other circumstances militated against applying the waiver rule. An Article 13, UCMJ, violation should be litigated by moving for appropriate relief prior to sentencing. Appellant sought no such relief. Further, as appellant’s un sworn statement cannot be considered as evidence on this issue, this Court should not conclude that the matter was properly raised at trial. United States v. Smith, 23 M.J. 744 (A.C.M.R.1987). An unsworn statement is, however, a proper means of bringing before the trial court matters that could serve to mitigate the" }, { "docid": "12128634", "title": "", "text": "a violation of Article 13 at his court-martial but instead raised it for the first time on appeal to the United States Court of Military Appeals. The government opposed Johnson’s claim by relying on the Court’s long-standing waiver policy enunciated in United States v. Roberts: Ordinarily appellate courts review claimed errors only on the basis of the error as presented to the lower courts, Hovland v. Smith, 22 F.2d 769 (CA 9th Cir)(1927); however, this court will review material outside the record having to do with insanity, United States v. Bell, 6 U.S.C.M.A. 392, 20 C.M.R. 108, and jurisdiction, United States v. Dickenson, 6 U.S.C.M.A. 438, 20 C.M.R. 154. United States v. Roberts, 22 C.M.R. 112, 115 (C.M.A.1956). Despite the government’s submission, the Court held, “Imposition of punishment in violation of Article 13, Code, supra, 10 U.S.C. § 813, can, in our opinion, assume such serious proportions as to justify post-trial consideration.” United States v. Johnson, 41 C.M.R. at 50. Critical to the Court’s declaration of this principle was the fact that the allegations involved a “serious” violation of the statute. Also, the issue arose during a period in the development of military law when pretrial confinement was not reviewed by military magistrates with judicial training. See Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). Moreover, Army defense counsel then were not assigned as they are now to legal organizations separate from and independent of a local staff judge advocate office. Compare United States v. Kitchens, 31 C.M.R. 175 (C.M.A.1961), with Army Regulation 27-10, Legal Services: Military Justice, para. 6-3 (18 March 1988). In the last two decades, this court has occasionally followed the mandate of Johnson and sometimes permitted appellants to raise the issue for the first time on appeal. See United States v. Peacock, 19 M.J. 909 (A.C.M.R.), petition denied, 20 M.J. 205 (C.M.A.1985); United States v. Travier, 42 C.M.R. 427 (A.C.M.R.1970). Conversely, and consistent with the general rule stated in Roberts, supra, we have also found waiver in the appellant’s failure to present the issue to the trial court. United States v. Huelskamp, 21 M.J. 509 (A.C.M.R.1985); United" }, { "docid": "7318969", "title": "", "text": "urges us to reject appellant’s contentions whenever they do not agree with CW2 Land’s by applying the fourth Ginn principle. The fourth Ginn principle provides that the court can discount factual assertions and decide the legal issue when, “appellate filings and the record as a whole ‘compellingly demonstrate’ the improbability of those facts.” Ginn, 47 M.J. at 248. In appellant’s case, five factors reduce his credibility: (1) appellant’s claims are self-serving; (2) appellant lists the names of thirteen supporting witnesses; however, there is no description of what the witnesses would say, nor is there any indication that appellant or appellate defense counsel have interviewed them; (3) while appellant asserts he told his trial defense counsel and other detainees, inmates, prison counselors, and some guards about unlawful conditions at the Brig, appellant has not asserted that he complained to Brig officials, his chain of command, or the magistrate; (4) appellant did not complain about unlawful pretrial punishment at trial or to the convening authority; and (5) appellant’s general credibility is damaged by his two false statements to law enforcement while his case was being investigated. While these facts cause us serious misgivings about appellant’s credibility, our misgivings are not sufficiently weighty to permit us to summarily reject appellant’s claims. Waiver In appellant’s Grostefon submission, appellant alleges that his trial defense counsel advised him that he should not raise the issue of unlawful pretrial punishment with the military judge or convening authority because this issue would be “better raised on appeal.” Complaints about unlawful pretrial confinement conditions, in violation of Article 13, UCMJ, are ordinarily deemed waived if made for the first time on appeal. See United States v. Huffman, 40 M.J. 225, 227 (C.M.A.1994) (requiring affirmative waiver regarding claims of Article 13, UCMJ, violations), overruled prospectively by United States v. Inong, 58 M.J. 460 (C.A.A.F.2003) (eliminating requirement of affirmative waiver); United States v. Fogarty, 35 M.J. 885, 888 (A.C.M.R.1992) (holding failure to raise issue of pretrial punishment at trial “usually” waives issue on appeal); R.C.M. 905(e), 907(b)(2)(D)(iv). This record, unlike many we have seen, lacks appellant’s affirmative waiver of the issue" }, { "docid": "10939074", "title": "", "text": "A1C Smith to present an excellent military image on every occasion (i.e., Honor Guard).” Additionally, the appellant’s initial annual performance report contained the highest possible rating in all categories, including military bearing and behavior. In rebuttal, trial counsel offered a letter of reprimand the appellant had received shortly before trial for having a mustache that did not comply with Air Force dress and appearance standards. The letter indicated the appellant could have a copy thereof for his own records; and he acknowledged receipt by endorsement. However, nowhere on the document or attached thereto was there an indication that he had been afforded “the opportunity to respond to the allegation.” Defense counsel objected to its admissibility on that basis. Trial counsel countered that if it was the sentencing case in chief, he would readily agree with the defense, but that it was being offered to rebut matters raised by the defense. He argued that the provisions of paragraph 13-4b did not apply to rebuttal evidence. The military judge ruled the letter of reprimand was appropriate rebuttal and admitted it. We fully agree with appellate government counsel that the subject matter of the evidence in question was relevant rebuttal evidence, and that military case law would support its admissibility. See, e.g., United States v. Strong, 17 M.J. 263 (C.M.A.1984); United States v. Cleveland, 27 M.J. 530 (A.F.C.M.R.1988). However, as noted above, the provisions of paragraph 13-4b of the current AFR 111-1 apply not only to presentencing matters to be presented by the prosecution (R.C.M. 1001(b)), but also to matters offered in rebuttal (R.C.M. 1001(d)). Therefore, evidence from “personnel records of the accused” offered in rebuttal must likewise comply with the limiting conditions for admissibility set forth in the regulation. See generally United States v. Russo, 1 M.J. 134 (C.M.A.1975); United States v. Saulter, 23 M.J. 626 (A.F.C.M.R.1986). The record does not reflect the origin of the document in question; it should have, so that issues like this can be more easily resolved during appellate review. There are only two places such records can be officially maintained — in unit files, or in" }, { "docid": "1067355", "title": "", "text": "not entitle him.” Id. — U.S, at —, 113 S.Ct. at 843. However, for the reasons we explained in United States v. Dumas, 36 M.J. 941, (A.C.M.R. 1993), we will not apply the test as modified. . In another context, this court has decided issues raised for the first time on appeal on the basis of affidavits or the absence thereof. In United States v. Peacock, 19 M.J. 909 (A.C.M.R.1985), pet. denied, 20 M.J. 205 (C.M.A.1985), the appellant filed an affidavit with this court alleging that he had been confined before trial with sentenced prisoners in violation of Article 13, UCMJ, 10 U.S.C. § 813. We first observed that violations of Article 13. can \"assume such serious proportions as to justify post-trial consideration.” United States v. Johnson, 19 U.S.C.M.A. 49, 50, 41 C.M.R. 49, 50 (1969). Then we determined that the appellant’s unrebutted post-trial affidavit attesting to his mistreatment was \"cogent, credible, and sufficient to shift the burden of disproving its content to the Government “beyond the point of equipoise or \"inconclusiveness’’.’ United States v. Cordova, 42 C.M.R. 466, 468 (A.C.M.R.1970).” Peacock, 19 M.J. at 911. After being given the opportunity to file opposing affidavits, the government did not rebut the appellant’s allegation. We concluded that it failed to meet its evidentiary burden and that the appellant had suffered pretrial punishment in violation of the UCMJ. . In resolving this assignment of error against the appellant, we do not decide whether his trial defense counsel were professionally derelict. We note, however, Mr. Yustas has not denied the appellant's allegation that his representation was affected by a possible conflict of interest. See ABA Model Rules, Rule 1.7. Nor has Major Olgin denied the appellant's allegation that he contacted him, after the appellant was represented by appellate defense counsel, allegedly to obtain evidence to rebut the alleged ineffectiveness. See AR 27-26, Rule 4.2. The responsibility to investigate and act upon allegations of professional improprieties against military and civilian trial defense counsel rests with The Judge Advocate General of the Army. R.C.M. 109; AR 27-26, Rule 8." }, { "docid": "14503110", "title": "", "text": "fine, confinement or other deprivations of liberty either were not adjudged or do not remain to adjust. See M.C.M., App. 21, part II, R.C.M. 305(k). In addition, the accused manifestly should receive a bad-conduct discharge for repeatedly abusing the dignity of soldiers and would have been reduced to E-l by operation of Article 58a, Uniform Code of Military Justice, 10 U.S.C. sec. 858a (Supp. II 1984) had it not been adjudged specifically. This reduction to E-l would have followed from the approved confinement and a bad-conduct discharge. Moreover, this court’s authority under Article 66, UCMJ, 10 U.S.C. § 866, is to affirm “such findings of guilty and the sentence or such part of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” The discussion of R.C.M. 1203(b) states that a Court of Military Review has “generally the same powers as a convening authority to modify a sentence (See R.C.M. 1107),” but for granting suspension. The sentence in this case was correct in law and fact and should be affirmed. Accordingly, our writ regarding the situation in this case runs no further. See United States v. Darville, 5 M.J. 1 (C.M.A.1978), and United States v. Estill, 26 C.M.R. 238 (C.M.A.1958). We note that when restriction tantamount to confinement of more than seven days is raised at trial, the issue of Gregory is normally present as well and should be raised by counsel as soon as possible at the trial level. If this issue is not promptly raised, waiver may be considered appropriate. Cf. United States v. Ecoffey, 23 M.J. 629 (A.C.M.R.1986) (prospective waiver if Mason credit issue not raised by defense counsel at trial). We have considered the issues raised by appellant personally and find that they are without merit. Accordingly, the findings of guilty and the sentence are affirmed. Senior Judge FELDER and Judge ROBBLEE concur. . See United States v. Freeman, 24 M.J. 547 (A.C.M.R.1987) (R.C.M. 305(k) remedial credit provision not triggered by restriction tantamount to confinement terminated within seven days)." }, { "docid": "23117106", "title": "", "text": "impaired. In this context, the findings of guilty may be affirmed. See United States v. Thomas, supra. Concerning the punishment in this case, we have grave doubts whether the sentence hearing in this case was fair. See United States v. Brice, 19 M.J. 170 (C.M.A.1985). However, as noted below, we need not order a rehearing on sentence in this case for this reason alone. II The second question raised on this appeal is whether the treatment afforded appellant prior to his court-martial amounted to unlawful punishment prohibited by Article 13. The Court of Military Review held that appellant waived this issue by failing to raise it at his court-martial. 20 M.J. at 892-93. Compare United States v. Palmiter, 20 M.J. 90, 96 (Cox, J., lead opinion) with 100 (Everett, C.J., concurring in the result). We note, however, that the post-trial materials which first raised this issue also suggest that there may have been a subrosa agreement between the staff judge advocate and defense counsel to prevent its litigation. Cf. United States v. Jones, 23 M.J. 305 (C.M.A. 1987). Moreover, a DuBay hearing was not ordered in this case by military authorities to resolve these post-trial questions. See United States v. Levite, supra. Finally, the failure to raise the issue of pretrial punishment at the court-martial, absent some properly disclosed sentence consideration, comes perilously close to inadequate representation by counsel. See generally United States v. Scott, 24 M.J. 186 (C.M.A.1987). Accordingly, a finding of a valid waiver in these circumstances is unwarranted. Turning to the pretrial punishment issue in this case, we are convinced that appellant’s treatment on the parade ground and as a member of the so-called “Peyote Platoon” violated Article 13. See generally United States v. Bayhand, 6 U.S.C.M.A. 762, 770, 21 C.M.R. 84, 92 (1956). This codal provision states: § 813. Art. 13. Punishment prohibited before trial No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances" }, { "docid": "12128636", "title": "", "text": "States v. Martinez, 19 M.J. 744 (A.C.M.R.1984), petition denied, 21 M.J. 27 (C.M.A.1985). The United States Air Force Court of Military Review has been similarly unreceptive to post-trial litigation of Article 13 issues. United States v. Gambini, 10 M.J. 618 (A.F.C.M.R.1980), sentence reversed on other grounds, 13 M.J. 423 (C.M.A.1982); United States v. Henry, 41 C.M.R. 946 (A.F.C.M.R.1969), petition denied, 41 C.M.R. 403 (C.M.A.1970). The distinguishing feature between those cases in which review was granted and those in which the issue was deemed waived has been the egregiousness of the governmental action alleged to violate the statute. The distinction is more apparent than real, however, since the appellant’s post-trial materials had to be examined before the issue was determined to have been waived. In our view, this is not strictly a rejection of appellant’s assignment of error for failure to raise it in a timely manner. We believe a more definitive rule should be operative and accordingly call appellate counsel’s attention to the following language in Judge Cox’s opinion in United States v. Palmiter: If, after the initial hearing and determination by the military magistrate, a confinee believes that he is being punished by conditions in the confinement facility, he should apply for relief from these conditions to the magistrate who initially approved his pretrial confinement. Should he be denied relief by that magistrate, the confinee should appeal to the convening authority or to the military judge depending on the state of the proceedings at the time. It is possible that resort to the extraordinary-writ jurisdiction of the appellate courts would be appropriate in extreme cases. Just as with the decision to continue pretrial confinement, review of the conditions of such confinement should be an ongoing process to limit the duration of any violation which might arise following the initial incarceration. The failure to raise this issue while undergoing pretrial confinement will be strong evidence that the confinee was not illegally punished prior to trial. United States v. Palmiter, 20 M.J. at 97 (footnote omitted). Cf. United States v. Lockwood, 15 M.J. 1, 7 (C.M.A.1983) (“appellant’s express refusal to contest" }, { "docid": "1191157", "title": "", "text": "Marine Corps. You are a disgrace.” II. Waiver When the appellant, for the first time on appeal, asserted that he had been subjected to illegal pretrial punishment in violation of Article 13, UCMJ, this Court ordered the record of trial returned to The Judge Advocate General for a limited hearing pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A.1967), concerning the following questions: 1. Whether the commingling of the appellant with sentenced prisoners constituted pretrial punishment? 2. Whether the appellant was ridiculed by his guards for either his offense or for his branch of service (Army), and if so, whether such ridicule constituted an impermissible public denunciation and degradation of the appellant? 3. Whether the conditions at the Parris Island Marine Depot Brig at the time of the appellant’s incarceration were so onerous as to violate the proscription of Article 13, UCMJ? The military judge, after making specific findings of fact, answered all of the above questions in the negative. Based on our review of the record of trial, as well as the additional evidence presented at the Du-Bay hearing, we hold that the appellant’s failure to raise the issue of illegal pretrial confinement at trial waived this issue on appeal. United States v. Walker, 27 M.J. 878, 882 (A.C.M.R.), aff'd, 28 M.J. 430 (C.M.A.1989). The failure to raise the issue of pretrial punishment at trial usually waives the issue on appeal. United States v. Cruz, 25 M.J. 326 (C.M.A.1987); United States v. Newberry, 35 M.J. 777 (A.C.M.R.1992); Walker, 27 M.J. at 880-81; United States v. Huelskamp, 21 M.J. 509 (A.C.M.R.1985); United, States v. Martinez, 19 M.J. 744 (A.C.M.R.1984), pet. denied, 21 M.J. 27 (C.M.A.1985). Occasionally, this Court and the Court of Military Appeals have permitted appellants to raise this issue for the first time on appeal. United States v. Johnson, 41 C.M.R. 49 (C.M.A.1969); United States v. Latta, 34 M.J. 596 (A.C.M.R. 1992); United States v. Peacock, 19 M.J. 909 (A.C.M.R.), pet. denied, 20 M.J. 205 (C.M.A.1985); United States v. Travier, 42 C.M.R. 427 (A.C.M.R.1970). We agree, however, with the former line of cases which held that the" }, { "docid": "7318970", "title": "", "text": "to law enforcement while his case was being investigated. While these facts cause us serious misgivings about appellant’s credibility, our misgivings are not sufficiently weighty to permit us to summarily reject appellant’s claims. Waiver In appellant’s Grostefon submission, appellant alleges that his trial defense counsel advised him that he should not raise the issue of unlawful pretrial punishment with the military judge or convening authority because this issue would be “better raised on appeal.” Complaints about unlawful pretrial confinement conditions, in violation of Article 13, UCMJ, are ordinarily deemed waived if made for the first time on appeal. See United States v. Huffman, 40 M.J. 225, 227 (C.M.A.1994) (requiring affirmative waiver regarding claims of Article 13, UCMJ, violations), overruled prospectively by United States v. Inong, 58 M.J. 460 (C.A.A.F.2003) (eliminating requirement of affirmative waiver); United States v. Fogarty, 35 M.J. 885, 888 (A.C.M.R.1992) (holding failure to raise issue of pretrial punishment at trial “usually” waives issue on appeal); R.C.M. 905(e), 907(b)(2)(D)(iv). This record, unlike many we have seen, lacks appellant’s affirmative waiver of the issue of unlawful pretrial punishment. We are also cognizant of appellant’s assertion that his counsel advised him that the motion could be raised on appeal. See Fricke, 53 M.J. at 154 n. 5 (“In view of appellant’s unrebutted assertion that no motion for sentence credit based on unlawful pretrial punishment was made at his trial on advice of defense counsel that it could be raised on appeal, we do not find a knowing and intelligent waiver of this issue.”). Appellant’s assertion is essentially one of ineffective assistance of counsel. As such, appellant has waived his attorney-client privilege as to matters reasonably related to his allegations. See United States v. Lewis, 42 M.J. 1, 5 (C.A.A.F.1995). During his guilty plea inquiry, appellant stated that he had sufficient time to discuss his case with both of his trial defense counsel, that he was satisfied that their advice was in his best interests, and that he was satisfied with both of his trial defense counsel. Appellate government counsel have not provided a response from trial defense counsel to appellant’s" }, { "docid": "1076111", "title": "", "text": "a similar Article 13 motion was litigated. In that trial, the military policeman received only three days’ credit from the same military judge. Further, the defense counsel states that her client was present when the trial counsel, upon learning that she intended to raise an Article 13 motion, suggested that thirty days’ credit was acceptable to the government. She states that she took the appellant into a private room and fully informed him of his options and that he readily agreed to accept thirty days’ credit against any sentence to confinement. B. Applicable Law Article 13, UCMJ, states: No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline. “Pretrial punishment is prohibited except to enforce internal confinement discipline.” United States v. Palmiter, 20 M.J. 90, 94 (C.M.A.1985). Accordingly, pretrial restraint may be no more rigorous than is necessary to insure the presence of a detainee at his trial. United States v. James, 28 M.J. 214, 215 (C.M.A.1989); Palmiter, 20 M.J. 90. Likewise, public ridicule and degradation can amount to illegal pretrial punishment in violation of Article 13. United States v. Cruz, 25 M.J. 326 (C.M.A. 1987); United States v. Latta, 34 M.J. 596 (A.C.M.R.1992); United States v. Fitzsimmons, 33 M.J. 710 (A.C.M.R.1991). Failure of an accused to raise the issue of illegal pretrial punishment before a magistrate prior to trial is “strong evidence that he was not illegally punished.” James, 28 M.J. at 216; Palmiter, 20 M.J. at 97. Counsel have an obligation “to seek relief from the conditions of detention while the accused is actually subject to those detentions.” James, 28 M.J. at 216 n. 4 (citing with approval United States v. Walker, 27 M.J. 878 (A.C.M.R.), affd, 28 M.J. 430 (C.M.A.1989)). Failure to raise the issue of pretrial punishment at trial usually waives the issue. Cruz, 25" } ]

[ { "docid": "22706654", "title": "", "text": "defeat the Amendment’s central purpose. United States v. Ventresca, 380 U. S. 102, 108. The materials to be seized are instead described with sufficient particularity if the warrant readily permits their identification both by those entrusted with the warrant’s execution and by the court in any subsequent judicial proceeding. “It is,” the Court has said with reference to the particularity of the place to be searched, “enough if the description is such that the officer . . . can with reasonable effort ascertain and identify” the warrant’s objects. Steele v. United States No. 1, 267 U. S. 498, 503. These standards must be equally applicable to the seizure of words, and, under them, this order did not lack the requisite particularity. The order here permitted the interception, or search, of any and all conversations occurring within the order’s time limitations at the specified location; but this direction must be read in light of the terms of the affidavits, which, under § 813, form part of the authority for the eavesdropping. The affidavits make plain that, among the intercepted conversations, the police were authorized to seize only those “relative to the payment of unlawful fees necessary to obtain liquor licenses.” These directions sufficed to provide a standard which left nothing in the choice of materials to be seized to the “whim,” Stanford v. Texas, supra, at 485, of the state authorities. There could be no difficulty, either in the course of the search or in any subsequent judicial proceeding, in determining whether specific conversations were among those authorized for seizure by the order. The Fourth and Fourteenth Amendments do not demand more. Compare Kamisar, The Wiretapping-Eavesdropping Problem: A Professor’s View, 44 Minn. L. Rev. 891, 913. Nor was the order invalid because it permitted the search of any and all conversations occurring at the specified location; if the requisite papers have identified the materials to be seized with sufficient particularity, as they did here, and if the search was confined to an appropriate area, the order is not invalidated by the examination of all within that area reasonably necessary for discovery" } ]

[ { "docid": "884868", "title": "", "text": "communications are to be intercepted.” Extensions of an intercept order require a new application containing the same information needed for the original one. The order must specify “the identity of the person, if known, whose communications are to be intercepted.” Since it is only through the application that the judge learns the identity of the person whose conversations are to be intercepted, the identification requirement for the order is no broader than for the application. United States v. Kahn, 415 U.S. 143, 152, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). The critical issue in this case, therefore, is whether the omission from a wiretap application of the name of a known offender whose communications are to be overheard dictates suppressing his conversations as unlawfully intercepted when the government proposes to use them against him. Not every violation of Title III results in an unlawful interception. A violation is material only if Congress intended the statutory provision that was not followed to be “a precondition to obtaining . . . intercept authority.” United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). Statutory preconditions, teaches the Court, “directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” 416 U.S. at 527, 94 S.Ct. at 1826. In contrast, violation of a statutory provision that does not “affect the fulfillment of any of the reviewing or approval functions required by Congress,” does not render an interception unlawful within the meaning of § 2518(10)(a)(i). United States v. Chavez, 416 U.S. 562, 575, 94 S.Ct. 1849, 1856, 40 L.Ed.2d 380 (1974). Whether a statutory provision is a precondition to a valid order depends, then, on its role in the Act’s system of restraints on electronic surveillance. Title III was drafted to protect the privacy of wire and oral communications while allowing the use of electronic surveillance in the investigation of certain crimes. It restricts eavesdropping by law enforcement officers both to conform to the fourth amendment and to prevent abuse even of" }, { "docid": "8282242", "title": "", "text": "interception the court receives the fruits of the search which are to be sealed at the court’s direction. The court also has the duty of determining on whom an inventory shall be served and under what conditions. Therefore, judicial control, which is so necessary to any valid scheme under the Fourth Amendment, is amply provided for in Title III. Defendants further contend that Title III runs afoul of the restrictions on the length of surveillance discussed by the Supreme Court in Berger. The Court in Berger clearly disapproved of the New York Statute which allowed electronic surveillance for a period of two months without continuing judicial supervision or a requirement that probable cause be reestablished after some shorter period of time. On the other hand, the provisions of Title III are clear in limiting the scope and duration of the interception “to the specific purpose of establishing the contents of the * * * unlawful telephonic communications.” The Senate Report noted: [T]hey require that the duration of an interception not be longer than is necessary under the facts of the particular case. This is a command of the Constitution according to Berger v. New York, 388 U.S. 41, 59 [87 S.Ct. 1873, 18 L.Ed.2d 1040] (1967) and Katz v. United States, 389 U.S. 347, 355-56. [88 S.Ct. 507, 19 L.Ed.2d 576] [citation of cases omitted] Moreover, only where the criminal telephonic conversations are lengthy and numerous may the warrant authorize an interception to be something more than brief: Where a course of conduct embracing multiple parties and extending over a period of time is involved, the order may properly authorize proportionately longer surveillance, but in no event for longer than 30 days, unless extensions are granted, [citations omitted] Therefore, the framers of Title III were clear in articulating their intention that, in conformance with the demands of Katz and Berger, the warrant under which interception is authorized must limit that interception in scope and duration to the specific purpose of establishing the contents of the particular criminal conversations to which it is directed. Where the criminality is brief, the intercept" }, { "docid": "13056399", "title": "", "text": "as those of “others as yet unknown”, concluding that Title III required the naming of individuals only if known to be “actually committing one of the offenses [specified in the statute].” 415 U.S. at 152, 94 S.Ct. at 982. Since appellants’ statutory argument here rests solely on the fact that the order permitted interception of conversations of “others as yet unknown” — they do not contend that any of Title Ill’s other requirements were violated — their statutory challenge must therefore fail. II. Facial Constitutionality of Title III. Next, appellants assert that Title III is facially invalid because it permits general warrants to issue in contravention of the fourth amendment. In Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), the Supreme Court held that electronic surveillance not based on probable cause or obtained without particularizing the scope and duration of the interceptions violates the fourth amendment. The following term, in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the court held that even narrowly circumscribed electronic surveillance must have prior judicial sanction and its attendant safeguards in order to satisfy fourth amendment requirements. Title III was enacted, in large part, to meet the restrictions imposed on electronic surveillance practices and procedures by Berger and Katz. See S.Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968), reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2161-63; see also Scott v. United States, 436 U.S. at 130, 98 S.Ct. at 1719. This comprehensive statutory scheme circumscribes the use of electronic surveillance by law enforcement officials and provides for detailed procedures to insure that any surveillance undertaken will comport with constitutional requirements. Although the Supreme Court has never explicitly held Title III constitutional, our circuit has previously upheld the statute against the claim that it was unconstitutional on its face, United States v. Tortorello, 480 F.2d 764, 771-75 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973), as has every other circuit court that has addressed the issue. E.g., United States v. Turner, 528 F.2d 143, 158-59" }, { "docid": "23515778", "title": "", "text": "IRVING R. KAUFMAN, Chief Judge: To guard against the realization of Orwellian fears and conform to the constitutional standards for electronic surveillance operations elaborated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Title III imposes detailed and specific restrictions upon both the interception of wire and oral communications, and the subsequent use of the fruits of such interceptions, in an effort to ensure careful judicial scrutiny throughout. We are called upon to determine whether one of Title Ill’s strictures — requiring subsequent judicial approval for the incidental interception of communications relating to offenses other than those specified in an initial wiretap authorization, 18 U.S.C. § 2517(5) — applies with equal force to wiretaps conducted under state auspices. For the reasons explicated herein, we con- elude that § 2517(5) must control our decision, rather than the counterpart provision of New York’s wiretapping statute, and that the Government failed to comply with that section before utilizing the intercepted communications in federal grand jury and criminal proceedings. I. A brief overview of the facts relevant to this appeal will help to place the issues raised in their proper context. On December 20, 1973 and January 8, 1974, Isadore Marion appeared before a federal grand jury of the Southern District of New York under a grant of use immunity, 18 U.S.C. §§ 6001-03. He was questioned on the basis of two conversations intercepted and recorded pursuant to eavesdropping warrants issued by a Justice of the New York State Supreme Court on February 3 (the “Lounge order”) and March 15, 1972 (the “Delmonico order”). The “Lounge order” authorized electronic surveillance of a telephone at Jimmy’s Lounge in Manhattan for the interception of communications relating to various state offenses, including grand larceny by extortion, felonious assault, and conspiracy to commit these crimes, N.Y. Penal Law, Arts. 155, 120, 105. The “Delmonico order”, for" }, { "docid": "8282237", "title": "", "text": "on the telephone numbers 379-2042 and 374-8809. For the reasons which appear below the Court finds that defendants’ arguments cannot be sustained and their motions to suppress must therefore be denied. A. The Constitutionality of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The Constitutionality of Title III depends primarily on whether it complies with the requirements of the Fourth Amendment to the United States Constitution and the Supreme Court’s pronouncements in Berger v. New York, L.Ed.2d 1040, Katz v. United States, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 [1967], Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 [1966]. The Fourth Amendment requires that probable cause be established before an impartial and independent judicial officer before an intercep tion may be properly authorized. Where communications are the subject of seizure, the “type of conversation sought” must be described with particularity in the supporting affidavit and the authorizing warrant. The interception that follows any such judicial determination must be “limited, both in scope and in duration, to the specific purpose of establishing the contents of the * * * unlawful telephonic communications.” It must be terminated once the conversation sought is seized. Because “the usefulness of electronic surveillance depends on lack of notice to the suspect” and because it is well recognized that “officers need not announce their purpose before conducting an otherwise authorized search if such announcement would provoke * * * destruction of critical evidence,” prior or contemporaneous notice of interception of communications by court authorization is not required. There must, however, be some “showing of exigency, in order to avoid notice” in the supporting affidavit. Finally, the communications seized must be under court control. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was an attempt among other things to devise a limited system of wire surveillance and electronic eavesdropping for law enforcement use that fulfilled the demands of the Constitution. It is this Court’s opinion that" }, { "docid": "884870", "title": "", "text": "constitutional surveillance. The government contends that the identification requirement serves neither end and that its violation is a mere technical omission. But when the entire statute is considered, identification is seen to facilitate both constitutional and congressional limits on eavesdropping. Electronic interception of communications is a form of search and seizure subject to the fourth amendment. Unless a party to the conversation consents, the amendment only permits interceptions with prior judicial approval to gather information about a specific crime for a limited time from a particular place. Therefore, the amendment prohibits eavesdropping to collect general intelligence about individuals. See generally United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Several provisions of Title III directly implement these restrictions. Though dictum in United States v. Kahn, 415 U.S. 143, 155 n.15, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), indicates that the fourth amendment might not require naming a known offender whose conversations are to be intercepted, identification nevertheless fosters conformity with both constitutional and statutory requirements. In particular, it is important to the exercise of (A) execu tive approval, (B) prior judicial authorization, and (C) subsequent judicial review of interceptions. A In order to allow only necessary electronic surveillance, Congress imposed preconditions not required by the Constitution, including restriction of federal authority to request intercept orders to the Attorney General or a designated Assistant Attorney General. 18 U.S.C. § 2516(1); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). When deciding whether to approve surveillance, however, the Attorney General depends on information from law enforcement officials. If his subordinates do not identify known persons whose conversations they wish to intercept, they effectively substitute their judgment for his. It is therefore apparent that identification, as required by § 2518(l)(b)(iv), is essential to the discharge of responsibility which the Act places on the Attorney General or his designate. B Both the fourth" }, { "docid": "13549364", "title": "", "text": "statute, 23 D.C.Code § 547(a)(2)(D) was fashioned to satisfy the Fourth Amendment’s particularity standard as enunciated in the wiretapping context by the Supreme Court in Berger v. New York, 388 U.S. 41, 58-60, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 354-356, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Appellant Davis asserts that at the time the Government applied for authorization to conduct the 12th Street wiretap he was a “known” person within the meaning of 23 D.C.Code § 547(a)(2)(D), and that the Government’s failure to name him in that application renders the surveillance illegal and the fruits obtained therefrom inadmissible against him. Appellant Moore raises a similar claim concerning the 16th Street wiretap. Our interpretation of the requirement that “known” individuals be named in a wiretap application under the D.C.Code is guided by the Supreme Court’s recent construction of the federal wiretap statute’s essentially identical particularity language. In United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), Government investigators applied for court authorization to intercept conversations over the home telephones of Mr. Kahn, a suspected bookmaker. The judicial order approving the surveillance restricted the interception to the conversations of Mr. Kahn, who had been named in the affidavit requesting the authorization, and “others as yet unknown.” Incriminating conversations of Mrs. Kahn were intercepted, and the Kahns sought suppression of those conversations in their prosecution for violation of the Travel Act, 18 U.S.C. § 1952 (1970), basing their motion on the premise that the interceptions were illegal, Mrs. Kahn having been neither named in the order nor a person “as yet unknown” within the meaning of the authorization. Although the Supreme Court reversed the suppression order of the District Court and the Court of Appeals because those courts, in holding Mrs. Kahn to be a “known” individual who should have been named in the wiretap application and order, had construed the relevant statutory language as encompassing any individual whose existence was known to the Government and who careful investigation would have disclosed was probably in complicity in the" }, { "docid": "884872", "title": "", "text": "amendment and Title III require prior judicial authorization of electronic eavesdropping in order to forestall abuses by enforcement officials. 18 U.S.C. §§ 2511, 2518(3); United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Issuing an intercept order is not simply a ministerial act, for the judge must decide that the constitutional and statutory justifications for the intrusion exist. So that the judge can be as informed as possible in an ex parte hearing, Congress required the applicant for an intercept order to furnish the necessary facts in considerable detail. See 18 U.S.C. § 2518(1); cf. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Included in the information the government must furnish is a complete history of the electronic surveillance of the persons named in the application. Omission of this information is a statutory violation that invalidates any interceptions with respect to the persons not listed. United States v. Bellosi, 501 F.2d 833 (D.C.Cir. 1974). As that case explains, Congress believed that information about prior surveillance is “necessary to judicial consideration of whether the proposed intrusion on privacy is justified by important crime control needs.” 501 F.2d at 837. But a history of prior taps involving the same person is available to the court only when he is named in the application. Identification required by the Act, therefore, facilitates judicial control by providing the complete history that Congress deemed necessary for an informed decision. C In Berger v. New York, 388 U.S. 41, 60, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), the Supreme Court held that notice of a search is an essential element of judicial control over the execution of intercept orders. Secrecy, it reasoned, could make vindication of fourth amendment rights impossible, especially when the government did not intend to use the intercepted conversations as evidence. Conform ing to the Constitution, Title III requires service of notice on “the persons named in the order or the application, and such other parties" }, { "docid": "13056398", "title": "", "text": "Inglese. In support of its claim that the calls of “others unknown” should also be intercepted, the government identified seven other people as “possible interceptees”. In his order, Judge Holder, “[i]n an abundance of caution” referred to those seven possible interceptees, “although probable cause does not exist at this time to name them as violators using the designated telephones”. (Emphasis by the court). As indicated above, under §§ 2518(l)(b)(iv) and 2518(4)(a) interception of the appellants’ calls was authorized even though they were not then “known” to be committing the narcotics crimes. In United States v. Kahn, a wiretap application established probable cause to believe that Mr. Kahn was involved in a gambling enterprise and that he used his home telephone to conduct that enterprise. The order granting the application permitted interceptions over this phone of Kahn’s conversations and, as here, those of “others as yet unknown”. Mrs. Kahn challenged the interception of telephone calls over the same phone between herself and third parties. The Supreme Court held that her conversations were admissible under the statute as those of “others as yet unknown”, concluding that Title III required the naming of individuals only if known to be “actually committing one of the offenses [specified in the statute].” 415 U.S. at 152, 94 S.Ct. at 982. Since appellants’ statutory argument here rests solely on the fact that the order permitted interception of conversations of “others as yet unknown” — they do not contend that any of Title Ill’s other requirements were violated — their statutory challenge must therefore fail. II. Facial Constitutionality of Title III. Next, appellants assert that Title III is facially invalid because it permits general warrants to issue in contravention of the fourth amendment. In Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), the Supreme Court held that electronic surveillance not based on probable cause or obtained without particularizing the scope and duration of the interceptions violates the fourth amendment. The following term, in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the court held that even" }, { "docid": "1433438", "title": "", "text": "the \"roving bug\", congress added several more protections against arbitrary surveillance: (1) It limited the number of people who may seek a roving oral intercept by requiring advance approval from certain high-ranking federal officials. 18 U.S.C. § 2518(11)(a)(i). (2) It required \"a full and complete statement\" as to why specification of the place of interception is not practical. 18 U.S.C. § 2518(11)(a)(ii). (3) It required identification of the persons committing the offense and whose conversations are to be intercepted. 18 U.s.c. § 2518(11)(a)(ii). In many cases, \"such a limitation in fact protects the fourth amendment interests of innocent third-parties to an even greater extent than do the limitations imposed under a standard * * * order.\" Silberman, 732 F.Supp. at 1062. (4) It permitted actual interception of communications to begin only when the place where the communication is to be intercepted is ascertained by the implementing agent. 18 U.S.C. § 2518(12). (5) It retained all of the requirements of Title Ill-including duration, minimization, sealing, custody, exhaustion of other investigative techniques, and identification of the crimes that may be investigated through the use of electronic surveillance. In short, the \"roving bug\" provision, when examined in light of the other limitations imposed under Title III, permits \"no greater invasion of privacy than is necessary.\" Silbermnan, 732 F.Supp. at 1063 (quoting Katz v. United States, 389 U.S. 347, 355, 88 S.Ct. 507, 513, 19 L.Ed.2d 576 (1967)). Therefore, mindful not only of the grave law-enforcement purposes underlying § 2518, as well as the constitutional need to protect against arbitrary governmental intrusions into the privacy of individuals, we conclude that the safeguards required by congress provide adequate protection to preserve the constitutionality of interceptions of oral conversations when authorized under 18 U.s.c. § 2518(11)(a). We therefore reject defendants' constitutional chaJienge to the \"roving bug\" statute. (b) Constitutionality of the Order. Defendants also contend that even assuming the statute itself is constitutional, the provisions of the order issued in this case were inadequate to protect their constitutional interests. We disagree. Judge Wolf's decision in Ferraro, adopted by Judge Nevas in this case, evaluated the order" }, { "docid": "13280585", "title": "", "text": "in this ease and which the Government argues adequately fulfill the congressional purpose in enacting these provisions. The Government maintains that Congress enacted the requirement that applications for wire interception authorizations include a statement of facts concerning previous applications involving any of the same persons, facilities, or places solely to prevent law enforcement officials from shopping from one judge to the next until they obtain the approval they must have to conduct an interception. The Government reasons that this congressional purpose is adequately served by a requirement that applications for judicial authorizations of interceptions disclose previous applications only if they were part of the same investigation and that the statute should be so interpreted. Since the Jet Liquor Store interceptions were conducted in a narcotics investigation independent of the gambling investigation which led to the authorization of the incriminating interceptions here, were we to accept the Government’s theory we might be able to reverse the District Court’s suppression order. However, we are constrained to reject the invitation to place such a limiting gloss on the clear language of Sections 547(a)(5) and 2518(1)(e). Section 2518(1), after which Section 547(a) was fashioned for District of Columbia law enforcement, is part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 211-225, 18 U.S.C. §§ 2510-2520 (1970). The “fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance” by its enactment of Title III “is strictly to limit the employment of those techniques of acquiring information,” Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972), to conform with the commands of the Fourth Amendment as articulated by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To effectuate that policy, “Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not" }, { "docid": "13471839", "title": "", "text": "resolve the “tension between these two stated congressional objectives, . the starting point,' as in all statutory construction, is the precise wording chosen by Congress in enacting Title III.” United States v. Kahn, 415 U.S. 143, 151, 94 S.Ct. 977, 982, 39 L.Ed.2d 225 (1974). The literal language of the identification requirement leaves no question as to when the Government must specifically name the parties. Section 2518 requires that “each application shall include the identity of the person, if known, committing the offense, and whose communications are to be intercepted.” (Emphasis added.) This requirement is only one of the many specific steps that the Government must follow in order to obtain wiretap authorization, and is a procedural restraint on the use of wiretaps. In our opinion this is not a hollow requirement. It is an important part of the statutory framework that Congress formulated for protection against the dangers of electronic surveillance. In United States v. Bellosi, 501 F.2d 833, 837 (D.C.Cir.1974), the court said: “By asking us to refashion another clearly worded provision in Title III in a way that would somewhat ease another of the ‘stringent conditions’ with which a law enforcement agency must comply before conducting an interception, the Government effectively asks us to do what the Giordano Court would not. Section 2518(1) is no less important than Section 2516(1) to Congress’ legislative scheme to allow only limited governmental interception of wire or oral communications. Section 2518(1) provides that the judge from whom interception authorization is sought be provided with a detailed and particularized application containing that information which Congress thought necessary to judicial consideration of whether the proposed intrusion on privacy is justified by important crime control needs. See United States v. United States District Court, 407 U.S. 297, 302, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).” By requiring the Government to make this disclosure Congress has made it possible for the courts to exercise strict control over communication intercepts. It is apparent that Congress intended § 2518(1) to impose “stringent conditions,” thereby playing an integral role in the limitation of wiretap' procedures and serving a" }, { "docid": "18481102", "title": "", "text": "application. Congress required that each application for an order and each order authorizing or approving the interception of wire or oral communication identify the officer authorizing the application. 18 U.S.C. § 2518(1)(a) and (4)(d). Where disclosure of information would be a violation of the Act, § 2515 prohibits use of evidence in certain proceedings. Furthermore, § 2518(10) (a) provides for motions to suppress the contents of any intercepted communication, or evidence derived therefrom, on the following grounds: (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. The issues presented in this case were decided by the Supreme Court in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380, 42 U.S.L.W. 4660 (decided May 13, 1974). On facts similar to those disclosed by this record, suppression of wiretap evidence was held not justified. In view of the fact that the Attorney General approved the application, the misidentification of the officer authorizing it wa3 held not to render the order “unlawful” within' the meaning of 18 U.S.C. § 2518(10)(a)(i). The Court further held that the misidentification “did not affect the fulfillment of any of the reviewing or approval functions required by Congress and is not within the reach of paragraphs (ii) and (iii) [of 18 U.S.C. § 2518(10)(a)].” [94 S.Ct. at 1856]. The provisions of § 2515 do not require suppression under the circumstances of this case. The district court correctly denied the motion to suppress. The Constitutionality of Title III Appellant contends that Title III offends the First, Fourth and Fifth Amendments to the Constitution of the United States. He further maintains that electronic surveillance is unconstitutional per se, and that wiretapping can never constitute a reasonable search within the meaning of the Fourth Amendment. The issue of per se unconstitutionality of electronic surveillance was settled by the Supreme Court in Katz v. United States, 389 U.S. 347, 354-355, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where" }, { "docid": "5009033", "title": "", "text": "that the applications and orders do not set out with sufficient particularity the place to be searched, and items to be seized, § 2518(l)(b), (4)(c), and (5); fail to limit adequately the scope of the authorized surveillance, § 2518(5); do not adequately disclose prior related wiretaps, § 2518(l)(e); fail to comply with the requirement that the government establish the need for electronic surveillance, § 2518(l)(c); and finally that the government failed to timely apply for permission to use the intercepted conversations in the case at bar, § 2517(5). Defendants further contend that even if the applications and orders are deemed sufficient under the statute, the government’s conduct during the surveillance violated the court orders and the statute. A Title III was passed by Congress in large part as an attempt to structure an electronic surveillance statute in compliance with the holdings of the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See. S.Rep. 1097, supra p. 31 at 27, 66, 2112, 2153. In Berger the Court held that any authorization to intercept conversations by electronic means must meet the particularity requirement of the fourth amendment’s warrant clause and adequately describe the place to be searched and the thing to be seized. 388 U.S. at 55-58, 87 S.Ct. at 1881-83. The New York statute at issue in Berger was found wanting because it lacked any particularity requirement; it only required probable cause that evidence of a crime might be obtained by the eavesdrop without detailing what crime was at issue and what conversations were to be seized. Id. In response to this concern with particularity Congress required in Title III that every application contain information detailing the particular offense under investigation, the nature and location of the property where the interception is to take place, the type of communications sought to be intercepted and the persons known to be committing the alleged offense. See § 2518(l)(b)(i)-(iv). In addition any order authorizing oral interception must contain “a particular" }, { "docid": "21965784", "title": "", "text": "James, 494 F.2d 1007 (D.C. Cir. 1974), appeal pending, (with respect to determination of probable cause, agent’s affidavit must be read in a common sense and realistic fashion). The remaining information concerning the means of interception, the location of the premises, and the persons and crimes involved sufficiently makes clear the scope of the application authority approved by Mitchell to be exercised by AUSA Updike and the BNDD. Application for the February 18, 1971 order was within the scope of that approval. (i) The purposes of Title III and the Fourth Amendment were safeguarded Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was enacted following the Supreme Court’s decisions in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (New York wiretapping statute unconstitutional) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (warrant issued by a magistrate on a finding of probable cause required), which had both sticken down the authority for electronic surveillance asserted in those cases. Congress was concerned with two potentially conflicting objectives: protecting personal privacy from the threat of invasion by increasingly sophisticated electronic eavesdropping devices while delineating constitutionally adequate procedures for employing such admittedly effective devices in combatting organized crime. United States v. Kahn, 415 U.S. 143, 151, 94 S.Ct. 977, 39 L.Ed. 225 (1974). The constitutional warrant requirement provides two basic protections. First, based on the premise that any intrusion at all is an evil and that an element of necessity is therefore required as justification, review by a magistrate is intended to eliminate all searches not based on probable cause. Second, based on the premise that even necessary searches should be as limited as possible, the “specificity” or “particularity” requirement is intended to avoid the evil of the general warrant and the exploratory search. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In the context of Title III, § 2518(3) which contains the probable cause requirements and § 2518(1) and (4) which list the descriptive elements which must be stated" }, { "docid": "884869", "title": "", "text": "416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). Statutory preconditions, teaches the Court, “directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” 416 U.S. at 527, 94 S.Ct. at 1826. In contrast, violation of a statutory provision that does not “affect the fulfillment of any of the reviewing or approval functions required by Congress,” does not render an interception unlawful within the meaning of § 2518(10)(a)(i). United States v. Chavez, 416 U.S. 562, 575, 94 S.Ct. 1849, 1856, 40 L.Ed.2d 380 (1974). Whether a statutory provision is a precondition to a valid order depends, then, on its role in the Act’s system of restraints on electronic surveillance. Title III was drafted to protect the privacy of wire and oral communications while allowing the use of electronic surveillance in the investigation of certain crimes. It restricts eavesdropping by law enforcement officers both to conform to the fourth amendment and to prevent abuse even of constitutional surveillance. The government contends that the identification requirement serves neither end and that its violation is a mere technical omission. But when the entire statute is considered, identification is seen to facilitate both constitutional and congressional limits on eavesdropping. Electronic interception of communications is a form of search and seizure subject to the fourth amendment. Unless a party to the conversation consents, the amendment only permits interceptions with prior judicial approval to gather information about a specific crime for a limited time from a particular place. Therefore, the amendment prohibits eavesdropping to collect general intelligence about individuals. See generally United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Several provisions of Title III directly implement these restrictions. Though dictum in United States v. Kahn, 415 U.S. 143, 155 n.15, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), indicates that" }, { "docid": "13056396", "title": "", "text": "then serving. Lopez was sentenced to thirteen years’ imprisonment. These appeals followed. Discussion Appellants contend that Title III does not permit electronic surveillance of persons who are not specifically named in a wiretap order but who are merely referred to as “others as yet unknown”; that if Title III does allow such surveillance, the statute is unconstitutional on its face because it permits “general warrants” to issue in violation of the fourth amendment; and that even if not unconstitutional on its face, it is unconstitutional as applied in these circumstances. These contentions lack merit. I. Statutory Arguments. Title III provides comprehensive procedures for authorizing electronic surveillance, for proper monitoring by law enforcement officials, and for ongoing judicial supervision of the authorized surveillance. Section 2518(1) details the information required to be set forth in a wiretap application. Section 2518(l)(b)(iv) calls for “the identity of the person, if known, committing the offense and whose communications are to be intercepted”. (Emphasis added). Similarly, under § 2518(4)(a) the order authorizing the interception must specify “the identity of the person, if known, whose communications are to be intercepted”. (Emphasis added). The language of both sections, therefore, anticipates interception of calls of people whose identities are not known at the time of the application and order. “The clear implication of this language is that when there is probable cause to believe that a particular telephone is being used to commit an offense but no particular person is identifiable, a wire interception order may, nevertheless, properly issue under the statute.” United States v. Kahn, 415 U.S. 143, 157, 94 S.Ct. 977, 985, 39 L.Ed.2d 225 (1974). Innocent parties are protected from unreasonable surveillance by the requirement contained in § 2518(5) that surveillance “shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception * * *.” See Scott v. United States, 436 U.S. 128, 130-31, 98 S.Ct. 1717, 1719-20, 56 L.Ed.2d 168 (1978). At the time this application was made to Judge Holder, the only person “known” by law enforcement authorities to be committing the described offenses was Louis" }, { "docid": "1317823", "title": "", "text": "1968. See Senate Report No. 90 — 1097, Committee on Judiciary (April 29, 1968), reprinted in 1968 U.S.Code Cong. & Adm.News, pp. 2112, 2153 (citing Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Minimization of the scope of an electronic intrusion is a critical aspect of the statutory scheme and of constitutional compliance. The purpose of the minimization requirement is to avoid intrusions into private communications not reasonably related to the criminal investigation. Without limits, a warrant for a “search and seizure” of private communications becomes a “general search” equivalent to the “general warrants” which prompted the careful drafting of the Fourth Amendment and partly motivated the Declaration of Independence. Berger, 388 U.S. at 58, 87 S.Ct. 1873. The means of conducting the interceptions of conversations in the Zalmanowski car did not comply with the plain and literal requirements of the court order. No search is reasonable within the meaning of the Fourth Amendment if it is conducted in a way which violates the terms of the court order required to authorize it. The authority to conduct electronic surveillance accrues solely from the authorizing order of a judicial officer. This is an important feature of both the constitutional law of electronic searches and of the statutory scheme. As the court stated in United States v. James, 161 U.S.App.D.C. 88, 102, 494 F.2d 1007, 1021 (D.C.Cir.), cert. denied sub nom Tantillo v. United States, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974), “The most striking feature of Title III is its reliance upon a judicial officer to supervise wiretap operations.” And the statute specifically provides that a ground for suppression of evidence obtained by electronic surveillance is that “the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(iii); see also United States v. Donovan, 429 U.S. 413, 432-34, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). Moreover, the clear import of Berger, supra, is that such surveillance inherently is too broadly" }, { "docid": "13280586", "title": "", "text": "clear language of Sections 547(a)(5) and 2518(1)(e). Section 2518(1), after which Section 547(a) was fashioned for District of Columbia law enforcement, is part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 211-225, 18 U.S.C. §§ 2510-2520 (1970). The “fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance” by its enactment of Title III “is strictly to limit the employment of those techniques of acquiring information,” Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972), to conform with the commands of the Fourth Amendment as articulated by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To effectuate that policy, “Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions.” Gelbard v. United States, supra, 408 U.S. at 46, 92 S.Ct. at 2360. One of these “stringent conditions”— that applications for judicial approval of wire interceptions to be conducted by federal investigative agencies must be authorized by the Attorney General or a specially designated Assistant Attorney General, 18 U.S.C. § 2516(1) (1970)— was recently considered and construed by the Supreme Court in strict accordance with the statutory language in United States v. Giordano, supra. The Supreme Court in Giordano unanimously refused to accept the Government’s attempt to stretch the language of Section 2516(1) to permit the Attorney General to delegate his interception authorization power to any subordinate Justice Department official. The Court stressed that “Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping” and thereby “evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications.” .The Court refused, therefore, to sanction an attempt" }, { "docid": "884871", "title": "", "text": "the fourth amendment might not require naming a known offender whose conversations are to be intercepted, identification nevertheless fosters conformity with both constitutional and statutory requirements. In particular, it is important to the exercise of (A) execu tive approval, (B) prior judicial authorization, and (C) subsequent judicial review of interceptions. A In order to allow only necessary electronic surveillance, Congress imposed preconditions not required by the Constitution, including restriction of federal authority to request intercept orders to the Attorney General or a designated Assistant Attorney General. 18 U.S.C. § 2516(1); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). When deciding whether to approve surveillance, however, the Attorney General depends on information from law enforcement officials. If his subordinates do not identify known persons whose conversations they wish to intercept, they effectively substitute their judgment for his. It is therefore apparent that identification, as required by § 2518(l)(b)(iv), is essential to the discharge of responsibility which the Act places on the Attorney General or his designate. B Both the fourth amendment and Title III require prior judicial authorization of electronic eavesdropping in order to forestall abuses by enforcement officials. 18 U.S.C. §§ 2511, 2518(3); United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Issuing an intercept order is not simply a ministerial act, for the judge must decide that the constitutional and statutory justifications for the intrusion exist. So that the judge can be as informed as possible in an ex parte hearing, Congress required the applicant for an intercept order to furnish the necessary facts in considerable detail. See 18 U.S.C. § 2518(1); cf. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Included in the information the government must furnish is a complete history of the electronic surveillance of the persons named in the application. Omission of this information is a statutory violation that invalidates any interceptions with respect to the persons not listed. United States" } ]

[ { "docid": "15142517", "title": "", "text": "felt was beyond its authority. Inexplicably, the court of appeals rejected the ineffective assistance of appellate counsel argument because the trial court was connect in its opinion that it did not have the power to review the claim. It was thus that the erroneous circular reasoning was concluded. The Ohio Supreme Court did not discuss any of the merits upon post-conviction review. Consequently, Ohio’s procedural ground for denying review of this claim is not “adequate” and cannot obviate the need for review of the constitutional merits. In light of the strong possibility that Mapes’s Sixth Amendment rights in this regard were violated, he is entitled to have his ineffective-assistance-of-counsel argument heard in the federal district court. Of course, even if counsel is found to have been ineffective, prejudice must still be shown. However, considering that all four errors concern the sentencing phase and that juror Chatman almost certainly did not favor a death recommendation, we think there is a “reasonable probability that, absent the errors, the sentencer— including an appellate court, to the extent it independently reweighs the evidence— would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” See Strickland, 466 U.S. at 695, 104 S.Ct. 2052. IV. We conclude that Mapes may not have received, on direct appeal, the assistance of counsel which the Sixth Amendment guarantees. Thus, we REVERSE, IN PART, and REMAND this case for an evidentiary hearing so that the district court may evaluate appellate counsel’s performance in light of the factors we have discussed. The district court’s judgment denying the petitioner’s claims in all other respects is hereby AFFIRMED. SILER, Circuit Judge, concurring in part and dissenting in part. I concur in the majority opinion on all issues except that pertaining to the effectiveness of appellate counsel. I also concur with the conclusion by the majority that Mapes has sufficiently raised the question of ineffective assistance of appellate counsel by the failure to raise on appeal the trial court’s instruction that in the sentencing phase, “the mitigating factors do not apply to the prior murder conviction at all.” That" } ]

[ { "docid": "23539236", "title": "", "text": "was not raised on direct appeal. We may consider it only if Mr. Turrentine can demonstrate either “cause for the default and actual prejudice resulting from the alleged violation of federal law,” or, alternatively, “that failure to consider the claim[ ] will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Mr. Turrentine argues that the “cause for the default” was his appellate counsel’s ineffective assistance in failing to appeal the evidentiary issue. See Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir.2002) (“A showing that a defendant received ineffective assistance of counsel will establish cause excusing a procedural default.”). Ineffective assistance claims are governed by the familiar two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), under which the petitioner “must establish that (1) counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different.” Hain, 287 F.3d at 1231. Application of Strickland requires us to “look to the merits of the omitted issue.” Id. But before we look to the merits, we note that the OCCA has already addressed Mr. Turren-tine’s claim of ineffective assistance of appellate counsel. Turrentine II, 965 P.2d at 990. AEDPA therefore confines our review to the question of whether the OCCA’s decision was contrary to or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1); see Hain, 287 F.3d at 1231. With regard to the first prong of Strickland — whether counsel’s performance was objectively unreasonable — the OCCA pointed out that “[a]ppellate counsel filed a well written, thoroughly researched brief raising numerous claims at least equally meritorious to those which were omitted and are at issue here.” Tur-rentine II, 965 P.2d at 990. Moreover, Mr. Turrentine failed to show “that appellate counsel’s judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance owed to a client by an attorney.” Id. (internal quotation omitted). Thus, having concluded" }, { "docid": "21439492", "title": "", "text": "or an unreasonable application of clearly established federal law. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781. F. Ineffective assistance of former ha-beas counsel In addition to the issues listed in the COA, Hartman attempts to raise in this appeal the issue of the allegedly ineffective assistance of his former habeas counsel. Hartman previously sought a COA regarding this claim, but both the district court and this court denied that request. This court also denied his petition to rehear that particular COA request en banc. Because the COA granted for this appeal covers only the issues set forth above, and because we have previously determined that Hartman’s claim regarding his former habeas counsel is without merit, we decline to further address it here. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court. CLAY, Circuit Judge, concurring in part and dissenting in part. With the exception of Parts II.B and II.C, I join in the majority’s well-reasoned opinion. With respect to Petitioner’s claim of ineffective assistance of counsel at the sentencing phase, I concur in the majority’s analysis of procedural default and its conclusion that Petitioner established cause to excuse the procedural default. However, I respectfully dissent from the majority opinion inasmuch as it denies Petitioner’s ineffective assistance of counsel claim on the merits. In my view, Petitioner’s counsel performed ineffectively at the sentencing phase, thereby violating Petitioner’s Sixth Amendment Right to Counsel. Correspondingly, I believe Petitioner has shown prejudice to excuse procedural default of this claim. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (a petitioner must show cause and prejudice to obtain federal habeas relief on a procedurally defaulted claim); Joseph v. Coyle, 469 F.3d 441, 462-63 (6th Cir.2006) (“[Establishing Strickland prejudice likewise establishes prejudice for purposes of cause and prejudice.”). On the matter of acquittal-first jury instructions, I also dissent on the belief that the Ohio Supreme Court’s decision runs contrary to clearly established Supreme Court precedent on jury instructions in capital cases. I would therefore vacate Petitioner’s death sentence and" }, { "docid": "4389791", "title": "", "text": "defaults on his “federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice ... or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), this court set forth a four-step analysis for determining whether a petitioner’s federal constitutional claims are barred by the petitioner’s failure to follow a state procedural rule. “Whether a state court rested its holding on procedural default so as to bar federal habeas review is a question of law,” reviewed de novo. Combs v. Coyle, 205 F.3d 269, 275 (6th Cir.2000). This court looks to the last explained state-court judgment when answering that question. Id. III. DISCUSSION A. Ineffective Assistance of Counsel While Wickline asserts a number of grounds for relief in his petition, the parties focused primarily on one issue at oral argument — alleged ineffective assistance of trial counsel. We will therefore address that issue first. Wickline claims that his trial counsel was ineffective in several areas, most notably in the alleged failure to investigate or present mitigating evidence. Under Strickland v. Washing ton, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a violation of the right to effective assistance of counsel has two components: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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. at 687, 104 S.Ct. 2052. Review of counsel’s performance is highly deferential and requires that courts “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id." }, { "docid": "6971194", "title": "", "text": "state court’s application of clearly established federal law to the facts of the prisoner’s case was objectively unreasonable.” Id. B. The State argues that nearly all issues on appeal have been procedurally defaulted, and the district court concluded that several of the claims that remain at issue were procedurally defaulted. Thus, we set forth the general standard for determining whether an issue is procedurally defaulted at the outset. “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to comply with a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an adequate and independent state ground for denying review of a federal constitutional claim; and (4) the petitioner cannot show cause and prejudice excusing the default.” Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.2010) (en banc); see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). The “cause” standard in procedural-default cases requires the petitioner to show that “some objective factor external to the defense impeded counsel’s efforts” to raise a claim in the state courts. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (internal quotation marks omitted). Such factors may include interference by officials, an attorney error rising to the level of ineffective assistance of counsel, or a showing of a factual or legal basis for a claim that was not reasonably available. Id. at 493-94, 111 S.Ct. 1454. “[A] procedurally defaulted ineffective-assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the ‘cause" }, { "docid": "16082078", "title": "", "text": "review of the petitioner’s habeas claims. Id. at 993-94. Based upon Rogers, this Court concludes that MCR 6.508(D) was not a regularly followed procedural rule at the time of Petitioner’s 1986 convictions and his direct appeals, which were concluded in 1988. Petitioner is therefore not procedurally barred from bringing his habeas claims in federal court. Further, even if this Court were to find that Petitioner had procedurally defaulted his claims, the Court would not find the default a bar to federal habeas review. A state prisoner who fails to comply with a state’s procedural rules does not waive the right to federal habeas review, if he can show cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or can show that a fundamental miscarriage of justice has occurred. Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.1996). In this case, Petitioner contends that any procedural default should be excused by the ineffective assistance of appellate counsel. Ineffective assistance of counsel may constitute cause for procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir.1993) (ineffective assistance of counsel constitutes cause under cause and prejudice standard for reviewing claims first presented in post-conviction proceedings). As discussed more fully below, Petitioner has shown that appellate counsel was ineffective for failing to present his habeas claims, particularly those concerning the ineffective assistance of trial counsel, on direct appeal. Petitioner has thus established cause to excuse the failure to raise his habeas claims on direct appeal. Petitioner, has also demonstrated actual prejudice. As discussed in detail below, Petitioner’s ineffective assistance of trial counsel claims are meritorious, as are his ineffective assistance of appellate counsel claims. Moreover, the state courts refused to address several claims contained in Petitioner’s motion for relief from judgment based upon his failure to raise those claims on direct appeal. Additionally, given this Court’s determination, infra, that there was insufficient evidence to support Petitioner’s convictions, Petitioner has shown" }, { "docid": "9769039", "title": "", "text": "for the same reason. Finally, Willis’s failure to comply with Rule 6.508(D) constitutes an adequate and independent state ground on which to foreclose habeas review because the rule was “firmly established and regularly followed” at the time it was applied in Willis’s case. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir.1998). Because all three elements are satisfied, Willis has procedurally defaulted his ineffective assistance of trial counsel claim. A procedural default may be excused, however, if the petitioner demonstrates “that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner’s case.” Seymour, 224 F.3d at 550; see also Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Willis apparently relies on his appellate counsel’s failure to raise this claim on direct appeal as cause to excuse the default. Attorney error may constitute cause if it rises to the level of eonstitu-tionally ineffective assistance of counsel. Gravley v. Mills, 87 F.3d 779, 785 (6th Cir.1996). In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner must show that his “counsel’s representation fell below an objective standard of reasonableness” and that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also McMeans v. Brigano, 228 F.3d 674, 682 (6th Cir.2000). We have held that “appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.” See Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.2001). Thus, in order to determine whether cause exists for the procedural default of Willis’s ineffective assistance of trial counsel claim, we must, ironically, consider the merits of that claim. We agree with the district court’s conclusion that Willis’s trial counsel did not render ineffective assistance and, therefore, that his appellate counsel’s failure to raise that issue does not constitute cause for the procedural default. Willis argues that" }, { "docid": "16082077", "title": "", "text": "The District Court dismissed the case, finding that the petitioner had procedurally defaulted his claims in state court under MCR 6.508(D)(3) so as to bar federal habeas review. Id. at 991-92. On appeal, the United States Court of Appeals for the Sixth Circuit disagreed, because it refused to apply MCR 6.508(D)(3), which became effective in October of 1989, retroactively. In reaching \"this decision, the Sixth Circuit observed that, because the petitioner’s first motion was merely a request for counsel, his second motion was his only actual motion for relief from judgment. Consequently, the procedural default involved the petitioner’s failure to raise his claims on direct review (in 1965) rather than his failure to raise them in his first motion for relief from judgment (in 1991). Id. at 993, n. 3. The Sixth Circuit held that MCR 6.508(D)(3) was not a firmly established and regularly followed rule of the Michigan courts at the time of the petitioner’s 1965 conviction and thus concluded that MCR 6.508(D)(3) was not an adequate and independent state procedural rule which barred review of the petitioner’s habeas claims. Id. at 993-94. Based upon Rogers, this Court concludes that MCR 6.508(D) was not a regularly followed procedural rule at the time of Petitioner’s 1986 convictions and his direct appeals, which were concluded in 1988. Petitioner is therefore not procedurally barred from bringing his habeas claims in federal court. Further, even if this Court were to find that Petitioner had procedurally defaulted his claims, the Court would not find the default a bar to federal habeas review. A state prisoner who fails to comply with a state’s procedural rules does not waive the right to federal habeas review, if he can show cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or can show that a fundamental miscarriage of justice has occurred. Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.1996). In this case, Petitioner contends that any procedural default should be excused by the ineffective assistance of appellate counsel. Ineffective assistance" }, { "docid": "20648256", "title": "", "text": "the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id., at 689, 104 S.Ct. 2052 (internal quotations and citations omitted). Thus, a Petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel’s strategy. See, Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (explaining that an indigent appellant does not have a constitutional right to compel appointed counsel to press every nonfrivolous point on appeal and recognizing “the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review”); Mayo v. Henderson, 13 F.3d 528, 533 (2nd Cir.1994) (“[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivo-lous argument that could be made.”). III. DISCUSSION This Petition contains numerous procedurally barred claims which Petitioner inappropriately collects under the rubric of “ineffective assistance of counsel.” In general, a failure to raise a particular issue on direct appeal bars a court from examining the merits of that issue in a § 2255 petition unless the petitioner can establish either cause for failing to raise the issue and prejudice resulting therefrom or show proof that he is actually innocent. See, Bousley, supra. Thus, Petitioner must show both “cause excusing his procedural default and actual prejudice from the unpreserved error in order to obtain collateral relief.” Prou v. United States, 199 F.3d 37 (1st Cir.1999). Moreover, such “cause under the cause and prejudice test must be something external to the petitioner,” such as administrative interference. Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In the alternative, Petitioner can establish his innocence only if" }, { "docid": "9911574", "title": "", "text": "an admission amounted to an adequate and independent state ground that precluded review in a habeas proceeding). Finally, we must determine whether the petitioner has demonstrated that there was cause to disregard the procedural rule and whether the petitioner was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138; see also Coleman v. Thompson, 501 U.S. 722, 750-51, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding that a procedurally defaulted petitioner must show cause for the default and prejudice as a result of the violation, or the petitioner must demonstrate that failure to consider the claim will result in a miscarriage of justice). Attorney error does not constitute cause to excuse a procedural default unless counsel’s performance was constitutionally deficient. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard requires a defendant to show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defendant. Id. at 688, 694, 104 S.Ct. 2052. A claim of ineffective assistance of counsel must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Edwards v. Carpenter, 529 U.S. 446, 452, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Although an ineffective-assistance-of-counsel claim can itself be proeedurally defaulted, the procedural default may be excused “if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim.” Id. at 453, 120 S.Ct. 1587 (emphasis in original). Deitz filed both a motion to reopen his direct appeal, pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure, and a motion for leave to file a delayed appeal, pursuant to Rule 5(A) of the Ohio Rules of Appellate Procedure. Rule 26(B) provides as follows: A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from the" }, { "docid": "23266036", "title": "", "text": "public access. See, e.g., Walton v. Briley, 361 F.3d 431, 433 (7th Cir.2004) (“Whether the closure was intentional or inadvertent is constitutionally irrelevant.”); Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir.1979) (noting Sixth Amendment concern where marshals locked courtroom doors without authorization); see also United States v. Keaveny, 1999 WL 525954, at *1-2, 1999 U.S.App.LEXIS 3630 at *4 (1st Cir.1999) (“[Constitutional concerns may be raised even by a court officer’s unauthorized partial exclusion of the public.”). Finally, to the extent that the Government suggests we determine whether the trial closure was prejudicial, the cases on this issue are clear: “once a petitioner demonstrates a violation of his Sixth Amendment right to a public trial, he need not show that the violation prejudiced him in any way. The mere demonstration that his right to a public trial was violated entitles a petitioner to relief.” Judd v. Haley, 250 F.3d 1308, 1315 (11th Cir.2001). Thus, we conclude that if the trial court barred spectators from the courtroom as Owens alleges, he was denied his Sixth Amendment right to have a public trial. However, our inquiry does not end here. Owens procedurally defaulted his public trial claim by failing to object to the courtroom closure at trial and failing to preserve the objection on appeal. Thus, Owens must demonstrate cause for the procedural default and that the public trial error caused him “actual prejudice.” Knight, 37 F.3d at 774. Owens claims that his trial and appellate counsel were ineffective in failing to raise this issue, and that this ineffective assistance is cause for the procedural default. See Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In order to establish ineffective assistance of counsel to excuse a procedural default, Owens must show that “counsel’s representation fell below an objective standard of reasonableness,” and that “the deficient performance prejudiced his defense.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Owens’ attorneys’ failure to notice or object to the closure of his trial may show that their performance fell below “an objective standard of reasonableness.” The courts have been" }, { "docid": "15083345", "title": "", "text": "Petitioner that if he failed to plead guilty he could be sentenced to life imprisonment as a fourth habitual offender. With respect to appellate counsel, Lawrence Greene, Petitioner argues that Attorney Greene erred in failing to raise on appeal the claims of ineffective assistance of trial counsel, the illusory nature of Petitioner’s plea agreement, and the trial court’s denial of Petitioner’s motion to withdraw guilty plea. A. Procedural Default As an initial matter, respondent claims that Petitioner’s ineffective assistance of counsel claims are precluded from review in this Court by alleged multiple procedural defaults. The doctrine of procedural default provides: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, 111 S.Ct. 2546, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g, to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir.1996). Application of the cause and prejudice test may be excused if a petitioner “presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent.” Rust, 17 F.3d at 162; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)." }, { "docid": "1349515", "title": "", "text": "(2012). I write separately to explain why I disagree that Martinez modifies the prejudice showings required to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and to overcome a procedural default under Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). There is understandable confusion over how to analyze “prejudice” in this case given that it involves distinct types of prejudice for which the Supreme Court has articulated separate tests. In evaluating the merits of whether trial or post-conviction counsel rendered constitutionally ineffective assistance, we follow the standard set forth in Strickland. This requires a convicted defendant to show both “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Strickland prejudice showing is met when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. When the ineffective-assistance-of-counsel claim is procedurally defaulted, however, we do not necessarily reach its merits. First, the habeas petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. With respect to “cause,” Coleman held that counsel’s ineffective assistance constitutes cause to overcome a procedural default but only where effective assistance is constitutionally required — i.e., not in post-conviction proceedings, where there is generally no right to an attorney. Id. at 754, 111 S.Ct. 2546. The prejudice prong requires the petitioner to establish “not merely that the errors at trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)) (internal quotation marks and ellipsis omitted). “A finding of cause and prejudice does not entitle the prisoner to habeas relief." }, { "docid": "14038849", "title": "", "text": "the district court’s findings of fact for clear error and its conclusions of law de novo. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir.2001). We review its determination of a procedural bar de novo. Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir.1999). B. Ineffective Assistance of Counsel Claim Nixon first contends he received ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), at both the guilt/innocence and sentencing phases of his trial. In Nixon’s state post-conviction application, the Mississippi Supreme Court held his ineffective assistance claim proee-durally barred based on Miss.Code. Ann. § 99-39-21. See Nixon, 641 So.2d at 756. Under Mississippi law, as it existed at the time of Nixon’s trial, a petitioner waives his ineffective assistance claim when he uses different counsel on direct appeal and fails to raise the ineffective assistance claim on direct review. Evans v. State, 485 So.2d 276, 280-81 (Miss.1986); Lockett v. State, 614 So.2d 888 (Miss.1992); see also Sones v. Hargett, 61 F.3d 410, 416 n. 9 (5th Cir.1995). As Nixon employed different counsel on direct appeal, his failure to raise this issue at that time constituted procedural default. A procedural default represents an “adequate and independent” state ground, which precludes reconsideration of the issue unless the petitioner can demonstrate cause and prejudice, or that failure to consider the claims will result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). The district court initially agreed with the state habeas court’s procedural default determination. In his brief in this court, Nixon has not attempted to overcome the procedural bar by demonstrating cause and prejudice or that failure to consider his ineffective assistance claim will result in a fundamental miscarriage of justice. Any such argument is now considered waived. Fed. R.App. P. 28(a)(9)(A) & (B); Foster v. Townsley, 243 F.3d 210, 212 n. 1 (5th Cir.2001) (issues inadequately briefed are deemed waived). The fact that the district court later held an evidentiary hearing, resolved the ineffective counsel claims against" }, { "docid": "23666265", "title": "", "text": "the Ohio Court of Appeals understood that Petitioner was asserting his Sixth Amendment right to confront a witness as evidenced by the language used in its opinion, I believe that Petitioner “fairly presented” his confrontation claim to the Ohio state courts. I therefore believe the majority should have reached the merits of Petitioner’s Sixth Amendment claim. Although the majority is correct in concluding that Petitioner procedurally defaulted on his Brady claim, a review of Petitioner’s claim is not foreclosed so long as he can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A petitioner can generally demonstrate cause if he can present a substantial reason to excuse the default. See Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994). In Murray v. Carrier, the Supreme Court stated that “the existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” 477 U.S. 478, 486-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Thus, inef fective assistance of counsel can constitute cause. See id. Petitioner argues that the refusal of his appellate counsel to raise a Brady violation on his direct appeal resulted in ineffective assistance of appellate counsel thereby constituting cause for the procedural default. Although tactical choices regarding issues raised on appeal are properly left to the sound professional judgment of counsel, see United States v. Perry, 908 F.2d 56, 59 (6th Cir.1990), based upon the factual circumstances of this case, and the lack of overwhelming evidence against Petitioner, it was below the objective standard of reasonableness for appellate counsel not to raise a Brady violation on Petitioner’s direct appeal. As the record indicates, the two prior allegations of rape did not come to light until after the first day of trial. The victim alleged that she had been raped by her girlfriend’s boyfriend in April of 1988 and by a thirty-eight year old" }, { "docid": "19903868", "title": "", "text": "of counsel claim on direct review. Cf. Coleman v. Thompson, 501 U.S. 722, 730-31, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (stating that procedurally defaulted claims are not reviewed for comity and federalism reasons). Here, however, we find that comity is an insufficient reason to decline to consider Petitioner’s evidence because there is cause for Petitioner’s mistake and prejudice resulting therefrom. The Supreme Court has given us some guidance on when comity should give way to justice in the form of the doctrine of procedural default. See id. Federal courts normally decline to consider procedurally defaulted claims for comity reasons. Id. at 730, 111 S.Ct. 2546 (“In the habeas context, the application of [procedural default doctrine] is grounded in concerns of comity and federalism.”) Nonetheless, where a petitioner demonstrates cause and prejudice for the default a federal court will excuse it. Id. at 750, 111 S.Ct. 2546. We believe that the same principles should apply to a Petitioner’s error in the instant case. Because, as in the procedural default context, we would normally decline to consider Petitioner’s evidence for comity reasons, here too cause and prejudice should excuse Petitioner’s error. Petitioner has cause for his error because it was a direct result of ineffective assistance of appellate counsel. As this court has held in the procedural default context, ineffective assistance of appellate counsel constitutes cause for failing to properly present a claim before a state court. See Lundgren v. Mitchell, 440 F.3d 754, 766 (6th Cir.2006) (citing Willis v. Smith, 351 F.3d 741, 745 (6th Cir.2003)). Counsel is ineffective if his or her conduct falls below an objective standard of reasonableness and causes the petitioner prejudice. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel’s unreasonable conduct prejudices a petitioner if a reasonable probability exists that but for such conduct the outcome of the proceedings would have been different. Id. at 694, 104 S.Ct. 2052. Here, Petitioner’s appellate counsel performed below an objective standard of reasonableness by raising Petitioner’s ineffective assistance of trial counsel claim on direct appeal despite the absence of evidence in" }, { "docid": "9911573", "title": "", "text": "a firmly established state procedural rule with which the petitioner failed to comply. Id.; see also Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (holding that a state procedural rule that is not “firmly established and regularly followed” cannot serve to bar federal judicial review). Second, we ask whether the state court actually enforced the rule in sanctioning the petitioner’s failure to comply. Maupin, 785 F.2d at 138; see also Boyle v. Million, 201 F.3d 711, 716-17 (6th Cir.2000) (holding that where a state appellate court characterizes its eaidier decision as substantive, the earlier decision did not rely on a procedural bar). We next consider whether the petitioner’s failure to comply with the state procedural rule constitutes an adequate and independent ground for barring federal review. Maupin, 785 F.2d at 138; see also Wainwright, 433 U.S. at 86-87, 97 S.Ct. 2497 (concluding that, in light of a Florida law requiring that a petitioner’s confession be challenged at trial or not at all, the failure to timely object to such an admission amounted to an adequate and independent state ground that precluded review in a habeas proceeding). Finally, we must determine whether the petitioner has demonstrated that there was cause to disregard the procedural rule and whether the petitioner was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138; see also Coleman v. Thompson, 501 U.S. 722, 750-51, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding that a procedurally defaulted petitioner must show cause for the default and prejudice as a result of the violation, or the petitioner must demonstrate that failure to consider the claim will result in a miscarriage of justice). Attorney error does not constitute cause to excuse a procedural default unless counsel’s performance was constitutionally deficient. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard requires a defendant to show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defendant. Id. at 688, 694, 104 S.Ct. 2052. A claim of ineffective assistance" }, { "docid": "15291908", "title": "", "text": "of his jury instruction claim. It is well established that federal habeas review of claims defaulted in state court pursuant to an independent and adequate state procedural rule is barred “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “A state' procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998). “For the state ground to be adequate, it must be strictly or regularly followed and applied evenhandedly to all similar claims.” Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (internal quotation marks and citations omitted). In this case, Oklahoma’s procedural rule barring post-conviction relief for claims petitioner could have raised on direct appeal constitutes an independent and adequate ground barring review of petitioner’s jury instruction claim. See Odum v. Boone, 62 F.3d 327, 331 (10th Cir.1995); Steele v. Young, 11 F.3d 1518, 1522 (10th Cir.1993). Petitioner therefore is not entitled to habeas review of his jury instruction claim unless he can show cause and prejudice justifying his state procedural default. Petitioner claims that his failure to raise the jury instruction issue on direct appeal was attributable to his appellate counsel’s deficient performance. “Attorney error amounting to constitutionally ineffective assistance of counsel constitutes ‘cause’ for a procedural default.” Hickman, 160 F.3d at 1272. “Because the same legal standards govern petitioner’s underlying claim of ineffective assistance of counsel and his closely related burden to show cause for his state law procedural default, we must determine whether petitioner has shown cause concurrently with the merits of his ineffective assistance of counsel claim.” Id. at 1273. III. “Claims of ineffective assistance of counsel present mixed questions of law and fact which we review de novo.” Newsted v. Gibson, 158 F.3d 1085, 1090 (10th Cir.1998). To prevail on an ineffective" }, { "docid": "23420137", "title": "", "text": "fact is so easy. Trial counsel here acted properly. This proposition is denied. (3 R. Doc. 26 App. 10 at 5-6 (emphasis in original, parallel citations omitted).) Because the OCCA determined that Duckett had waived his claim of ineffective assistance of trial counsel, habeas review is precluded in this court unless Duckett can either establish that cause and prejudice excused his default, or show that our refusal to consider his claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, SOI U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Duckett does not assert a fundamental miscarriage of justice, instead reurging before this court that we should find cause for the default in the ineffectiveness of his appellate counsel. See id. at 752-54, 111 S.Ct. 2546 (holding that constitutionally ineffective assistance can establish cause to excuse a procedural default). Because, as noted above, the OCCA considered Duck-ett’s claim of ineffective assistance of appellate counsel, we review its determination pursuant to the standards set forth in AEDPA. In order to succeed on his claim that appellate counsel was ineffective, Duckett must first demonstrate that he would have been entitled under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to relief for the ineffectiveness of trial counsel. See Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir.1999) (“When considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, we look to the merits of the omitted issue.”). Strickland, of course, requires a showing that counsel’s performance was both deficient and prejudicial to the defense. 466 U.S. at 692, 694, 104 S.Ct. 2052. The relevant question is “whether appellate counsel was ‘objectively unreasonable’ in failing to raise [this claim] on direct appeal and, if so, whether there is a ‘reasonable probability that, but for his counsel’s unreasonable failure’ to raise these claims, [petitioner] ‘would have prevailed on his appeal.’ ” Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir.2001) (quoting Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)), cert. denied, — U.S. -," }, { "docid": "6380963", "title": "", "text": "counsel to investigate whether there are any substantial ineffective-assistance-of-trial-counsel claims that were not timely presented to the North Carolina state court. For the following reasons, we deny the motion. A. 1. Ordinarily, a habeas petitioner is procedurally barred from obtaining federal habeas review of a claim if he failed to raise and exhaust the claim in state court. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 84-85, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Under this procedural default doctrine, habeas review of the claim will only be permitted if the petitioner can demonstrate (1) cause for the default and prejudice resulting therefrom or (2) that the failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546. In some circumstances, a defendant may establish cause if he was represented by counsel whose performance was constitutionally ineffective under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Coleman, 501 U.S. at 752, 111 S.Ct. 2546; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). In Coleman, however, the Supreme Court held that because “[t]here is no constitutional right to an attorney in state postconviction proceedings,” a federal habeas “petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings” to establish cause. Coleman, 501 U.S. at 752, 111 S.Ct. 2546. In Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012), the Supreme Court first announced a “narrow exception” to the Coleman rule. Specifically, the Court held that: Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was [constitutionally] ineffective. Id. at 1320 (emphasis added). This limited qualification of the Coleman rule was based" }, { "docid": "22206275", "title": "", "text": "attorney error that results in a procedural default so long as counsel’s performance is not constitutionally ineffective under Strickland,); Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“Attorney ignorance or inadvertence is not ‘cause’ [for the procedural, default] because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’ ”) What Strickland requires is that counsel’s performance meet an objective standard of reasonableness. We cannot say.that under the facts presented here, counsel’s failure to object was unreasonable. Werts has not proved either that the remarks were improper and therefore objectionable or that the basis for counsel’s failure to object might not be considered sound trial strategy. We hold, therefore, that the Pennsylvania Superior Court’s determination that trial counsel rendered effective assistance was not an unreasonable application of Strickland. Accordingly, Werts is not entitled to federal habeas relief on his claim of counsel ineffectiveness for failing to object to the prosecutor’s remarks. V. For the reasons set forth above, we will affirm the judgment of the District Court denying Werts’ petition for writ of habeas corpus. . At trial, defense counsel lodged a timely objection to Detective McMillan's unsolicited response regarding the clothing. The trial court denied his motion for a mistrial and gave a cautionary instruction which, defense counsel argued on direct appeal, failed to extinguish the prejudicial mature of the response and remove its taint from the minds of the jurors. . In 1982, the PCHA was superseded and replaced by the Post Conviction Relief Act (\"PCRA”), 42 Pa.Cons.Stat.Ann. §§ 9541 et seq. . Werts also referenced several other comments which are not at issue in this appeal. . The Constitution does not guarantee a right to counsel at state collateral review proceedings. Therefore, the Supreme Court has held that there can be no Sixth Amendment violation for ineffective assistance of counsel based upon representation at such proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citations omitted). . The" } ]

[ { "docid": "6603608", "title": "", "text": "characterized as the recoupment of the balance of his condemnation award spread over the term. Furthermore, he should be allowed to take a capital gain on the net income from the operation of the property at the time when that income was realized, which would appear to be at the end of each successive year. I find from the testimony adduced, in other words, that the taxpayer had sustained his burden and therefore is entitled to treat the additional rental payments on a capital gain basis in each year as received. The last issue whether the taxpayer is entitled to take as a business expense a deduction for interest on tax deficiencies for personal income taxes of prior years, must however be resolved adversely to the plaintiff. The statute on this point is plain. The deficiencies were personal and not a liability of the business. The fact that the taxpayer had no other source of income affords no basis for converting the interest payment into some kind of a business expense. Quite the contrary, the absence of any other source of income requires the-Court to find, in addition to the fact that the item is not such an expense, that it is not deductible under Section 122(d)(5) of the 1939 Code, 26 U.S.C.A. § 122(d) (5), for the purposes of calculating a net operating loss and, in turn, the amount, of carry-over, if any. In summary, the taxpayer is sustained on the first and second issues considered and the government, on the third. The taxpayer is therefore entitled to a judgment in an amount as will be computed pursuant to Paragraph 26 of the Stipulation received on June 11, 1958. Findings of Fact, Conclusions of Law and Order for Judgment The above entitled matter, having been regularly placed upon the General Term Calendar of the above named Court, came on for trial, without a jury, before the undersigned, serving in the above entitled district by assignment, on the 11th day of June, 1958. The above named plaintiff appeared personally and by Joseph A. Walters, Esq., 948 Midland Bank Building, Minneapolis," } ]

[ { "docid": "20769924", "title": "", "text": "1958-1 C.B. 147, the Commissioner stated that an individual’s payment of State income taxes, interest on State and Federal income taxes, and litigation expenses related to these taxes was “not attributable to a trade or business”, even if these expenses were related to business income or deductible under section 212. The Commissioner ruled that these State income taxes, interest on State and Federal income taxes, and litigation expenses were not deductible from gross income in computing AGI under former section 62(a)(1). The Commissioner also ruled that these State income taxes, interest on State and Federal income taxes, and litigation expenses did not generate an NOL under section 172(d)(4). The Commissioner’s ruling in Rev. Rui. 58-142, supra, with respect to AGI, was based on former section 1.62-l(d), Proposed Income Tax Regs., 21 Fed. Reg. 8403 (Nov. 2, 1956), which provided: To be deductible for the purposes of determining adjusted gross income, expenses must be those directly, and not those merely remotely, connected with the conduct of a trade or business. For example, taxes are deductible in arriving at adjusted gross income only if they constitute expenditures directly attributable to a trade or business or to property from which rents or royalties are derived. Thus, property taxes paid or incurred on real property used in a trade or business are deductible, but State taxes on net income are not deductible even though the taxpayer’s income is derived from the conduct of a trade or business. The Commissioner’s ruling with respect to the NOL was primarily based on this Court’s decisions in Maxcy v. Commissioner, 26 T.C. 526 (1956), and Aaron v. Commissioner, 22 T.C. 1370 (1954). In Maxcy v. Commissioner, supra at 527, the Court held that the taxpayer failed to prove that he could compute an NOL by deducting from his gross income a claimed business expense of interest on underpayments of personal income tax. In Aaron v. Commissioner, supra at 1376, the Court sustained the Commissioner’s determination that the taxpayer could not compute an NOL by deducting the State income taxes that he claimed were related to his business income." }, { "docid": "373974", "title": "", "text": "STEEL, District Judge. Plaintiffs, husband (hereinafter “taxpayer”) and wife, filed a joint federal income tax return for 1960 and claimed as a deduction a $36,966.03 operating loss incurred in 1960 by Foxcatcher Livestock Company, a corporation, all of the stock of which was owned by taxpayer in 1960. Foxcatcher was a “small business corporation” (hereinafter “Subcchapter S corporation”), as defined in 26 U.S.C. § 1371(a). Sub-chapter S was added to the Code by § 64(a) of the Technical Amendments Act of 1958, P.L. 85-866, September 2, 1958, 72 Stat. 1650 et seq., and its provisions were effective for taxable years beginning after December 31, 1957. Its purpose was to permit “small business corporations,” as defined by the statute, to elect not to pay a corporate tax, but instead to permit the corporate profits or losses to be reported by the stockholders in their individual returns. Sen.Rep. 1983, 85th Cong.2d Sess., U.S.Code Cong. & Admin.News 1958, p. 4791; 1958-3 Cum. Bull. 922, 1008. In 1960, Foxcatcher, with the consent of plaintiffs, elected in accordance with Sub-chapter S, not to be taxed as a corporation. Consequently, any “net operating loss” which Foxcatcher sustained in 1960 was allowable as a deduction from the gross income of plaintiffs. 26 U.S.C. § 1374(a). The loss which plaintiffs attributed to Foxcatcher was disallowed as a deduction and the.present suit for refund followed. The burden of proof is on the plaintiffs to sustain their right to a refund. Opinion and order dated November 29, 1963. The Government asserts that plaintiffs are entitled to claim Foxcatcher’s loss as a tax deduction only if Foxcateher’s operation constituted a trade or business or was entered into for profit, and that such was not the case. In addition, the Government contends that even if Fox-catcher’s operation amounted to a trade or business or was entered into for profit, two specific deductions were improperly taken and should be disallowed: (1) $3,125.00 pertaining to the bull inventory, and (2) $802.93, consisting of $654.93 spent for food and $148.00 of travel expenses incurred in obtaining the food. Plaintiffs take issue with the Government on" }, { "docid": "16540406", "title": "", "text": "of Texas in compromise of the action. The Commissioner acquiesced in our allowance of the attorneys’ fees and expenses, though he appealed the allowance for the amounts paid in compromise, and we were on that question reversed, Commissioner v. Longhorn Portland Cement Co., 148 Fed. (2d) 276. See also Commissioner v. Shapiro, 278 F. 2d 556, affirming a Memorandum Opinion of this Court. We hold that the legal and accounting fees paid by petitioner in 1958 in contesting and settling his income tax liabilities for the years 1944 through 1946 were attributable to his trade or business within the meaning of section 162(a) and therefore do not come within the limitation of section 172(d) (4) in computing his net operating loss for 1958 and the net operating loss carryback from 1958 to 1955. Decision will he entered, for the petitioners. All section references are to the Internal Revenue Code of 1954, as amended, unless otherwise noted. The Ways and Means Committee report (H. Kept. No. 1337, 83d Cong., 2d Sess.) states as follows at page A19: \"Section 62-. Adjusted Gross Income Defined “This section corresponds to section 22(n) of the 1938 Code. Paragraph (1) corresponds to paragraph (1) of section 22, (n) of the Code of 1939. No substantive change is made.” In Rev. Rul. 58-142, 1958-1 C.B. 147, the respondent ruled as follows : “In the case of an Individual, state income taxes, interest on state and Federal income taxes, and litigation expenses in connection with such income taxes, even where related to income derived from his trade or business and even though deductible under section 212 of the Internal Revenue Code of 1954 in determining taxable income as defined in section 63 of the Code, are not “attributable to a trade or business carried on by the taxpayer” and are, therefore, not deductible for the purpose of determining adjusted gross income as defined in section 62(1) of the Code. Section 1.62-1 (d) of the Income Tax Regulations. However, a state tax on gross income directly attributable to a trade or business carried on by an individual, as distinguished" }, { "docid": "20769884", "title": "", "text": "interest on a Federal individual income tax deficiency is nondeductible personal interest under section 163(h). Petitioners reply that section 1.163-9T(b)(2)(i)(A), Temporary Income Tax Regs., supra, is invalid insofar as it disallows a deduction for interest on a deficiency that is an ordinary and necessary expense of a trade or business. Section 62(a) provides in part: SEC. 62(a). General Rule. — For purposes of this subtitle, the term “adjusted gross income” means, in the case of an individual, gross income minus the following deductions: (1) Trade and business deductions. — The deductions allowed by this chapter (other than by part VII of this subchapter) which are attributable to a trade or business carried on by the taxpayer, if such trade or business does not consist of the performance of services by the taxpayer as an employee. Section 162(a) provides in part: There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * * Section 163(h) provides in part: SEC. 163(h). Disallowance of Deduction for Personal Interest.— (1) In GENERAL. — In the case of a taxpayer other than a corporation, no deduction shall be allowed under this chapter for personal interest paid or accrued during the taxable year. (2) Personal interest.— For purposes of this subsection, the term “personal interest” means any interest allowable as a deduction under this chapter other than— (A) interest paid or accrued on indebtedness properly allocable tp a trade or business (other than the trade or business of performing serv- ■ ices as an employee), Before proceeding to a determination of the effect of pertinent regulations, we must first consider whether the interest expense involved herein is sufficiently connected to the business of Carrier Communications so as to satisfy the “properly allocable to a trade or business” exception of section 163(h)(2)(A), without regard to the regulations. Initially, we note that respondent does not. question petitioners’ calculation of the amounts of the total interest payments that are allocable to those portions of the income tax. deficiencies based on adjustments" }, { "docid": "12230073", "title": "", "text": "SIMONS, Circuit Judge. The petitioner challenged before the Board of Tax Appeals a deficiency determined by the Commissioner in his income tax return for 1929. The deficiency resulted from the disallowance by the respondent of a deduction for losses sustained in 1928 on stock of real estate corporations which had become worthless. While conceding that the losses had been sustained, the respondent determined that they were not attributable to the operation of a trade or business regularly carried on by the taxpayer,-and so not to be deducted from total gross income under the provisions of § 117(a) (1) of the Revenue Act of 1928, 26 U.S.C.A. § 117 note, which provides: “Deductions otherwise allowed by law not attributable to the operation of a trade or business regularly carried on by the taxpayer shall be allowed only to the extent of the amount of the gross income not derived from such trade or business;” A subsidiary issue involves surrender of shares in a corporation from which the petitioner had borrowed money and concurrent cancellation by the corporation of his indebtedness. The petitioner contended that the .cancellation of the indebtedness was the distribution of a taxable dividend while the respondent treated the transaction as a sale of the stock with the excess over cost taxable as realized gain. The Board of Tax Appeals' denied relief upon the first ground. It rendered no decision upon the second issue, and it is conceded that it need not be decided unles.s the petitioner now prevails. The petitioner’s business was the selling of real estate, the title of which was in corporations he had organized and with which he had commission contracts. He operated on a large scale, first in and around Detroit, Michigan, and later in Florida. He had established a large sales organization, collection, insurance, building, and subdivision improvement departments, and employed his own attorney and surveyor. It was his plan to sell only properties of the corporations organized-by him, for which he purchased the acreage and prepared plans for its subdividing, improvement -and sale. He was a substantial stockholder in each of the" }, { "docid": "16540394", "title": "", "text": "such trade or business does not consist of the performance of services by the taxpayer as an employee. The parenthetical cross-reference to “part VII of this subchapter” refers insofar as material here to the following section: PART VII — ADDITIONAL ITEMIZED DEDUCTIONS FOR INDIVIDUALS ******* SEC. 212. EXPENSES FOR PRODUCTION OF INCOME. In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year— (1) for the production or collection of income; (2) for the management, conservation, or maintenance of property held for the production of income; or (3) in connection with the determination, collection, or refund of any tax. Section. 212(3) is new under the Internal Eevenue Code of 1954. Sections 212(1) and (2) correspond to section 23(a) (2) of the Internal Eevenue Code of 1939. Section 172 allows a net operating loss deduction and section 172(c) defines “net operating loss” as “the excess of the deductions allowed by this chapter over the gross income,” but provides that “Such excess shall be computed with the modifications specified in subsection (d).” Section 172(d) (4) provides that “In the case of a taxpayer other than a corporation, the deductions allowable by this chapter which are not attributable to a taxpayer’s trade or business shall be allowed only to the extent of the amount of the gross income not derived from such trade or business.” Section 172(d) (4) is substantially the same as section 122(d) (5) of the Internal Eevenue Code of 1939. Eespondent’s main contention is that legal and accounting expenses incurred in a Federal income tax controversy are deductible by an individual taxpayer under the Internal Eevenue Code of 1954 only as nonbusiness expenses and therefore fall within the limitation of section 172(d) (4) in computing net operating losses. Petitioner contends the $45,000 is deductible in the year paid under section 162, which provides in part as follows: SEC. 162. TRADE OR BUSINESS EXPENSES. (a) In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the" }, { "docid": "10379693", "title": "", "text": "defines the term “net operating loss” as the excess of the deductions allowed by Chapter 1 — Income Tax over the gross income, with the exceptions, additions, and limitations provided in subsection (d) of that section. The report of the Committee on Ways and Means on the Eevenue Bill of 1939, which became the Eevenue Act of 1939, H. Eept. No. 855, 76th Cong., 1st Sess., 1939-2 C.B. 517, pertinent portions of which are set out below, shows that the net operating loss contemplated by sections 23 (s) and 122 was an economic loss and, as stated in the report, “The exceptions and limitations provided in section 122(d) are for the purpose of insuring that only an economic loss will be taken into account.” The portion of subsection (d) of section 122 pertinent here is paragraph (5), which provides that deductions otherwise allowed by law not attributable to the operation of a trade or business regularly carried on by the taxpayer shall, in the case of a taxpayer other than a corporation, be allowed only to the extent of the amount of gross income not derived from such trade or business. The foregoing provision is a limitation on the allowance of deductions not attributable to the operation of a trade or business regularly carried on by the taxpayer. However, that provision does not purport to apply, nor does it apply, to deductions which are attributable to the operation of a trade or business regularly carried on by the taxpayer. The respondent’s regulations construing section 122(d) (5) give no indication as to what deductions allowed by law he considers are to be regarded as “attributable to the operation of a trade or business regularly carried on by the taxpayer” and what deductions are not to be regarded as so attributable. Webster’s New International Dictionary (2d ed.) defines the word “attribute” as: 2. To ascribe (to) as belonging or pertaining; specif.: a By way of canse; as, a disease attributed, to infection. * * * c By way of interpretation; as, a meaning attributed to a passage. * * * e By" }, { "docid": "14319856", "title": "", "text": "loss over the net income for the second preceding taxable year computed * * *. “(d) Exceptions, additions, and limitations. “The exceptions, additions, and limitations referred to in subsections (a), (b), and (c) shall be as follows: ***** “(5) Deductions otherwise allowed by law not attributable to the operation of a trade or business regularly carried on by the taxpayer shall (in the case of a taxpayer other than a corporation) be allowed only to the extent of the amount of the gross income not derived from such trade or business. * * * ” . The taxpayer during the years here involved sustained substantial losses as a result of activities as a part-time gentleman farmer. He and the Commissioner of Internal Revenue agree that those losses are “business losses.” It seems somewhat incongruous to classify the salary that he receives as compensation for his full-time everyday activities of managing the affairs of his wholly-owned corporation as “non-business income,” and income from liis part-time farm as “business income.” Yet this is a necessary consequence of the view taken by the taxpayer. . The purpose of Section 122 was to enable persons to equalize to some extent their earnings over a period of years. This is accomplished by permitting them to reduce, for tax purposes, their incomes in one year by losses sustained in other years. It would be inequitable to interpret the phrase “trade or business” in such a fashion that salaried employees, professional men and others would not be dealt with under Section 122 in the same manner as persons receiving income, for example, from a sole proprietorship, . The statement in Commissioner of Internal Revenue v. Smith, 2 Cir., 1953, 203 F.2d 310, 312, to the effect that ‘‘serving as an officer of a corporation of which the taxpayer is a stockholder and creditor” does not constitute a trade or business was unnecessary to that decision, and is clearly a dictum which we need not follow. . Judge Ryan, in his opinion below, carefully explained this distinction: “It is true that the business of the corporation was not" }, { "docid": "16540395", "title": "", "text": "shall be computed with the modifications specified in subsection (d).” Section 172(d) (4) provides that “In the case of a taxpayer other than a corporation, the deductions allowable by this chapter which are not attributable to a taxpayer’s trade or business shall be allowed only to the extent of the amount of the gross income not derived from such trade or business.” Section 172(d) (4) is substantially the same as section 122(d) (5) of the Internal Eevenue Code of 1939. Eespondent’s main contention is that legal and accounting expenses incurred in a Federal income tax controversy are deductible by an individual taxpayer under the Internal Eevenue Code of 1954 only as nonbusiness expenses and therefore fall within the limitation of section 172(d) (4) in computing net operating losses. Petitioner contends the $45,000 is deductible in the year paid under section 162, which provides in part as follows: SEC. 162. TRADE OR BUSINESS EXPENSES. (a) In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business ⅜ * * The above section of the 1954 Code corresponds to section 23(a) (1) (A) as it appeared in the Internal Revenue Code of 1939. Under the Internal Revenue Code of 1939 it was held that where legal and accounting expenses were incurred by an individual taxpayer in an income tax controversy growing out of and proximately related to his business, such expenditures were deductible by him under section 23(a) (1) (A) of the Internal Revenue Code of 1939 as business expenses in computing his adjusted gross income under section 22 (n) (1) of the Internal Revenue Code of 1939. James J. Standing, 28 T.C. 789, affd. 259 F. 2d 450. It was also held under the Internal Revenue Code of 1939 that legal fees incurred by an individual taxpayer in connection with Federal and State income tax investigations concerning his business income were deductible by him as business expenses and were properly deductible in computing a net operating loss carryback under section 122 of" }, { "docid": "20769925", "title": "", "text": "arriving at adjusted gross income only if they constitute expenditures directly attributable to a trade or business or to property from which rents or royalties are derived. Thus, property taxes paid or incurred on real property used in a trade or business are deductible, but State taxes on net income are not deductible even though the taxpayer’s income is derived from the conduct of a trade or business. The Commissioner’s ruling with respect to the NOL was primarily based on this Court’s decisions in Maxcy v. Commissioner, 26 T.C. 526 (1956), and Aaron v. Commissioner, 22 T.C. 1370 (1954). In Maxcy v. Commissioner, supra at 527, the Court held that the taxpayer failed to prove that he could compute an NOL by deducting from his gross income a claimed business expense of interest on underpayments of personal income tax. In Aaron v. Commissioner, supra at 1376, the Court sustained the Commissioner’s determination that the taxpayer could not compute an NOL by deducting the State income taxes that he claimed were related to his business income. According to the Court, the phrase “attributable to” meant that an expense had to bear a “direct relation” to the individual’s business. Id. In Rev. Rui. 70-40, 1970-1 C.B. 50, the Commissioner reconsidered and reversed her position in Rev. Rui. 58-142, supra, insofar as it held that State income taxes, deficiency interest, and litigation expenses related to a taxpayer’s business income were nondeductible nonbusiness expenses for purposes of determining an NOL. Prior to her reconsider ation, this and other courts had consistently rejected that position. First, in Standing v. Commissioner, supra at 795, this Court held that the taxpayer’s deficiency interest and professional fees were deductible as business expenses under sections 22(n)(l) and 23(a)(1)(A) of the 1939 Code, in arriving at AGI. In Standing, the taxpayer was the sole proprietor of two businesses. The Commissioner audited the taxpayer’s 1945 through 1949 individual income tax returns, and the taxpayer retained an attorney and an accountant to assist him in the audit. The taxpayer and the Commissioner settled the matter; substantially all of the agreed-upon deficiencies were" }, { "docid": "20769923", "title": "", "text": "by deducting deficiency interest that was an ordinary and necessary expense under section 162(a), irrespective of the provisions of section 163 and independent of whether the individual itemized his or her deductions. See generally Bittker & Lokken, Federal Taxation of Income, Estates and Gifts, par. 31.1.1, at 31-2 (2d ed. 1990) (“Since, even in the absence of § 163(a), interest attributable to business or profit-oriented transactions would be deductable under §162 * * * or §212 * * *, the principal function of §163(a) is to permit the deduction of interest on consumer debt”). The courts also allowed an individual to deduct deficiency interest that was an ordinary and necessary business expense under section 162(a) in order to compute a net operating loss (nol) under section 172(d)(4). Polk v. Commissioner, 31 T.C. 412, 415 (1958), affd. 276 F.2d 601 (10th Cir. 1960). The Commissioner disagrees with the courts’ view. According to her, interest on an income tax liability attributable to a business is not deductible by an individual in computing AGI. In Rev. Rui. 58-142, 1958-1 C.B. 147, the Commissioner stated that an individual’s payment of State income taxes, interest on State and Federal income taxes, and litigation expenses related to these taxes was “not attributable to a trade or business”, even if these expenses were related to business income or deductible under section 212. The Commissioner ruled that these State income taxes, interest on State and Federal income taxes, and litigation expenses were not deductible from gross income in computing AGI under former section 62(a)(1). The Commissioner also ruled that these State income taxes, interest on State and Federal income taxes, and litigation expenses did not generate an NOL under section 172(d)(4). The Commissioner’s ruling in Rev. Rui. 58-142, supra, with respect to AGI, was based on former section 1.62-l(d), Proposed Income Tax Regs., 21 Fed. Reg. 8403 (Nov. 2, 1956), which provided: To be deductible for the purposes of determining adjusted gross income, expenses must be those directly, and not those merely remotely, connected with the conduct of a trade or business. For example, taxes are deductible in" }, { "docid": "16540393", "title": "", "text": "1954. It has been stipulated that if the $45,000 expenditure in 1958 for attorneys’ and accountants’ fees is allowable as a business expense deduction by petitioner in 1958, there will be a net operating loss in 1958 in the amount of $30,833.78 which may be carried back to 1955, resulting in no additional income tax being due by the petitioner for 1955. It has also been stipulated that if such expenditures are not allowed as a business expense deduction in 1958, there will be no net operating loss to be carried back to 1955 and there will be a deficiency of $16,108.71 for 1955. Section. 62(1) defines adjusted gross income as follows: SEC. 62. ADJUSTED GROSS INCOME DEFINED. For purposes of this subtitle, the term “adjusted gross income” means, in the case of an Individual, gross income minus the following deductions: (1) Trade and business deductions. — The deductions allowed by this chapter (other than by part YII of this subehapter) which are attributable to a trade or business carried on by the taxpayer, if such trade or business does not consist of the performance of services by the taxpayer as an employee. The parenthetical cross-reference to “part VII of this subchapter” refers insofar as material here to the following section: PART VII — ADDITIONAL ITEMIZED DEDUCTIONS FOR INDIVIDUALS ******* SEC. 212. EXPENSES FOR PRODUCTION OF INCOME. In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year— (1) for the production or collection of income; (2) for the management, conservation, or maintenance of property held for the production of income; or (3) in connection with the determination, collection, or refund of any tax. Section. 212(3) is new under the Internal Eevenue Code of 1954. Sections 212(1) and (2) correspond to section 23(a) (2) of the Internal Eevenue Code of 1939. Section 172 allows a net operating loss deduction and section 172(c) defines “net operating loss” as “the excess of the deductions allowed by this chapter over the gross income,” but provides that “Such excess" }, { "docid": "16540401", "title": "", "text": "and there is nothing to suggest that it sought to deprive individuals of business deductions which they had hitherto enjoyed. We believe that the statutory scheme under the Internal Eevenue Code of 1954 permits an individual taxpayer to deduct his expenses in any tax controversy either as a business expense under section 162(a) or as a nonbusiness expense under section 212(3), depending upon the facts of the particular case. Eespondent next argues that even if an individual taxpayer may claim a business expense deduction for tax litigation expenses in connection with business income, the petitioner has failed to show that the tax controversy for which the legal and accounting fees were incurred was related to his business. This case was fully stipulated. The legal and accounting fees here in question were in connection with the tax controversy involving the years 1944, 1945, and 1946 and in those years the petitioner was engaged in an oil-producing business, farming operations, the operation of nightclubs, and he also had income from coin or slot machines, rental property, and stocks and bonds. All of these operations were certainly business activities with the possible exception of the rental property and the securities. Some idea of the relative insignificance of petitioner’s income from these nonbusiness activities may be gathered from the amounts reported by him from various sources in his income tax returns for the years 1944 through 1946, which showed the following: Eespondent used the net worth plus personal expenditures method to compute petitioner’s income for these years and on this basis deter mined deficiencies, additions to tax, and interest for this period totaling $657,402.30. Under the settlement reached by respondent and petitioner there were no deficiencies in income tax due for the years 1944 and 1945, but there were deficiencies in income tax and additions to tax under sections 293(b) and 294(d) (2) of the Internal Revenue Code of 1939 for 1946 in the respective amounts of $84,875.51, $42,-437.76, and $2,686.73. Obviously, under the net worth method the sources of income cannot be identified. But we are satisfied from the nature of petitioner’s activities" }, { "docid": "10379709", "title": "", "text": "— Taxes paid or accrued within the taxable year, except— .(1) Federal income * * * taxes 444 “The net operating loss deduction is the net operating loss carry-over reduced by certain adjustments intended to prevent net losses from being used as a deduction by the taxpayer where he is not suffering any economic loss by reason of the fact that his income contains nontaxable items (as in the case of percentage depletion, exempt interest on State and local bonds, and, with respect to corporations, intercorporate dividends, and interest on partially exempt Federal obligations). 4 4 4 * ⅛ * * “The net operating loss for any taxable year is the excess of deductions allowed by Chapter 1 over the gross income for such year, with the exceptions and limitations provided by section 122(d). “The exceptions and limitations provided in section 122(d) are for the purpose of insuring that only an economic loss will be taken into account. 444 4444444 “In the case of a taxpayer other than a corporation, allowable deductions not attributable to a trade or business regularly carried on by the taxpayer are allowed only to the extent of the gross income not derived from the trade or business.” Regulations 111, sec. 29.122-3, provide as follows: Computation op Net Operating Loss in Case op a Taxpayer Other Than a Corporation.— (a) General. — A net operating loss is sustained by a taxpayer other than a corporation in any taxable year if and to the extent that, for such year, there is an excess of deductions allowed by chapter 1 over gross income, both computed with the following exceptions and limitations: ******* (7) Ordinary nonbusiness deductions (i.e., exclusive of capital losses) shall be allowed only to the extent of the amount of ordinary nonbusiness gross income (i.e., exclusive of capital gains), plus * * * the excess, if any, of nonbusiness capital gains over non-business capital losses. Section 8. Adjusted Gross Income. This section is the same as section 8 of the House bill with the exception of additional amendments to section 117 of the Code made in" }, { "docid": "10379708", "title": "", "text": "the exceptions, additions, and limitations provided in subsection (d). ******* (d) Exceptions, Additions, and Limitations. — The exceptions, additions, and limitations referred to in subsections (a), * * * shall be as follows : ******* (5) Deductions otherwise allowed by law not attributable to the operation of a trade or business regularly carried on by the taxpayer shall (in the case of a taxpayer other than a corporation) be allowed only to the extent of the amount of the gross income not derived from such trade or business. * * * SEC. 23. deductions' FROM GROSS INCOME. In computing net Income there shall be allowed as deductions: (a) Expenses.— (1) TRADE OR BUSINESS EXPENSES.- (A) In General. — All the ordinary and necessary expenses paid or Incurred during the taxable year In carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * (b) Interest. — AJI interest paid or accrued within the taxable year on indebtedness 4 * *. (c) Taxes Generally. — Taxes paid or accrued within the taxable year, except— .(1) Federal income * * * taxes 444 “The net operating loss deduction is the net operating loss carry-over reduced by certain adjustments intended to prevent net losses from being used as a deduction by the taxpayer where he is not suffering any economic loss by reason of the fact that his income contains nontaxable items (as in the case of percentage depletion, exempt interest on State and local bonds, and, with respect to corporations, intercorporate dividends, and interest on partially exempt Federal obligations). 4 4 4 * ⅛ * * “The net operating loss for any taxable year is the excess of deductions allowed by Chapter 1 over the gross income for such year, with the exceptions and limitations provided by section 122(d). “The exceptions and limitations provided in section 122(d) are for the purpose of insuring that only an economic loss will be taken into account. 444 4444444 “In the case of a taxpayer other than a corporation, allowable deductions not attributable to" }, { "docid": "10379707", "title": "", "text": "deficiency in Federal income tax involved in the Polk case, and that they were as much ordinary and necessary expenses of carrying on the business of the petitioner herein as was the interest involved in the Polls case in carrying on the business of the taxpayer there. Being of that opinion we hold that the State income tax of the petitioner for 1948, the deficiencies in his State income taxes for prior years, and the interest on the deficiencies were deductions allowed by law which were attributable to the operation of the trade or business regularly carried on by petitioner and are to be taken into account in computing the net operating loss carryback pursuant to section 122. Eeviewed by the Court. Decision -will be entered under Bule SO. All references are to the Code of 1939. SBC. 122. NET OPERATING LOSS DEDUCTION. (a) Definition of Net Opekating Loss. — As used In this section, the term “net operating loss” means the excess of the deductions allowed by this chapter over the gross income, with the exceptions, additions, and limitations provided in subsection (d). ******* (d) Exceptions, Additions, and Limitations. — The exceptions, additions, and limitations referred to in subsections (a), * * * shall be as follows : ******* (5) Deductions otherwise allowed by law not attributable to the operation of a trade or business regularly carried on by the taxpayer shall (in the case of a taxpayer other than a corporation) be allowed only to the extent of the amount of the gross income not derived from such trade or business. * * * SEC. 23. deductions' FROM GROSS INCOME. In computing net Income there shall be allowed as deductions: (a) Expenses.— (1) TRADE OR BUSINESS EXPENSES.- (A) In General. — All the ordinary and necessary expenses paid or Incurred during the taxable year In carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * (b) Interest. — AJI interest paid or accrued within the taxable year on indebtedness 4 * *. (c) Taxes Generally." }, { "docid": "20769926", "title": "", "text": "According to the Court, the phrase “attributable to” meant that an expense had to bear a “direct relation” to the individual’s business. Id. In Rev. Rui. 70-40, 1970-1 C.B. 50, the Commissioner reconsidered and reversed her position in Rev. Rui. 58-142, supra, insofar as it held that State income taxes, deficiency interest, and litigation expenses related to a taxpayer’s business income were nondeductible nonbusiness expenses for purposes of determining an NOL. Prior to her reconsider ation, this and other courts had consistently rejected that position. First, in Standing v. Commissioner, supra at 795, this Court held that the taxpayer’s deficiency interest and professional fees were deductible as business expenses under sections 22(n)(l) and 23(a)(1)(A) of the 1939 Code, in arriving at AGI. In Standing, the taxpayer was the sole proprietor of two businesses. The Commissioner audited the taxpayer’s 1945 through 1949 individual income tax returns, and the taxpayer retained an attorney and an accountant to assist him in the audit. The taxpayer and the Commissioner settled the matter; substantially all of the agreed-upon deficiencies were proximately related to the taxpayer’s businesses. The taxpayer later claimed a business deduction for the deficiency interest and the professional fees incurred with respect to the deficiencies. The Commissioner disallowed these expenses as business deductions from gross income mainly because the expenses had no connection with the taxpayer’s business. We disagreed. We held that the interest and the fees were “ordinary and necessary expenses paid or incurred during the taxable year in carrying on * * * [the taxpayer’s] trade or business” within the meaning of section 23(a)(1)(A) of the 1939 Code. Standing v. Commissioner, supra at 793. The Court of Appeals for the Fourth Circuit affirmed our decision allowing these deductions. Commissioner v. Standing, 259 F.2d at 456. Subsequently, in Polk v. Commissioner, supra at 414-415, this Court held that interest on an income tax deficiency stemming from the Commissioner’s revaluation of the taxpayer’s livestock inventory was deductible as a business expense for purposes of computing an NOL. In so holding, this Court stated that the case was “clearly controlled” by Standing. Polk v." }, { "docid": "16540408", "title": "", "text": "from a state tax on net income (whether or not derived from the conduct of a trade or business)', is deductible for the purpose of determining adjusted gross income as defined in section 62(1) of the Code * * *. “Further, section 172(d)(4) of the Code provides that, in determining a net operating loss of a taxpayer other than a corporation, the deductions allowed by Chapter 1 of the Code, “which are not attributable to a taxpayer’s trade or business shall be allowed only to the extent of the amount of the gross income not derived from such trade or business.” Here also, state income taxes (except a state tax on gross income such as mentioned above), interest on state and Federal income taxes, and litigation expenses in connection with such taxes, even though related to income derived from a trade or business carried on by the taxpayer, are not “attributable to a taxpayer’s trade or business,” and under section 172(d) (4) of the Code are allowable as deductions in determining a net operating loss of a taxpayer, other than a corporation, only to the extent of the amount of the gross income not derived from such trade or business. * * *” H. Rept. No. 1337, 83d Cong., 2d Sess., pp. A19, A59; S. Rept. No. 1622, 83d Cong., 2d Sess., pp. 169, 218. Regs. 118, sec. 39.23⅛)-15(⅛)." }, { "docid": "16540407", "title": "", "text": "A19: \"Section 62-. Adjusted Gross Income Defined “This section corresponds to section 22(n) of the 1938 Code. Paragraph (1) corresponds to paragraph (1) of section 22, (n) of the Code of 1939. No substantive change is made.” In Rev. Rul. 58-142, 1958-1 C.B. 147, the respondent ruled as follows : “In the case of an Individual, state income taxes, interest on state and Federal income taxes, and litigation expenses in connection with such income taxes, even where related to income derived from his trade or business and even though deductible under section 212 of the Internal Revenue Code of 1954 in determining taxable income as defined in section 63 of the Code, are not “attributable to a trade or business carried on by the taxpayer” and are, therefore, not deductible for the purpose of determining adjusted gross income as defined in section 62(1) of the Code. Section 1.62-1 (d) of the Income Tax Regulations. However, a state tax on gross income directly attributable to a trade or business carried on by an individual, as distinguished from a state tax on net income (whether or not derived from the conduct of a trade or business)', is deductible for the purpose of determining adjusted gross income as defined in section 62(1) of the Code * * *. “Further, section 172(d)(4) of the Code provides that, in determining a net operating loss of a taxpayer other than a corporation, the deductions allowed by Chapter 1 of the Code, “which are not attributable to a taxpayer’s trade or business shall be allowed only to the extent of the amount of the gross income not derived from such trade or business.” Here also, state income taxes (except a state tax on gross income such as mentioned above), interest on state and Federal income taxes, and litigation expenses in connection with such taxes, even though related to income derived from a trade or business carried on by the taxpayer, are not “attributable to a taxpayer’s trade or business,” and under section 172(d) (4) of the Code are allowable as deductions in determining a net operating loss" }, { "docid": "16540392", "title": "", "text": "I.R.C. 1939, for the year 1946 in the respective amounts of $84,875.51, $42,437.76, and $2,686.73. In December 1958 petitioner paid attorneys’ and accountants’ fees in the amount of $45,000 for services rendered in contesting and settling petitioner’s income tax liability for the years 1944, 1945, and 1946. Petitioner claimed this amount as a business expense deduction on his 1958 joint income tax return, which reported a net operating-loss of $30,833.78, and he filed an application for tentative carryback adjustment on March 23,1959, to carry back a loss in this amount to the year 1955. Respondent disallowed the deduction of the attorneys’ and accountants’ fees of $45,000 as a business expense in computing the adjusted gross income of petitioner and his wife in their joint return for 1958 and consequently refused to allow them any net operating loss carry-back deduction for 1955. Respondent explained in his statutory notice of deficiency that the amount of $45,000 was deductible by petitioner in 1958 only as a nonbusiness expense deduction under section 212(3) of the Internal Revenue Code of 1954. It has been stipulated that if the $45,000 expenditure in 1958 for attorneys’ and accountants’ fees is allowable as a business expense deduction by petitioner in 1958, there will be a net operating loss in 1958 in the amount of $30,833.78 which may be carried back to 1955, resulting in no additional income tax being due by the petitioner for 1955. It has also been stipulated that if such expenditures are not allowed as a business expense deduction in 1958, there will be no net operating loss to be carried back to 1955 and there will be a deficiency of $16,108.71 for 1955. Section. 62(1) defines adjusted gross income as follows: SEC. 62. ADJUSTED GROSS INCOME DEFINED. For purposes of this subtitle, the term “adjusted gross income” means, in the case of an Individual, gross income minus the following deductions: (1) Trade and business deductions. — The deductions allowed by this chapter (other than by part YII of this subehapter) which are attributable to a trade or business carried on by the taxpayer, if" } ]

[ { "docid": "7343991", "title": "", "text": "rates. The filed tariff doctrine thus insulates defendant from any equitable claim that its charging these rates was improper. Because the rates for intra-Canada calls are set by Canadian tariffs, defendant may not invoke the filed tariff doctrine to protect itself from liability for those calls. Nevertheless, it seems likely that a claim for money had and received concerning the intra-Canada calls will be unsuccessful. First, it is clear that if, as defendant seems to claim, rates for intra-Canada calls were quoted to plaintiff in American dollars, equity would not demand any refund to plaintiff. The quote constituted in essence an offer and plaintiff’s making the call contractually committed him to pay the tariff rate in American dollars. Second, if the rate was quoted by a Canadian company in Canadian dollars, once defendant surrendered all of the money collected for the call to the Canadian company defendant was released from liability. In this circumstance, defendant was acting as a billing agent for the Canadian company. Once defendant paid its principal the entire sum collected, it was relieved of any liability to plaintiff under the doctrine of money had and received. Unger, supra, 266 N.Y.S.2d at 721. Plaintiff’s remedy would lie in Canada. If plaintiff was quoted in Canadian dollars, he may, however, be able to regain any service charge which defendant retained. See Unger, supra, 266 N.Y.S.2d at 722 (defendant, essentially a broker, forced to return retained commission on unconsummated sale to plaintiff but released from liability on the remaining sale price because defendant had turned over remainder to seller). IV. Claims of fraud are different. The filed tariff doctrine is designed to protect utilities charging filed rates for lawfully provided service. It is of no help to a defendant which fraudulently induces a plaintiff to pay a filed rate or which otherwise exacts payment by fraud. There is nothing in the policy underpinnings of the doctrine which would cause it to protect a defendant which unlawfully exacts payment, even at a lawful rate. Plaintiff,, however, has yet to state a viable claim for fraud. I find defendant’s motion to" } ]

[ { "docid": "23258554", "title": "", "text": "filed rate doctrine presents a closely related issue, and we address it separately, if briefly, because it reinforces our conclusion. See Entergy La., Inc. v. La. PSC, 539 U.S. 39, 47, 123 S.Ct. 2050, 156 L.Ed.2d 34 (2003) (“When the filed rate doctrine applies to state regulators, it does so as a matter of federal preemption through the Supremacy Clause.”). “At its most basic, the filed rate doctrine provides that state law, and some federal law ... may not be used to invalidate a filed rate nor to assume a rate would be charged other than the rate adopted by the federal agency in question.” TANC, 295 F.3d at 929. The filed rate doctrine, however, is “not limited to rates per se.” Nantahala Power, 476 U.S. at 966, 106 S.Ct. 2349. Under the filed rate doctrine, the terms of the filed tariff “are considered to be ‘the law1 and to therefore ‘conclusively and exclusively enumerate the rights and liabilities’ ” of the contracting parties. Evanns v. AT &T Corp., 229 F.3d 837, 840 (9th Cir.2000) (citing Marcus v. AT & T Co., 138 F.3d 46, 56 (2d Cir.1998)); see also Evanns, 229 F.3d at 840 n. 9. As a result, “the filed rate doctrine bars all claims — state and federal — that attempt to challenge [the terms of a tariff] that a federal agency has reviewed and filed.” County of Stanislaus v. Pacific Gas & Elec. Co., 114 F.3d 858, 866(9th Cir.1997); Evanns, 229 F.3d at 840. See also AT & T Co. v. Central Office Tel., Inc., 524 U.S. 214, 227-28, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998) (filed rate doctrine barred state law claims for breach of contract and tortious interference with contractual relations). Thus, to the extent that California argues that the companies owe “obligations ... beyond, those set out in the filed tariffs ... [such claim] is also barred by the filed rate doctrine.” Evanns, 229 F.3d at 841. “[T]he filed rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the [regulated entity]" }, { "docid": "12675796", "title": "", "text": "U.S. at 223, 118 S.Ct. 1956. In Central Office, plaintiff Central Office Telephone (COT), a long distance reseller, contracted with AT&T to buy long-distance service in bulk. COT relied on the representations of an AT&T salesperson in signing the contract, although the contract itself provided that it would be governed by the provisions of the tariff. Id. at 218, 118 S.Ct. 1956. When AT&T’s service and billing did not match its representations to COT, COT brought suit claiming breach of contract and tor-tious interference with contract. COT argued that its suit was not barred by the filed-rate doctrine because it did not challenge rates or rate-setting, but rather sought to enforce contracts for services and billing. The Supreme Court disagreed, explaining, “[r]ates ... do not exist in isolation. They have meaning only when one knows the services to which they are attached. Any claim for «excessive rates can be couched as a claim for inadequate services and vice versa.” Id. at 223, 118 S.Ct. 1956. Even though the billing option chosen by COT was not covered by the tariff, the court held that the claim seeking to enforce the option was barred. [T]he additional services and guarantees that [COT] claims it was entitled to by virtue of [AT&T’s ] representations and petitioner’s sales brochures — viz., faster provisioning, the allocation of charges through multiloeation billing, and various matters relating to deposits, calling cards, and service support ... — all pertain to subjects that are specifically addressed by the filed tariff. Id. at 224-25, 118 S.Ct. 1956. As the Court explained, COT’s complaint about terms and service was, at bottom, a complaint about rates. The filed-rate doctrine thus prevents suits seeking to enforce agreements outside the tariff (i.e., indirectly challenging the validity of a tariff) as well as suits directly challenging the validity of a tariff. But it “does not serve as a shield” staving off claims against a carrier based on the tariff itself. Lovejoy, 92 Cal.App. 4th at 100 quoting Central Office, 524 U.S. at 230-31, 118 S.Ct. 1956 (Rehnquist, C.J., concurring). Brown does not challenge the validity of" }, { "docid": "23372074", "title": "", "text": "at 163, 43 S.Ct. at 49-50. The Court observed that antitrust relief would frustrate Congress’ intent to ensure uniform rates and would require the Court to speculate about the rate that would have been set by the carriers and approved by the Commission absent the conspiracy. Id. at 163-65, 43 S.Ct. at 49-50. The Court explained: “The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier ... And they are not affected by the tort of a third party.” Id. at 163, 43 S.Ct. at 49 (citations omitted). The Supreme Court, recognizing the continuing validity of Keogh, recently quoted the first of these two sentences in Maislin Industries, 110 S.Ct. at 2766. The H.J. class cites Gulf States Utilities Co. v. Alabama Power Co., 824 F.2d 1465 (5th Cir.1987), to support its contention that the filed rate doctrine does not apply when there is “active fraud.” In Gulf States Utilities, the Fifth Circuit held that contracts in which the plaintiff agreed to purchase electricity from the defendant at prices which were then incorporated in rate filings might be set aside if the plaintiff could show that it had been fraudulently induced to enter into the contracts. Id. at 1471-72. The court, however, distinguished setting aside the contracts from setting aside the rates, noting that “setting aside the contracts ... would not interfere with the [federal agency’s] rate-making powers.” Id. at 1472. The court stressed that “the district court may not set aside the contracts on the theory that [the defendant’s] rates are too high.” Id. The H.J. class also points to Nordlicht v. New York Telephone Co., 617 F.Supp. 220 (S.D.N.Y.1985), aff'd, 799 F.2d 859 (2d Cir.1986), cert. denied, 479 U.S. 1055, 107 S.Ct. 929, 93 L.Ed.2d 981 (1987). There, the plaintiff, a New York resident, made telephone calls in Canada and directed the Canadian telephone company to bill the cost of the calls to his account with defendant New York Telephone. 617 F.Supp. at 221. The Canadian company billed New York Telephone in Canadian dollars, and New York Telephone" }, { "docid": "8955480", "title": "", "text": "954 F.2d 485, 489 (8th Cir.1992). . Marcus v. AT & T Corp., 138 F.3d 46, 58 (2d Cir.1998). Accord Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 417, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986) (filed rate doctrine bars antitrust damages action even if defendants colluded to set an artificially high filed rate); Sun City Taxpayers’ Ass’n v. Citizens Utils. Co., 45 F.3d 58, 62 (2d Cir.1995) (holding that the filed rate doctrine bars consumer claims despite carrier's fraud during ratemaking process). . Nantahala Power & Light Co., 476 U.S. at 966, 106 S.Ct. 2349 (\"FERC clearly has exclusive jurisdiction over the rates to be charged ... [to] wholesale customers.”). Accord Fax Telecomms. v. AT & T, 138 F.3d 479, 488 (2d Cir.1998) (the filed rate doctrine bars any claim challenging the terms and conditions of the filed rate because \" '[u]nless and until suspended or set aside, this rate is made, for all purposes, the legal rate [and the] ... rights as defined by the tariff cannot be varied or enlarged by either contract or tort’ ”) (quoting Keogh v. Chicago & Northwest Ry. Co., 260 U.S. 156, 163, 43 S.Ct. 47, 67 L.Ed. 183 (1922)). . See FERC Order at ¶ 145. . See Public Utility Dist. No. 1 of Grays Harbor County Wash. v. IDACORP Inc., 379 F.3d 641, 651 (9th Cir.2004) (holding that rates charged pursuant to FERC’s market-based rate regime “satisfy the filed rate doctrine for market-based rates”). . See 16 U.S.C. § 824e(b) (setting forth conditions for refunds of filed rates). . See AT & T Co. v. Central Office Tel., Inc., 524 U.S. 214, 227-28, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998) (filed rate doctrine barred state law claims for breach of contract and tortious interference with contractual relations). . Transmission Agency of N. Ca., 295 F.3d at 928. . New York v. FCC, 267 F.3d 91, 101 (2d Cir.2001). . In re NRG Energy, Inc., No. 03-13024, 2006 WL 2385217, at *3 (Bkrtcy.S.D.N.Y. May 17, 2006) (quoting California v. Dynegy, Inc., 375 F.3d at 849). . Id." }, { "docid": "12675794", "title": "", "text": "tariff, that contract is unenforceable. See AT & T Corp. v. Central Office Tel., Inc., 524 U.S. 214, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998). “[SJince the federal regulation defines the entire contractual relation between the parties, there is no contractual undertaking left over that state law might enforce. Federal law does not merely create a right; it occupies the whole field, displacing state law.” Cahnmann v. Sprint Corp., 133 F.3d 484, 489 (7th Cir.1998). The purpose of the FCA’s tariff-filing requirement is to “preventQ unreasonable and discriminatory charges.” Central Office, 524 U.S. at 222, 118 S.Ct. 1956. The filing requirement “ ‘render[s] rates definite and certain, and ... prevents] discrimination and other abuses.’ ” MCI Telecomm. Corp. v. AT & T Corp., 512 U.S. 218, 230, 114 S.Ct. 2223 (1994), quoting Arizona Grocery Co. v. Atchison, Topeka, and Santa Fe Ry. Co., 284 U.S. 370, 384, 52 S.Ct. 183, 76 L.Ed. 348 (1932). Neither the carrier nor its customers may deviate from the tariff. A carrier is “forbidden from charging rates other than as set out in its filed tariff, [and] customers are also charged with notice of the terms and rates set out in that filed tariff.” Evanns, 229 F.3d at 840. Carriers may not negotiate any form of “rebates or discounts” with customers because this is “the very evil the filing requirement seeks to prevent.” Central Office, 524 U.S. at 223, 118 S.Ct. 1956. In sum, “[t]he filed-rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the common carrier provides to its customers the services covered by the tariff.” Lovejoy v. AT&T Corp., 92 Cal.App.4th 85, 100, 111 Cal.Rptr.2d 711 (Cal.Ct.App.2001), quoting Central Office, 524 U.S. at 230-31, 118 S.Ct. 1956 (Rehnquist, C.J., concurring) (emphasis added). In addition to barring suits challenging filed rates and suits seeking to enforce rates that differ from the filed rates, the filed-rate doctrine also bars suits challenging services, billing, or other practices when such challenges, if successful, would have the effect of changing the filed tariff. Central Office, 524" }, { "docid": "23372073", "title": "", "text": "1926-27. In reaching this conclusion, the Court relied on Keogh, specifically observing that Congress had not overruled that decision despite opportunities to do so. Id. at 424, 106 S.Ct. at 1930-31. In Keogh, a shipper sued several carriers, alleging that the carriers conspired to set arbitrarily high rates in violation of federal antitrust laws. 260 U.S. at 159-60, 43 S.Ct. at 48. Plaintiff claimed that the carriers charged tariff rates that were “higher than the rates would have been” absent their illegal agreement. Id. at 160, 43 S.Ct. at 48. The carriers had filed the tariff rates with the Interstate Commerce Commission, and the Commission approved the rates. Id. The Supreme Court held that plaintiff failed to state an antitrust action because the exclusive remedy was contained in the Act to Regulate Commerce, which provided for a damage recovery. Id. at 162-63, 43 S.Ct. at 49-50. The Court also held that the plaintiff could not recover damages for the alleged overcharges because the Commission’s approval of the rate established the lawfulness of the rate. Id. at 163, 43 S.Ct. at 49-50. The Court observed that antitrust relief would frustrate Congress’ intent to ensure uniform rates and would require the Court to speculate about the rate that would have been set by the carriers and approved by the Commission absent the conspiracy. Id. at 163-65, 43 S.Ct. at 49-50. The Court explained: “The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier ... And they are not affected by the tort of a third party.” Id. at 163, 43 S.Ct. at 49 (citations omitted). The Supreme Court, recognizing the continuing validity of Keogh, recently quoted the first of these two sentences in Maislin Industries, 110 S.Ct. at 2766. The H.J. class cites Gulf States Utilities Co. v. Alabama Power Co., 824 F.2d 1465 (5th Cir.1987), to support its contention that the filed rate doctrine does not apply when there is “active fraud.” In Gulf States Utilities, the Fifth Circuit held that contracts in which the plaintiff agreed to purchase electricity from" }, { "docid": "15757286", "title": "", "text": "breached and that another purported warranty was not found in the tariff. The Second Circuit’s discussion suggests that had defendants been found to have breached a warranty, plaintiffs would have been permitted to maintain an action for such breach even though the Marcus tariff included a similarly worded liability limitation as here. In a recent Supreme Court case, AT & T Co. v. Central Office Tel., Inc., 524 U.S. 214, 118 S.Ct. 1956, 141 L.Ed.2d 222, reh’g denied, — U.S. -, 119 S.Ct. 20, 141 L.Ed.2d 781 (1998), respondent Central Office Telephone, Inc. (“COT”) alleged that petitioner AT & T failed to deliver various services, provisioning, and billing options that AT & T had agreed to provide, but that were not set forth in the applicable tariff. Although COT’s claims did not challenge the filed rate per se, plaintiffs in essence sought to benefit from superior service not provided to other customers, and thus pay a lower rate than other customers. As the Court stated: “Any claim for excessive rates can be couched as a claim for inadequate services and vice versa.” Id. at 1963. The Court held therefore that the filed rate doctrine barred plaintiffs’ claims “[b]ecause [the customer] ask[ed] for privileges not included in the tariff.” Id. at 1964. The logical corollary to the Court’s reasoning is that COT’s claims would not have been barred by the doctrine if the privileges AT & T allegedly failed to provide had been included in the tariff. While it is true that the tariff discussed in the Court’s opinion did not limit AT & T’s potential liability, Chief Justice Rehnquist explained in his concurring opinion that the filed tariff “does not affect whatever duties state law might impose.” Id. at 1966. The filed rate doctrine “does not serve as a shield against all actions based in state law.” Id. at 1966-67. Another recent Supreme Court case, Humana Inc. v. Forsyth, — U.S. -, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999), does not involve the filed rate doctrine, but nonetheless undermines defendants’ assertion that plaintiffs’ RICO claims must be dismissed. In Humana," }, { "docid": "2748127", "title": "", "text": "demands for UNE-P, DSL, other services and better pricing terms, to enter into a UNE-P contract with Qwest.... Such misrepresentations did induce such action by Firstcom until it was forced from business. Complaint ¶¶ 47-50. Firstcom’s fraud claim is not premised merely on a violation of the Act. Rather, it asserts that Qwest made affirmative misrepresentations aside from failing to comply with the Act. Assuming that the Act did not exist, Qwest would not be permitted to engage in the fraudulent conduct alleged here. Thus, the wrong alleged by Firstcom was not created by the Act. Furthermore, the Second Circuit determined that the Act “does not manifest a clear Congressional intent to preempt state law actions prohibiting ... common law fraud_” Marcus v. AT & T Corp., 138 F.3d 46, 54 (2d Cir.1998); see 47 U.S.C. § 414. Accordingly, First-com’s fraud claim was not preempted by the Act. However, another potential bar to Firstcom’s promissory estoppel and fraud claims must be considered: the filed rate doctrine. The filed rate doctrine “forbids a regulated entity [from charging] rates for its services other than those properly filed with the appropriate federal regulatory authority.” The filed rate doctrine prohibits a party from recovering damages measured by comparing the filed rate and the rate that might have been approved absent the conduct in issue. H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 488 (8th Cir.1992) (quoting Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981)). Rather than tariffs filed with the FCC, the filed rates at issue here are contained in the interconnection agreements executed by Firstcom and Qwest and approved by the MPUC. See 47 U.S.C. § 252(e)(1) (providing that state commissions are the regulatory bodies with and by which interconnection agreements must be filed and approved); Verizon Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1089 (9th Cir.2004) (“The tariffs that are filed are not filed federally but with state agencies.”). We have determined that the filed rate doctrine applies to rates filed with state agencies. See H.J. Inc., 954 F.2d" }, { "docid": "22425350", "title": "", "text": "§ 202(a) alone, but from the mandate to publish rates together with the discrimination principles reflected in §§ 201(b) and 202(a). See, e.g., Cent. Office, 524 U.S. at 223, 118 S.Ct. 1956; MCI, 512 U.S. at 230, 114 S.Ct. 2223 (stating that the filing requirement “ ‘render[s] rates definite and certain, and ... prevents] discrimination and other abuses’ ”) (quoting Ariz. Grocery Co. v. Atchison, Topeka, & Santa Fe Ry., 284 U.S. 370, 384, 52 S.Ct. 183, 76 L.Ed. 348 (1932)); Brown, 277 F.3d at 1170 (“The filed-rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the common carrier provides to its customers the services covered by the tariff.”) (quoting Cent. Office, 524 U.S. at 230-31, 118 S.Ct. 1956 (Rehnquist, C.J., concurring)). Moreover, save for Boomer, no court has ever referred to § 201 or § 202 in declaring a carrier’s tariff immune from state-law challenge. That role had always been reserved for § 203 and the filed rate doctrine. See Cent. Office, 524 U.S. at 223, 118 S.Ct. 1956 (“[T]he filed rate doctrine ... is necessary to ‘prevent carriers from intentionally “misquoting” rates to shippers as a means of offering them rebates or discounts,’ the very evil the filing requirement seeks to prevent.”) (emphasis added) (quoting Maislin, 497 U.S. at 127, 110 S.Ct. 2759); id. at 222, 110 S.Ct. 2759 (“[E]ven if a carrier intentionally misre presents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff.”); id. (“The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier.”); ICOM Holding, 238 F.3d at 222-23 (holding that filed-rate doctrine barred state-law breach of contract claims); County of Stanislaus v. Pac. Gas & Elec. Co., 114 F.3d 858, 866 (9th Cir.1997) (“[T]he filed rate doctrine bars all claims — state and federal — that attempt to challenge [the terms of a tariff] that a federal agency has reviewed and filed.”). Now that the FCC" }, { "docid": "23258555", "title": "", "text": "(citing Marcus v. AT & T Co., 138 F.3d 46, 56 (2d Cir.1998)); see also Evanns, 229 F.3d at 840 n. 9. As a result, “the filed rate doctrine bars all claims — state and federal — that attempt to challenge [the terms of a tariff] that a federal agency has reviewed and filed.” County of Stanislaus v. Pacific Gas & Elec. Co., 114 F.3d 858, 866(9th Cir.1997); Evanns, 229 F.3d at 840. See also AT & T Co. v. Central Office Tel., Inc., 524 U.S. 214, 227-28, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998) (filed rate doctrine barred state law claims for breach of contract and tortious interference with contractual relations). Thus, to the extent that California argues that the companies owe “obligations ... beyond, those set out in the filed tariffs ... [such claim] is also barred by the filed rate doctrine.” Evanns, 229 F.3d at 841. “[T]he filed rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the [regulated entity] provides ... the services covered by the tariff.” Brown v. MCI WorldCom Network Servs., Inc., 211 F.3d 1166, 1170 (9th Cir.2002) (internal citations omitted). To the extent that California is seeking to enforce the penalty provisions of the tariff, or to have them expanded, this conflicts with the filed rate doctrine and the exclusive authority conferred to FERC to enforce its tariff. IV For the foregoing reasons, we affirm the district court’s denial of the motions for remand, and we affirm its dismissal of the substantive claims. AFFIRMED. . On May 19, 2003, a motions panel granted the companies’ motion to have a single merits panel hear several appeals involving other causes of action brought by California arising out of the energy crises. On May 30, 2003, however, the motions panel rescinded the order and established an accelerated briefing schedule for the ancillary services appeal before us. The other appeals were assigned to different merits panels. . The companies argue that we lack appellate jurisdiction over the interlocutory appeals, and ask that the relevant portions" }, { "docid": "23372076", "title": "", "text": "billed the plaintiff in the same amount of American dollars, despite a differing exchange rate. Plaintiff sought to recover the difference. Id. The New York district court held that plaintiff’s claim was barred by the filed tariff doctrine because the filed tariff authorized New York telephone to charge the specified rates in American dollars. Id. at 227. Nevertheless, the court observed that if the plaintiff had adequately alleged fraud, the outcome would be different: Claims of fraud are different. The filed tariff doctrine is designed to protect utilities charging filed rates for lawfully provided service. It is of no help to a defendant which fraudulently induces a plaintiff to pay a filed rate or which otherwise exacts payment by fraud. There is nothing in the policy underpinnings of the doctrine which would cause it to protect a defendant which unlawfully exacts payment, even at a lawful rate. Id. at 227-28. The H.J. class says that this language shows that a fraud exception exists to the filed rate doctrine. However, the fraud claim in Nordlicht, which the court found to be inadequately pleaded, was that the plaintiff had been tricked into paying a rate that he should not have had to pay. Id. at 228. The claim did not attack the rate itself and did not require the court to “second-guess” the rate-making agency. The H.J. class also argues that the filed rate doctrine does not apply when the fraud was “extrinsic to” the rates approved by the Commission. The class cites City of Kirkwood v. Union Electric Co., 671 F.2d 1173 (8th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 814, 74 L.Ed.2d 1013 (1983), for support. In that case, we held that the filed rate doctrine did not bar a city’s antitrust action against an electric utility company. Id. at 1179. The city did not attack the individual rates, but instead complained of “anti-competitive effects resulting from the interaction of the rates.” Id. We concluded that an award of antitrust damages based on an alleged price squeeze would not conflict with the regulatory agencies’ authority to oversee rates because" }, { "docid": "22373255", "title": "", "text": "contract, relief will be denied, because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advan tage in that it is not one open to all others in the same situation.” Id., at 165. In Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156, 163 (1922), the question was not whether a separate contract could be enforced, but rather whether petitioner could bring an antitrust complaint challenging the rate that respondents had filed in their tariff. The Court ruled that he could not: “The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier.” Ibid, (emphasis added). In this case respondent’s contract claim seeks to enforce side arrangements that it made with petitioner. Respond- ■ ent contends that petitioner promised to provide it with services on terms different from those listed in the tariff. As the above eases make clear, the filed rate doctrine bars such a claim. Respondent’s tort claim is entirely derivative of its contractual claim, and the Court is therefore correct in concluding that the doctrine also bars the tort claim. The tariff does not govern, however, the entirety of the relationship between the common carrier and its customers. For example, it does not affect whatever duties state law might impose on petitioner to refrain from intentionally interfering with respondent’s relationships with its customers by means other than failing to honor unenforceable side agreements, or to refrain from engaging in slander or libel, or to satisfy other contractual obligations. The filed rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the common carrier provides to its customers the services covered by the tariff. It does not serve as a shield against all" }, { "docid": "14538973", "title": "", "text": "contrary, we conclude that a violation of section 211’s filing requirement does not require that.Worldcom forfeit any right to be compensated for services and equipment provided to Gra-phnet pursuant to an unfiled contract. Moreover, the filed rate doctrine is inap-posite. Section 203 of the FCA states that all common carriers “shall” file “schedules,” i.e. tariffs, “showing all charges” and “showing the classifications, practices, and regulations affecting such charges” with the FCC. 47 U.S.C. § 203(a). Deviation from these rates “is not permitted upon any pretext.” Id. These provisions are modeled after similar provisions in the Interstate Commerce Act and embody “the century old ‘filed rate doctrine.’ ” AT & T Co. v. Central Office Telephone, Inc., 524 U.S. 214, 222, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998). The filed rate doctrine forbids charging or collecting rates for services that vary with the rates scheduled for those services in a filed tariff. Even if a carrier intentionally misrepresents its rates and contracts with a customer who relies on those rates, the carrier cannot be held to the contracted rate if it conflicts with the filed tariff. Id. at 222, 118 S.Ct. 1956. Here, however, no filed tariff appears to have covered the services provided pursuant to the contracts at issue. The doctrine is therefore inapposite because there is no filed tariff with which the contracts conflict. See id. at 229, 118 S.Ct. 1956 (Rehnquist, C.J., concurring) (“In order for the filed rate doctrine to serve its purpose ... it need pre-empt only those suits that seek to alter the terms and conditions provided for in the tariff.”) (emphasis added). “While the filed rate doctrine may seem harsh in some circumstances,” id. at 223, 118 S.Ct. 1956, it does not result in the extraordinarily harsh result that Graphnet advocates. It may serve to give a carrier or customer an unjustified windfall but it rarely results in a total forfeiture of a party’s rights to either be compensated or provided with services. The carrier is still compensated, even if it is at a rate lower than the rate for which the carrier thought" }, { "docid": "8955479", "title": "", "text": "VI are dismissed on this ground. . Given the inapplicability of a cost-plus contract exception, the concerns over Con Ed’s ability to pass through costs is essentially dicta. . See, e.g., Complaint ¶¶ 67, 70, 73, 77, 82, 85, 91. . Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 21 (2d Cir.1994) (stating that \"any 'filed rate' — that is, one approved by the governing regulatory agency — is per se reasonable and unassailable in judicial proceedings brought by ratepayers”). . Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 929-30 (9th Cir.2002). . See Montana-Dakota Utils. Co. v. Northwest. Pub. Serv. Co., 341 U.S. 246, 251, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Wegoland, 27 F.3d at 18 (\"The filed rate doctrine bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable.”). . California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 853 (9th Cir.2004) (quotation marks and citations omitted, brackets in original). . H.J. Inc. v. Northwest. Bell Tel. Co., 954 F.2d 485, 489 (8th Cir.1992). . Marcus v. AT & T Corp., 138 F.3d 46, 58 (2d Cir.1998). Accord Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 417, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986) (filed rate doctrine bars antitrust damages action even if defendants colluded to set an artificially high filed rate); Sun City Taxpayers’ Ass’n v. Citizens Utils. Co., 45 F.3d 58, 62 (2d Cir.1995) (holding that the filed rate doctrine bars consumer claims despite carrier's fraud during ratemaking process). . Nantahala Power & Light Co., 476 U.S. at 966, 106 S.Ct. 2349 (\"FERC clearly has exclusive jurisdiction over the rates to be charged ... [to] wholesale customers.”). Accord Fax Telecomms. v. AT & T, 138 F.3d 479, 488 (2d Cir.1998) (the filed rate doctrine bars any claim challenging the terms and conditions of the filed rate because \" '[u]nless and until suspended or set aside, this rate is made, for all purposes, the legal rate [and the] ... rights as defined by the tariff cannot be varied" }, { "docid": "23372078", "title": "", "text": "the city did not challenge the reasonableness determinations as to any of the filed rates. Id. We further supported our conclusion that the filed rate doctrine did not apply by observing that “the doctrine was created to protect customers, not competitors.” Id. (citing Essential Communications Sys., Inc. v. American Tel. & Tel. Co., 610 F.2d 1114, 1121 (3d Cir.1979)). Despite this latter statement, we made clear that if the city challenged the reasonableness of the individual rates in question, its claim would be barred. Id. The district court in this case relied on Carr v. The Southern Co., 731 F.Supp. 1067 (S.D.Ga.1990), in concluding that the filed rate doctrine barred the H.J. class’s RICO claims. 734 F.Supp. at 884. In Carr, a class of electric power customers brought a RICO action alleging that the electric utilities had used fraudulent accounting methods to understate their net income in order to influence the rate-making process. Id. at 1068. The district court held that plaintiffs’ claims were barred by the filed rate doctrine, Burford abstention, and the doctrine of clear statement. Id. at 1071-73. After oral argument in this case, the Eleventh Circuit reversed the district court’s decision in Carr. Taffet v. Southern Co., 930 F.2d 847 (11th Cir.1991). The Eleventh Circuit concluded that the filed rate doctrine did not bar plaintiffs’ RICO claims. Id. at 856. The court considered the underlying purposes of the filed rate doctrine, and concluded that “[t]he possibility of a RICO action against a utility which defrauds its [state rate-making agency] creates great incentive for that utility to present its [state agency] with accurate and truthful information....” Id. As a consequence, the court held that permitting a RICO action would enhance, rather than infringe upon the state’s authority to set reasonable and uniform rates, and thus, the filed rate doctrine did not apply. Id. Accord Wegoland Ltd. v. Nynex Corp., No. 90 Civ. 496, slip op. at 13-17 (S.D.N.Y. Sept. 26, 1991) (relying on reasoning of Second Circuit in LILCO to conclude that plaintiffs’ RICO claims against telephone company are not barred by the filed rate doctrine). The" }, { "docid": "23372075", "title": "", "text": "the defendant at prices which were then incorporated in rate filings might be set aside if the plaintiff could show that it had been fraudulently induced to enter into the contracts. Id. at 1471-72. The court, however, distinguished setting aside the contracts from setting aside the rates, noting that “setting aside the contracts ... would not interfere with the [federal agency’s] rate-making powers.” Id. at 1472. The court stressed that “the district court may not set aside the contracts on the theory that [the defendant’s] rates are too high.” Id. The H.J. class also points to Nordlicht v. New York Telephone Co., 617 F.Supp. 220 (S.D.N.Y.1985), aff'd, 799 F.2d 859 (2d Cir.1986), cert. denied, 479 U.S. 1055, 107 S.Ct. 929, 93 L.Ed.2d 981 (1987). There, the plaintiff, a New York resident, made telephone calls in Canada and directed the Canadian telephone company to bill the cost of the calls to his account with defendant New York Telephone. 617 F.Supp. at 221. The Canadian company billed New York Telephone in Canadian dollars, and New York Telephone billed the plaintiff in the same amount of American dollars, despite a differing exchange rate. Plaintiff sought to recover the difference. Id. The New York district court held that plaintiff’s claim was barred by the filed tariff doctrine because the filed tariff authorized New York telephone to charge the specified rates in American dollars. Id. at 227. Nevertheless, the court observed that if the plaintiff had adequately alleged fraud, the outcome would be different: Claims of fraud are different. The filed tariff doctrine is designed to protect utilities charging filed rates for lawfully provided service. It is of no help to a defendant which fraudulently induces a plaintiff to pay a filed rate or which otherwise exacts payment by fraud. There is nothing in the policy underpinnings of the doctrine which would cause it to protect a defendant which unlawfully exacts payment, even at a lawful rate. Id. at 227-28. The H.J. class says that this language shows that a fraud exception exists to the filed rate doctrine. However, the fraud claim in Nordlicht, which" }, { "docid": "18042862", "title": "", "text": "entitled to 4800 MW of transfer capability between the Northwest AC Intertie and the California-Oregon Intertie. This contention stumbles upon the filed rate doctrine. For a district or state court to conclude that under state contract law the Northwest Parties breached the Agreements— or that Sierra Pacific interfered with the Agreements or -the prospective economic advantage related to those Agreements— by failing to increase the capacity of the Northwest AC Intertie to 5100 MW, the court would have to hold that under state contract law TANC was entitled to 4800 MW of transfer capacity. Yet, state law can no more assume how FERC would allocate access to interstate transmission capacity than it can assume how FERC would set rates. Cf. Arkansas Louisiana Gas Co., 453 U.S. at 579, 101 S.Ct. 2925. This is true given both FERC Order No. 888 and FERC’s express approval of the operation of the Alturas Intertie, with knowledge that its connection to the Northwest AC Intertie could impair the California-Oregon Intertie and the California-Oregon Transmission Project. Although this resolution may leave TANC’s state law claims unredressed, such a circumstance is not an unlikely result of preemption. Cf. id. at 584 (“A finding that federal law provides a shield for the challenged conduct will almost always leave the state law violation unredressed.”). This same analysis undercuts TANC’s reliance on a Fifth Circuit case, Gulf States Utilities Co. v. Alabama Power Co., 824 F.2d 1465 (5th Cir.1987). There, the court held that claims regarding the quantity of electricity required under a contract were not preempted by the filed rate doctrine. Id. at 1472. However, in that case, the quantity to be purchased was not within the ambit of federal regulation. Id. In the present case, in light of FERC Order No. 888, the right to interstate transmission capacity access falls squarely within the area of exclusive federal regulation of rates. We conclude that TANC’s breach of contract and related claims against the utility company defendants are preempted by the Federal Power Act, 16 U.S.C. §§ 791-828c. C We turn now to TANC’s fraud claim against Sierra Pacific." }, { "docid": "18042863", "title": "", "text": "leave TANC’s state law claims unredressed, such a circumstance is not an unlikely result of preemption. Cf. id. at 584 (“A finding that federal law provides a shield for the challenged conduct will almost always leave the state law violation unredressed.”). This same analysis undercuts TANC’s reliance on a Fifth Circuit case, Gulf States Utilities Co. v. Alabama Power Co., 824 F.2d 1465 (5th Cir.1987). There, the court held that claims regarding the quantity of electricity required under a contract were not preempted by the filed rate doctrine. Id. at 1472. However, in that case, the quantity to be purchased was not within the ambit of federal regulation. Id. In the present case, in light of FERC Order No. 888, the right to interstate transmission capacity access falls squarely within the area of exclusive federal regulation of rates. We conclude that TANC’s breach of contract and related claims against the utility company defendants are preempted by the Federal Power Act, 16 U.S.C. §§ 791-828c. C We turn now to TANC’s fraud claim against Sierra Pacific. TANC alleges that Sierra Pacific committed the state law tort of intentional misrepresentation because Sierra Pacific: [O]btained governmental permits and authorizations to construct and operate the Alturas Inter tie Project by representing to governmental agencies and interested parties, including plaintiff, that the purpose of the Alturas Intertie Project was to provide emergency support to Sierra Pacific and to enable Sierra Pacific to make occasional economy purchases and sales, but not to purchase power to increase capacity. TANC does not specify in its complaint whether the alleged misrepresentations were made to FERC, the California Public Utilities Commission (PUC), or both. However, in its brief, TANC explains that “it believes the evidence is irrefutable that Sierra Pacific misrepresented its intentions regarding its use of the Alturas In-tertie Project to the California Public Utilities Commission, and to those participants in the commission’s proceedings.” We therefore construe this claim as alleging misrepresentations in proceedings before the PUC. If the alleged misrepresentations were made before the California PUC, then the predicate bad act occurred before a state agency, and federal" }, { "docid": "12675795", "title": "", "text": "set out in its filed tariff, [and] customers are also charged with notice of the terms and rates set out in that filed tariff.” Evanns, 229 F.3d at 840. Carriers may not negotiate any form of “rebates or discounts” with customers because this is “the very evil the filing requirement seeks to prevent.” Central Office, 524 U.S. at 223, 118 S.Ct. 1956. In sum, “[t]he filed-rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the common carrier provides to its customers the services covered by the tariff.” Lovejoy v. AT&T Corp., 92 Cal.App.4th 85, 100, 111 Cal.Rptr.2d 711 (Cal.Ct.App.2001), quoting Central Office, 524 U.S. at 230-31, 118 S.Ct. 1956 (Rehnquist, C.J., concurring) (emphasis added). In addition to barring suits challenging filed rates and suits seeking to enforce rates that differ from the filed rates, the filed-rate doctrine also bars suits challenging services, billing, or other practices when such challenges, if successful, would have the effect of changing the filed tariff. Central Office, 524 U.S. at 223, 118 S.Ct. 1956. In Central Office, plaintiff Central Office Telephone (COT), a long distance reseller, contracted with AT&T to buy long-distance service in bulk. COT relied on the representations of an AT&T salesperson in signing the contract, although the contract itself provided that it would be governed by the provisions of the tariff. Id. at 218, 118 S.Ct. 1956. When AT&T’s service and billing did not match its representations to COT, COT brought suit claiming breach of contract and tor-tious interference with contract. COT argued that its suit was not barred by the filed-rate doctrine because it did not challenge rates or rate-setting, but rather sought to enforce contracts for services and billing. The Supreme Court disagreed, explaining, “[r]ates ... do not exist in isolation. They have meaning only when one knows the services to which they are attached. Any claim for «excessive rates can be couched as a claim for inadequate services and vice versa.” Id. at 223, 118 S.Ct. 1956. Even though the billing option chosen by COT was not" }, { "docid": "12263328", "title": "", "text": "the rule of Keogh. In Square D. Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986), the plaintiffs alleged that they had been forced to pay excessive rates for interstate shipping because the defendants collectively had engaged in price-fixing, in violation of the Sherman Act, pursuant to an agreement filed with the ICC. The plaintiffs sought treble damages, measured by the difference between the rates they paid and the rates that they allegedly would have paid in a freely competitive market. The Supreme Court noted that the rates at issue were “duly submitted, lawful rates under the Interstate Commerce Act,” id. at 417, 106 S.Ct. at 1927, and, following the rule of Keogh, held that even if the plaintiffs’ allegations of price-fixing were true, the plaintiffs could not have been injured in their business or property within the meaning of the antitrust laws by paying the rate approved by the ICC. Id. at 416-17, 423-24,106 S.Ct. at 1926-27, 1930-31. The seminal case applying the filed rate doctrine in the context of electric utility rates is Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951). The dispute in Montana-Dakota Utilities arose from a series of contracts entered into between the parties, both of whom were electric utilities companies. The contracts established rates that each paid to the other for electric power. The rates established were filed with and accepted by the Federal Power Commission which the Federal Power Act, 16 U.S.C. § 824e(a) (1988), charged with fixing reasonable electric utility rates. The plaintiff alleged that the defendant’s fraud in connection with the setting of these rates deprived it of its right under the Federal Power Act to have reasonable rates and charges for electric power. It sought as damages the difference between the filed rates and the rates that would have been set absent the defendant’s alleged fraud. The Supreme Court affirmed the dismissal of the claim, ruling that the plaintiff had not established a cause of action under the Federal Power Act because" } ]

[ { "docid": "5748929", "title": "", "text": "conclusion that West’s search transgressed these clear limitations. The Supreme Court has expressly disavowed the right of an officer to disrobe an arrestee on the street pursuant to a search incident to an arrest without the presence of justifying factors. See Illinois v. Lafayette, 462 U.S. at 645, 103 S.Ct. 2605 (“[T]he interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street.”). The fact that, absent clear justification or exigent circumstances, an officer is not allowed to strip an arrestee on a public street pursuant to a search incident to an arrest necessarily means that an officer cannot go even further than simply disrobing the arrestee by actually touching and penetrating the arrestee’s exposed genitalia on the public street. This Court also has disavowed the type of public search conducted by West. We have applied the Bell analytical framework to set forth clear guidelines as to the manner in which a strip search must be conducted in order to comport with an arres-tee’s Fourth Amendment protection against unreasonable searches. Bell, 441 U.S. at 559, 99 S.Ct. 1861. For instance, we have repeatedly emphasized the necessity of conducting a strip search in private. See Dorlouis, 107 F.3d at 256 (emphasizing that “[t]he search did not occur on the street subject to public viewing but took place in the privacy of the police van.”); Polk v. Montgomery Co., Md., 782 F.2d 1196, 1201-02 (4th Cir.1986) (“[Whether the strip search was conducted in private] is especially relevant in determining whether a strip search is reasonable under the circumstances.”); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (“One of the critical, and certainly most obvious, elements in the Bell v. Wolfish balancing inquiry into the reasonableness of a strip search is ‘the place in which it is conducted.’ ”). Despite these cases requiring the strip search to be conducted in private, West conducted his search of Amaechi on the street in front of the police cruiser, making it possible for the other police officers, Amaechi’s neighbors, and her family to observe. Moreover, this Court has recognized the" } ]

[ { "docid": "20374432", "title": "", "text": "the final pre-trial order before the district court, Flanigan did not argue the point with respect to this strip search during the trial. He also did not raise the issue on appeal. Thus, the argument has been waived. Secondly, there are several cases which suggest that qualified immunity would not exist for a strip search conducted in public view. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (\"We think, as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity — whether or not any actually viewed the search — is a constitutionally valid governmental 'invasion of [the] personal rights that [such a] search entails.’ ”), cert. denied sub nom. Clements v. Logan, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir.1982) (“Defendant naturally does not maintain that routine strip searches may be conducted in a room open to the prying eyes of passing strangers consistent with the reasonableness requirement imposed on all searches under the Fourth Amendment, nor would such a contention be entertained.”) (citing Logan, 660 F.2d at 1014). . The fact that this claim was unresolved does not affect the decision regarding the reasonableness of the search at the jail. Even if Flanigan had searched Kraushaar at the scene, that would not necessarily rule out the need for a more thorough search of Kraushaar's underwear at the jail if the search at the scene failed to produce the suspected contraband. . Moreover, even if Kraushaar sustained the bruises during the arrest, the officers’ testimony shows that they had considerable difficulty in getting Kraushaar to comply with their requests to get spread-eagle. Thus, the officers would have had to apply some force, and perhaps cause some bruising, in order to overcome the arres-tee's resistance. Under those circumstances, the force used by the officers would not be unreasonable or excessive." }, { "docid": "21354933", "title": "", "text": "privacy rights at issue here is at its highest, no matter where the search was conducted. Having decided, legitimately, to conduct this type of search, the police inexplicably did not even afford Campbell the dignity of doing it in a private place. (For example, they could have taken him briefly to the lock-up facility. Even if they had not wanted to keep him there, because of overcrowding concerns, there is nothing in the record to indicate that they could not have used it for this limited purpose.) The Supreme Court noted in Illinois v. Lafayette, 462 U.S. 640, 645, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), in the course of discussing inventory searches incident to booking and jailing: Police conduct that would be impractical or unreasonable — or embarrassingly intrusive — on the street can more readily — and privately — be performed at the station. For example, the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street, but the practical necessities of routine jail administration may even justify taking a prisoner’s clothes before confining him, although that step would be rare. Courts across the country are uniform in their condemnation of intrusive searches performed in public. See, e.g., Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir.1982) (“Defendant naturally does not maintain that routine strip searches may be conducted in a room open to the prying eyes of passing strangers consistent with the reasonableness requirement imposed on all searches under the Fourth Amendment, nor would such a contention be entertained.”); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (“We think that, as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity whether or not any actually viewed the search is a constitutionally valid governmental invasion of (the) personal rights that (such a) search entails.” (internal quotations omitted)); Amaechi v. West, 237 F.3d 356, 364 (4th Cir.2001) (noting that “we have repeatedly" }, { "docid": "1897485", "title": "", "text": "99 S.Ct. at 1884. The Court held that the searches after contact visits could be conducted without probable cause to suspect that a particular inmate was concealing contraband because the unique and serious security interests of the detention facility outweighed the privacy interest of the inmate. Id. at 559-560, 99 S.Ct. at 1884-85. Bell has not been read as holding that the security interests of a detention facility will always outweigh the privacy interests of the detainees. The balancing test must be applied in each case and the particular search must still be reasonable under the fourth amendment. The majority of the circuits have held unconstitutional blanket strip search policies of all inmates including those detained only on minor misdemeanor charges or traffic offenses. These courts have held that automatic strip searches of all detainees violate the fourth amendment without a reasonable suspicion, based on the nature of the charge, the characteristics of the detainee, or the circumstances of the arrest, that the detainee is concealing contraband. See Weber v. Dell, 804 F.2d 796, 802 (2nd Cir.1986); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. Lubbock County, Texas, 767 F.2d 153 (5th Cir.1985) cert. denied, — U.S.-, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Fann v. City of Cleveland, 616 F.Supp. 305 (N.D.Ohio 1985); Ti-netti v. Wittke, 479 F.Supp. 486 (E.D.Wis. 1979), aff'd, 620 F.2d 160 (7th Cir.1980) (per curiam). This circuit has previously considered the strip search issue in Dufrin v. Spreen, 712 F.2d 1084 (6th Cir.1984). We upheld a strip search of a woman charged with a felony against fourth amendment challenge, holding that the search was reasonable under the balancing test of Bell v. Wolfish which counselled wide-ranging deference in security matters to prison" }, { "docid": "8393627", "title": "", "text": "limited to strip searches. Amaechi, 237 F.3d at 361 n. 11 & 364 n. 14 (citing Bell, 441 U.S. 520, 99 S.Ct. 1861); see also BNSF Ry. Co. v. U.S. Dep’t of Transp., 566 F.3d 200, 208 (D.C.Cir.2009) (noting that “the balancing inquiry remains the same” irrespective whether search is labeled as a strip search, or merely as a search). Therefore, we employ the reasonableness test set forth in Bell, because Edwards was subjected to a search that falls within that broad category of “sexually invasive searches.” IV. Under the Bell framework for determining the reasonableness of sexually invasive searches, the need for a particular search is balanced against the invasion of personal rights caused by the search. 441 U.S. at 559, 99 S.Ct. 1861. Pursuant to Bell, we examine the search in its complete context and consider the following factors: 1) the place in which the search was conducted; 2) the scope of the particular intrusion; 3) the manner in which the search was conducted; and 4) the justification for initiating the search. Id. We first consider the location of the search. The question whether a sexually invasive search is conducted in a private or a public setting is “especially relevant” to this Court’s determination of reasonableness. Polk v. Montgomery Cnty., 782 F.2d 1196, 1201-02 (4th Cir.1986). We have “repeatedly emphasized the necessity of conducting a strip search in private.” Amaechi, 237 F.3d at 364. While every strip search need not be conducted in a private holding cell to adequately safeguard a suspect’s privacy interests, we consider whether a sexually invasive search could have been viewed by others, and whether it was in fact viewed by others, in our analysis of the reasonableness of the search. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981). Because Bailey conducted the strip search of Edwards in the middle of a public, residential street, the search could have been viewed by others and, thus, was not conducted in a private setting. However, based on our conclusion that other factors of the Bell test are determinative of this appeal, we do not" }, { "docid": "21721631", "title": "", "text": "holding of Wolfish that strip searches may be conducted with less than probable cause by specifying that pre-trial detainees in Wolfish “were awaiting trial on serious federal charges after having failed to make bond and were being searched after contact visits.” 723 F.2d at 1272. The court in Mary Beth G. found that the city of Chicago’s need for strip searching “minor offenders who were not inherently dangerous and who were being detained only briefly while awaiting bond ... when there was no reason to believe they were hiding weapons or contraband on their persons” did not outweigh the personal privacy interest of the detainees. 723 F.2d at 1272. It found the strip searches unreasonable without a reasonable suspicion by the authorities that either weapons or contraband might be concealed on the bodies of the detainees. Id. at 1273. The Fourth Circuit has also applied and distinguished Wolfish in the case of an arrestee facing a charge of driving while intoxicated who was strip searched without any reasonable suspicion that she might be in possession of either a weapon or contraband. See Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). The court pointed out that although Logan’s offense was “not a minor traffic offense, [it] was nevertheless one not commonly associated by its very nature with the possession of weapons or contraband____” Id. at 1013. It also considered relevant to its conclusion of the unconstitutionality of the strip search policy that “there was no cause in [Logan’s] specific case to believe that she might possess either [weapons or contraband].” Id. In the cases sub judice, similarly to Mary Beth G., the detainees were arrestees awaiting bond on misdemeanor or traffic violation charges. Lubbock County argues that the strip search policy of the Chicago Police Department which it admits was similar to its own was unreasonable because it was enforced only against female arrestees. While the Seventh Circuit held that such disparity in treatment did violate the equal protection clause of the Fourteenth Amendment, that violation was clearly stated" }, { "docid": "3986182", "title": "", "text": "or physical penetration of the inmates’ bodily surfaces. The Court stressed that “[t]he inmate is not touched by security personnel at any time during the visual search procedure.” Id. at 558 n. 39, 99 S.Ct. at 1884 n. 39 (emphasis in original). Second, the searches were conducted on inmates after contact visits that were not closely or constantly monitored, id. at 560 n. 40, 99 S.Ct. at 1885 n. 40, and were thus necessary to halt the introduction of contraband into the facility. Third, the Court made clear that it was not providing license for correction officers to conduct strip searches in an abusive manner: “Nor do we doubt, as the District Court noted, that on occasion a security guard may conduct the search in an abusive fashion. Such abuse cannot be condoned. The searches must be conducted in a reasonable manner.” Id. at 560, 99 S.Ct. at 1885 (citation omitted). Thus, the Court envisioned recourse for a prisoner who had been only visually strip searched, even when necessary for prison security purposes, if the search was conducted in an abusive manner. That inmates retained some fourth amendment protection from unreasonable searches of their persons was also the uniform view of the courts of appeals and the local district court at the time of the search in question. See Note, Constitutional Limitations on Body Searches in Prisons, 82 Col.L.Rev. 1033, 1043 & n. 79 (1982). Most circuits had considered detainees’ and inmates’ fourth amendment challenges to prison practices, and, although the formulations varied, all courts agreed that some fourth amendment protection was available to inmates as to their persons. See e.g., Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (strip search of detainee unreasonable under Bell v. Wolfish); Olson v. Klecker, 642 F.2d 1115, 116-17 (8th Cir.1981) (“Prisoners enjoy at least minimal fourth amendment protection in cell-search situations”); Hurley v. Ward, 584 F.2d 609, 611 (2d Cir.1978) (the “gross violation of personal privacy” involved in visual anal/genital searches of inmate, “especially in view of the physical and verbal abuse incident to the procedure”, outweighs state’s interest in the “prison" }, { "docid": "3686859", "title": "", "text": "a patrol car parked off of a highway in the early morning hours of a Saturday. The car was backed a short distance away from the scene of the truck’s search to provide some privacy for the women. Nevertheless, the door facing the highway was open during the search and, according to the Plaintiff, the back seat was illuminated by the car’s dome light and Officer Gregory’s flashlight. Plaintiff also asserts that the male individuals on the scene, as well as passing motorists, could see into the car. The officers knew Timberlake was a minor. It is self-evident that a strip search must be conducted in such a way as to safeguard the individual’s privacy. “[A]s a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity—whether or not any actually viewed the search—is a constitutionally valid governmental ‘invasion of [the] personal rights that [such a] search entails.’ ” Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (quoting from Bell v. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884). See also Polk v. Montgomery County, Maryland, 782 F.2d 1196, 1201 (4th Cir.1986) (whether search is conducted in private is “especially relevant in determining whether a strip search is reasonable under the circumstances.”); Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir.1982) (court would not even entertain suggestion that strip searches conducted in open view of others was reasonable). In this instance, it appears that Officer Gregory took some steps to provide a private location for the search. However, taking as true Plaintiff’s allegations that others in the vicinity could see into the car during the search, the search would clearly be unreasonable. The intrusion on Timberlake’s privacy was of the highest order, conducted in a public location and without reasonable justification. Because a reasonable jury could find from these facts that the search was clearly unreasonable, Defendants' summary judgment motion must be denied. Keeler v. Hewitt, 697 F.2d 8, 12" }, { "docid": "5014547", "title": "", "text": "balance in favor of the plaintiff and against the strip search policy. This argument is based in part upon a misreading of the cases, and is wholly without merit. In only one of the four circuit court opinions did “aggravating circumstances” play a role in the decision. Hill v. Bogans, 735 F.2d 391 (10th Cir.1984). In Hill, the plaintiff was strip searched without a body cavity inspection, in a semi-public place. The Tenth Circuit found that the lack of privacy contributed to the intrusiveness of the search, but it can hardly be said that this was the determining factor in its decision to strike down the defendants’ indiscriminate strip search policy. The circuit court decisions cited by the plaintiffs provide strong support for their position that the defendants’ strip search policy is unconstitutional. Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, — U.S. ---, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1984); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Tinetti v. Wittke, 620 F.2d 160 (7th Cir.1980), aff'g 479 F.Supp. 486 (E.D.Wisc.1979). In each of these decisions, the plaintiff was arrested for a traffic or other minor offense, and was strip searched pursuant to a uniform policy. In each case, the court held that such a search, conducted without reference to the nature of the offense or any reasonable grounds to believe that the individual possessed contraband, violated the fourth amendment. The decisions cited by the plaintiffs are therefore directly on point to the instant case. Defendant's second argument is that the strip search is necessary because there is substantial commingling of minor offense detainees with other, more dangerous offenders. This commingling is of two types. First, the Dakota County Jail houses all detainees together, regardless of whether they have committed a regulatory offense, a misdemeanor, or a felony. Second, defendants contend that detainees and sentenced prisoners are commingled from time to time. The latter argument" }, { "docid": "3986183", "title": "", "text": "search was conducted in an abusive manner. That inmates retained some fourth amendment protection from unreasonable searches of their persons was also the uniform view of the courts of appeals and the local district court at the time of the search in question. See Note, Constitutional Limitations on Body Searches in Prisons, 82 Col.L.Rev. 1033, 1043 & n. 79 (1982). Most circuits had considered detainees’ and inmates’ fourth amendment challenges to prison practices, and, although the formulations varied, all courts agreed that some fourth amendment protection was available to inmates as to their persons. See e.g., Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (strip search of detainee unreasonable under Bell v. Wolfish); Olson v. Klecker, 642 F.2d 1115, 116-17 (8th Cir.1981) (“Prisoners enjoy at least minimal fourth amendment protection in cell-search situations”); Hurley v. Ward, 584 F.2d 609, 611 (2d Cir.1978) (the “gross violation of personal privacy” involved in visual anal/genital searches of inmate, “especially in view of the physical and verbal abuse incident to the procedure”, outweighs state’s interest in the “prison security measure”); United States v. Lilly, 576 F.2d 1240, 1244 (5th Cir.1978) (“searches or seizures conducted on prisoners must be reasonable under all the facts and circumstances in which they are performed”); Bonner v. Coughlin, 517 F.2d 1311, 1317 (7th Cir.1975) (Stevens, J.) (“prisoner enjoys the protection of the Fourth Amendment against unreasonable searches, at least to some minimal extent”), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978); Daughtery v. Harris, 476 F.2d 292, 294-95 (10th Cir.) (rectal examination of inmates subjected to fourth amendment reasonable analysis), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973). See also United States v. Chamorro, 687 F.2d 1, 4 (1st Cir.) (“The courts are generally in accord that what remains of fourth amendment protection behind prison gates is the prohibition of unreasonable searches and seizures.”) (citing Bonner, Lilly, United States v. Savage, 482 F.2d 1371, 1372 (9th Cir.1973) (“prisoner is entitled to fourth amendment’s protection from unreasonable searches and seizures”)), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613" }, { "docid": "20374431", "title": "", "text": "plaintiff was trying to hide something. It was those perceptions that he conveyed to Correctional Officer Davis and to Davis' supervisor, Sergeant Lickiss. 3. I find that Trooper Flanigan did not request a strip search of the plaintiff. He simply told and reiterated his belief that the plaintiff had something concealed in his trousers. His testimony that he hold Jailer Davis [to] \"check him (the plaintiff) real good” is credible, and that Flanigan was interested in assuring that no weapon or contraband be allowed to enter the jail. This was all said before anyone knew whether Kraushaar would make bail or not. If not, he would have been detained at the jail. 4. I find no credible evidence to support a claim that either Trooper Flanigan or Trooper Winterroth used unnecessary force or indeed any force at all in effecting the arrest of the plaintiff or in transporting him to the jail. . Similarly, we are unable to find that the defendant is entitled to qualified immunity. First, although the issue was raised generally in the final pre-trial order before the district court, Flanigan did not argue the point with respect to this strip search during the trial. He also did not raise the issue on appeal. Thus, the argument has been waived. Secondly, there are several cases which suggest that qualified immunity would not exist for a strip search conducted in public view. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (\"We think, as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity — whether or not any actually viewed the search — is a constitutionally valid governmental 'invasion of [the] personal rights that [such a] search entails.’ ”), cert. denied sub nom. Clements v. Logan, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir.1982) (“Defendant naturally does not maintain that routine strip searches may be conducted" }, { "docid": "16538807", "title": "", "text": "non-misdemeanor traffic offense. The defendant sheriff had a policy of strip-searching all detainees, including those arrested for non-misdemeanor traffic offenses, and Tinetti was forced to submit to a strip search. These searches were conducted without regard to probable cause. The Seventh Circuit adopted the district court’s opinion and affirmed its injunction enjoining the sheriff from conducting strip searches of persons charged with non-misdemeanor traffic offenses except where the sheriff has “probable cause to believe that contraband or weapons are being concealed on the person of the traffic violator.” Tinetti v. Wittke, 620 F.2d at 161. In affirming the injunction, the Seventh Circuit found that the sheriff’s blanket policy of strip searching all detainees violated the Fourth, Fifth, and Fourteenth Amendments. Id. Finally, in Logan v. Shealy, supra, a § 1983 action seeking damages and declaratory and injunctive relief, the female plaintiff was arrested for driving while intoxicated and was transported by police to the Arlington County Detention Center. At the center, Logan was booked, and a strip search was conducted in a holding cell whose window blinds were either open or broken, thus permitting anyone in the booking area to observe the search. 660 F.2d at 1010. The district court granted directed verdicts in favor of defendants Arlington County, its sheriff, and deputy sheriff. 500 F.Supp. 502 (E.D.Va.1980). On appeal, the Fourth Circuit held the sheriff's strip search policy unconstitutional under the standards laid out in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The circuit court emphasized several factors in determining that Logan’s privacy rights outweighed the detention center’s security needs: 1. Logan and similar detainees would not intermingle with the general jail population; 2. her offense, though not a minor traffic offense, was one not commonly associated with weapons or contraband; 3. there was no probable cause to believe that she possessed weapons or contraband; and 4. when Logan was strip-searched she had already been at the center for one and one-half hours, during which not even a pat-down search had been conducted. 660 F.2d at 1013. For these reasons, the Fourth Circuit" }, { "docid": "1364882", "title": "", "text": "the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. at 559, 99 S.Ct. at 1884. Bell upheld the Metropolitan Correctional Center’s practice of subjecting each prisoner to a visual body cavity inspection after every contact visit with a person from outside the institution. The Court noted that inmate attempts to smuggle money, drugs, weapons, and other contraband into the Metropolitan Correctional Center were documented in the record. After reviewing the circumstances surrounding the search in the case at bar, we reverse the trial court’s ruling that the search complied with the Fourth Amendment, and we remand for a determination of appropriate damages against the City and County of Denver. In reaching this decision we agree with the analysis of the Fourth Circuit in Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). In Logan a female attorney, after being arrested on a charge of driving while intoxicated, was taken into a holding cell and subjected to a visual strip search. The search was conducted pursuant to the Arlington County Detention Center’s established policy of routinely strip searching all persons held at the detention center for weapons or contraband. Id. at 1010. In holding this practice unconstitutional the court wrote, “On the undisputed and stipulated evidence, Logan’s strip search bore no such discernible relationship to security needs at the Detention Center that, when balanced against the ultimate invasion of personal rights involved, it could reasonably be thought justified. At no time would Logan or similar detainees be intermingled with the general jail population; her offense, though not a minor traffic offense, was nevertheless one not commonly associated by its very nature with the possession of weapons or contraband; there was no cause in her specific case to believe that she might possess either; and when strip-searched, she had been at the Detention Center for one and one-half hours without even a pat-down search. An indiscriminate strip" }, { "docid": "21085261", "title": "", "text": "they therefore violate protected Fourth Amendment interests. Far from it, our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited. See Grummett v. Rushen, 779 F.2d 491, 495-96 (9th Cir.1985) (pat-down searches of male inmates that included groin area by female guards do not violate Fourth Amendment); Michenfelder, 860 F.2d at 334 (occasional visual strip searches of male inmates by female guards do not violate Fourth Amendment). Although the inmates here may have protected privacy interests in freedom from cross-gender clothed body searches, such interests have not yet been judicially recognized. Jordan, 986 F.2d at 1524-25 (emphasis added). Therefore, Jordan is important to our determination of whether Somers’s rights were clearly established in 1993 because: 1) although citing Michenfelder and Grummett, it states that whether inmates possess privacy interests that could be infringed by cross-gender searches is a difficult and novel question; and 2) it cites Michenfelder and Grummett for the proposition that Ninth Circuit ease law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited. In light of our en banc statements in Jordan, which strongly echo what the Hudson Court said about a prisoner’s privacy rights, we cannot say that by the time the alleged conduct took place in October 1993, eight months after we decided Jordan, male inmates had clearly established Fourth Amendment privacy interests prohibiting the cross-gender searches in the instant ease. After Jordan, the contours of Somers’s right were not “sufficiently clear that a reasonable official would understand what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Therefore, the unlawfulness (if it even was unlawful) of the Officials’ cross-gender search was by no means apparent. See id. As further support for our conclusion that the alleged right was not clearly established, we note that a district court in our circuit has held, after Jordan, that the Constitution does not prohibit a female guard from viewing an unclothed male inmate under circumstances where the" }, { "docid": "6425768", "title": "", "text": "Cir.1987) (same); Standing Deer v. Carlson, 831 F.2d 1525, 1528-29 (9th Cir.1987) (same); McCabe v. Arave, 827 F.2d 634, 637-38 (9th Cir.1987) (free exercise and speech); Allen v. Toombs, 827 F.2d 563, 567-68 (9th Cir.1987) (free exercise), as w[as] ... Turner v. Safley ..., we believe that Turner v. Safley’s suggested factors can be instructive in the context of other prisoners’ rights cases, and have considered them here where applicable. 860 F.2d at 331 n. 1. In Michenfelder, we applied the Turner test to a prison strip search policy. We concluded that the strip searches were reasonably related to legitimate penological in terests. 860 F.2d at 333. In reaching this conclusion, we analyzed the strip searches in light of the balancing test set forth by the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). In Bell, decided before Turner, the Supreme Court assumed arguendo that prisoners retain some right of privacy under the Fourth Amendment and articulated the following test to determine a search’s reasonableness: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each ease it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place which it is conducted. Id. at 559, 99 S.Ct. at 1884. “The Court obviously recognized that not all strip search procedures will be reasonable; some could be excessive, vindictive, harassing, or unrelated to any legitimate penological interest.” Mi-chenfelder, 860 F.2d at 332. Therefore, following our approach in Michenfelder, we consider the reasonableness of Thompson’s strip search to help us determine if it was reasonably related to legitimate penological interests. a. Scope and Manner The strip search conducted on Thompson was visual only. It did not involve any touching. Compare Michenfelder, 860 F.2d at 332 (upholding visual body cavity searches); with Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir.1986) (rejecting as unreasonable" }, { "docid": "15484207", "title": "", "text": "Eighth Amendment claim. Rather, he resorts to calling the affiants liars and again attempts to bootstrap additional alleged constitutional violations into this action, which have previously been dismissed by this court as being without merit. Even drawing all reasonable inferences in favor of Mr. Rodriguez, he has not provided sufficient evidence to raise a genuine issue of material fact as to whether defendants denied, delayed or were intentionally indifferent to his serious medical needs. Plaintiffs failure to make a showing sufficient to establish the existence of an element which is essential to his case, and for which he would bear the burden of proof of trial, requires the conclusion that summary judgment as to the Eighth Amendment claim is appropriate. Hutchinson v. United States, 838 F.2d 390 (9th Cir.1988) (citing Celotex, supra, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265). Accordingly, plaintiffs claims based on the Eighth Amendment SHALL BE DISMISSED. B. Fourth Amendment Claims Plaintiffs second claim is that female correctional officers have the opportunity to view inmates in various stages of nudity while inmates shower, use the toilet, or during a strip search, in violation of his Fourth and Fourteenth Amendment right of privacy. Incarcerated prisoners retain a limited right to bodily privacy under the Fourth and Fourteenth Amendments. Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir.1988). The court must examine whether the alleged impingement of plaintiffs right to privacy is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). The court must accord great deference to prison officials’ assessments of their penological interests. Id. at 92-93, 107 S.Ct. at 2263-2264. Several cases have recognized prisoners’ claims regarding their right not to be viewed naked by the opposite sex. Michenfelder, supra at 334; Grummett v. Rushen, 779 F.2d 491, 494-45 (9th Cir.1985). The Michenfelder court noted that the presence of female correctional officers at a strip search of male prisoners was not routine, and, in finding that there was no Fourth Amendment violation, that there was no evidence that the incident complained of was" }, { "docid": "3686860", "title": "", "text": "v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (quoting from Bell v. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884). See also Polk v. Montgomery County, Maryland, 782 F.2d 1196, 1201 (4th Cir.1986) (whether search is conducted in private is “especially relevant in determining whether a strip search is reasonable under the circumstances.”); Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir.1982) (court would not even entertain suggestion that strip searches conducted in open view of others was reasonable). In this instance, it appears that Officer Gregory took some steps to provide a private location for the search. However, taking as true Plaintiff’s allegations that others in the vicinity could see into the car during the search, the search would clearly be unreasonable. The intrusion on Timberlake’s privacy was of the highest order, conducted in a public location and without reasonable justification. Because a reasonable jury could find from these facts that the search was clearly unreasonable, Defendants' summary judgment motion must be denied. Keeler v. Hewitt, 697 F.2d 8, 12 (1st Cir.1982). III. Liability of Defendant Uffelman in his Individual Capacity. Defendant Jack Uffelman, as director of the 19th Judicial District Drug Task Force, is responsible for the implementation of the policies and procedures developed by the Task Force’s board of directors as well as the management and control of the day-to-day operations of the Task Force. He is the supervisor of the Task Force and reports directly to the board. He has the authority to recommend disciplinary action and the power to terminate an officer’s assignment to the Task Force. Plaintiff has brought suit against Uffelman individually, alleging that he established and endorsed, in writing or custom, policies under which defendants Benton and Gregory conducted their search of Timberlake, thereby participating in the deprivation of her constitutional rights. Uffelman counters that (1) he is not a supervisor of Benton or Gregory, (2) he is not a policymaker for the Task Force, (3) his actions after the search occurred cannot subject him to liability, (4) he is entitled to qualified immunity, and (5) he cannot" }, { "docid": "2706637", "title": "", "text": "Bell was whether strip searches of individuals arrested for non-violent minor offenses who are not committed to a detention facility to await trial are reasonable under the Fourth Amendment in the absence of reasonable suspicion the arrestee is hiding contraband or weapons. Lower courts applied Bell’s balancing test, noting that the Supreme Court had approved strip searches of pretrial detainees only where objective circumstances indicated they were needed to maintain institutional security, and not as validating a blanket policy of strip searching all pretrial detainees. See, e.g., Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.1989); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). The Fourth Circuit, in holding unconstitutional strip searches of arrestees who would not be intermingled with the general jail population and were accused of crimes not associated with concealing contraband, identified four factors that weighed against strip searching: (1) the plaintiff would not be intermingled with the general jail population; (2) the offense was not one usually associated with possession of weapons or contraband; (3) there was no cause to believe the particular detainee might possess either; and (4) when the search was conducted the plaintiff had been at the detention center for one and one-half hours “without even a pat-down search.” Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981), cert. denied sub nom. Clements v. Logan, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). The following year the Seventh Circuit rejected strip search distinctions between male and female arrestees as a denial of equal protection, stating that the City of Chicago had “failed to show that men and women minor offenders are not similarly situated,” Mary Beth G., 723 F.2d at 1274 (emphasis in original), and concluding that a strip search of misdemeanor arrestees in City lockups while awaiting arrival of bail money was impermissible absent “a reasonable suspicion by the authorities that either of the twin dangers of concealing weapons or contraband existed,” id. at 1273. The Ninth and Tenth Circuits adopted a similar approach in balancing the interests identified in Bell, and concluded that" }, { "docid": "15484208", "title": "", "text": "while inmates shower, use the toilet, or during a strip search, in violation of his Fourth and Fourteenth Amendment right of privacy. Incarcerated prisoners retain a limited right to bodily privacy under the Fourth and Fourteenth Amendments. Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir.1988). The court must examine whether the alleged impingement of plaintiffs right to privacy is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). The court must accord great deference to prison officials’ assessments of their penological interests. Id. at 92-93, 107 S.Ct. at 2263-2264. Several cases have recognized prisoners’ claims regarding their right not to be viewed naked by the opposite sex. Michenfelder, supra at 334; Grummett v. Rushen, 779 F.2d 491, 494-45 (9th Cir.1985). The Michenfelder court noted that the presence of female correctional officers at a strip search of male prisoners was not routine, and, in finding that there was no Fourth Amendment violation, that there was no evidence that the incident complained of was anything but an isolated one. Michenfelder, supra at 334. The Grummett court noted that while a prisoner’s interest in not being viewed naked by the opposite sex is a protected one, where observation is infrequent and restricted, court intervention is not warranted. Grummett, supra at 495. Both courts balanced the right allegedly invaded against the penological interest underlying the invasion and found the prisoners’ privacy expectations to be subordinate. “The feelings of humiliation and degradation associated with forcibly exposing one’s nude body to strangers for visual inspection is beyond dispute.” Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir.1989). Even so, the privacy right is outweighed by asserted justification, such as the prevention of the introduction of weapons and other contraband into the jail. Id. Plaintiff offers no evidence to indicate he was ever subjected to a strip search within the view of a female correctional officer or while taking a shower or using the toilet. He contends that he was viewed by a female officer on one occasion while he sat" }, { "docid": "8393628", "title": "", "text": "We first consider the location of the search. The question whether a sexually invasive search is conducted in a private or a public setting is “especially relevant” to this Court’s determination of reasonableness. Polk v. Montgomery Cnty., 782 F.2d 1196, 1201-02 (4th Cir.1986). We have “repeatedly emphasized the necessity of conducting a strip search in private.” Amaechi, 237 F.3d at 364. While every strip search need not be conducted in a private holding cell to adequately safeguard a suspect’s privacy interests, we consider whether a sexually invasive search could have been viewed by others, and whether it was in fact viewed by others, in our analysis of the reasonableness of the search. See Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981). Because Bailey conducted the strip search of Edwards in the middle of a public, residential street, the search could have been viewed by others and, thus, was not conducted in a private setting. However, based on our conclusion that other factors of the Bell test are determinative of this appeal, we do not address whether the location of the search affected its reasonableness. Under Bell, the reasonableness of the search also depends on the scope of the particular intrusion and the manner in which the search was conducted. Bell, 441 U.S. at 559, 99 S.Ct. 1861; Amaechi 237 F.3d at 361. Edwards contends that the scope of the intrusion was extensive because the officers inspected his genitals. Edwards further maintains that the manner in which the search was conducted was unreasonable, because Bailey cut the sandwich baggie off Edwards’ penis with a knife while Edwards was restrained in handcuffs, an act that could only cause fear and humiliation. In response, the government argues that the scope and manner of the search were reasonable, because Edwards’ pants and underwear were only pulled out, rather than down, and the officers did not conduct a visual or physical examination of Edwards’ body cavities. We disagree with the government’s position, because the drugs were removed from Edwards’ person in an unnecessarily dangerous, and thus unreasonable, manner. The manner in which contraband is" }, { "docid": "21354934", "title": "", "text": "justify taking a prisoner’s clothes before confining him, although that step would be rare. Courts across the country are uniform in their condemnation of intrusive searches performed in public. See, e.g., Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir.1982) (“Defendant naturally does not maintain that routine strip searches may be conducted in a room open to the prying eyes of passing strangers consistent with the reasonableness requirement imposed on all searches under the Fourth Amendment, nor would such a contention be entertained.”); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981) (“We think that, as a matter of law, no police officer in this day and time could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity whether or not any actually viewed the search is a constitutionally valid governmental invasion of (the) personal rights that (such a) search entails.” (internal quotations omitted)); Amaechi v. West, 237 F.3d 356, 364 (4th Cir.2001) (noting that “we have repeatedly emphasized the necessity of conducting a strip search in private” and concluding that “[t]he fact that, absent clear justification or exigent circumstances, an officer is not allowed to strip an arrestee on a public street pursuant to a search incident to an arrest necessarily means that an officer cannot go even further than simply disrobing the arrestee by actually touching and penetrating the arrestee’s exposed genitalia on the public street.”); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984) (finding unconstitutional “routine strip searches in a public area of persons detained for minor traffic offenses.”); United States v. Ford, 232 F.Supp.2d 625, 630 (E.D.Va.2002) (granting a motion to suppress, stating that “[tjaking the Bell factors into account, the Court concludes that the police officer engaged in a highly invasive search by exposing the defendant’s buttocks on the side of a public highway in broad daylight, and that the search violated the defendant’s Fourth Amendment protection”); People v. Mitchell, 2 A.D.3d 145, 768 N.Y.S.2d 204, 206-07 (1st Dep’t 2003) (“[WJe have no difficulty in holding that" } ]

[ { "docid": "2866913", "title": "", "text": "limits a plaintiffs recovery to the contractually-defined benefits that the plaintiff has been denied under his or her ERISA plan. See e.g., McRae v. Seafarers’ Welfare Plan, 920 F.2d 819, 822 (11th Cir.1991); Bishop v. Osborn Transp., Inc., 838 F.2d 1173, 1174 (11th Cir.1988), cert. denied, 488 U.S. 832, 109 S.Ct. 90, 102 L.Ed.2d 66 (1988). Accordingly, the appropriate measure of damages for Mecca’s failure to provide Mr. Hamilton with notice of his right to continuation coverage under COBRA is the total amount of medical expenses that were not reimbursed as a result of Mecca’s failure. See St. Joseph’s, 929 F.2d at 1574-75 (affirming district court’s award of over $1 million in damages based upon the district court’s determination that the plan administrator should have provided plan beneficiaries with 36 months of COBRA continuation coverage under group health plan). The Court has found as fact that, had Mr. Hamilton been properly notified of his rights under COBRA, he would have elected to continue his coverage under the group policy and would not, therefore, have been eligible for benefits under § 7 of the policy. Consequently, Mecca’s failure to provide Mr. Hamilton with this notice deprived him of coverage under the group policy during the 16 months between the date that his employment was terminated and his death on August 18, 1995, and Mecca is clearly liable to plaintiff for Mr. Hamilton’s lost coverage during this period. While it is clear that Mecca is liable for Mr. Hamilton’s lost coverage during this period, the exact quantum of damages that will make plaintiff whole for this loss of coverage is less clear. As previously set forth, the total of Mr. Hamilton’s medical bills during this period was $78,859.09. Some of these expenses, however, were paid under the conversion policy. Furthermore, Mr. Hamilton would have been required to pay the monthly COBRA premiums under the group policy but would not have had to pay the more expensive monthly premiums under the conversion policy. Thus, the appropriate measure of damages would ideally be as follows: $78,589.09; less those expenses covered under the conversion policy;" } ]

[ { "docid": "12560731", "title": "", "text": "under Unitel’s group health plan.. After plaintiffs coverage under Unitel’s health care plan ended, she incurred substantial medical bills. I. APPLICABLE COBRA PROVISIONS In 1986, Congress enacted COBRA to amend the Employee Retirement Income Security Act (“ERISA”) by providing for limited continuation coverage rights under employer-provided group health insurance plans. Swint v. Protective Life Ins. Co., 779 F.Supp. 532, 552 (S.D.Ala.1991). Congress found ERISA did not adequately ensure individuals would not be abruptly left without health care coverage; Therefore, COBRA is remedial legislation. National Companies Health Plan v. St. Joseph’s Hosp. Inc., 929 F.2d 1558, 1567 (11th Cir.1991). The legislative history of the COBRA amendments shows Congressional concern “with, reports of the growing number of Americans without any health insurance coverage and the decreasing willingness of our Nation’s hospitals to provide care to those who cannot afford to pay.” H.R.Rep. No. 241, Part 1, 99th Cong., 2d Sess. 44, reprinted in 1986 U.S.C.C.A.N. 579, 622. Congress designed COBRA to “allow a spouse or forfner spouse who has been a qualified beneficiary under a group plan to elect continuation coverage on his or her own behalf.” Id. “The administrator’s duties under COBRA are not onerous while the result of noncompliance could be disastrous for the discharged employee.” Phillips v. Riverside, Inc., 796 F.Supp. 403, 411 (E.D.Ark.1992). COBRA mandates; The plan sponsor of each group health plan shall provide ... that each qualified .beneficiary who would lose coverage under the plan as a result of a qualifying event is entitled, under the plan, to elect, within the election period, continuation coverage under the plan. 29 U.S.C. § 1161(a). COBRA requires the plan administrator to notify any qualified beneficiary of her. rights following a qualifying event. 29 U.S.C. § 1166(a)(4). COBRA defines a qualified beneficiary as any individual, who on the day before the qualifying event, is a beneficiary under the plan as the spouse of the covered employee. 29 U.S.C. § 1167(3). A qualifying event is an event that, but for the continuation coverage required under COBRA would result in the loss of coverage of the qualified beneficiary. 29 U.S.C. § 1163." }, { "docid": "9935433", "title": "", "text": "expenses based on the summary judgment evidence, and (iv) the Court should exercise its discretion to deny Hickman recovery of attorneys’ fees. The uncontradicted evidence of record establishes that DPH told Hickman generally about her entitlement to COBRA coverage, but did not give her the detailed notice required by federal regulations until July 3, 2006, 199 days after her employment with Defendant ceased. 1. COBRA Notice Violation COBRA was enacted “to provide employees with an opportunity to continue to receive group health insurance after the occurrence of a ‘qualifying event.’ ” Myers v. King’s Daughters Clinic, 912 F.Supp. 233, 237 (W.D.Tex.1996), aff'd, 96 F.3d 1445 (5th Cir.1996). Therefore, COBRA “require[s] an employer who sponsors a group health plan to give the plan’s ‘qualified beneficiaries’ the opportunity to elect ‘continuation coverage’ under the plan when the beneficiaries might otherwise lose coverage upon the occurrence of certain ‘qualifying events,’ including the death of the covered employee, the termination of the covered employee’s employment (except in cases of gross misconduct), and divorce or legal separation from the covered employee.” Geissal v. Moore Medical Corp., 524 U.S. 74, 79-80, 118 S.Ct. 1869, 141 L.Ed.2d 64 (1998) (citing 29 U.S.C. § 1163); Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir.2002). “COBRA demands that the continuation coverage offered to qualified beneficiaries be identical to what the plan provides to plan beneficiaries who have not suffered a qualifying event.” Geissal, 524 U.S. at 80, 118 S.Ct. 1869 (quoting 29 U.S.C. § 1162(1)). Significantly, “the statute requires plans to advise beneficiaries of their rights under COBRA both at the commencement of coverage and within 14 days of learning of a qualifying event.” 29 U.S.C. § 1166(a); see Degruise, 279 F.3d at 336. Under § 1166(a)(2), an employer has a duty to report most qualifying events, including the termination of employment, to its group health plan administrator within 30 days of the qualifying event. The plan administrator must then notify the qualified beneficiary within 14 days of being notified of the qualifying event by the employer. 29 U.S.C. § 1166(c). When an employer is also the administrator" }, { "docid": "6326746", "title": "", "text": "inadvertent computer errors to continue. According to Sainbury’s testimony, Wal-Mart has not taken active steps to determine how to prevent the computer error in the future. (Doc. # 31 at 41.) For the foregoing reasons, this Court ORDERS Wal-Mart to pay Chenoweth’s attorney’s fees related to her cause of action under COBRA. Lastly, the penalty provision of 29 U.S.C. § 1132(c) provides this Court with the discretion to impose a penalty on WalMart up to $100 per day for failing to notify Chenoweth of her rights under COBRA. Wal-Mart contends that no penalty should be assessed because it did not act in bad faith in failing to send Chenoweth a COBRA package following her termination. Nevertheless, the “duties under COBRA are not onerous, while the result of noncompliance could be disastrous for the discharged employee.” Phillips, 796 F.Supp. at 411. Thus, to impress upon Wal-Mart the importance of providing employees with notice regarding continued health care coverage, this Court ORDERS Wal-Mart to pay Chenoweth a statutory penalty of $1020.00. That figure is calculated at a rate of $5 per day from July 23, 1999 (44 days from June 8, 1999, the date of termination) to February 11, 2000 (the date of notification). The Court has not been presented with the total amount of medical expenses or attorney’s fees incurred by Chenoweth as a result of the COBRA violation. Therefore, the Court ORDERS the parties to submit a proposed order within thirty (30) days of the entry of this order reflecting the amount of damages owed to the Plaintiff. III. CONCLUSION In conclusion, this Court GRANTS Che-noweth’s motion for partial summary judgment based upon Wal-Mart’s violation of COBRA. Chenoweth shall be awarded her medical expenses, attorney’s fees and a statutory penalty associated with that cause of action. Accordingly, the Court ORDERS the parties to submit a proposed order reflecting those amounts. Additionally, the Court DENIES Wal-Mart’s motion for summary judgment of the remaining causes of action under the FMLA and Ohio public policy. Genuine issues of material fact exist which must be resolved by the trier of fact. The Court will" }, { "docid": "14360442", "title": "", "text": "through February 1992. (Volner Aff. ¶ 13) Travelers has received further disability statements and has extended coverage accordingly. (Volner Aff. ¶ 14) Furthermore, Travelers avers that it has paid all benefits due plaintiff under the Plan and will continue to provide coverage through December 31, 1992, the maximum period of time in which benefits are available under the Premium Waiver provision, so long as plaintiff continues to provide the requisite documentation. (Volner Aff. ¶ 15) Payment for submitted medical expenses may have taken some time in arriving. However, defendants point out that plaintiff acknowledged receipt of all these payments at a May 5, 1992 conference before Magistrate Judge Caden. In other words, as plaintiff provided Travelers with medical documentation attesting to her continuing disability, Travelers paid those bills; plaintiff therefore extended her coverage for a total of 36 months. There appears to be no reason why plaintiff is or was entitled to greater benefits than she in fact received. Accordingly, defendants’ motions for summary judgment on any claims regarding benefits termination should be resolved in their favor. Since the COBRA cause of action does not affect plaintiff’s employer, there are no outstanding claims to discuss against Amtrak. II. COBRA Notice As mentioned above, plaintiff also complains that Travelers failed to send her information about her “COBRA” rights. COBRA was enacted in 1985 to provide employees who had been covered by an employment-related group health care plan with the opportunity to elect group rate continuation of coverage under the plan in the face of some “qualifying event”—job loss or hour reduction. 29 U.S.C. § 1161; Local 217, Hotel & Restaurant Employees Union v. MHM, Inc., 976 F.2d 805, 809 (2d Cir.1992) (discussing COBRA purpose and requirements). COBRA amended ERISA to require health care sponsors to provide such coverage and to notify their covered employees of election rights under the Act. 29 U.S.C. § 1161; see also id. § 1166 (notice requirements). The notification requirements of COBRA are clear. In the event of a covered employee’s termination, an employer must notify the administrator of the group health care plan within thirty days," }, { "docid": "6326738", "title": "", "text": "her rights, is evidence that she was not in a position to afford COBRA coverage. (Doc. # 36 at 4.) Wal-Mart argues that the purpose of 29 U.S.C. § 1132, the civil enforcement statute, is to put plaintiff in the same position she would have been in had she received timely notice. Wal-Mart contends that Chenoweth is attempting to put herself in a better position by seeking reimbursement for her medical expenses because she could not have afforded continuation of her health insurance under COBRA. (Doc. # 36 at 3.) On the other hand, Chenoweth argues that whether or not she would have purchased COBRA benefits is not relevant to Wal-Mart’s liability. Still, she contends that she would have paid for COBRA insurance coverage from her unemployment benefits. Furthermore, she testified that when she was finally notified of her COBRA rights in February 2000, she did not purchase coverage because she could not afford the lump sum payment for all of the back months-June 1999 to February 2000. (Doc. # 31 at 31.) In Van Hoove v. Mid-America Bldg. Maintenance, Inc., 841 F.Supp. 1523 (D.Kan.1993), the Court declared that “[t]he purpose of the civil enforcement provisions of COBRA is, above all, to put plaintiffs in the same position they would have been in but for the violation.” Id. at 1536 (citing Phillips v. Riverside, Inc., 796 F.Supp. 403, 411 (E.D.Ark.1992)). Wal-Mart relies upon Van Hoove for support of its argument that Chenoweth should not be awarded her medical expenses because she was never in a position to afford COBRA benefits. (Doc. # 36 at 3.) However, this Court rejects Wal-Mart’s interpretation of Van Hoove. Typically, courts rely on Van Hoove to justify reimbursing the plaintiff for medical expenses incurred as a result of not having had the opportunity to elect COBRA coverage. See e.g. Ward v. Bethenergy Mines, Inc., 851 F.Supp. 235, 240 (S.D.W.V.1994); Gaskell v. Harvard C-oop. Society, 762 F.Supp. 1539, 1543 (D.Mass.1991). Wal-Mart does not cite to any cases in which a court has relied upon Van Hoove to support conducting an after-the-fact, speculative inquiry as to whether" }, { "docid": "22429925", "title": "", "text": "Inc. (“Paychex”), about Kwan’s termination; so that Paychex could send Kwan notification of her right to continue her health insurance benefits. Piecoro alleges that she completed and sent the COBRA employee data sheet to Paychex on September 30, 2008, but Pay-chex claims that it never received the form and therefore did not send the COBRA notification to Kwan. Andalex claims that it discovered that Kwan had not received her COBRA notification form only after her attorney raised the issue in 2009. On October 12, 2009, more than a year after her termination, the plaintiff received notification of her COBRA rights from Paychex. Kwan then allegedly called Paychex several times in October and November 2009 to determine the amount she owed for her first premium check. The premium for the policy, stated in the notification form from Paychex, was $1,942.81 per month. On December 1, 2009, Paychex sent a second COBRA notice to the plaintiff offering Kwan participation in a different health plan, Health-net, for a monthly premium of $990.24. Kwan testified that she could not afford the premium for coverage under the Healthnet plan. When the plaintiff sought clarification about the differences between the original and Healthnet plans, Anda-lex’s broker allegedly told her that all further communications would “have to go through the attorneys.” Kwan did not enroll in the Healthnet plan. The plaintiff remained unemployed and without health insurance until she began new employment ■ in Singapore in April 2010. Kwan testified that from the time her Andalex coverage lapsed in October 2008 to when she secured new insurance in 2010, she and her husband incurred un-reimbursed medical expenses of “a few hundred dollars.” Kwan alleges that she and her husband avoided and delayed seeking medical attention during the period they were without health insurance, including psychological counseling for the emotional distress associated with Anda-lex’s alleged discriminatory treatment and her termination. Kwan was unable to locate any documents evidencing her medical expenses or demonstrating that she had delayed seeking medical attention for any ailments. II. The District Court granted Andalex’s motion for summary judgment and dismissed all of Kwan’s" }, { "docid": "9935471", "title": "", "text": "Response [Doc. #50], ¶¶ 11-13. . Plaintiff's Motion [Doc. # 43], Exh. B-2: \"Letter of December 16, 2005, Jennifer Fusco to Pamela Miles-Hickman,” at DPH 000153. . See Scott, 295 F.3d at 1231. . 29 C.F.R. § 2575.502c-3 (\"Adjusted civil penalty under section 502(c)(3)”: \"In accordance with the requirements of the 1990 Act, as amended, the maximum amount of the civil monetary penalty established by section 502(c)(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), is hereby increased from $100 a day to $110 a day. This adjusted penalty applies only to violations occurring after July 29, 1997.”). . Plaintiff's Motion [Doc. # 43], Exh. B-2: “Letter of December 16, 2005, Jennifer Fusco to Pamela Miles-Hickman,” at DPH 000153. . See Hickman Deposition [Doc. # 46, Exh. B], at 234. .Id. at 236. . Id. at 258-65, 236. . DPH sua sponte extended Hickman's health care coverage through the end of the month in which her employment ended. . See Plaintiff s Mem. [Doc. # 43-2], at Exh. A, A-l, A-2. . Hickman also declined to elect insurance coverage at another job. . See Plaintiff’s Mem. [Doc. # 43-2], at 17. Hickman states the monthly premium was $495.32, but DPH reports it to be $434.39 (which would total $3,040.73 for seven months). See Defendant’s COBRA Response [Doc. # 50], ¶ 22. . See Section III.D.3 infra. . If the Court were to use Hickman's suggested monthly premium figure of $495.32, then the premiums for the 18-month period would total $8,915.76. .The parties dispute the admissibility of Hickman's summary of claimed medical expenses. The Court agrees with DPH that the medical bills are required with authentication of their source. However, at this time, the Court does not rely on the absence of documentation for its denial of Hickman’s recovery. . Plaintiffs Mem. [Doc. #43-2], at 18-19; Plaintiffs COBRA Supplement [Doc. # 45], at 1 & Exh. E thereto. . Section 1132(g) provides in pertinent part: \"(1) In any action under this subchapter (other than an action described in paragraph (2) [not here relevant]) by a participant, beneficiary," }, { "docid": "6326739", "title": "", "text": "Hoove v. Mid-America Bldg. Maintenance, Inc., 841 F.Supp. 1523 (D.Kan.1993), the Court declared that “[t]he purpose of the civil enforcement provisions of COBRA is, above all, to put plaintiffs in the same position they would have been in but for the violation.” Id. at 1536 (citing Phillips v. Riverside, Inc., 796 F.Supp. 403, 411 (E.D.Ark.1992)). Wal-Mart relies upon Van Hoove for support of its argument that Chenoweth should not be awarded her medical expenses because she was never in a position to afford COBRA benefits. (Doc. # 36 at 3.) However, this Court rejects Wal-Mart’s interpretation of Van Hoove. Typically, courts rely on Van Hoove to justify reimbursing the plaintiff for medical expenses incurred as a result of not having had the opportunity to elect COBRA coverage. See e.g. Ward v. Bethenergy Mines, Inc., 851 F.Supp. 235, 240 (S.D.W.V.1994); Gaskell v. Harvard C-oop. Society, 762 F.Supp. 1539, 1543 (D.Mass.1991). Wal-Mart does not cite to any cases in which a court has relied upon Van Hoove to support conducting an after-the-fact, speculative inquiry as to whether the plaintiff could have afforded COBRA coverage. As a matter of fact, that argument was rejected by the Tenth Circuit in Smith v. Rogers Galvanizing Co., 128 F.3d 1380 (10th Cir.1997). The circuit court stated that “[i]t is entirely conceivable that, faced with the choice of paying the premiums or going without medical insurance altogether, plaintiffs could have borrowed money, sold assets, or found some other way to pay premiums.” Id. at 1385. The court was clearly concerned with whether the plaintiffs were provided an opportunity to elect coverage based upon having been fully informed of their COBRA rights and refused to engage in speculation as to whether “... plaintiffs would have declined continuation coverage even if they had been fully informed of their rights....” Id. As well, the Sixth Circuit has declared that “providing appropriate notice is a key requirement under COBRA.” McDowell v. Krawchison, 125 F.3d 954, 957 (6th Cir.1997). Notice is necessary “to allow the qualified beneficiary to make an informed decision whether to elect coverage.” Id. at 958. Furthermore, the Third" }, { "docid": "6326740", "title": "", "text": "the plaintiff could have afforded COBRA coverage. As a matter of fact, that argument was rejected by the Tenth Circuit in Smith v. Rogers Galvanizing Co., 128 F.3d 1380 (10th Cir.1997). The circuit court stated that “[i]t is entirely conceivable that, faced with the choice of paying the premiums or going without medical insurance altogether, plaintiffs could have borrowed money, sold assets, or found some other way to pay premiums.” Id. at 1385. The court was clearly concerned with whether the plaintiffs were provided an opportunity to elect coverage based upon having been fully informed of their COBRA rights and refused to engage in speculation as to whether “... plaintiffs would have declined continuation coverage even if they had been fully informed of their rights....” Id. As well, the Sixth Circuit has declared that “providing appropriate notice is a key requirement under COBRA.” McDowell v. Krawchison, 125 F.3d 954, 957 (6th Cir.1997). Notice is necessary “to allow the qualified beneficiary to make an informed decision whether to elect coverage.” Id. at 958. Furthermore, the Third Circuit declared in an analogous case involving ERISA’s reporting and disclosure requirements that a plaintiff does not need to demonstrate harm in a civil enforcement action. See Gillis v. Hoechst Celanese Corp. et al., 4 F.3d 1137, 1148 (3d Cir.1993). The Third Circuit based its decision upon the Supreme Court’s statement that “‘Congress’ purpose in enacting the ERISA disclosure provisions [was to] ensure] that the individual participant knows exactly where he stands with respect to the plan.”’ Id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 118, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (internal quotations omitted)). In turn, this Court finds that Chenoweth does not need to demonstrate harm in bringing this civil enforcement action under COBRA. The purpose behind the COBRA notice provisions is to ensure that qualified beneficiaries like Chenoweth are fully informed of their rights and have an opportunity to elect continued coverage if they so choose. See Mansfield v. Chicago Park Dist. Group Plan, 997 F.Supp. 1053, 1057(N.D.Ill.1998) (“Congress not only wanted employees to have the option" }, { "docid": "6326742", "title": "", "text": "of continuous medical coverage; it also insisted that employees be fully informed of their options when their coverage ends.”) Because Chenoweth was not fully informed of her rights and was not able to elect continued coverage under COBRA, this Court GRANTS Chenoweth’s motion for partial summary judgment and DENIES Wal-Mart’s motion for summary judgment on the COBRA claim. The remaining issue to be determined is the amount of recovery Chenow-eth should receive. The civil enforcement statute provides that “the court may in its discretion order such other relief as it deems proper.” 29 U.S.C. § 1132(c)(3). Courts have interpreted “other relief’ as an award of medical expenses minus deductibles and premiums. See Jones v. Officemax, Inc., 38 F.Supp.2d 957, 960 (D.Utah 1999). This Court deems such an award proper in this case. Therefore, Wal-Mart is liable to Chenoweth for her medical bills, less applicable deductibles and premium fees, that she incurred from the date of the qualifying event, her termination on June 8, 1999, to February 11, 2000, the date she was finally notified of her COBRA rights. The civil enforcement statute also provides for an award of attorney’s fees and costs. Specifically, 29 U.S.C. § 1132(g) states that “the court in its discretion may allow reasonable attorney’s fee and costs of the action to either party.” Recognizing that the statute provides unbridled discretion in awarding attorney’s fees, the Sixth Circuit urges district courts to “confine discretion within reasonable bounds.” Armistead v. Vernitron Corp., 944 F.2d 1287, 1303 (6th Cir.1991). For example, the Sixth Circuit stated that, the courts may take into consideration any of the legitimate, relevant purposes for which fee-shifting has been permitted or proposed, including punishing bad faith litigants, providing the plaintiff with complete relief in appropriate cases, preventing the unjust enrich-ments of those who benefit from suc cessful litigation, or removing deterrents to meritorious litigation by reducing the disparity between the resources available to the parties. Id. In addition, the Sixth Circuit declared that the factors set forth in Secretary of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985), are also instructive. In" }, { "docid": "9935444", "title": "", "text": "coverage he obtains”); Lutheran Hosp. of Indiana, Inc. v. Business Men’s Assur. Co. of America, 51 F.3d 1308, 1315 (7th Cir.1995) (an employee is “only allowed to preserve the level of coverage she determined was appropriate before her termination and was willing to pay to continue afterward”). Plaintiff does not respond to this argument. When COBRA violations result in the loss of a qualified beneficiary’s insurance coverage, courts have interpreted ERISA’s civil enforcement statute as entitling the qualified beneficiary to compensatory damages in an amount equal to medical expenses minus deductibles and premiums that the beneficiary would have had to pay for COBRA coverage. See Fisher v. Trutech, Inc., 2006 WL 3791977, at *3 (M.D.Ga.2006); Chenoweth v. Wal-Mart Stores, Inc., 159 F.Supp.2d 1032, 1042 (S.D.Ohio 2001); Hamilton v. Mecca, Inc., 930 F.Supp. 1540, 1555 n. 24 (S.D.Ga.1996). Because the total of the monthly premiums exceeds Hickman’s claimed medical expenses, Hickman is not entitled to compensatory damages consisting of unpaid medical expenses. In this respect, Defendant’s Damages Motion [Doc. #48] is granted and Plaintiffs Motion [Doc. # 43] is denied. 4. Recovery of Attorney’s Fees for COBRA Violation Hickman seeks recovery of $13,612.50 in attorneys’ fees for work on her COBRA claim. DPH opposes this relief. The Court in its discretion may award attorneys’ fees to a plaintiff that prevails on an ERISA claim, including on a claim of a COBRA violation. See 29 U.S.C. § 1132(g); Wegner v. Standard Ins. Co., 129 F.3d 814, 820-821 (5th Cir.1997); Sims v. Greal-West Life Assur. Co., 941 F.2d 368, 373 (5th Cir.1991). The Fifth Circuit suggests that the district court consider five factors in its analysis: (1) the degree- of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys’ fees; (3) whether an award of attorneys’ fees against the opposing party would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits" }, { "docid": "9935442", "title": "", "text": "a lump sum. However, this excuse is unpersuasive to show prejudice, given that in early January 2006, she was told by Aetna that she should call DPH regarding continuation of her health benefits and Hickman provides no reason why she did not then do so. It is also significant that Hickman’s medical bills for the 18 months COBRA would have covered are less than the COBRA premiums she would have owed. Hickman also does not establish she sought any other payment plan for the arrearage. Hickman does not make clear that she would have purchased the COBRA coverage had she timely been told of the details she learned belatedly. Under all these circumstances, the Court is unpersuaded that DPH’s violation caused Hickman a level of prejudice sufficient to warrant imposition of a penalty. The Court recognizes that the purpose of the ERISA civil enforcement provisions is to put plaintiffs in the same position they would have been absent the violations. However, here, Hickman made conscious and possibly strategic decisions not to seek the coverage in January 2006 at a time when the problem easily could have been addressed. Hickman’s decision was a not insignificant cause of the alleged prejudice from the violation. The Court exercises its discretion to decline to award any penalty to Hickman for the COBRA notice violation in issue. Plaintiffs Motion [Doc. # 43] on her request for penalties on her COBRA notice claim is denied and Defendant’s Damages Motion [Doc. # 48] as to COBRA penalties is granted.. 3. Recovery of Medical Expenses Hickman seeks recovery of $7,738.28 in medical bills that she states were not covered by insurance due to DPH’s COBRA violation. DPH counters that the total amount of monthly premiums owed by Hickman (regardless of when notice was given) for the 18 months of COBRA coverage was $7,819.02 (at the rate of $434.39 that DPH contends applies), which sum exceeds the $7,738.28 in medical expenses claimed by Hickman. See Geissal v. Moore Medical Corp., 524 U.S. 74, 84, 118 S.Ct. 1869, 141 L.Ed.2d 64 (1998) (“the beneficiary has to pay for whatever COBRA" }, { "docid": "9707166", "title": "", "text": "in which a probationary employee was determined to be a poor risk as far as dependability was concerned. C. COBRA Thomas argues that Hammonton failed to comply with COBRA’s notification requirements set forth in the Public Health Services Act (“PHSA”), 42 U.S.C. § 300bb-6(4). COBRA amended, inter alia, both the PHSA and the Employee Retirement Income Security Act (“ERISA”) with similar notification and continued coverage provisions. The COBRA provisions in the PHSA and ERISA represent parallel statutory schemes. However, ERISA excludes public employees covered by governmental employee benefit plans, 29 U.S.C. § 1003(b)(1), while the PHSA applies only to such employees. See Brett v. Jefferson County, Ga., 123 F.3d 1429, 1434-35 (11th Cir.1997). In addition, the relief available under ERISA for violations of COBRA notification requirements is broader than the relief available under the PHSA for the same violations. Both the PHSA and ERISA allow a beneficiary to bring an action for “appropriate equitable relief’ to redress ERISA and PHSA violations such as the failure of a plan to provide proper COBRA notice. 29 U.S.C. § 1132(a)(3) (ERISA); 42 U.S.C. § 300bb-7 (PHSA). However, unlike the PHSA, ERISA specifically provides for fines and attorney’s fees. See 29 U.S.C. § 1132(c) and (g). Section 300bb-6(4) of the PHSA requires a plan administrator to provide a beneficiary notice of his or her COBRA rights upon the happening of a qualifying event. 42 U.S.C. § 300bb-6(4). Termination of employment is a qualifying event. Id. § 300bb-3(2). COBRA provides that a terminated employee shall have 60 days to elect continuation coverage and that a plan may not require a premium to be paid sooner than 45 days after the day on which a beneficiary elects such coverage. See 42 U.S.C. §§ 300bb-5(a) and 300bb-2(3). The notice provided to Thomas on June 29, 2000 stated, [B]e advised your health coverage will be terminated effective 7/1/00. I have enclosed for your convenience a COBRA form. If you are interested in continuing your health benefits through COBRA, please return this form to my office as soon as possible together with the monthly payment of $480.82 made payable" }, { "docid": "9707167", "title": "", "text": "§ 1132(a)(3) (ERISA); 42 U.S.C. § 300bb-7 (PHSA). However, unlike the PHSA, ERISA specifically provides for fines and attorney’s fees. See 29 U.S.C. § 1132(c) and (g). Section 300bb-6(4) of the PHSA requires a plan administrator to provide a beneficiary notice of his or her COBRA rights upon the happening of a qualifying event. 42 U.S.C. § 300bb-6(4). Termination of employment is a qualifying event. Id. § 300bb-3(2). COBRA provides that a terminated employee shall have 60 days to elect continuation coverage and that a plan may not require a premium to be paid sooner than 45 days after the day on which a beneficiary elects such coverage. See 42 U.S.C. §§ 300bb-5(a) and 300bb-2(3). The notice provided to Thomas on June 29, 2000 stated, [B]e advised your health coverage will be terminated effective 7/1/00. I have enclosed for your convenience a COBRA form. If you are interested in continuing your health benefits through COBRA, please return this form to my office as soon as possible together with the monthly payment of $480.82 made payable to the Town of Hammonton. Appellant’s App: at 26. We, along with other courts, have required employers to operate in “good faith” compliance with a reasonable interpretation of the notification provisions of COBRA. See Williams v. New Castle County, 970 F.2d 1260, 1265 (3d Cir.1992); see also, e.g., Degruise v. Sprint Corp., 279 F.3d 333, 336 (5th Cir.2002) (“employers are required to operate in good faith compliance with a reasonable interpretation of what adequate notice entails”) (internal quotations omitted); Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1383-84 (10th Cir.1997) (same). While COBRA notice givers are thus not held to literal compliance with the statute, we agree with the District Court that Thomas received improper notice of her COBRA rights because Hammonton failed to “properly detail her right to have up to 60 days to elect to continue her coverage and another 45 days from then to make payment.” District Court Op. at 20. Hammonton required Thomas to elect coverage and pay her premium “as soon as possible.” This was in direct conflict with COBRA." }, { "docid": "19842398", "title": "", "text": "Benefits Plaintiffs allege that Aveo denied Sehlett continued medical insurance benefits in violation of ERISA and COBRA. Defendants deny that the denial of continued medical insurance benefits violated ERISA or COBRA. They allege that Sehlett was ineligible for the continuing benefits she applied for because she was covered under her husband’s health insurance. 1. Extent of Right to Continued Coverage The coverage issue raised by the parties appears to be a question of first impression in this Circuit. ERISA, as amended by COBRA, requires employers to offer beneficiaries of their health plans the right to elect continued coverage, when those benefits would otherwise be lost because of termination or reduction of hours. 29 U.S.C. §§ 1161, 1163(2). The beneficiary’s right to continue that coverage ends on the date on which he or she “first becomes, after the date of election, covered under any other group health plan ... Svhich does not contain any exclusion or limitation with respect to any preexisting condition of such beneficiary.’ ” 29 U.S.C. § 1162(2)(D). The Sixth Circuit has never addressed the issue of whether the statutory language authorizes an employer to withhold continuation coverage when the departing employee has dual coverage under her spouse’s health insurance plan throughout her employment and therefore has a continuing source of coverage when she becomes ineligible for benefits. Other Circuit Courts have come to different conclusions on that issue. The Tenth Circuit first addressed the dual coverage issue in Oakley v. City of Longmont, 890 F.2d 1128 (10th Cir.1989), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990). The statute under which Oakley was decided stated that continuation coverage ended on the date on which “the qualified employee first becomes, after the date of election, covered under any other group health plan.” 42 U.S.C. § 300bb-2(2)(D)(i) (1988). Oakley suffered a permanent head injury in an automobile collision with a drunk driver, and was subsequently terminated because of his inability to return to work. At the time of' Oakley’s termination, he was covered both by his employer’s health plan and as a dependent under his wife’s" }, { "docid": "9935443", "title": "", "text": "January 2006 at a time when the problem easily could have been addressed. Hickman’s decision was a not insignificant cause of the alleged prejudice from the violation. The Court exercises its discretion to decline to award any penalty to Hickman for the COBRA notice violation in issue. Plaintiffs Motion [Doc. # 43] on her request for penalties on her COBRA notice claim is denied and Defendant’s Damages Motion [Doc. # 48] as to COBRA penalties is granted.. 3. Recovery of Medical Expenses Hickman seeks recovery of $7,738.28 in medical bills that she states were not covered by insurance due to DPH’s COBRA violation. DPH counters that the total amount of monthly premiums owed by Hickman (regardless of when notice was given) for the 18 months of COBRA coverage was $7,819.02 (at the rate of $434.39 that DPH contends applies), which sum exceeds the $7,738.28 in medical expenses claimed by Hickman. See Geissal v. Moore Medical Corp., 524 U.S. 74, 84, 118 S.Ct. 1869, 141 L.Ed.2d 64 (1998) (“the beneficiary has to pay for whatever COBRA coverage he obtains”); Lutheran Hosp. of Indiana, Inc. v. Business Men’s Assur. Co. of America, 51 F.3d 1308, 1315 (7th Cir.1995) (an employee is “only allowed to preserve the level of coverage she determined was appropriate before her termination and was willing to pay to continue afterward”). Plaintiff does not respond to this argument. When COBRA violations result in the loss of a qualified beneficiary’s insurance coverage, courts have interpreted ERISA’s civil enforcement statute as entitling the qualified beneficiary to compensatory damages in an amount equal to medical expenses minus deductibles and premiums that the beneficiary would have had to pay for COBRA coverage. See Fisher v. Trutech, Inc., 2006 WL 3791977, at *3 (M.D.Ga.2006); Chenoweth v. Wal-Mart Stores, Inc., 159 F.Supp.2d 1032, 1042 (S.D.Ohio 2001); Hamilton v. Mecca, Inc., 930 F.Supp. 1540, 1555 n. 24 (S.D.Ga.1996). Because the total of the monthly premiums exceeds Hickman’s claimed medical expenses, Hickman is not entitled to compensatory damages consisting of unpaid medical expenses. In this respect, Defendant’s Damages Motion [Doc. #48] is granted and Plaintiffs Motion [Doc." }, { "docid": "9935435", "title": "", "text": "of the health plan, the employer must give detailed written notice of the availability of COBRA benefits within 44 days after the date of the qualifying event, which includes termination other than for gross misconduct. See 29 C.F.R. § 2590.606-4(b) ; Roberts v. National Health Corp., 963 F.Supp. 512, 515 (D.S.C.1997) (“Granting an employer/administrator forty-four days [from the date of the qualifying event] to deliver the COBRA notice will not harm the employee, because, were an employee to choose continuation coverage, the first premium would apply retroactively to provide continuous coverage from the date of the qualifying event.”). “The notice must be sufficient to permit the discharged employee to make an informed decision whether to elect coverage.” Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1230 (11th Cir.2002) (citing Meadows v. Cagle’s, Inc., 954 F.2d 686, 692 (11th Cir.1992)). After notification, qualified beneficiaries have 60 days to elect continuation coverage. Id. § 1165(1); see Geissal, 524 U.S. at 80, 118 S.Ct. 1869. If a qualified beneficiary makes a COBRA election, continuation coverage dates from the qualifying event, and when the event is termination or reduced hours, the maximum period of coverage is generally 18 months. 29 U.S.C. § 1162(2)(A). “The beneficiary who makes the election must pay for what he gets, however, up to 102 percent of the “applicable premium” for the first 18 months of continuation coverage, and up to 150 percent thereafter.” Id. § 1162(3). The “applicable premium” is usually the cost to the plan of providing continuation coverage, regardless of who usually pays for the insurance benefit. Id. § 1164. DPH concedes that, as a matter of law, it is the plan administrator for its employees. Furthermore, the parties agree that Hickman’s separation from DPH was a qualifying event, that she was not terminated for “gross misconduct,” and that she was entitled COBRA benefits, if she elected to receive them. Therefore, DPH was obligated to provide Hickman with detailed written notice of the availability of COBRA benefits within 44 days of the separation, that is, by January 29, 2006, at the latest. There is no evidence" }, { "docid": "6326741", "title": "", "text": "Circuit declared in an analogous case involving ERISA’s reporting and disclosure requirements that a plaintiff does not need to demonstrate harm in a civil enforcement action. See Gillis v. Hoechst Celanese Corp. et al., 4 F.3d 1137, 1148 (3d Cir.1993). The Third Circuit based its decision upon the Supreme Court’s statement that “‘Congress’ purpose in enacting the ERISA disclosure provisions [was to] ensure] that the individual participant knows exactly where he stands with respect to the plan.”’ Id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 118, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (internal quotations omitted)). In turn, this Court finds that Chenoweth does not need to demonstrate harm in bringing this civil enforcement action under COBRA. The purpose behind the COBRA notice provisions is to ensure that qualified beneficiaries like Chenoweth are fully informed of their rights and have an opportunity to elect continued coverage if they so choose. See Mansfield v. Chicago Park Dist. Group Plan, 997 F.Supp. 1053, 1057(N.D.Ill.1998) (“Congress not only wanted employees to have the option of continuous medical coverage; it also insisted that employees be fully informed of their options when their coverage ends.”) Because Chenoweth was not fully informed of her rights and was not able to elect continued coverage under COBRA, this Court GRANTS Chenoweth’s motion for partial summary judgment and DENIES Wal-Mart’s motion for summary judgment on the COBRA claim. The remaining issue to be determined is the amount of recovery Chenow-eth should receive. The civil enforcement statute provides that “the court may in its discretion order such other relief as it deems proper.” 29 U.S.C. § 1132(c)(3). Courts have interpreted “other relief’ as an award of medical expenses minus deductibles and premiums. See Jones v. Officemax, Inc., 38 F.Supp.2d 957, 960 (D.Utah 1999). This Court deems such an award proper in this case. Therefore, Wal-Mart is liable to Chenoweth for her medical bills, less applicable deductibles and premium fees, that she incurred from the date of the qualifying event, her termination on June 8, 1999, to February 11, 2000, the date she was finally notified of" }, { "docid": "6487979", "title": "", "text": "rejected such an argument. COBRA does not say “that a beneficiary’s rights terminate when he or she becomes eligible for additional or alternative group health insurance.” (emphasis added). Id. at 1312. “[A]n employee loses the right to continuation coverage only if he or she chooses after the election date to accept coverage under another group health plan.” Id. The UAWs statements indicate that strikers who elected COBRA are merely eligible for UAW health coverage and have not become covered under the UAW plan. Plaintiffs argue that the element of employee choice critical to the analysis in Lutheran is lacking in this case. However, no evidence in the record suggests that the UAW forced or coerced strikers to elect COBRA. See Affidavit of Sal Menchaca, Director of the UAW Strike Assistance Department, at ¶ 9 (stating that “[n]o striker was forced to elect the COBRA option.”). Plaintiffs assert that the UAW, not the strikers, made the real economic decision with respect to continuation coverage because the UAW agreed to pay all the COBRA premiums. Plaintiffs maintain that the UAW manipulated COBRA to reduce its own financial exposure and shifted the cost of strikers at risk of incurring significant medical expenses to CAT while covering the healthier strikers under the UAW Plan. Congress clearly anticipated that employees with histories of significant medical claims would be more likely to elect COBRA and continue coverage with the former employer or former plan, and nothing in ERISA or COBRA prevents a third party from advising employees on whether to elect COBRA based on their medical histories. What remains unresolved are issues related to a group of strikers who elected COBRA but had some of their medical claims, mostly prescription bills, paid by the UAW. Plaintiffs argue that when the UAW paid these medical bills, the strikers became covered under another group health plan and that CAT was entitled to cancel their COBRA coverage. The parties are currently exchanging information and conducting discovery regarding the UAWs payment of medical bills for strikers who elected COBRA. After the parties finish discovery on this issue, the Court will" }, { "docid": "9935432", "title": "", "text": "offer her continuation of her health insurance benefits on a timely basis, as required by the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), 29 U.S.C. § 1161 et seq., a part of ERISA. Hickman contends that DPH improperly delegated to a third party (InfiniSource, Inc.) the responsibility to provide notice of COBRA benefits, and that DPH (and its designee) failed to give post-employment notice to her within the 44-day time period provided by law. Hickman further claims that her benefits were discontinued and that she incurred medical bills that should have been covered by her health insurance plan. Hickman characterizes the company’s conduct as “bad faith” and seeks to recover civil penalties, reimbursement for her and her son’s medical bills, and her attorneys’ fees associated with this claim. DPH responds that (i) it complied with the COBRA notice provisions in good faith; (ii) if it did not comply, the Court should exercise its discretion to find that Hickman is not entitled to any recovery of penalties; (iii) in any event, Hickman cannot recover her medical expenses based on the summary judgment evidence, and (iv) the Court should exercise its discretion to deny Hickman recovery of attorneys’ fees. The uncontradicted evidence of record establishes that DPH told Hickman generally about her entitlement to COBRA coverage, but did not give her the detailed notice required by federal regulations until July 3, 2006, 199 days after her employment with Defendant ceased. 1. COBRA Notice Violation COBRA was enacted “to provide employees with an opportunity to continue to receive group health insurance after the occurrence of a ‘qualifying event.’ ” Myers v. King’s Daughters Clinic, 912 F.Supp. 233, 237 (W.D.Tex.1996), aff'd, 96 F.3d 1445 (5th Cir.1996). Therefore, COBRA “require[s] an employer who sponsors a group health plan to give the plan’s ‘qualified beneficiaries’ the opportunity to elect ‘continuation coverage’ under the plan when the beneficiaries might otherwise lose coverage upon the occurrence of certain ‘qualifying events,’ including the death of the covered employee, the termination of the covered employee’s employment (except in cases of gross misconduct), and divorce or legal separation from the covered" } ]

[ { "docid": "3624934", "title": "", "text": "above cited and quoted, is cited as authority. In Re Smith (D. C.) 3 Am. Bankr. Rep. 95, 100 Fed. 795, the bankrupt was actually in possession of the property as agent of his wife, but the bankruptcy court directed the property turned over to the trustee, subject to the right of the wife in that court to establish her title. In O’Dell v. Boyden, 150 Fed. 731, 80 C. C. A. 397, 10 Ann. Cas. 239, 17 Am. Bankr. Rep. 756, the question was as to the actual possession of a seat or membership in a Stock Exchange, and whether or not it was such possession as gave the bankruptcy court exclusive jurisdiction to determine questions of lien, etc. The court said: “The ‘seat’ or ‘membership’ continued to be the ‘seat’ of Henrotin, and was a pecuniary asset which passed to his trustee. It was as much in his custody and possession as such a species of property is capable of. To deny the trustee’s possession would be to deny the capability of possession of a chose in action or other incorporeal right or equity. The possession may be constructive, and not manual; but it is only so because such property is not capable of a more tangible custody. Only through a court of equity can the pecuniary value of such an asset be realized to creditors or assignees. Only by decree in personam compelling the bankrupt member can such a transfer of membership be effectuated as will put the buyer in the place of Henrotin as a member. Over him for that purpose the bankrupt court has exclusive control, and in this sense, also, may it be said that the ‘seat’ or ‘membership’ was in custodia legis when the trustee sought the aid of the court to adjudicate the claims and liens asserted by O’Dell.” Is or is not the possession of the books of account, orders, correspondence, hills, etc., made out by the bankrupt and passing, to the trustee the necessary “constructive possession”? When this court is informed as to what the property consists of, the evidence" } ]

[ { "docid": "10832267", "title": "", "text": "the accounts in the sense of dominion and control remains with the assignor, and upon his bankruptcy the summary jurisdiction of the bankruptcy court may be invoked to decide the rights of the trustee in bankruptcy and the assignee. In re Gottlieb & Co. (D. C.) 245 F. 139, affirmed in (C. C. A.) 257 F. 72; In re Borok, supra. See, also, In re Wegman Piano Co. (D. C.) 228 F. 60, 65; Street v. Pacific Indemnity Co. (C. C. A.) 61 F.(2d) 106. I cannot see that it matters that the assignor’s control of the accounts is said to be as agent for the assignee. Compare Hebert v. Crawford, supra; In re Moody (D. C.) 131 F. 525, Where, however, the assignee has notified the debtors of the assignment and has taken complete charge of collections prior to the assignor’s bankruptcy, possession may be said to have passed to the assignee and summary proceedings will not lie. Copeland v. Martin (C. C. A.) 182 F. 805; In re Paramount Fireproof Door Co, (D. C.) 43 F.(2d) 558. It is the situation at the time of the filing of the petition in bankruptcy that is determinative. Activities on the part of the assignee thereafter cannot deprive the bankruptcy court of a jurisdiction that has once attached. See Whitney v. Wenman, 198 U. S. 539, 25 S. Ct. 778, 49 L. Ed. 1157; May v. Henderson, 268 U. S. Ill, 45 S. Ct. 456, 69 L. Ed. 870. In the case at bar, the bankrupt continued to collect the assigned accounts, and no notice of the assignment was given to debtors. These features are to some extent indicative of possession remaining with the bankrupt. On the other hand, the ledger sheets and memoranda evidencing the accounts were deposited with the assignee and were retained by him. Such deposit was as near to a delivery of the accounts themselves as the circumstances permitted, and put the assignee in actual control of the accounts. This is an element that was lacking in the Borok Case and in the Gottlieb Case, and in" }, { "docid": "13446566", "title": "", "text": "SWAN, Circuit Judge (after stating the facts as abo've). The order appealed from permits the trustee to recover from an adverse claimant three classes of property: (1) Uncollected accounts receivable assigned to Mayerson prior to the bankruptcy petition as security for a loan; (2) moneys collected by Mayer-son on assigned accounts after the bankruptcy petition was filed; and (3) moneys, including the proceeds of checks of the bankrupt’s customers, which were delivered to Mayerson the day before the petition was filed. The chief question presented is whether the court had jurisdiction to grant such relief in summary proceedings. It is argued by the trustee that, despite the assignment, all accounts outstanding on the date of the petition remained in the “possession” of the bankrupt and so fall within the doctrine of property in custodia legis, as to which the bankruptcy court has summary power. One cannot speak of “possession” of a chose in action in the same sense as of tangibles; but if such terminology is to be used it would seem that the bankrupt was as much in “possession” of the assigned accounts as he could be of any chose in action. He had the right to collect from the debtors and to use the proceeds as he saw fit. The debtors had received no notification of the assignment; and Mayerson, though the agreement declared him to be irrevocably constituted the assignor’s attorney for collection, was not to use this power unless the assignor was in default under the agreement, and there is no suggestion that default had occurred prior to the filing of the petition. Under such circumstances we believe that the bankruptcy court has power to determine summarily the respective rights of the trustee and the assignee in respect to the assigned accounts outstanding at the date of the petition. So it was held by Judge Rellstab in In re Gottlieb & Co., 245 F. 139, 146 (D. C. N. J.), affirmed in 257 F. 72 (C. C. A. 3), without reference to this point. That it is possible for a bankrupt to have “possession” of intangible" }, { "docid": "13446567", "title": "", "text": "was as much in “possession” of the assigned accounts as he could be of any chose in action. He had the right to collect from the debtors and to use the proceeds as he saw fit. The debtors had received no notification of the assignment; and Mayerson, though the agreement declared him to be irrevocably constituted the assignor’s attorney for collection, was not to use this power unless the assignor was in default under the agreement, and there is no suggestion that default had occurred prior to the filing of the petition. Under such circumstances we believe that the bankruptcy court has power to determine summarily the respective rights of the trustee and the assignee in respect to the assigned accounts outstanding at the date of the petition. So it was held by Judge Rellstab in In re Gottlieb & Co., 245 F. 139, 146 (D. C. N. J.), affirmed in 257 F. 72 (C. C. A. 3), without reference to this point. That it is possible for a bankrupt to have “possession” of intangible property in such sense as to give the bankruptcy court summary jurisdiction over adverse claims, appears from numerous eases. Chicago Board of Trade v. Johnson, 264 U. S. 1, 44 S. Ct. 232, 68 L. Ed. 533; O’Dell v. Boyden, 150 F. 731, 10 Ann. Cas. 239 (C. C. A. 6); In re Ransford, 194 F. 658 (C. C. A. 6); Orinoco Iron Co. v. Metzel, 230 F. 40 (C. C. A. 6); In re Roman, 23 F.(2d) 556, 558 (C. C. A. 2). It is trc e that in Chicago Board of Trade v. Johnson, the Chief Justice said, at page 12 of 264 U. S., 44 S. Ct. 232, 234, of his opinion : “Membership on the Board of Trade is different from a mere chose in action, like a simple claim or debt asserted against another, and only to be enjoyed after its satisfaction or enforcement. It is a continuously enjoyed ‘incorporeal right.’ ” There is an implication in these words that one cannot properly be said to be in possession of" }, { "docid": "11389739", "title": "", "text": "the assignee of the accounts under an assignment before bankruptcy, which was given as security for a loan not then in default and which gave the assignor the right to collect and apply the accounts to his general purposes; the debtor not having been notified of the assignment. It was clear under that assignment that, as between the as-signee and the assignor, the bankrupt, the latter had complete dominion over the accounts at the time of bankruptcy and that dominion passed to the bankruptcy court, which thus obtained possession of the accounts as against the assignee. But the instant ease is somewhat different, for a question is presented whether the State as a debtor held the debt only for the bankrupt, at the time the petition was filed, and whether as between the appel-lees and the bankrupt the latter completely possessed and controlled the debt. As stated, tho lien of Schlott was not filed before the petition in bankruptcy, and it does not appear, except in tho statement contained in the brief, when the assignment was made to the bank. The provisions of the New York Lien Law concerning contracts for public improvements provide a complete plan for the protection of lienors. The creation, filing, duration, discharge, priority, and enforcement of liens are all provided for by sections 5, 12, 19, 21, 24, 25, 42, 60. Section 12 states that the lien may he filed with the fiscal officer charged with the custody and disbursement of tbe funds applicable to the contract. Section 60 provides for suit to determine the validity of tho liens. These provisions disclose that the Lien Law contemplates that after notice of the lien, the state holds the debt for the benefit of those entitled thereto. Since when the petition was filed, so far as the record discloses, no lien was asserted, the bankruptcy court’s right of constructive possession may not be questioned. The bankruptcy court has jurisdiction to determine the validity of liens and of necessity tho sole jurisdiction after possession of the property passes to the trustee. Isaacs v. Hobbs Tie & Timber Co.," }, { "docid": "13446571", "title": "", "text": "views we have expressed. Having found that the bankruptcy court had jurisdiction to determine claims to the accounts outstanding on the date of the peti tion in bankruptcy, we pass to the validity of the assignment to Mayerson. Under the doctrine of Benedict v. Ratner, 268 U. S. 353, 45 S. Ct. 566, 69 L. Ed. 991, the assignment was void and ineffective to create a lien on the accounts receivable. There is no dispute that the assignor retained complete dominion over them. It is argued that he was obligated to substitute new accounts for those collected, but neither the terms of the agreement nor the conduct of the parties bear out any such contention. It is futile to talk of substitution where the assignor had agreed to assign, and did assign weekly, all newly created accounts without regard to how much he had collected on those previously assigned. Hence the order appealed is correct in so far as it requires the appellants to turn over to the trustee the uncollected assigned accounts and to account for moneys collected subsequent to the filing of the bankruptcy petition. But the ease is otherwise as to moneys (including proceeds of -customers’ cheeks) paid to Mayerson by Borok. The latter had no possession of these when the petition was filed. The accounts as ehoses in action had ceased to exist, and the money into which they had been converted was held by an adverse claimant. Hence there was no summary jurisdiction unless Mayerson’s claim was no more than colorable. In re Gottlieb & Co., supra; Harrison v. Chamberlin, 271 U. S. 191, 46 S. Ct. 467, 70 L. Ed. 897; In re Dailey, 255 F. 529 (C. C. A. 2). Whether the money turned over by Borok was intended as a partial payment on the notes, which were not yet due, or as a delivery of security in substitution for the collected accounts does not appear; nor would it seem to matter. In either case the sum would be recoverable only if the payment were a voidable preference or a fraudulent transfer. There" }, { "docid": "13446570", "title": "", "text": "much as in the other. So the bankruptcy court may draw to itself the summary determination of which claimant is the proper ob-ligee of the chose in action. This we suggested, though it was not decided, in Re Roman, supra. The case of Copeland v. Martin, 182 F. 805 (C. C. A. 5) might, at first sight, appear to be opposed to this conclusion; but it differs in important respects. It involved an outright assignment rather than one'for security, the debtor had been notified of the assignment, and no right to collect was' reserved to the assignor. It would seem that complete title and “possession” of the chose in action had been transferred to the as-signee before the bankruptcy. In re Paramount Fireproof Door Co., 43 F.(2d) 558 (D. C. E. D. N. Y.), relied upon by the appellant, was also a case where the debtor had been notified of the assignment, and apparently the assignor had not retained the right to collect for his own use. These cases are not, therefore, inconsistent with the views we have expressed. Having found that the bankruptcy court had jurisdiction to determine claims to the accounts outstanding on the date of the peti tion in bankruptcy, we pass to the validity of the assignment to Mayerson. Under the doctrine of Benedict v. Ratner, 268 U. S. 353, 45 S. Ct. 566, 69 L. Ed. 991, the assignment was void and ineffective to create a lien on the accounts receivable. There is no dispute that the assignor retained complete dominion over them. It is argued that he was obligated to substitute new accounts for those collected, but neither the terms of the agreement nor the conduct of the parties bear out any such contention. It is futile to talk of substitution where the assignor had agreed to assign, and did assign weekly, all newly created accounts without regard to how much he had collected on those previously assigned. Hence the order appealed is correct in so far as it requires the appellants to turn over to the trustee the uncollected assigned accounts and to" }, { "docid": "10832268", "title": "", "text": "C.) 43 F.(2d) 558. It is the situation at the time of the filing of the petition in bankruptcy that is determinative. Activities on the part of the assignee thereafter cannot deprive the bankruptcy court of a jurisdiction that has once attached. See Whitney v. Wenman, 198 U. S. 539, 25 S. Ct. 778, 49 L. Ed. 1157; May v. Henderson, 268 U. S. Ill, 45 S. Ct. 456, 69 L. Ed. 870. In the case at bar, the bankrupt continued to collect the assigned accounts, and no notice of the assignment was given to debtors. These features are to some extent indicative of possession remaining with the bankrupt. On the other hand, the ledger sheets and memoranda evidencing the accounts were deposited with the assignee and were retained by him. Such deposit was as near to a delivery of the accounts themselves as the circumstances permitted, and put the assignee in actual control of the accounts. This is an element that was lacking in the Borok Case and in the Gottlieb Case, and in my opinion it differentiates the present ease from them. In addition, it is to be noted that the assignor had no right to use the money collected, but had to deposit such sums to the account of the assignee. While the case is a close one, I am of opinion that possession of the accounts was with the assignee. It follows that the bankruptcy court has not summary jurisdiction over the assigned accounts. The decision of the referee was right, and the petition for review will be dismissed." }, { "docid": "10832266", "title": "", "text": "bank’s books, despite the fact that others have legal or equitable claims to the “money,” In re Ransford (C. C. A.) 194 F. 658; In re Zimmermann (C. C. A.) 66 F.(2d) 397. The possession of a stock exchange seat, so far as the jurisdiction of bankruptcy courts is concerned, is held to follow the person recognized by the exchange as the member, irrespective of assignments or claims in favor of others. Board of Trade of City of Chicago v. Johnson, supra; O’Dell v. Boyden (C. C. A.) 150 F. 731, 10 Ann. Cas. 239; In re Hoey (C. C. A.) 290 F. 116. In the case of book accounts and similar claims covered by an assignment as collateral security for a debt, a common practice is for the assignor to keep the books and papers representing the accounts and to attend to collections; no notification of the assignment being given to the debtors. The part played by the assignee prior to troubles of the assignor is a passive one. Under such conditions, possession of the accounts in the sense of dominion and control remains with the assignor, and upon his bankruptcy the summary jurisdiction of the bankruptcy court may be invoked to decide the rights of the trustee in bankruptcy and the assignee. In re Gottlieb & Co. (D. C.) 245 F. 139, affirmed in (C. C. A.) 257 F. 72; In re Borok, supra. See, also, In re Wegman Piano Co. (D. C.) 228 F. 60, 65; Street v. Pacific Indemnity Co. (C. C. A.) 61 F.(2d) 106. I cannot see that it matters that the assignor’s control of the accounts is said to be as agent for the assignee. Compare Hebert v. Crawford, supra; In re Moody (D. C.) 131 F. 525, Where, however, the assignee has notified the debtors of the assignment and has taken complete charge of collections prior to the assignor’s bankruptcy, possession may be said to have passed to the assignee and summary proceedings will not lie. Copeland v. Martin (C. C. A.) 182 F. 805; In re Paramount Fireproof Door Co, (D." }, { "docid": "15468079", "title": "", "text": "the intervention of the fourth creditor made it good. As to (1) it is not necessary that an involuntary petition show on its face that tire petitioners were creditors at the time of the act of bankruptcy alleged. The proceedings date from the filing of the petition, and, prima facie at least, it is sufficient if a petitioner is alleged to be a creditor on that date. In re Lewis F. Perry & Whitney Co. (D. C.) 172 Fed. 752, affirmed 175 Fed. 52, 99 C. C. A. 68; Emerine v. Tarault, 219 Fed. 68, 70, 134 C. C. A. 606 (C. C. A. 6th Cir.); In re Kehoe, 36 Am. Bankr. Rep. 891 (C. C. A. 2d Cir.); In re Van Horn, 41 Am. Bankr. Rep. 12 (C. C. A. 3d), directly in point. Fine’s assignor was a creditor at the time of the act of bankruptcy, and, if it had retained its claim, was in no way disqualified, so far as appears, from joining as a petitioner. In this respect the present case is very different from In re Lewis F. Perry & Whitney Co., supra, relied oil by the respondent. I am aware of no decisions in which it has been held that an assignee has less lights in this respect than his assignor, except in cases where the assignment was taken as part of an unlawful or oppressive scheme. Leighton v. Kennedy, 129 Fed. 737, 64 C. C. A. 265. There was no requirement of law that a copy of the assignment should lie annexed to the petition. The petition was, in my opinion, good as originally filed. Certainly it was not so obviously insufficient on its face that it would not furnish a foundation for subsequent intervention by the other creditor. Motion to dismiss denied." }, { "docid": "11970884", "title": "", "text": "See In re Brockton Ideal Shoe Co., 202 F. 199 (C. C. A. 2). But no objection was raised to the pleading until the petitioner’s ease was closed, and the defect is of no moment after trial if the evidence of possession is sufficient. See 28 USCA § 777. There is substantially no dispute in the testimony as to the facts. About a month prior to the petition in bankruptcy, the corporation made an assignment for the benefit of creditors, and immediately thereafter accountants for the assignee, who subsequently became accountants for the trustee in bankruptcy, went to the assignor’s premises to make an audit of its books and records. It at onco developed that various books and records needed for the audit were missing and could not be located by the assignor’s employees. No explanation whatever was then advanced, or has since been given, as to how or when the particular hooks specified in the order appealed from disappeared. The testimony shows that they were on the premises and used by the corporation’s auditor and bookkeeper shortly before the date of the assignment of March 29, 1932. When property is traced into a bankrupt’s possession shortly before bankruptcy, his failure to produce it or to explain what became of it, supports an inference that it is still subject to his control, and justifies the entry of a turnover order. In re Graning, 2291 F. 3701, Ann. Cas. 1917B, 1094 (C. C. A. 2); In re Magen Co., 10 F.(2d) 91 (C. C. A. 2); In re Cohan, 41 F. (2d) 632 (C. C. A. 3); Reardon v. Pensoneau, 18 F.(2d) 244 (C. C. A. 8). Our recent decision of In re Gordon & Gelberg, 69 F.(2d) 81, does not conflict with these authorities. There an explanation of the disappearance of the books was given. As to- the appellant Milberg, he had, as president of the corporation, access to the books, and it appears that lie alone could have had a motive for concealing them. The three books in question were necessary to enable the auditors to check a financial" }, { "docid": "13309243", "title": "", "text": "assigned accounts as he could be of any chose in action. He had the right to collect from the debtors and to. use the proceeds as he saw fit. The debtors had received no notification of the assignment; and Mayerson, though the agreement declared him to be irrevocably constituted the assignor’s attorney for collection, was not to use this power unless the assignor was in default under the agreement, and there is no suggestion that default had occurred prior to the filing of the petition. Under such circumstances we believe that the bankruptcy court has power to- determine summarily the respective rights of the trustee and the assignee in respect to the assigned accounts outstanding at the date of the petition.” Appellee seeks to distinguish In re Borok, supra, on the ground that the assignment in that case was given to secure the payment of a note. We think it is clear from a reading of the application for the bond, in the case at bar, that the assignment herein relied on by appellée was likewise primarily for security, since only upon certain conditions, ' constituting defaults under the contract, was the assignment to be “in effect from the date- hereof.” No notice of the assignment was given to the county of Alameda prior to the petition, and it is clear that the county was holding this sum for the account of the bankrupt at tbe time the petition was filed. The assignment being for security, and having taken no steps to realize on that security or to reduce it tq possession prior to the filing of the petition, the appellee cannot thereafter secure payment of its debt by taking possession of the security. In May v. Henderson, 268 U. S. 111, 117, 45 S. Ct. 456, 459, 69 L. Ed. 870, it is said: “The several amounts debited to the account, with the assent or connivance of the assignee subsequent to the filing of the petition, fall clearly within the rule that as to properly in the hands of the bankrupt, or held by others for his account ‘the" }, { "docid": "10832264", "title": "", "text": "only on the assignee’s consent. The assignee might terminate the agency at any time and make collections himself. No notice of the assignment was given to the debtors prior to the filing of the petition in bankruptcy. The question upon these facts is whether the bankruptcy court has jurisdiction to adjudicate the rights of the parties in a summary proceeding. This raises the point as to who was in possession of the accounts when the petition in bankruptcy was filed; if the bankrupt, then the possession passed to the trustee, and the rights of the parties in the accounts are determinable by this court in a summary proceeding of the sort brought here; if the assignee, then jurisdiction to entertain the ease on summary proceeding is wanting. Hebert v. Crawford, 228 U. S. 204, 33 S. Ct. 484, 57 L. Ed. 800; Board of Trade of City of Chicago v. Johnson, 264 U. S. 1, 44 S. Ct. 232, 68 L. Ed. 533. In no event can the bankruptcy court summarily exercise jurisdiction as to the debtors in the accounts, except on their consent. In re Roman (C. C. A.) 23 F.(2d) 556. The difficulty of discussing possession in connection with ehoses in action has been commented on in several cases. See In re Kelley (D. C.) 297 F. 676; In re Roman, supra; In re Borok (C. C. A.) 50 F.(2d) 75. We may lay to one side instances where the chose in action is represented by a note, bond, policy of insurance, or the like. In these eases there is no difficulty in concluding that possession of the intangible right against the obligor is inseparable from possession of the document that evidences the right. In re Detroit Waterproof Fabric Co. (D. C.) 295 F. 338; In re Republic Plumbing Supply Corporation (D. C.) 295 F. 573; In re Hudson River Navigation Corporation (C. C. A.) 57 F.(2d) 175. As to bank accounts, it has been held that possession of the chose in action against the bank goes with the customer in whose name the account stands on the" }, { "docid": "18382853", "title": "", "text": "summary judgment, to allow the plaintiff to conduct discovery on the reliance element of its cause of action. Plaintiff sought to determine if each successor-in-interest to the original lender relied on the alleged misrepresentations debtor had made with respect to environmental contamination of property secured by the loan at issue. Other bankruptcy courts have held that where the creditor is a successor in interest to an original creditor, the creditor may establish a finding of “justifiable reliance” by showing that each successor to the original creditor relied on the misrepresentation. Although this issue has not been addressed by the courts within the Third Circuit, this court finds the reasoning of the Bui arid Whitenack courts persuasive, and will follow it here. Id. at 876 (citations omitted). C. An Assignee Steps into the Shoes of His Assignor The difficulty with the analysis of Bui and the courts that reason similarly is that no account is taken of the legal implications of an assignment. See generally Restatement (SECOND) OF CONTRACTS §§ 316-43 (1981) (Ch. 15 Assignment and Delegation). “Stated as a basic principle, an assignee merely steps into the shoes of his assignor [citation omitted]. The question of what rights and remedies pass with a given assignment depends on the interest of the parties.” State Bar v. Tooks (In re Tooks), 76 B.R. 162, 164 (Bankr.S.D.Cal.1987), citing P. Coast Agrie. Exp. Ass’n v. Sunkist Growers, Inc., 526 F.2d 1196, 1208 (9th Cir.1975). See also 29 Williston on Contracts § 74:47 (4th ed. 2003) (“It has been held repeatedly that the assignee ‘stands in the shoes’ of the assignor....”); Restatement (Seoond) of Contracts § 336(1) (“By an assignment the assignee acquires a right against the obligor only to the extent that the obligor is under a duty to the assignor; and if the right of the assignor would be voidable by the obligor or unenforceable against him if no assignment had been made, the right of the assignee is subject to the infirmity.”) In Tooks, the debtor, an attorney, converted $62,000 belonging to an insurance company to his own use. A subsequent criminal" }, { "docid": "13309242", "title": "", "text": "the petition was filed, there was due on the contract the sum of $6,327.07, which was later paid to appellee. As to this sum the bankruptcy court obtained constructive possession, unless the assignment contained in the application for the bo.nd was sufficient to immediately transfer ownership thereof to the assignee, appellee. In a recent ease, In re Borok, 50 F.(2d) 75, 77, the Circuit Court of Appeals for the Second Circuit dealt with a similar case involving an assignment of book accounts. Circuit Judge Swan, speaking for the court, there said: “It is argued by the trustee that, despite the assignment, all accounts outstanding on the date of the petition remained in the ‘possession’ of the bankrupt and so fall within the doctrine of property in custodia legis, as to which the bankruptcy court has summary power. One cannot speak of ‘possession’ of a eho.se in action in the same sense as of tangibles; but if such terminology is to be used it would seem that the bankrupt was as much in ‘possession’ of the assigned accounts as he could be of any chose in action. He had the right to collect from the debtors and to. use the proceeds as he saw fit. The debtors had received no notification of the assignment; and Mayerson, though the agreement declared him to be irrevocably constituted the assignor’s attorney for collection, was not to use this power unless the assignor was in default under the agreement, and there is no suggestion that default had occurred prior to the filing of the petition. Under such circumstances we believe that the bankruptcy court has power to- determine summarily the respective rights of the trustee and the assignee in respect to the assigned accounts outstanding at the date of the petition.” Appellee seeks to distinguish In re Borok, supra, on the ground that the assignment in that case was given to secure the payment of a note. We think it is clear from a reading of the application for the bond, in the case at bar, that the assignment herein relied on by appellée was" }, { "docid": "6392897", "title": "", "text": "promissory note to the Ft. Sutter National Bank, of which Henderson was president, and where the assignor carried a deposit account. At the direction of Henderson, the bank account, which had stood in -the assignor’s name, was transferred by the bank to the name of the assignee, and thereafter further deposits were made in the account prior to the bankruptcy. It appeared, also, that by the direction of Henderson, and prior to the bankruptcy, the bank debited the account from time to time with various sums as payments on account of the $15,000 note held by the bank. These credits amounted to $12,833.81. The court said that the assignees held the bankrupt’s property, including the bank account, for the benefit of all the creditors, and that, although .neither the bank nor the assignee had any specific money for the account of the bankrupt and his creditors, the assignees were the creditors of the bank, and the bank was their debtor, and it was this credit, a chose in action, which was held by the assignees for the account of the bankrupt. The court held that the bankruptcy court had jurisdiction to direct the assignees to account for the credit so held by them as for any other property coming into their hands, and that a summary order could he made directing payment over of the money to the trustee in bankruptcy. This is not contrary to the rule we here apply, that the property belonging to the bankrupt’s estate, if it is in esistence, and can be identified and turned over to the trustee, should be turned over, rather than the alleged proceeds of such property. The sale of the property here in question did not result in the passage of money, for the appellant did not pay to itself the arrears of rent. In re Denson (D. C.) 195 F. 854, is a decision based on the finding that the property had been commingled and dissipated, so that restoration in kind was impossible. In Re Schilling (D. C.) 264 F. 357, the court pointed out that the trustee may" }, { "docid": "11389738", "title": "", "text": "action may be deemed to pass to the trustee in the one ease as much as in the other. So the bankruptcy court may draw to itself the summary determination of which claimant is the proper obligee of the chose in action.” In the Isaacs Case it was said that another court may not proceed after bankruptcy if, by the petition, the bankruptcy court obtained custody of the property and here we must inquire whether the bankruptcy court obtained possession of tho debt duo from the state. The appellant claims that when tho petition was filed the debt from the state came into the possession of the bankruptcy court so far as determination of the claims of all lien-ors against the debt are concerned. This court has considered the bankruptcy court’s custody of choses in action. In re Hudson River Navigation Corp., 57 F.(2d) 175 (C. C. A. 2); In re Borok, supra. In the latter ease, the res was the bankrupt’s uncollected accounts receivable and we were called upon to determine the rights of the assignee of the accounts under an assignment before bankruptcy, which was given as security for a loan not then in default and which gave the assignor the right to collect and apply the accounts to his general purposes; the debtor not having been notified of the assignment. It was clear under that assignment that, as between the as-signee and the assignor, the bankrupt, the latter had complete dominion over the accounts at the time of bankruptcy and that dominion passed to the bankruptcy court, which thus obtained possession of the accounts as against the assignee. But the instant ease is somewhat different, for a question is presented whether the State as a debtor held the debt only for the bankrupt, at the time the petition was filed, and whether as between the appel-lees and the bankrupt the latter completely possessed and controlled the debt. As stated, tho lien of Schlott was not filed before the petition in bankruptcy, and it does not appear, except in tho statement contained in the brief, when the assignment" }, { "docid": "6392896", "title": "", "text": "actually destroyed, carted away, or converted by the appellant, it may be held for in •damages. But that valuation must be determined. No summary order directing appellants to pay the so-called value of these pieces of machinery can lawfully be entered, .and appellant Hoisting Company is only responsible, in a proper proceeding, for such property as cannot be traced, identified, and returned. First National Bank v. Chicago Title & Trust Co., 198 U. S. 280, 25 S. Ct. 693, 49 L. Ed. 1051; In re Rose Shoe Mfg. Co. (C. C. A.) 168 F. 39; Mason v. Wolkowich (C. C. A.) 150 F. 699, 10 L. R. A. (N. S.) 765; Hinds v. Moore (C. C. A.) 134 F. 221. Nor is May v. Henderson, 268 U. S. 111, 45 S. Ct. 456, 69 L. Ed. 870, to the contrary. There the bankrupt, within four months prior to bankruptcy, made a joint assignment for the benefit of creditors to Henderson and Seannell. At the time of the assignment, the assignor was indebted on a $15,000 promissory note to the Ft. Sutter National Bank, of which Henderson was president, and where the assignor carried a deposit account. At the direction of Henderson, the bank account, which had stood in -the assignor’s name, was transferred by the bank to the name of the assignee, and thereafter further deposits were made in the account prior to the bankruptcy. It appeared, also, that by the direction of Henderson, and prior to the bankruptcy, the bank debited the account from time to time with various sums as payments on account of the $15,000 note held by the bank. These credits amounted to $12,833.81. The court said that the assignees held the bankrupt’s property, including the bank account, for the benefit of all the creditors, and that, although .neither the bank nor the assignee had any specific money for the account of the bankrupt and his creditors, the assignees were the creditors of the bank, and the bank was their debtor, and it was this credit, a chose in action, which was held by the assignees" }, { "docid": "10832265", "title": "", "text": "the debtors in the accounts, except on their consent. In re Roman (C. C. A.) 23 F.(2d) 556. The difficulty of discussing possession in connection with ehoses in action has been commented on in several cases. See In re Kelley (D. C.) 297 F. 676; In re Roman, supra; In re Borok (C. C. A.) 50 F.(2d) 75. We may lay to one side instances where the chose in action is represented by a note, bond, policy of insurance, or the like. In these eases there is no difficulty in concluding that possession of the intangible right against the obligor is inseparable from possession of the document that evidences the right. In re Detroit Waterproof Fabric Co. (D. C.) 295 F. 338; In re Republic Plumbing Supply Corporation (D. C.) 295 F. 573; In re Hudson River Navigation Corporation (C. C. A.) 57 F.(2d) 175. As to bank accounts, it has been held that possession of the chose in action against the bank goes with the customer in whose name the account stands on the bank’s books, despite the fact that others have legal or equitable claims to the “money,” In re Ransford (C. C. A.) 194 F. 658; In re Zimmermann (C. C. A.) 66 F.(2d) 397. The possession of a stock exchange seat, so far as the jurisdiction of bankruptcy courts is concerned, is held to follow the person recognized by the exchange as the member, irrespective of assignments or claims in favor of others. Board of Trade of City of Chicago v. Johnson, supra; O’Dell v. Boyden (C. C. A.) 150 F. 731, 10 Ann. Cas. 239; In re Hoey (C. C. A.) 290 F. 116. In the case of book accounts and similar claims covered by an assignment as collateral security for a debt, a common practice is for the assignor to keep the books and papers representing the accounts and to attend to collections; no notification of the assignment being given to the debtors. The part played by the assignee prior to troubles of the assignor is a passive one. Under such conditions, possession of" }, { "docid": "12503797", "title": "", "text": "Horowitz and the other partial assignees; and if the obligors objected, could mend his hold. It is true that the bankrupt’s partial assignments had more than exhausted the sums which the Peerless Company and the Agency admit to be due, but the trustee claims a substantial surplus over all assignments, which gives him a standing. Thus both the action at law and the bankruptcy suit well lay. This is not inconsistent with anything we have said in earlier cases. It is true that when an assignee of even the whole chose in action has agreed not to give notice to the obligors and to allow the assignor to collect, the trustee may proceed summarily in bankruptcy as a “possessor” of the chose in action. In re Borok, 2 Cir., 50 F.2d 75; In re Prince, 2 Cir., 89 F.2d 681. But an out and out assignment under which the assignee is permitted to give notice and to collect, puts the chose in action into the assignee’s “control,” certainly after notice to the obligor (Copeland v. Martin, 5 Cir., 182 F. 805), and at times even before notice. In re I. Greenbaum & Sons Co., Inc., D.C., 6 F.Supp. 245, Patterson, J. The only sense in which the concept of “possession” can be applied and which must govern the jurisdiction of the bankruptcy court, is the completeness of the “control,” and the assignor and the partial assignee each has complete “control,” as we have just shown. Therefore, since the, obligors in the case at bar have consented,, the partial assignees had no valid objection to being brought into the bankruptcy suit. Had there been property for the state court to seize, that court would have had exclusive jurisdiction, for the state action came first. Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 51 S.Ct. 270, 75 L.Ed. 645; Gross v. Irving Trust Co., 289 U.S. 342, 53 S.Ct. 605, 77 L.Ed. 1243, 90 A.L.R. 1215. But as this was not the case — Horowitz’s action being altogether in personam —the bankruptcy court need not yield. The order, so far" }, { "docid": "13446569", "title": "", "text": "an ordinary debt or claim. But that was said in distinguishing the case from a suit by the trustee to collect a. debt from a resisting debtor, which must certainly be by plenary action. A similar distinction may be made in the case at bar. Were the trustee attempting to collect the accounts from the bankrupt’s debtors, he would have to resort to a plenary suit; he could not claim to be in “possession of the property,” for existence of the property, i. e., a valid chose in action, is the issue in dispute. But where, as here, the debtor is not in an adverse attitude toward the bankrupt and the dispute is between the bankrupt’s trustee and the claimant of a lien upon the debt, we think the debtor may be deemed to hold the debt for the bankrupt in the same sense that the Board of Trade held the seat for the bankrupt, and “possession” of the chose in action may be deemed to pass to the trustee in the one case as much as in the other. So the bankruptcy court may draw to itself the summary determination of which claimant is the proper ob-ligee of the chose in action. This we suggested, though it was not decided, in Re Roman, supra. The case of Copeland v. Martin, 182 F. 805 (C. C. A. 5) might, at first sight, appear to be opposed to this conclusion; but it differs in important respects. It involved an outright assignment rather than one'for security, the debtor had been notified of the assignment, and no right to collect was' reserved to the assignor. It would seem that complete title and “possession” of the chose in action had been transferred to the as-signee before the bankruptcy. In re Paramount Fireproof Door Co., 43 F.(2d) 558 (D. C. E. D. N. Y.), relied upon by the appellant, was also a case where the debtor had been notified of the assignment, and apparently the assignor had not retained the right to collect for his own use. These cases are not, therefore, inconsistent with the" } ]

[ { "docid": "2095962", "title": "", "text": "issue directly before us, we hold that foreign states are not “persons” protected by the Fifth Amendment. Our conclusion is based on a number of considerations. First, as the Supreme Court noted in Will v. Michigan Department of State Police, there is an “often-expressed understanding that ‘in common usage, the term “person” does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it.’ ” 491 U.S. 58, 64, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989) (quoting Wilson v. Omaha Indian Tribe, 442 U.S. 653, 667, 99 S.Ct. 2529, 2537-38, 61 L.Ed.2d 153 (1979)). In the context of a specific statute, “person” may be given a broader meaning. Compare Will, 491 U.S. at 71, 109 S.Ct. at 2312 (holding that a State is not a “person” within the meaning of 42 U.S.C. § 1983), and Breard v. Greene, 523 U.S. 371, 378, 118 S.Ct. 1352, 1356, 140 L.Ed.2d 529 (1998) (holding that a foreign state is not a “person” entitled to bring suit under § 1983), with Pfizer v. Government of India, 434 U.S. 308, 320, 98 S.Ct. 584, 591-92, 54 L.Ed.2d 563 (1978) (holding that a foreign state is a “person” entitled to sue under the federal antitrust laws). In this case, however, what is at issue is the meaning of the Due Process Clause, not a statutory provision. And, on this score, it is highly significant that in South Carolina v. Katzenbach, 383 U.S. 301, 323-24, 86 S.Ct. 803, 815-16, 15 L.Ed.2d 769 (1966), the Court was unequivocal in holding that “the word ‘person’ in the context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union.” Therefore, absent some compelling reason to treat foreign sovereigns more favorably than “States of the Union,” it would make no sense to view foreign states as “persons” under the Due Process Clause. Indeed, we think it would be highly incongruous to afford greater Fifth Amendment rights to foreign nations, who are entirely alien to our constitutional system, than are afforded to" } ]

[ { "docid": "21277321", "title": "", "text": "a foreign state is not a “person” under the statute and Congress did not intend the statute to apply to foreign sovereigns. Pl.’s Am. Mem. 2-6. At the Court’s invitation, however, Plaintiffs filed a Fourth Amended Complaint adding claims under DOHSA and stating separate claims for IIED and maritime wrongful death. Although Sudan was in default, on February 27, 2007, it filed a motion to dismiss Plaintiffs’ IIED and wrongful death claims for failure to state a claim upon which relief can be granted on grounds that they were precluded by DOHSA and did not satisfy DOHSA’s three-year statute of limitations. 46 U.S.C. app. § 763a; Fed.R.Civ.P. 12(b)(6). The Court, ruling from the bench during the final pretrial hearing, denied Sudan’s motion but reserved ruling on which substantive law applied to this action. At trial, Plaintiffs raised the matter again, urging the Court to rule that DOHSA’s provision limiting damages to pecuniary losses is inapplicable to terrorism cases such as this, and that DOHSA should not be read to preclude recovery of non-pecuniary damages for emotional distress despite the ease law interpreting DOHSA as an exclusive remedy. Following trial, Plaintiffs filed two “supplemental” memo-randa in support of their argument. The Court is faced with three overarching questions: (1) What choice of law rules apply to claims against a state sponsor of terrorism under § 1605(a)(7)?; (2) What substantive law provides Plaintiffs with a cause of action against Sudan?; and (3) Which law provides the applicable statute of limitations in cases brought under § 1605(a)(7)? Because this is the first case arising under the terrorism exception in this Circuit, and because the case law under this exception is still developing generally, the Court begins with a discussion of the choice of law principles to be applied in cases arising under § 1605(a)(7). 1. Causes of Action Under the FSIA The United States Court of Appeals for the District of Columbia Circuit held in Cicippio-Puleo that the FSIA is a jurisdictional statute and “neither 28 U.S.C. § 1607(a)(7) nor the Flatow Amendment [to the FSIA], nor the two considered in tandem, creates" }, { "docid": "12177988", "title": "", "text": "to DOHSA in asserting these claims. The Supreme Court has made it clear that DOHSA (1) preempts state wrongful death and survival claims when the incident leading to death occurs on the high seas, and (2) limits recovery to pecuniary damages and prohibits litigants from supplementing their DOHSA claims with claims brought either under state law or general maritime law. See Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 624-25, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) (holding that damages for “loss of society” under general maritime law were preempted by DOHSA); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 232, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) (holding that Louisiana wrongful death statute was preempted by DOHSA); Dooley v. Korean Air Lines Co., Ltd,., 524 U.S. 116, 122-24, 118 S.Ct. 1890, 141 L.Ed.2d 102 (1998) (finding that DOHSA precluded plaintiffs’ attempt to recover under general maritime law for passengers’ pre-death pain and suffering). Plaintiffs argue that non-DOHSA federal statutory remedies for deaths at sea are unquestionably available. As an example, plaintiffs cite Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir.2006), in which surviving family members of sailors killed in a terrorist bombing of an American warship sued the Republic of Sudan under the Foreign Sovereign Immunities Act (“FSIA”), id. at 474. The family members alleged that the Republic of Sudan was liable for damages because it provided material support and assistance to the terrorist organization whose operatives planned and carried out the attack. Id. However, Rux was remanded to the district court, which held that even though plaintiffs had brought the suit under the FSIA, DOHSA provided the exclusive remedy in the suit. Rux v. Republic of Sudan, 495 F.Supp.2d 541, 563 (E.D.Va.2007). The court explained that the creation of a terrorism exception to DOHSA would not only be contrary to the text of DOHSA, it would also undermine Congress’ purpose of enacting a uniform statutory remedy for wrongful death on the high seas. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 215, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (stating in reference to DOH-SA," }, { "docid": "21277336", "title": "", "text": "*5 (N.D.Cal. Aug. 22, 2006) (DOHSA “clearly” applied to a claim brought on behalf of Nigerian individuals allegedly killed by the Nigerian military because the deaths “occurred [on an oil drilling platform] off the Nigerian coast and well over one marine league from U.S. shore”); The Samnanger, 298 F. 620, 622 (D.Ga.1924) (homicide). The circumstances of this case thus fall squarely within the ambit of DOHSA. Plaintiffs’ sole argument is that foreign states are not proper defendants under DOHSA. But this argument overlooks contrary precedent in this and other jurisdictions, relies on inapplicable cases, and is premised on a misapplication of the FSIA and the terrorism exception. First, Plaintiffs’ argument that a foreign state is not a “person” under DOHSA is belied by the fact that the United States has been consistently subject to liability for wrongful death on the high seas under DOHSA since the enactment in 1946 of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., which waived the United States’ immunity for actions in tort. See, e.g., United States v. Gavagan, 280 F.2d 319, 321 (5th Cir.1960) (holding United States liable under DOHSA through the FTCA for deaths resulting from negligent rescue efforts on the high seas); Blumenthal v. United States, 189 F.Supp. 439, 446-47 (E.D.Pa.1960) (“In the same manner as a private person is liable under the Death on the High Seas Act, so, too, is the Government under the Federal Tort Claims Act.”); Moran v. United States, 102 F.Supp. 275, 279 (D.Conn.1951) (holding that FTCA extended the right of action created by DOHSA to claims against the United States for personal injury and deaths on the high seas); see also Roberts v. United States, 498 F.2d 520, 525-26 (9th Cir.1974) (noting that prior to 1960 amendments to Suits in Admiralty Act, 46 U.S.C. §§ 741 et seq., FTCA waived sovereign immunity for claims brought under general maritime law and DOHSA). As the Supreme Court has noted: As enacted in 1920, [DOHSA] provided a remedy against private parties but contained no waiver of sovereign immunity. That changed with the enactment of" }, { "docid": "21277344", "title": "", "text": "Clayton Acts did not create a ‘hard and fast rule of exclusion’ of governmental bodies.” Id. at 315-16, 98 S.Ct. at 589 (citing United States v. Cooper Corp., 312 U.S. 600, 604-05, 61 S.Ct. 742, 743, 85 L.Ed. 1071 (1941), superceded by statute, 15 U.S.C. § 15a). The only terrorism exception case to which Plaintiffs cite for the proposition that DOHSA does not apply to foreign states, Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (D.D.C.1997), is likewise unavailing. Alejandre involved an action against the Republic of Cuba under the terrorism exception arising out of the Cuban Air Force’s shooting down of two civilian planes over international waters in the Straits of Florida, which killed three United States nationals. Id. at 1242-47. Plaintiffs argue that Alejandre “would appear to be a case where DOHSA would apply if Sudan’s contentions were correct” because the death occurred on the “high seas” under the Act. Pis.’ Supp. Mem. at 3. Although the court did not apply DOHSA in Alejandre, this is because the opinion was issued several years before the D.C. Circuit’s opinion in Cicippio-Puleo, and was grounded in the now-defunct assumption that § 1605(a)(7) provided a freestanding cause of action against state sponsors of terrorism. Not surprisingly in light of this fact, the post-Cicippio-Puleo issue of what substantive law to apply was never even raised. For these reasons, the Court FINDS that DOHSA is among the sources of law that may be invoked against a foreign state under § 1605(a)(7) of the FSIA, that Plaintiffs have met the requirements of DOHSA in this suit against Sudan, and that Sudan is liable to Plaintiffs under DOHSA for the wrongful deaths of the seventeen sailors killed aboard the Cole. 3. Maritime Wrongful Death and Intentional Infliction Claims The Court next turns to Plaintiffs’ argument that DOHSA does not preclude them from also bringing claims for wrongful death under the general maritime basis for recovery recognized in Mo-ragne, and for intentional infliction of emotional distress under Virginia law. Plaintiffs assert that because no court has ever ruled that DOHSA’s rules on damages apply to foreign" }, { "docid": "12271151", "title": "", "text": "the Supreme Court said that “the FTAIA’s language and history suggest that Congress designed the FTAIA to clarify, perhaps to limit, but not to expand in any significant way, the Sherman Act’s scope as applied to foreign commerce.” Empagran I, 542 U.S. at 169, 124 S.Ct. 2359 (emphasis in original). If we were to adopt a “but for” standard, we would indeed be expanding the Sherman Act’s scope as applied to foreign commerce, notwithstanding Centerprise’s contention to the contrary. None of the cases predating the FTAIA interpret the reach of the Sherman Act as expansively as Centerprise urges we should do here. The pre-FTAIA cases that Centerprise relies upon, Pfizer, Inc. v. Government of India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978), and Industria Siciliana Asfalti, Bitumi, S.P.A. v. Exxon Research & Engineering Co., No. 75 Civ. 5828-CSH, 1977 WL 1353 (S.D.N.Y. Jan.18, 1977), certainly do not reflect a “but for” standard. In Pfizer, although saying that Congress did not intend to make remedies under U.S. antitrust laws available only to U.S. consumers, the Supreme Court was speaking only to the issue of whether a foreign nation could be a “person” under antitrust laws. See Pfizer, 434 U.S. at 312, 314, 98 S.Ct. 584. It did not address the requisite causal relationship between the domestic effect and the foreign injury. If anything, the Court wrote in terms suggesting that the foreign sovereigns were directly injured by the defendants’ antitrust violations. See, e.g., id. at 314-15, 98 S.Ct. 584 (“To deny a foreign plaintiff injured by an antitrust violation the right to sue would ... permit a price fixer or monopolist to escape full liability for his illegal actions and would deny compensation to certain of his victims, merely because he happens to deal with foreign customers.” (emphasis added)). In Industria Siciliana, the domestic effect at issue was plainly the direct cause of the plaintiffs injury. There, a U.S. company was party to a reciprocal agreement that coerced the foreign consumer to forgo a more advantageous bid for design and engineering services from another U.S. company, a violation" }, { "docid": "21277343", "title": "", "text": "suggesting that the DOHSA claim could proceed against China Steel even if it were a “foreign state” under the FSIA. Plaintiffs’ arguments as to why foreign states are not “persons” are not persuasive. The cases they cite construing the term “person” as used in the Due Process Clause and other statutes deal with plainly different circumstances. See, e.g., Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 96 (D.C.Cir.2002) (holding that foreign state is not a “person” for purposes of the Due Process Clause). Moreover, Plaintiffs overlook that the Supreme Court has held that a foreign state may be a “person” under the Clayton Act even though the statute does not clearly define the term “person.” See Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 320, 98 S.Ct. 584, 591-92, 54 L.Ed.2d 563 (1978). As the Court noted in Pfizer, the “word ‘person,’ is not a term of art with a fixed meaning wherever it is used” and “this Court has expressly noted that use of the word ‘person’ in the Sherman and Clayton Acts did not create a ‘hard and fast rule of exclusion’ of governmental bodies.” Id. at 315-16, 98 S.Ct. at 589 (citing United States v. Cooper Corp., 312 U.S. 600, 604-05, 61 S.Ct. 742, 743, 85 L.Ed. 1071 (1941), superceded by statute, 15 U.S.C. § 15a). The only terrorism exception case to which Plaintiffs cite for the proposition that DOHSA does not apply to foreign states, Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (D.D.C.1997), is likewise unavailing. Alejandre involved an action against the Republic of Cuba under the terrorism exception arising out of the Cuban Air Force’s shooting down of two civilian planes over international waters in the Straits of Florida, which killed three United States nationals. Id. at 1242-47. Plaintiffs argue that Alejandre “would appear to be a case where DOHSA would apply if Sudan’s contentions were correct” because the death occurred on the “high seas” under the Act. Pis.’ Supp. Mem. at 3. Although the court did not apply DOHSA in Alejandre, this is because the opinion was issued several years" }, { "docid": "21277341", "title": "", "text": "of immunity in the FTCA, but prohibit identical suits against foreign states pursuant to the analogous waiver in the FSIA, would defy logic. It would also be inconsistent with the FSIA, which was “not intended to affect the substantive law determining the liability of a foreign state or instrumentality,” First Nat’l City Bank, 462 U.S. at 620, 103 S.Ct. at 2597, and the terrorism exception itself, which “does not impose liability or mention a cause of action,” Cicippio-Puleo, 353 F.3d at 1034. Thus, contrary to Plaintiffs’ assertion that DOHSA suits against foreign states are impermissible because Congress has not specifically singled out foreign states as potential defendants under the Act, it is unsurprising and entirely appropriate that Congress did not speak to DOHSA when it passed the FSIA in 1976 or when it added the terrorism exception in 1996. The Court’s conclusion that a foreign state may be sued under DOHSA finds further support in this Circuit’s precedent interpreting the Act. In Gerding v. Republic of France, 943 F.2d 521 (4th Cir.1991), personal representatives of a passenger who became ill and died aboard a French vessel off the Canary Islands sued the Republic of France, and French officials and agencies, under DOHSA and other statutes. Id. at 523-24. The Fourth Circuit affirmed the district court’s finding that France was immune from suit under the FSIA without considering what law to apply and without giving any indication one way or the other as to whether DOH-SA could apply to a foreign state. In Boykin v. Bergesen D.Y. A/S, 835 F.Supp. 274 (E.D.Va.1993) (Morgan, J.), this Court found that a Chinese corporation called China Steel was not entitled to immunity under the FSIA for the death of a merchant ship’s master killed by a methane explosion on the high seas, and awarded pecuniary damages under DOHSA. Id. at 287 n. 20. The Court added in a footnote, “Assuming arguendo that China Steel qualifies as a foreign state under the FSIA,” it was still subject to suit under the waiver and commercial activity exceptions to the FSIA, 28 U.S.C. § 1605(a)(1) & (2)," }, { "docid": "21277342", "title": "", "text": "a passenger who became ill and died aboard a French vessel off the Canary Islands sued the Republic of France, and French officials and agencies, under DOHSA and other statutes. Id. at 523-24. The Fourth Circuit affirmed the district court’s finding that France was immune from suit under the FSIA without considering what law to apply and without giving any indication one way or the other as to whether DOH-SA could apply to a foreign state. In Boykin v. Bergesen D.Y. A/S, 835 F.Supp. 274 (E.D.Va.1993) (Morgan, J.), this Court found that a Chinese corporation called China Steel was not entitled to immunity under the FSIA for the death of a merchant ship’s master killed by a methane explosion on the high seas, and awarded pecuniary damages under DOHSA. Id. at 287 n. 20. The Court added in a footnote, “Assuming arguendo that China Steel qualifies as a foreign state under the FSIA,” it was still subject to suit under the waiver and commercial activity exceptions to the FSIA, 28 U.S.C. § 1605(a)(1) & (2), suggesting that the DOHSA claim could proceed against China Steel even if it were a “foreign state” under the FSIA. Plaintiffs’ arguments as to why foreign states are not “persons” are not persuasive. The cases they cite construing the term “person” as used in the Due Process Clause and other statutes deal with plainly different circumstances. See, e.g., Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 96 (D.C.Cir.2002) (holding that foreign state is not a “person” for purposes of the Due Process Clause). Moreover, Plaintiffs overlook that the Supreme Court has held that a foreign state may be a “person” under the Clayton Act even though the statute does not clearly define the term “person.” See Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 320, 98 S.Ct. 584, 591-92, 54 L.Ed.2d 563 (1978). As the Court noted in Pfizer, the “word ‘person,’ is not a term of art with a fixed meaning wherever it is used” and “this Court has expressly noted that use of the word ‘person’ in the Sherman and" }, { "docid": "16792507", "title": "", "text": "implicitly waived its sovereign immunity under § 1605(a)(1). Practical Concepts, Inc., 613 F.Supp. at 871-72 (agreement to arbitrate a dispute does not deprive a foreign sovereign of immunity from court suit on the merits of the dispute). PCI has not pursued that issue on appeal. . This case does not present the issue whether a foreign state would be entitled to sovereign immunity in an action based on an incidental (performance-facilitating) contract term that only a government could offer and perform. That issue would arise, for example, if a foreign nation were sued for failing to grant a tax exemption it had promised in a contract for the sale of goods. We express no opinion on such a case. . 28 U.S.C. § 1604 reads: Immunity of a foreign state from jurisdiction Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter. . See supra note 1. The FSIA authorizes the exercise of personal jurisdiction whenever subject matter jurisdiction exists under § 1330(a) and service of process has been made according to § 1608. 28 U.S.C. § 1330(b). In other words, under the FSIA, “subject matter jurisdiction plus service of process equals personal jurisdiction.\" Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 308 (2d Cir.1981). See also Restatement (Revised) of Foreigh Relations § 453 comment c and reporters’ note 3 (Tent. Final Draft 1985) (although a foreign state has not been held to be a \"person\" within the meaning of the due process clause, Congress apparently intended that, under FSIA, foreign states would be treated like private entities for purpose of checking for fundamental fairness court’s exercise of its authority over a particular defendant). . The three clauses of § 1605(a)(2) concern the sufficiency of the relationship of the foreign state’s commercial activity to the United States. The issue before us on this" }, { "docid": "21277340", "title": "", "text": "486, 103 S.Ct. at 1967 (citing The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812)). It is particularly instructive that the FTCA and the FSIA contain nearly identical language with respect to the standard of liability to be applied when immunity has been lifted. Compare 28 U.S.C. § 1346(b)(1) (providing that United States may be liable for tor-tious acts or omissions of its employees acting within the scope of their office or employment “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred”) mth 28 U.S.C. § 1606 (“As to any claim for which a foreign state is not entitled to immunity under section 1605 or section 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances .... ”). To permit wrongful death suits against the United States under DOHSA pursuant to the waiver of immunity in the FTCA, but prohibit identical suits against foreign states pursuant to the analogous waiver in the FSIA, would defy logic. It would also be inconsistent with the FSIA, which was “not intended to affect the substantive law determining the liability of a foreign state or instrumentality,” First Nat’l City Bank, 462 U.S. at 620, 103 S.Ct. at 2597, and the terrorism exception itself, which “does not impose liability or mention a cause of action,” Cicippio-Puleo, 353 F.3d at 1034. Thus, contrary to Plaintiffs’ assertion that DOHSA suits against foreign states are impermissible because Congress has not specifically singled out foreign states as potential defendants under the Act, it is unsurprising and entirely appropriate that Congress did not speak to DOHSA when it passed the FSIA in 1976 or when it added the terrorism exception in 1996. The Court’s conclusion that a foreign state may be sued under DOHSA finds further support in this Circuit’s precedent interpreting the Act. In Gerding v. Republic of France, 943 F.2d 521 (4th Cir.1991), personal representatives of" }, { "docid": "19784258", "title": "", "text": "States v. Cooper Corp., 312 U.S. 600, 604-05, 61 S.Ct. 742, 85 L.Ed. 1071 (1941) (footnote omitted), superseded by statute on other grounds, 15 U.S.C. § 15a, as recognized in U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 745, 124 S.Ct. 1321, 158 L.Ed.2d 19 (2004). In the context of other statutes, foreign sovereigns have been' found to be “persons.” See, e.g., Pfizer Inc. v. Gov’t of India, 434 U.S. 308, 320, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978). In Pfizer, for example, the Supreme Court found that foreign sovereigns are “persons” entitled to sue under the Sherman and Clayton Acts, 15 U.S.C. §§ 7, 12. The Court noted that the definition of persons provided in the stat ute included “corporations and associations” formed under domestic and foreign laws. Id. at 312 n. 9, 98 S.Ct. 584. The Court considered the statute’s expansive remedial purpose and found that a foreign sovereign was a “person.” Id. at 313, 98 S.Ct. 584 (“In light of the law’s expansive remedial purpose, the Court has not taken a technical or semantic approach in determining who is a ‘person’ entitled to sue for treble damages.”) (citing Cooper, 312 U.S. at 605, 61 S.Ct. 742). A number of cases have found that the term “person” should be read to include a foreign sovereign for purposes of the APA. In cases litigating Freedom of Information Act requests filed by foreign agencies and sovereigns, courts have generally assumed that such entities are “persons” within the meaning of 5 U.S.C. § 551. See, e.g., Stone v. Exp.-Imp. Bank of U.S., 552 F.2d 132, 136 (5th Cir.1977); Neal-Cooper Grain Co. v. Kissinger, 385 F.Supp. 769, 776 (D.D.C.1974). The D.C. Circuit has since cited these cases with approval. Md. Dep’t Human Res., 763 F.2d at 1445; but see Doherty v. U.S. Dep’t of Justice, 596 F.Supp. 423, 427-28 (S.D.N.Y.1984) (disagreeing with Neah-Cooper in dicta). In addition to the general meaning of “person” under the APA, the court finds that the best indication of whether Congress intended for foreign sovereigns to be considered “persons” for purposes of this case" }, { "docid": "20396609", "title": "", "text": "the wire fraud statute despite the fact that U.S. wires were used to further a fraud). . See also RJR Nabisco, Inc. v. European Cmty., — U.S. -, 136 S.Ct. 2090, 2109-10, 195 L.Ed.2d 476 (2016): There is good reason not to interpret § 1964(c) to cover foreign injuries just because the Clayton Act does so. When we held in [Pfizer Inc. v. Government of India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978)] that the Clayton Act allows recovery for foreign injuries, we relied first and foremost on the fact that the Clayton Act’s definition of \"person”—which in turn defines who may sue under that Act—“explicitly includes 'corporations and associations existing under or authorized by .,. the laws of any foreign country.’ ” 434 U.S. at 313, 98 S.Ct. 584; see 15 U.S.C. § 12: RICO lacks the language that the Pfizer Court found critical. See 18 U.S.C. § 1961(3). To the extent that the Pfizer Court cited other factors that might apply to § 1964(c), they were not sufficient in themselves to show that the provision has extraterritorial effect. For example, the Pfizer Court, writing before we honed our extraterritoriality jurisprudence in Morrison and Kiobel, reasoned that Congress “[c]learly ... did not intend to make the [Clayton Act’s] treble-damages remedy available only to consumers in our own country” because \"the antitrust laws extend to trade 'with foreign nations’ as well as among the several States of the Union.” 434 U.S. at 313-314, 98 S.Ct. 584. But we have emphatically rejected reliance on such language, holding that \" 'even statutes ... that expressly refer to \"foreign commerce” do not apply abroad.’ ” Morrison, 561 U.S. at 262-263, 130 S.Ct. 2869. This reasoning also fails to distinguish between extending substantive antitrust law to foreign conduct and extending a private right of action to foreign injuries, two separate issues that, as we have explained, raise distinct extraterritoriality problems. See supra, at 2105-2108. Finally, the Pfizer Court expressed concern that it would \"defeat th[e] purposes” of the antitrust laws if a defendant could \"escape full liability for his illegal actions.\"" }, { "docid": "21921679", "title": "", "text": "Robinson-Patman Act’s coverage or noncoverage of state and local governments, I would allow Congress to speak on this issue rather than disrupt longstanding practices and programs and judicially arm private litigants with a powerful treble-damages action against these governments. Therefore, I would affirm the judgment below. This case does not require us to consider, as the cases cited by the majority suggest, ante, at 157-158, whether compliance with other federal statutes necessitates an implied exemption from the provisions of the Act. The question is simply one of congressional intent — i. e., what Congress intended when it enacted the Robinson-Patman Act with respect to coverage of governmental purchases for resale. The majority cites Pfizer Inc. v. Government of India, 434 U. S. 308 (1978), as a case in which the Court applied Sherman Act cases to construe the Clayton Act, which the Robinson-Patman Act amends. Ante, at 157, n. 15. In Pfizer the Court held that a foreign nation is a “person” entitled to bring a treble damages action under § 4 of the Clayton Act, 15 U. S. C. § 15. As the Court acknowledged, 434 U. S., at 311, § 4 is a reenactment of the virtually identical language of § 7 of the Sherman Act. In fact, § 7 was eventually repealed as redundant. § 3, 69 Stat. 283; see S. Rep. No. 619, 84th Cong., 1st Sess., 2 (1955). Reliance on prior interpretation of § 7 of the Sherman Act was therefore uniquely appropriate. See Pfizer Inc. v. Government of India, supra, at 315 (§ 4 of the Clayton Act) (“The word ‘person’... is not a term of art with a fixed meaning wherever it is used, nor was it in 1890 when the Sherman Act was passed”); Georgia v. Evans, 316 U. S. 159, 161 (1942) (§ 7 of the Sherman Act) (“Whether the word ‘person’. . . includes a State or the United States depends upon its legislative environment”); Ohio v. Helvering, 292 U. S. 360, 370 (1934) (Rev. Stat. §§ 3140, 3244) (“Whether the word ‘person’ or ‘corporation’ includes a state . ." }, { "docid": "20396608", "title": "", "text": "on the docket sheet. . Some courts in other jurisdictions have suggested that the \"focus” of § 1341 is the use of the U.S. mails. See, e.g., United States v. Coffman, 771 F.Supp.2d 735, 738-39 (E.D. Ky. 2011). But this Court is not convinced that the use of the U.S. mails, without more, can be considered conduct relevant to the \"focus” of the mail fraud statute. As its title indicates, § 1341, is aimed at \"frauds and swindles.” To be sure, the statute addresses a limited set of \"frauds and swindles”—namely, those involving the U.S. mails. However, in singling out this type of fraud, Congress did not shift the focus of the statute away from fraud. Rather, Congress narrowed the focus of the statute from all fraud to fraud facilitated by the U.S. mails. Thus, the use of U.S. mails is a necessary but not sufficient condition for criminal liability under § 1341. Cf. Petroleos Mexicanos v. Conproca S.A. de C.V., 572 Fed.Appx. 60, 61 (2d Cir. 2014) (summary order) (finding no domestic violation of the wire fraud statute despite the fact that U.S. wires were used to further a fraud). . See also RJR Nabisco, Inc. v. European Cmty., — U.S. -, 136 S.Ct. 2090, 2109-10, 195 L.Ed.2d 476 (2016): There is good reason not to interpret § 1964(c) to cover foreign injuries just because the Clayton Act does so. When we held in [Pfizer Inc. v. Government of India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978)] that the Clayton Act allows recovery for foreign injuries, we relied first and foremost on the fact that the Clayton Act’s definition of \"person”—which in turn defines who may sue under that Act—“explicitly includes 'corporations and associations existing under or authorized by .,. the laws of any foreign country.’ ” 434 U.S. at 313, 98 S.Ct. 584; see 15 U.S.C. § 12: RICO lacks the language that the Pfizer Court found critical. See 18 U.S.C. § 1961(3). To the extent that the Pfizer Court cited other factors that might apply to § 1964(c), they were not sufficient in themselves" }, { "docid": "19784257", "title": "", "text": "294 F.3d 82, 97 (D.C.Cir.2002)). The definition of “person,” however, for purposes of other statutes is not tied to the logic of civil rights legislation. Indeed, the definition of “person” is often defined more broadly than is “person” in the context of § 1983. The Supreme Court has noted that there is no hard and fast rule of exclusion. The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law. Decision is not to be reached by a strict construction of the words of the Act, nor by the application of artificial canons of construction. On the contrary, we are to read the statutory language in its ordinary and natural sense, and if doubts remain, resolve them in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction. United States v. Cooper Corp., 312 U.S. 600, 604-05, 61 S.Ct. 742, 85 L.Ed. 1071 (1941) (footnote omitted), superseded by statute on other grounds, 15 U.S.C. § 15a, as recognized in U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 745, 124 S.Ct. 1321, 158 L.Ed.2d 19 (2004). In the context of other statutes, foreign sovereigns have been' found to be “persons.” See, e.g., Pfizer Inc. v. Gov’t of India, 434 U.S. 308, 320, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978). In Pfizer, for example, the Supreme Court found that foreign sovereigns are “persons” entitled to sue under the Sherman and Clayton Acts, 15 U.S.C. §§ 7, 12. The Court noted that the definition of persons provided in the stat ute included “corporations and associations” formed under domestic and foreign laws. Id. at 312 n. 9, 98 S.Ct. 584. The Court considered the statute’s expansive remedial purpose and found that a foreign sovereign was a “person.” Id. at 313, 98 S.Ct. 584 (“In light of the law’s expansive remedial purpose, the Court has not" }, { "docid": "21277331", "title": "", "text": "384, 395-96 (D.Del.1978) (suit against foreign government-controlled entity under antitrust laws is cognizable through “commercial activity” exception of the FSIA, 28 U.S.C. § 1605(a)(2)). As the court in Dammarell recognized, whether a particular federal statute may be invoked against a foreign state is an “inherently delicate question, requiring a court to assess Congress’s intent across several statutes: the federal statute giving rise to the cause of action; the relevant waiver of sovereign immunity in section 1605; and section 1606 itself.” 2005 WL 756090 at *28. The Death on the High Seas Act, 46 U.S.C. app. § 761 et seq. (reorganized and restated at 46 U.S.C. § 30301-30308), was enacted in 1920 in order to provide “a uniform and effective wrongful death remedy for survivors of persons killed on the high seas.” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 214, 106 S.Ct. 2485, 2490, 91 L.Ed.2d 174 (1986). Section 761(a) of the Act, as it existed at the time of the events giving rise to this suit, provides: [WJhenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued. 46 U.S.C. app. § 761(a). In enacting DOHSA, Congress repudiated the preexisting rule in The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), that no federal statute or general federal maritime law existed that afforded a wrongful death cause of action to the survivors of persons killed beyond state territorial waters. See The Hamilton, 207 U.S. 398, 404-05, 28 S.Ct. 133, 134-35, 52 L.Ed. 264 (1907) (pre-DOHSA case applying state wrongful death statutes to deaths on the high seas). DOHSA was intended to" }, { "docid": "21277330", "title": "", "text": "in the United States. Accordingly, United States law, rather than foreign law, supplies the rule of decision. 2. Death on the High Seas Act The next question is whether Plaintiffs’ cause of action is based on a federal statute, i.e. DOHSA, federal maritime law, state common law or state statutes, or some combination thereof. Although many § 1605(a)(7) claims against foreign state sponsors of terrorism since Cicippio-Puleo have been based on state laws, courts have applied federal statutes against foreign states whose immunity was lifted pursuant to one of the exceptions in § 1605. See, e.g., Southway v. Cent. Bank of Nigeria, 198 F.3d 1210, 1216 (10th Cir.1999) (federal Racketeering Influenced and Corrupt Organizations Act statute enforceable against a foreign state through the FSIA); Mukaddam v. Permanent Mission of Saudi Arabia, 111 F.Supp.2d 457, 470 (S.D.N.Y.2000) (foreign state “is liable under Title VII [of the Civil Rights Act of 1964] in the same manner and to the same extent as a private employer would be in like circumstances”); Outboard Matine Corp. v. Pezetel, 461 F.Supp. 384, 395-96 (D.Del.1978) (suit against foreign government-controlled entity under antitrust laws is cognizable through “commercial activity” exception of the FSIA, 28 U.S.C. § 1605(a)(2)). As the court in Dammarell recognized, whether a particular federal statute may be invoked against a foreign state is an “inherently delicate question, requiring a court to assess Congress’s intent across several statutes: the federal statute giving rise to the cause of action; the relevant waiver of sovereign immunity in section 1605; and section 1606 itself.” 2005 WL 756090 at *28. The Death on the High Seas Act, 46 U.S.C. app. § 761 et seq. (reorganized and restated at 46 U.S.C. § 30301-30308), was enacted in 1920 in order to provide “a uniform and effective wrongful death remedy for survivors of persons killed on the high seas.” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 214, 106 S.Ct. 2485, 2490, 91 L.Ed.2d 174 (1986). Section 761(a) of the Act, as it existed at the time of the events giving rise to this suit, provides: [WJhenever the death of a person shall" }, { "docid": "12394874", "title": "", "text": "revised § 1332(a)(2), Congress added § 1332(a)(4) to provide for diversity jurisdiction in suits brought by foreign states against a United States citizen. Congress chose to define the term “foreign state” in the new § 1332(a)(4) by reference to 28 U.S.C. § 1603(a). Wright, Miller & Cooper, supra, § 3604. Section 1603 uses the term “foreign state” repeatedly, but never defines it. See Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 924 F.2d 1237, 1243 (2d Cir.1991) (Section 1603 “is more descriptive than definitional”). That Congress did not at the same time define “foreign state” in § 1332(a)(2) by a similar reference to § 1603(a) suggests only that “foreign state” in § 1332(a)(2) does not include § 1603(a)’s inclusion of certain instrumentalities, political subdivisions and other state entities as a “foreign state.” See Windert, 468 F.Supp. at 1246; Ruggiero v. Compania Peruana de Vapores “Inca Capac Yupanqui”, 639 F.2d 872, 875 n. 6 (2d Cir.1981). It does not suggest that “foreign state,” as undefined in § 1603 or § 1332(a)(2), should get different meanings. This Court has ruled that, for purposes of § 1332(a)(4), a foreign state and the government that represents it must be one “ ‘recognized’ ” by the United States. National Petrochemical, 860 F.2d at 553 (citing Pfizer Inc. v. India, 434 U.S. 308, 319-20, 98 S.Ct. 584, 591-92, 54 L.Ed.2d 563 (1978)). This holding reflects the well-established jurisprudence of the Supreme Court. See Pfizer, 434 U.S. at 319-20, 98 S.Ct. at 591-92; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410-12, 84 S.Ct. 923, 930-32, 11 L.Ed.2d 804 (1964); National City Bank of N.Y. v. Republic of China, 348 U.S. 356, 358, 75 S.Ct. 423, 425, 99 L.Ed. 389 (1955); Guaranty Trust Co. of N.Y. v. United States, 304 U.S. 126, 137, 58 S.Ct. 785, 791, 82 L.Ed. 1224 (1938); Jones v. United States, 137 U.S. 202, 212, 11 S.Ct. 80, 83, 34 L.Ed. 691 (1890); see also Land Oberoesterreich v. Gude, 109 F.2d 635, 637 (2d Cir.1940). The similar rationales underlying § 1332(a)(2) and § 1332(a)(4) should compel a similar definition of" }, { "docid": "19538748", "title": "", "text": "a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law \" for injury suffered overseas. Kiobel, supra, at ----, 133 S.Ct., at 1666(emphasis added). As to that question, the relevant background principle is the presumption against extraterritoriality, not the \"traditional rule\" respondents cite. Respondents and Justice GINSBURG point out that RICO's private right of action was modeled after § 4 of the Clayton Act, 15 U.S.C. § 15; see Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 267-268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992), which we have held allows recovery for injuries suffered abroad as a result of antitrust violations, see Pfizer Inc. v. Government of India, 434 U.S. 308, 314-315, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978). It follows, respondents and Justice GINSBURG contend, that § 1964(c)likewise allows plaintiffs to sue for injuries suffered in foreign countries. We disagree. Although we have often looked to the Clayton Act for guidance in construing § 1964(c), we have not treated the two statutes as interchangeable. We have declined to transplant features of the Clayton Act's cause of action into the RICO context where doing so would be inappropriate. For example, in Sedima we held that a RICO plaintiff need not allege a special \"racketeering injury,\" rejecting a requirement that some lower courts had adopted by \"[a]nalog[y]\" to the \"antitrust injury\" required under the Clayton Act. 473 U.S., at 485, 495, 105 S.Ct. 3275. There is good reason not to interpret § 1964(c)to cover foreign injuries just because the Clayton Act does so. When we held in Pfizer that the Clayton Act allows recovery for foreign injuries, we relied first and foremost on the fact that the Clayton Act's definition of \"person\"-which in turn defines who may sue under that Act-\"explicitly includes 'corporations and associations existing under or authorized by ... the laws of any foreign country.' \" 434 U.S., at 313, 98 S.Ct. 584; see 15 U.S.C. § 12. RICO lacks the language" }, { "docid": "21277333", "title": "", "text": "remedy “[t]he void that existed in maritime law up until 1920[:] the absence of any remedy for wrongful death on the high seas[.]” Moragne, 398 U.S. at 398, 90 S.Ct. at 1786 (overruling The Harrisburg); see also H.R.Rep. No. 674, 66th Cong., 2d Sess., 3-4 (1920). Whether DOHSA may be invoked against a foreign state whose immunity has been abrogated under the FSIA is evidently an issue of first impression. The Court is unaware of a single case in which a foreign state was found liable in wrongful death under DOHSA, and no court has directly addressed whether such claims are cognizable. To answer this question, the Court begins with the plain text of the statute. By its terms, DOHSA is limited to circumstances where death stems from a “wrong ful act, neglect or default” which “occur[red] on the high seas beyond a marine league from the shore of any State.46 U.S.C. app. § 761. The class of defendants is limited to “the vessel, person, or corporation which would have been liable if death had not ensued.” Id. The class of beneficiaries is limited to the decedent’s “wife, husband, parent, child, or dependent relative,” id., and damages are limited to the “pecuniary loss sustained by the persons for whose benefit the suit is brought” unless death results from a commercial aviation accident. Id. §§ 761(b), 762. Plaintiffs concede that DOHSA’s geographic scope, as interpreted, includes foreign territorial waters and that the Port of Aden in Yemen falls within this scope. See, e.g., Howard v. Crystal Cruises, 41 F.3d 527, 529-30 (9th Cir.1994) (territorial waters of Mexico are “high seas” under DOHSA); Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 892-94 (5th Cir.1984) (English Channel); Mancuso v. Kimex, Inc., 484 F.Supp. 453, 455 (S.D.Fla.1980) (Jamaican waters); see also 2 Benedict on Admiralty § 81b, pp. 7-7-7-8 n. 18 (2007) (“It appears to be settled that the term ‘high seas’ within the meaning of DOHSA is not limited to international waters, but includes the territorial waters of a foreign nation as long as they are more than a marine league" } ]

[ { "docid": "1500388", "title": "", "text": "9(a); FDIC v. Calhoun, 34 F.3d 1291, 1299 (5th Cir.1994). However, where lack of capacity appears affirmatively on the face of the complaint, specific averment is unnecessary. Comstock v. Pfizer Retirement Annuity Plan, 524 F.Supp. 999, 1002 (D.Mass.1981). Defendants have moved to dismiss Plaintiffs’ First Amended Complaint on capacity grounds pursuant to Rule 12(b)(6). Alabama law defines an “incapacitated person” as follows: Any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs, chronic intoxication, or other cause ... to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions. Ala.Code § 26-2A-20(8). Although it is not absolutely clear, it appears that a putative Alabama plaintiff can be determined by a court to lack capacity to sue despite the fact that such plaintiff has not been officially adjudicated incompetent. Cfi Helton v. Helton, 362 So.2d 257, 259 (1978) (noting that an official adjudication of incompetency is not necessary for a court to appoint a guardian ad litem to represent an incompetent person); see Ala.Code § 26-2A-1 Comment (“The broader definition [of incapacitated person in section 26-2A-20(8) ] permits legal protection, commensurate with the person’s capacity, without the stigma sometimes attached to a judicial decision of non compos mentis.”). Defendants’ argument supporting dismissal on the grounds that Plaintiffs lack capacity to sue is based on logic rather than binding authority. On the one hand, Plaintiffs represent to this court that they are perfectly capable of maintaining this suit on their own behalf. On the other hand, Plaintiffs’ First Amended Complaint is premised on the supposition that. Plaintiffs are “severely cognitively impaired” under the Defendants’ new Rules. Plaintiffs’ facially contradictory positions beg the question: How can a severely cognitively impaired plaintiff be competent to bring suit on his or her own behalf? The answer to that question, at least for purposes of a Rule 12(b)(6) motion to dismiss, must be found in the body of Plaintiffs’ First Amended Complaint. Plaintiffs claim that Defendants have defined “severely cognitively impaired” so broadly that it" } ]

[ { "docid": "6968179", "title": "", "text": "civilly committed (who must pay for OMH services) than to other patients criminally committed. Appellants, on the other hand, emphasize the criminal court system has an ongoing responsibility for decisions affecting 330.-20s, e.g., furloughs, transfers, releases, which are not solely dependent on the patient's progress or mental condition. These arguments stray from the mark. Section 43.03(c) exempts from fees all persons criminally committed except mental health acquittees. Our inquiry must focus on whether there is a rational basis for treating 330.20s differently from other persons criminally committed, not whether requiring them to pay, as civil committees do, is justified. Accordingly, we must inquire into the nature and purpose of the various categories of criminal commitment and the standards and consequences of release to determine whether disparate treatment of 330.20s is justifiable. In addition to those found not guilty by reason of a mental defect or illness, three other categories of persons can be ordered into the custody of the OMH by a criminal court: 1) persons being evaluated to determine their fitness to stand trial, N.Y.Crim. Proc.Law § 730.10 (McKinney 1984 & Supp.1990); 2) those deemed incompetent to stand trial, Id.; and 3) prisoners in need of care for their mental illnesses, N.Y.Correct.Law § 402 (McKinney 1987). Between arraignment and sentencing, a court may order a defendant to undergo a fitness examination based on its threshold opinion that the person lacks the capacity to understand the proceedings against him or to assist in his own defense because of a mental disease or defect. N.Y.Crim. Proc.Law §§ 730.10(1), 730.30. Such an examination thus is incidental to the prosecution of a crime. If following a hearing the court is satisfied that the defendant is not incapacitated, the criminal action against him must proceed. Id. § 730.30. Similarly, in the case of a person found unfit to stand trial, once the incapacity no longer exists, the criminal action generally proceeds. Id. § 730.50. Incarcerated prisoners may be committed involuntarily under appropriate circumstances, see United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2d Cir.), cert. denied, 396 U.S. 847, 90 S.Ct. 81," }, { "docid": "21012508", "title": "", "text": "relevant inquiry is whether the litigant is “mentally competent to understand the nature and effect of the litigation she has instituted.” Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir.1971); Donnelly v. Parker, 486 F.2d 402, 407 (D.C.Cir.1973) (stating that Rule 17(c) may require an inquiry into the plaintiffs “capacity to understand the meaning and effect of the litigation being prosecuted in her name”). II. The plaintiff has a long and well-documented history of mental illness. Both the complaint (Doc. 1) and the amended complaint (Doc. 52) describe the plaintiff as an emotionally fragile and psychologically disabled person. Indeed, the plaintiffs counsel argues for a tolling of the applicable statute of limitations in this action because of the plaintiffs long-term mental incapacity (Doc. 17 at 14-15; Doc. 33 at 15). Before commencing this action, on four separate occasions from March 26, 2001, through February 9, 2005, the plaintiff was involuntarily committed pursuant to Section 394.463, Florida Statutes (“the Baker Act”). Subsequent to commencing this action, the plaintiff was committed pursuant to the Baker Act in October, 2005, to a psychiatric hospital. See Doc. 37; Doc. 102 at 2 (“Ms. Seannavino is currently hospitalized and has had multiple hospitalizations [and] Baker Acts due to physical and mental disabilities.”). Most recently, on October 8, 2006, the plaintiff was committed (again, pursuant to the Baker Act) to Harbor Behavioral Health after she was discovered “walking through parking lots, banging on things, and screaming irrational ly,” at which time the plaintiff admitted to failing to take her prescribed medication for the previous four months. The plaintiffs mental incapacity has twice precluded mediation of this action. Peter Grilli, a seasoned and judicious mediator, twice attempted and twice failed to mediate the plaintiffs claims against the defendants. Following each attempted mediation, Mr. Grilli filed a mediation report stating that the mediation was cancelled pursuant to Rule 10.310(d), Florida Rules for Certified and Court-Appointed Mediators, which rule requires cancellation of a mediation if “for any reason a party is unable to freely exercise self-determination” (Doc. 56,107). During the April 25, 2007, competency hearing, the defendants called Dr." }, { "docid": "21012507", "title": "", "text": "must use the state’s procedures for determining competency or capacity.”). In the absence of a clear test for determining a party’s incapacity or incompetence under Florida law, “a federal procedure better preserves the integrity and the interests of the federal courts.” Id. at 1035. “It is a well-understood tenant of law that all persons are presumed to be competent” and that the “burden of proof of incompetency rests with the party asserting it.” Weeks v. Jones, 52 F.3d 1559, 1569 (11th Cir.1995). Because “[a] person may be competent to make some decisions but not others,” the test of a party’s competency “varies from one context to another.” U.S. v. Charters, 829 F.2d 479, 495 n. 23 (4th Cir.1987). In general, “to be considered competent an individual must be able to comprehend the nature of the particular conduct in question and to understand its quality and consequences.” Id. (quoting B. Freedman, Competence, Marginal and Otherwise: Concepts and Ethics, 4 Int’l. J. of L. & Psychiatry 53, 56 (1981)). In the context of federal civil litigation, the relevant inquiry is whether the litigant is “mentally competent to understand the nature and effect of the litigation she has instituted.” Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir.1971); Donnelly v. Parker, 486 F.2d 402, 407 (D.C.Cir.1973) (stating that Rule 17(c) may require an inquiry into the plaintiffs “capacity to understand the meaning and effect of the litigation being prosecuted in her name”). II. The plaintiff has a long and well-documented history of mental illness. Both the complaint (Doc. 1) and the amended complaint (Doc. 52) describe the plaintiff as an emotionally fragile and psychologically disabled person. Indeed, the plaintiffs counsel argues for a tolling of the applicable statute of limitations in this action because of the plaintiffs long-term mental incapacity (Doc. 17 at 14-15; Doc. 33 at 15). Before commencing this action, on four separate occasions from March 26, 2001, through February 9, 2005, the plaintiff was involuntarily committed pursuant to Section 394.463, Florida Statutes (“the Baker Act”). Subsequent to commencing this action, the plaintiff was committed pursuant to the Baker Act in" }, { "docid": "1504068", "title": "", "text": "Magwood’s sanity was raised in the district court, the court ordered Magwood examined by the psychiatric staff of the Taylor Hardin Secure Mental Facility in accordance with the standards for present insanity set forth in Gray v. Lucas, 710 F.2d 1048 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983). Since this evaluation showed Magwood to be presently sane, the district court simply declined to reach the merits of this argument and held that Magwood lacked standing to challenge § 15-16-23. Magwood v. Smith, 608 F.Supp. at 224. The fact that Magwood is presently sane for purposes of this federal litigation does not necessarily preclude a finding that he is insane as a matter of Alabama state law under § 15-16-23. Consequently, Magwood did have standing and we address the merits of this argument. We begin our analysis with the principle of statutory construction that “if a statute can be made constitutionally definite by a reasonable construction the court is under a duty to give it such a construction.” United States v. Thomas, 567 F.2d 299, 300 (5th Cir.1978). Although § 15-16-23 itself does not specify how the trial court should determine the present sanity of a death-row inmate and the Alabama appellate courts have not yet definitively construed the statute, there is ample guidance in Alabama common law. In determining whether an accused is competent to stand trial, Alabama courts must determine whether the accused has “sufficient present ability to consult with an attorney with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him.” Atwell v. State, 354 So.2d 30, 35 (Ala.Crim.App.1977), cert. denied, 354 So.2d 39 (Ala.1978). See also Holland v. State, 376 So.2d 796 (Ala.Crim.App.), cert. denied, 376 So.2d 802 (Ala.1979). Cf. Gray v. Lucas, 710 F.2d 1048, 1054 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983); Jones v. Smith, 599 F.Supp. 1292 (S.D.Ala.1984), aff'd, 772 F.2d 668 (11th Cir.1985). We are aware of the distinction between an inquiry into an accused’s competency to" }, { "docid": "21296587", "title": "", "text": "shall be entitled to register or vote.” Mo. Rev.Stat. § 115.133.2. The parties in this case do not argue that § 115.133.2 disqualifies more adults from voting than the prohibition set forth in Article VIII, § 2. Such a contention would conflict with well-established principle's — that Missouri’s election laws “must be liberally construed in aid of the right of suffrage,” Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629, 631 (Mo.banc 1913); that the right of citizens who possess the enumerated constitutional qualifications to vote “may be regulated by statute although not lightly denied or abrogated,” State ex rel. McClellan v. Kirkpatrick, 504 S.W.2d 83, 88 (Mo.banc 1974); and that “voting rights are an area where our state constitution provides greater protection than its federal counterpart,” Weinschenk v. State of Missouri, 203 S.W.3d 201, 212 (Mo. banc 2006). Thus, while no Missouri appellate court has addressed the question, we are confident that the Supreme Court of Missouri would construe the term “adjudged incapacitated” in § 115.133.2 as having the same meaning as the term “has á guardian [appointed] by reason of mental incapacity” in Article VIII, § 2. The Missouri Probate Code authorizes the appropriate probate court to appoint a qualified guardian for an adult if a hearing has established “by clear and convincing evidence that the person for whom a guardian is sought is incapacitated as defined in this law.” Mo. Rev. Stat § 475.079.1. An “incapacitated person” is defined as: one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur. Mo.Rev.Stat. § 475.010(9). The Probate Code defines a “partially incapacitated person” as one who “lacks capacity to meet, in part,” these essential requirements. § 475.010(14) (emphasis added). The distinction is significant. An adjudication of partial incapacity imposes only those legal disabilities “specified in the order of adjudication,” § 475.078.1, whereas an adjudication of full" }, { "docid": "20593885", "title": "", "text": "showing that a victim is totally physically incapacitated.” Id. (emphasis added); see also id. at 682 (“[N]o one would dispute that the victim is physically helpless in the ordinary sense of that term.”). In Huurre, the state appellate court held that the victim was able to nonverbally communicate her unwillingness to do something by making guttural noises. 603 N.Y.S.2d at 306-07. Although the state had not sustained its burden in presenting evidence sufficient to demonstrate the victim was physically helpless, Huurre noted that the state had sustained its burden of showing an inability to consent “by reason of a mental defect.” Id. at 310, 603 N.Y.S.2d 179. However, the term “physically helpless” has various interpretations in other states. See, e.g., Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1996) (rejected by the majority in Fourtin). Dabney found evidence sufficient to find the victim physically helpless where she was “blind, mentally impaired, partially handicapped, and unable to speak,” and “could only grunt, raise her hand, and shake her head from side to side.” Id. at 361-62. “Granted, the victim was not completely physically incapacitated, but this is not what the statute requires; it only requires physical helplessness, not total incapacity.” Id. at 362. As another example, Iowa punishes sex with an individual who is “mentally incapacitated, physically incapacitated, or physically helpless.” Iowa Code § 709.4(d). The state defines these terms separately: “Physically helpless” means a person who “is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited,” and “[pjhysically incapacitated” means a person who “has a bodily impairment or handicap that substantially limits the person’s ability to resist or flee.” Id. § 709.1A. These statutes demonstrate that the concept of being “physically helpless” need not be as narrow as defined by Connecticut or New York and that “physically incapable” is a separate, broader standard. Nothing compels us to adopt Connecticut and New York’s narrow formulation of “physically helpless” over the broader approach taken by other states. The federal statute itself does not use the term “physically helpless” and the district court" }, { "docid": "1500389", "title": "", "text": "ad litem to represent an incompetent person); see Ala.Code § 26-2A-1 Comment (“The broader definition [of incapacitated person in section 26-2A-20(8) ] permits legal protection, commensurate with the person’s capacity, without the stigma sometimes attached to a judicial decision of non compos mentis.”). Defendants’ argument supporting dismissal on the grounds that Plaintiffs lack capacity to sue is based on logic rather than binding authority. On the one hand, Plaintiffs represent to this court that they are perfectly capable of maintaining this suit on their own behalf. On the other hand, Plaintiffs’ First Amended Complaint is premised on the supposition that. Plaintiffs are “severely cognitively impaired” under the Defendants’ new Rules. Plaintiffs’ facially contradictory positions beg the question: How can a severely cognitively impaired plaintiff be competent to bring suit on his or her own behalf? The answer to that question, at least for purposes of a Rule 12(b)(6) motion to dismiss, must be found in the body of Plaintiffs’ First Amended Complaint. Plaintiffs claim that Defendants have defined “severely cognitively impaired” so broadly that it will apply even to Plaintiffs. Implicit in this claim is Plaintiffs’ belief that they are not severely cognitively impaired. Viewing the allegations in a light most favorable to the Plaintiffs, as is required by Rule 12(b)(6), it is not indisputably clear that Plaintiffs lack capacity to bring this suit. For example, Ala.Admin.Code § 420-5-4.08(5)(f), the new Rule in dispute, deems an Assisted Living Facility resident to be severely cognitively impaired “if he or she does not understand and cannot be trained to understand the unit dose medication system in use by the facility.” Id. It is certainly within the realm of possibility, under the allegations of the First Amended Complaint, that Plaintiffs might be hopelessly befuddled by the “unit dose medication system,” yet still be quite competent to bring this suit. Therefore, because there exists a set of facts upon which Plaintiffs can be granted relief, Defendants’ Rule 12(b)(6) motion is due to be denied. Plaintiffs’ conditional Motion to Add Parties (doc. # 8) is due to be denied as moot. B. Ripeness Under Article" }, { "docid": "21835648", "title": "", "text": "leave and the witness observed her leaving. And she was sent to USA Children’s and Women Hospital. And Davis agreed with the State’s recounting' of those facts. There is nothing in the plea record or elsewhere to indicate that the victim was physically helpless or mentally incapacitated as those terms are defined in the Alabama Code. See Ala. Code § 13A-6-60(6) (defining mental incapacitation as being “temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other incapacitating act committed upon him without his consent”); id. § 13A-6-60(7) (defining physical helplessness as being “unconscious or for any other reason .... physically unable to communicate unwillingness to an act”). We conclude, as the district court did, that Davis was convicted of sexual abuse by forcible compulsion, in violation of § 13A-6-66(a)(l). Davis contends that sexual abuse by forcible compulsion under § 13A-6-66(a)(1) is itself divisible. Under Alabama law, sexual abuse by forcible compulsion requires that the defendant have (1) subjected a person (2) to sexual contact (3) by forcible compulsion. Ala. Code § 13A-6-66(a)(1). Davis argues that, based on Alabama case law, the element of forcible compulsion can be satisfied in “multiple ways,” making it divisible. He is right in his premise but wrong in his conclusion. The Alabama Code defines forcible compulsion as “[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” Id. § 13A-6-60(8). Broken down, that definition describes three ways a jury could find that a defendant used forcible compulsion: (1) physical force that overcomes earnest resistance; (2) an express threat that places a person in fear of immediate death or serious physical injury; or (3) an implied threat that places a person in fear of immediate death or serious physical injury. See id. The fact that there are three ways of satisfying the forcible compulsion element does not, however, make forcible compulsion divisible. If “[the] jury need not agree" }, { "docid": "20593886", "title": "", "text": "361-62. “Granted, the victim was not completely physically incapacitated, but this is not what the statute requires; it only requires physical helplessness, not total incapacity.” Id. at 362. As another example, Iowa punishes sex with an individual who is “mentally incapacitated, physically incapacitated, or physically helpless.” Iowa Code § 709.4(d). The state defines these terms separately: “Physically helpless” means a person who “is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited,” and “[pjhysically incapacitated” means a person who “has a bodily impairment or handicap that substantially limits the person’s ability to resist or flee.” Id. § 709.1A. These statutes demonstrate that the concept of being “physically helpless” need not be as narrow as defined by Connecticut or New York and that “physically incapable” is a separate, broader standard. Nothing compels us to adopt Connecticut and New York’s narrow formulation of “physically helpless” over the broader approach taken by other states. The federal statute itself does not use the term “physically helpless” and the district court erred in defining “physically incapable” so narrowly. “Physically helpless” and “physically incapable” are two separate standards. “Physically helpless” suggests a lack of physical ability to do anything while “physically incapable” is a term that is more susceptible to application to various factual situations that can come before a jury. A victim could have a physical incapacity to decline participation or be incapable of communicating unwillingness to engage in a sexual act and still not be physically helpless. We find our support in differentiating the broader “physically incapable” standard from the more narrow “physically helpless” standard relied upon by the district court when we look to federal applications of § 2242(2)(B). For example, we have held in the context of sentencing that a defendant had committed an act in violation of § 2242 where the victim “repeatedly gained and lost consciousness” and “was unconscious or nearly so” when the defendant engaged in intercourse with her. United States v. Morgan, 164 F.3d 1235, 1237-38 (9th Cir.1999). The Eighth Circuit has similarly held that sufficient evidence supported finding" }, { "docid": "21012506", "title": "", "text": "an “incapacitated person” as “a person who has been judicially determined to lack the capacity to manage at least some of the property ... of such person.” Fla. Stat. § 744.102(10) (2006). Finally, Section 744.331(6), Florida Statutes, permits a court to determine a person’s incapacity only by “clear and convincing evidence.” Fla. Stat. § 744.331(6) (2006); Poteat v. Guardianship of Poteat, 771 So.2d 569, 571 (Fla. 4th DCA 2000). Although under Rule 17(b) a district court determining a party’s capacity must use the law of that party’s domicile, the court need not adopt any procedure required by state law but must only satisfy the requirements of due process. Cohen v. Office Depot, Inc., 184 F.3d 1292, 1296 (11th Cir.1999) (explaining that “if the state law conflicts with a federal procedural rule, then the state law is procedural for Erie/Hanna purposes regardless of how it may be characterized for other purposes.”); Thomas, 916 F.2d at 1035 (“[W]e reject the notion that in determining whether a person is competent to sue in federal court a federal judge must use the state’s procedures for determining competency or capacity.”). In the absence of a clear test for determining a party’s incapacity or incompetence under Florida law, “a federal procedure better preserves the integrity and the interests of the federal courts.” Id. at 1035. “It is a well-understood tenant of law that all persons are presumed to be competent” and that the “burden of proof of incompetency rests with the party asserting it.” Weeks v. Jones, 52 F.3d 1559, 1569 (11th Cir.1995). Because “[a] person may be competent to make some decisions but not others,” the test of a party’s competency “varies from one context to another.” U.S. v. Charters, 829 F.2d 479, 495 n. 23 (4th Cir.1987). In general, “to be considered competent an individual must be able to comprehend the nature of the particular conduct in question and to understand its quality and consequences.” Id. (quoting B. Freedman, Competence, Marginal and Otherwise: Concepts and Ethics, 4 Int’l. J. of L. & Psychiatry 53, 56 (1981)). In the context of federal civil litigation, the" }, { "docid": "10921507", "title": "", "text": "to the conduct has not been given or is not legally valid” supplants the previous definition of forcible sex offense to include sex offenses where consent to the conduct is involuntary or cannot be given. See Herrera, 647 F.3d at 179, 2011 WL 2698982, at *5 (characterizing sexual contact with a party who is “physically helpless, mentally defective, or mentally incapacitated” as a forcible sex offense because the victim is unable to consent); cf. Rodriguez-Juarez, 631 F.3d at 194 (involving statute criminalizing touching where the victim is “so mentally disabled or deficient that consent to touching cannot be given”). Moreover, it would make little sense to infer from the language in the amended Commentary— which directly connects a victim’s lack of consent with forcible conduct — that it was meant to apply only when there is assent to the act, but not legally valid consent, while excluding offenses from that definition where there was neither consent nor assent. The Tenth Circuit’s analysis in United States v. Romero-Hernandez, 505 F.3d 1082 (10th Cir.2007), lends further support to our interpretation of the term forcible sex offense in this case. In Romero-Hernandez, the Tenth Circuit concluded that, under the pre-amendment version of the Guidelines, a violation of Colorado Revised Statutes § 18-3-404(l)(a) was a forcible sex offense for purposes of the sentence enhancement under U.S.S.G. § 2L1.2 be cause a sexual contact offense is “necessarily forcible when that person does not consent.” Romero-Hernandez, 505 F.3d at 1089. Crucial to this conclusion was the Romero-Hemandez court’s reasoning that, although forcible was generally defined as “ ‘[ejffected by force or threat of force against opposition or resistance,”’ that definition was not applicable in the context of unlawful contact with another person. Id. at 1088 (quoting Black’s Law Dictionary 674 (8th ed. 2004)). Rather, in that context, forcible contact occurs when a person “ *lay[s] one’s finger on another person without lawful justification.’” Id. (quoting Black’s Law Dictionary 674). Thus, the Romero-Hemandez court reasoned that opposition or resistance “should not be read to require active opposition or resistance [to a sex offense].” Id. “[T]he legal right" }, { "docid": "20414839", "title": "", "text": "injured by NHV policies, which injuries would be redressed by a favorable decision invalidating NHV’s dis criminatory admissions regime. In a similar context concerning the relationship of a P & A agency (the “OAC”) and the individuals it represents, the Ninth Circuit, rejecting an argument Defendants also offer here, reasoned: Put in starkest terms, [defendant’s] membership argument is that because “individuals with mental illness [do not] actually control OAC’s activities and finances,” OAC cannot claim standing to represent their interests. In constitutional terms, the essence of [defendant’s] position is that without a direct membership linkage to incapacitated defendants, OAC cannot rely on injuries to those mentally ill defendants to meet the injury in fact requirement and establish the personal stake in the outcome of the litigation that the Constitution demands. We think [defendant’s] membership argument is overly formalistic. Given OAC’s statutory mission and focus under [federal law], its constituents — in this case, the mentally incapacitated defendants — are the functional equivalent of members for purposes of associational standing. In so holding, we agree with the only other circuit to have addressed the question. See Doe v. Stincer, 175 F.3d 879, 886 (11th Cir.1999). Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1110 (9th Cir.2003). For the same reasons, the Court finds that OPA has satisfied the first Hunt element. Second, the interests OPA seeks to protect through this litigation are germane to its purpose as a representative organization. As a P & A agency, OPA’s federal mandate is to (A) protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes; and (B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred. 42 U.S.C. § 10801(b)(2). Through its mission statement, OPA confirms that it seeks “to advance the cause of equal rights for persons with disabilities and their families” by, among other things, “exposing instances and patterns of discrimination and abuse” and “seeking individual and systemic" }, { "docid": "669985", "title": "", "text": "id. (vagrancy statute), the doctrine has also been used to strike down civil sanctions authorized by overly vague statutes. See Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966) (imposition of trial costs). It always operates when a statute’s vagueness creates the possibility that it can be applied in an arbitrary manner that infringes on such fundamental interests as First Amendment rights of speech and assembly, or the right of physical liberty. See generally, Note, The Void-For-Vagueness Doctrine, 109 Pa.L. Rev. 67 (1960). Applying the vagueness standard to section 406, it is clear that the statute does not pass constitutional muster. The key term in the statute is the “mental disability” on account of which a person in need of care may be committed. “Mental disability” in turn is defined in Section 102 as “any mental illness, mental impairment, mental retardation, or mental deficiency which so lessens the capacity of a person to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under care as provided in this act.” (emphasis supplied) The operative words are italicized. The most apparent aspect of the Pennsylvania civil commitment standard as embodied in sections 406 and 102 is that it is circular — a person may be committed if he is in need of care because of a mental disability which so lessens his capacity “as to make it necessary or advisable for him to be under care . ” Thus, the primary restriction on the discretion of a court to order commitment pursuant to section 406 is the requirement that the person to be committed be in need of care because of reduced capacity to use his customary self-control, judgment and discretion in the conduct of his affairs. Such a standard is impermissibly vague, if only because the key phrase “in need of care” is susceptible of several interpretations. How incapacitated must a person be before he needs care within the meaning of the statute? Must he be completely incapable" }, { "docid": "21835645", "title": "", "text": "2014), we return to the categorical approach and apply it to that statutory phrase. Doing so requires us to decide whether the least of the acts criminalized by that statutory phrase (instead of whether all of the acts criminalized by all of the statutory phrases) includes the use, attempted us*e,. or threatened use of physical force against another person, as required by the ACOA’s elements . clause, 18 U.S.O. § 924(e)(2)(B)(i). The Supreme Court has held that the “physical force” that the elements clause requires is “violent fohce— that is, force capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at, 140, 130 S.Ct. at 1271. The question we face in this appeal is whether Alabama’s first degree sexual abuse statute, as interpreted by the Alabama Supreme' Court, necessarily includes as an element the use, attempted use, or threatened use of violent physical force. III. DIVISIBILITY OF FIRST DEGREE SEXUAL ABUSE Alabama Code § 13A-6-66(a), which is the statute Davis was convicted of violating, provides: A person commits the crime of sexual abuse in the first degree if: (1) He subjects another persoq to sexual contact by forcible compulsion; or (2) He subjects another person to sexual contact who is incapable of consent by reason of being physically helpless or mentally incapacitated. Ala. Code § 13A-6-66(a). Because the statute lists multiple acts that each qualify as a crime, we must first determine if the statute is divisible or indivisible. There are three methods for determining whether a statute is divisible. See Gundy, 842 F.3d at .1163. First, “the statute on its face may resolve the issue.” Id. (quotation marks omitted). Second, “[i]f a precedential state court decision makes clear that a statute’s alternative phrasing simply lists alternative methods of committing one offense, such that a jury need not agree on which alternative method the defendant committed in order to sustain a conviction, then the statute is not divisible.” Id. (quotation marks omitted). And third, “if state law fails to provide clear answers, federal judges [may look at] the record of a prior conviction itself. ... for" }, { "docid": "21296588", "title": "", "text": "“has á guardian [appointed] by reason of mental incapacity” in Article VIII, § 2. The Missouri Probate Code authorizes the appropriate probate court to appoint a qualified guardian for an adult if a hearing has established “by clear and convincing evidence that the person for whom a guardian is sought is incapacitated as defined in this law.” Mo. Rev. Stat § 475.079.1. An “incapacitated person” is defined as: one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur. Mo.Rev.Stat. § 475.010(9). The Probate Code defines a “partially incapacitated person” as one who “lacks capacity to meet, in part,” these essential requirements. § 475.010(14) (emphasis added). The distinction is significant. An adjudication of partial incapacity imposes only those legal disabilities “specified in the order of adjudication,” § 475.078.1, whereas an adjudication of full incapacity imposes “all legal disabilities provided by law, except to the extent specified in the order of adjudication,” § 475.078.2. In either case, the probate court must apply a “least restrictive environment” principle, imposing “only such restraint as is necessary to prevent [the ward] from injuring himself and others and to provide him with such care, habilitation and treatment as are appropriate for him considering his physical and mental condition and financial means.” § 475.010(10); see § 475.075.10. If the court finds the person partially incapacitated, it “shall appoint a limited guardian” and “shall impose only such legal disabilities and restraints on personal liberty as are necessary to promote and protect the well-being of the individual.” § 475.080.1. II. An Eleventh Amendment Issue At the outset, defendants argue that the Missouri Secretary of State and Attorney General have no real connection with the enforcement of Missouri’s laws regarding the loss of voting rights by persons under guardianship and therefore this suit is barred by the Eleventh Amendment. Like the district court, we disagree. A State’s" }, { "docid": "21391413", "title": "", "text": "the “residual clause,” § 4B1.2(a)(2). See Maj. Op. at 341-43. The residual clause covers any felony that is a “burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). The majority relies on United States v. Thornton, 554 F.3d 443 (4th Cir.2009). But the differences between that case and this are night and day. The Virginia law in Thornton criminalized “ ‘carnal knowledge’ ” of a minor “ ‘without the use of force,’ ” 554 F.3d at 445 n. 2 (emphasis added) — quite unlike North Carolina’s forcible crime of second-degree rape. Because the force clause obviously did not apply, id. at 446, all that remained was the residual clause, which the court understandably deemed a poor fit, id. at 446-49. The majority’s discussion of Thornton and the residual clause is thus inapposite. C. The majority maintains that the rape of a mentally disabled, mentally incapacitated, or physically helpless person is analogous to statutory rape. The shared logic of those crimes, according to the majority, is that “the fact of consent is not a defense where the victim is unable to give legally valid consent by virtue of age or by virtue of mental disability.” Maj. Op. at 340. But the analogy is misguided. As a preliminary matter, North Carolina’s second-degree rape statute does not target statutory rape. See N.C. Gen.Stat. § 14 — 27.3; J.A. 60-66. It makes no mention of the victim’s age. It is instead defined by the victim’s mental or physical defenselessness and an inability to fathom the basic situation or oppose the aggressor’s actions. I would not equate age and impairment. Some teenagers are mature and responsible; others are decidedly not. But all the victims under North Carolina’s second-degree rape statute are by definition required to be lacking in basic mental or physical capacity. Unlike with statutory rape, the extent of the victim’s disability must be individually established, sometimes with expert testimony. See State v. Hunt, 365 N.C. 432, 722 S.E.2d 484, 491-92 (2012). Such circumstances," }, { "docid": "1260171", "title": "", "text": "incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. Under Rule 17(b) the question of whether a particular individual is an “infant or incompetent,” is a matter to be determined by reference to the laws of the state of the individual's domicile. Accordingly, the Debtor’s capacity to sue or be sued in his own right, or his status as a person sui juris, must be determined under Texas law. 16. “Incompetent persons” are defined by the Texas Probate Code § 3(p) (Vernon 1980 & Supp.1989), as: [Pjersons non compos mentis, mentally disabled persons, insane persons, common or habitual drunkards, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs. The statutory definition makes it clear that a person must be mentally incapable of caring for himself to be an “incompetent.” Any “disability” visited upon a person by reason of his physical incarceration does not render him “incompetent” for purposes of Rule 17 and Texas Probate Code § 3(p). Mr. Moody has made no claim of “incompetency” and testified in open court on February 3, 1989, that he was mentally competent to manage his property and financial affairs. 17. Nor, as Ms. Youngs argues, does Mr. Moody’s status as a federal prisoner otherwise entitle Ms. Youngs to represent him as a “next friend.” Prisoner status does not disable a person from litigating pro se. Stephens v. Curtis, 450 F.Supp. 141, 143 (S.D.Tex.1978). The case argued by Ms. Youngs in support of her right to appear as next friend for Moody is in fact antagonistic to her argument. In Rosenberg v. U.S., 346 U.S. 273, 291-92, 73 S.Ct. 1152, 1161-62, 97 L.Ed. 1607 (1953), the Court strongly criticized the practice of allowing a next friend standing to litigate on behalf of defendants. Ms. Youngs’ effort to invoke the doctrine of “next friend” is therefore wholly inappropriate and contrary to well established law. 18. Finally, any notion that Ms. Youngs’ attempts to appear for Moody were" }, { "docid": "21835647", "title": "", "text": "the sole and limited purpose of determining whether the listed items are elements of the offense.” Id. (quotation marks omitted). On its face § 13A-6-66(a) lists two separate crimes: sexual abuse by forcible compulsion and sexual abuse of a person incapable, of consent by reason of being physically helpless or mentally incapacitated. As a result, we turn to the modified categorical approach to determine which of those crimes Davis was convicted of committing. See id. at 1162. It is clear from Davis’ plea colloquy that he was convicted of sexual abuse by forcible compulsion. When Davis pleaded guilty to first degree sexual abuse, the prosecutor described the factual basis of the plea as follows: [T]he State would expect to show that oh or about March 5th of 2011 here in Mobile County the victim who was 17 years of age entered the defendant’s apartment. And while she was in his apartment the defendant assaulted her and during the assault he placed his hands on her vaginal area, that a wit ness—well, she was able to leave and the witness observed her leaving. And she was sent to USA Children’s and Women Hospital. And Davis agreed with the State’s recounting' of those facts. There is nothing in the plea record or elsewhere to indicate that the victim was physically helpless or mentally incapacitated as those terms are defined in the Alabama Code. See Ala. Code § 13A-6-60(6) (defining mental incapacitation as being “temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other incapacitating act committed upon him without his consent”); id. § 13A-6-60(7) (defining physical helplessness as being “unconscious or for any other reason .... physically unable to communicate unwillingness to an act”). We conclude, as the district court did, that Davis was convicted of sexual abuse by forcible compulsion, in violation of § 13A-6-66(a)(l). Davis contends that sexual abuse by forcible compulsion under § 13A-6-66(a)(1) is itself divisible. Under Alabama law, sexual abuse by forcible compulsion requires that the defendant have (1)" }, { "docid": "21391405", "title": "", "text": "the range of actions that North Carolina would realistically classify as second-degree rape. This is a practical exercise, not a dreamy one about every conceivable scenario to which the statute might apply. See United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.2008) (requiring “ ‘a realistic 'probability, not a theoretical possibility,’ that the state would apply its statute to conduct that falls outside the definition of ‘crime of violence’” (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007))). North Carolina defines the felony of second-degree rape as follows: (a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: (1) By force and against the will of the other person; or (2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing, the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless. N.C. Gen.Stat. § 14-27.3(a)(l)-(2). Another state provision, in turn, defines each of the three mental or physical conditions identified in the second-degree rape statute: (1) “Mentally disabled” means (i) a victim who suffers from mental retardation, or (ii) a victim who suffers from a mental disorder, either of which temporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting the act of vaginal intercourse or a sexual act, or of communicating unwillingness to submit to the act of vaginal intercourse or a sexual act. (2) “Mentally incapacitated” means a victim who due to any act committed upon the victim is rendered substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act. (3) “Physically helpless” means (i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act. Id. § 14 — 27.1(1)—(3). The import of these provisions is plain." }, { "docid": "22195525", "title": "", "text": "counsel for the City and the advice of the court withdrew, an instruction that the police officers who dealt with Simmons were \"under a duty to follow a directive” and that “the jury [could] consider that if [the police] violated that directive, that could be considered negligent.” .The City bases this argument on the statement of its counsel in the course of the colloquy on proposed jury instructions that “[it] doesn’t mean this person couldn't make a decision regarding his own life or death at a particular point in time.” The City construes this statement as an objection to the court’s approval of and decision to use, in the instruction on Simmons’s duty of care, language from a Pennsylvania wills and estates statute that plaintiff had proposed. . Plaintiffs counsel, as the City suggests, proposed a jury instruction that would have adopted the definition of \"incompetent” in Title 20 of the Pennsylvania Consolidated Statutes, which concerns decedents, estates, and fiduciaries. This definition states that an incompetent person is \"a person who, because of infirmities of old age, mental illness, mental deficiency or retardation, drug addiction or inebriety ... lacks sufficient capacity to make or communicate responsible decisions concerning his person.\" 20 Pa.Cons.Stat.Ann. § 5501 (Purdon 1975 & Supp.1990). As the City argues, the statement of its counsel appears to constitute a summary of and an objection to the use of this language in jury instructions. A comparison of the foregoing statutory language with the language of the court's actual instruction concerning Simmons’s duty of care, however, reveals that the court did not use the statutory language to which the City objected. Plaintiff’s counsel, moreover, appears to have withdrawn the proposed instruction. . I note at all events that, because the McMi-chael defendant, in contrast to the City, had no custodial or other relationship with the intoxicated plaintiff that might have given rise to a heightened duty to him, McMichael is distinguishable from this case. Indeed, the issue whether a detainee’s intoxication may lower or obviate his duty of care appears to be one of first impression for the Pennsylvania courts." } ]

[ { "docid": "23635977", "title": "", "text": "of that sentence is crucial to the opinion’s determination that the fixed annuity is not a security but an insurance product. Otto requests, both in its response to VALIC’s motion and in its petition for rehearing, that we withdraw our entire discussion of this issue and find in stead that the fixed annuity is a security. We agree with Otto that we cannot simply delete the sentence and leave the remainder of the discussion untouched. We therefore supplement section II of our prior opinion with this opinion. Upon reexamination in light of VALIC’s newly asserted right to alter past interest bands, we hold that VALIC’s fixed annuity plan is a security subject to the federal securities laws. The amount of discretion retained by VALIC to alter the interest it paid under the fixed annuity is relevant to the level of the investment risk assumed by VALIC. As discussed in our previous opinion, the Supreme Court, this circuit and the Securities and Exchange Commission (the “SEC”) all have found that the degree of investment risk assumed by the insurance company is an important factor in determining whether a particular annuity plan is an insurance product or a security. The Supreme Court has stated that insurance “involves some investment risk-taking on the part of the company” and “a guarantee that at least some fraction of the benefits will be payable in fixed amounts.” S.E.C. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 71, 79 S.Ct. 618, 622, 3 L.Ed.2d 640 (1959). The Court has also noted that there is “a basic difference between a contract which to some degree is insured and a contract of insurance.” S.E.C. v. United Benefit Life Ins. Co., 387 U.S. 202, 211, 87 S.Ct. 1557, 1562, 18 L.Ed.2d 673 (1967); see also Peoria Union Stock Yards Co. Retirement Plan v. Penn Mutual Life Insurance Co., 698 F.2d 320 (7th Cir.1983). The SEC recently enacted Rule 151 which defines more precisely what constitutes sufficient investment risk-taking by an insurance company to ensure that an annuity will be considered an insurance product and exempt from the federal securities" } ]

[ { "docid": "23208759", "title": "", "text": "decision in VALIC establishes that variable annuities are not the “business of insurance.” In VALIC, the Supreme Court found that variable annuities are securities because they lack the traditional earmarks of insurance. The Court stated that “we conclude that the concept of ‘insurance’ involves some investment risk-taking on the part of the company. The risk of mortality, assumed here, gives these variable annuities an aspect of insurance. Yet it is apparent, not real; superficial, not substantial. In hard reality the issuer of a variable annuity that has no element of a fixed return assumes no true risk in the insurance sense.” VALIC, 359 U.S. at 71, 79 S.Ct. 618. See also NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 264, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995) (holding that Comptroller of Currency’s holding that annuities, both fixed and variable, are not insurance within the meaning of 12 U.S.C. § 92 (2000) (a provision allowing banks to sell insurance products in towns with less than 5,000 inhabitants) was a reasonable interpretation of the statute and stating that “fixed annuities more closely resemble insurance than do variable annuities.... ”); SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 211, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967) (“The basic difference between a contract which to some degree is insured and a contract of insurance must be recognized.”). Because the Supreme Court has held variable annuities to be securities, Hartford Life and the SEC contend that the protections afforded by MeCarran-Fergu-son are not implicated. Yet, both also concede elsewhere in their briefs that variable annuities are not purely securities, but are hybrid products, possessing at least some characteristics of insurance. See Brief for Defendants Appellees at 7 (“Because variable annuities have some insurance features, they are also regulated under state insurance law.”); Brief for SEC at 4-5 (“However, because variable annuities also have some insurance features, they are ‘hybrid’ products that have been and remain subject to extensive regulation by state insurance authorities.”). Moreover, in VALIC, the Supreme Court acknowledged that variable annuities possess at least some aspects" }, { "docid": "5016119", "title": "", "text": "common stocks and other equity-type investments. The participants bear all the investment risks with this annuity; neither interest nor the principal contributed by the participants is guaranteed by the company. The participants’ profits thus depend solely upon the expertise and investment success of those who invest the funds in the Separate Account. The fixed annuity, the subject of this lawsuit, operates quite differently. Participants’ contributions become a part of the company’s general assets. The stated primary objective of the fixed annuity is to provide insured retirement stability by long-term accumulation of funds through compound interest. VALIC bears the investment risk, because it guarantees the return of both principal and a minimum of 4% compound annual interest for the first ten years of participation and 3V2% interest thereafter. Interest above the minimum level may be paid in the discretion of VAL-IC’s board of directors. Otto asserts that the status of VALIC’s fixed annuity as a security is settled “beyond all question” by three cases: SEC v. Variable Annuity Life Insurance Co. of America, 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959); SEC v. United Benefit Life Insurance Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967); and Peona Union Stock Yards. These cases do shed some light on this issue, but they do not support, much less compel, the conclusion Otto reaches. The Supreme Court decided long ago that a variable annuity offered by VALIC was a security. VALIC, 359 U.S. at 71, 79 S.Ct. at 622. In doing so, the Court distinguished traditional fixed annuities from the more recently evolved variable annuities. Id., 359 U.S. at 69, 79 S.Ct. at 621. Unlike their predecessors, variable annuities were to be treated as securities rather than insurance products, in large part because they placed the entire investment risk on the annuitant. “For in common understanding ‘insurance’ involves a guarantee that at least some fraction of the benefits will be payable in fixed amounts.” Id., 359 U.S. at 71, 79 S.Ct. at 622. The Supreme Court discussed the relationship between annuities and the federal securities laws further in United" }, { "docid": "23635945", "title": "", "text": "considered whether a variable annuity was a security or insurance. The Court discussed the characteristics distinguishing the variable annuity from the traditional fixed annuity. Generally, the funds underlying the fixed annuity are invested according to conservative standards, and the fixed annuity pays a specified and definite amount to the annuitant. In contrast, the variable annuity’s funds are invested primarily in common stocks and other equities, and the variable annuity’s benefits vary with the success of the company’s investment experience. The holder of a variable annuity, therefore, is not able to depend upon the annuity’s paying a fixed return. Id. at 69-70, 79 S.Ct. at 620-21. The insurance company in VALIC stressed the fact that, as with all insurance, the company assumed the mortality risks under both the variable and the fixed annuity plans. Yet the Court found this characteristic alone an insufficient basis for considering a variable annuity to be insurance. Insurance, according to the Court, “involves some investment risk-taking on the part of the company” and “a guarantee that at least some fraction of the benefits will be payable in fixed amounts.” Id. at 71, 79 S.Ct. at 622. An annuity contract that did not guarantee a fixed return thus places all of the investment risk on the policyholder and none on the company. Because there was “no true underwriting of risks,” id. at 73, 79 S.Ct. at 623, the VALIC Court concluded that the variable annuity was a security. In S.E.C. v. United Benefit Life Insurance Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967), the Court again explored the distinction between a security and insurance in considering a deferred, or optional, annuity plan. Under this “Flexible Fund” annuity program, the purchaser’s premiums less a deduction for expenses (the net premium), and any money earned from investing the premiums, were held in a Flexible Fund Account, which United maintained separately from its other funds. The purchaser was entitled to withdraw the “cash value” of the policy before maturity. The “cash value” was equal to the higher of two amounts: the purchaser’s proportional share of the fund" }, { "docid": "12595960", "title": "", "text": "too much money to Home Life for too little benefit. Id. This lawsuit followed. III. SECURITIES CLAIMS Plaintiffs’ claims under the federal securities laws all fail for the same fundamental reason: Neither the FA nor the PSWL is a security. Because the closest question in this case is posed by the FA, the Court will explain first why that contract was not a security. The federal securities laws require the courts to give effect to two competing policies. The first policy is set out by the broad statutory definition given to the term “security,” which includes within its scope, among other instruments, “investment contract[s].” See § 2(1) of the 1933 Act, 15 U.S.C. § 77b(1); § 3(a)(10) of the 1934 Act, 15 U.S.C. § 78c(a)(10). The competing policy is codified in § 3(a)(8) of the 1933 Act, exempting from federal regulation “[a]ny insurance or endowment policy or annuity contract or optional annuity contract, issued by a corporation subject to [state regulation].” 15 U.S.C. § 77c(a)(8). As the Seventh Circuit has held, any instrument that qualifies as an insurance or annuity contract under § 3(a)(8) of the 1933 Act is insulated from private actions brought under the 1934 Act. Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1130 (7th Cir.1986), cert. denied, 486 U.S. 1026, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988). The basic principles were set forth in a pair of Supreme Court decisions, see SEC v. Variable Annuity Life Ins. Co. (“VALIC”), 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959), and SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967), establishing that insurance products can be treated as securities under the federal laws if the contracts place too much of the investment risk on policyholders. See also SEC v. C.M. Joiner Leasing, Inc., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943). (Although Professors Loss and Seligman have questioned whether Congress ever intended this result, see L. Loss & J. Seligman, Securities Regulation, at 1000-02 (3d ed. 1989), it of course is not this Court’s prerogative" }, { "docid": "5016122", "title": "", "text": "value guarantee reduced somewhat the investment risk of the purchaser, this was not enough. The Court stated that “ ‘[t]he test ... is what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect.’ ” Id., 387 U.S. at 211, 87 S.Ct. at 1562, quoting SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 352-53, 64 S.Ct. 120,124, 88 L.Ed. 88 (1943). The Flexible Fund was “considered to appeal to the purchaser not on the usual'insurance basis of stability and security but on the prospect of ‘growth’ through sound investment management.” United Benefit, 387 U.S. at 211, 87 S.Ct. at 1562. Given the plan’s pitch to growth through professionally managed investment, the Court deemed it fair to apply the securities laws to it. Id. VALIC’s fixed annuity differs significantly from the plans in these two Supreme Court cases. VALIC bears the investment risk, guaranteeing the return of the participants’ contributions plus interest. Moreover, the economic inducement of the fixed annuity is indeed the ‘‘usual insurance basis of stability and security” rather than growth through investment. The company’s literature clearly emphasizes the different objectives of the variable and fixed annuities: the former is “long-term capital growth,” which the latter is the more secure “long-term accumulation of funds for retirement through compound interest.” See, e.g., VALIC’s Owner's Manual, Exhibit B to Otto’s complaint. The stability of the fixed annuity was apparent to Otto, who stated that she chose this annuity instead of the variable annuity because she did not like “the fluctuating rates” and wanted “a more conservative investment.” Otto deposition, p. 25. Accordingly, VAL-IC’s fixed annuity is distinguishable from the annuities which the Supreme Court has found to be within the reach of the securities laws. Nor does the Seventh Circuit opinion in Peoria Union Stock Yards bolster Otto’s claim that the fixed annuity should be treated like a security. That case dealt with a “group deposit administration annuity contract” sold by an insurance company to pension trustees. The insurance company guaranteed interest payments (at" }, { "docid": "15194189", "title": "", "text": "annuity is an accumulation product. Id. at 104-05. The purchaser invests money and allows the value of the account to grow and then later on draws down the value of the account. Id. at 104. In a fixed deferred annuity, the purchaser receives from the insurer an interest rate on the amount of premiums invested by the purchaser. In a variable deferred annuity, the purchaser is not guaranteed a particular rate of return; instead, the purchaser invests in one or more professionally managed diversified investment products, offered through “separate accounts” of the insurance companies, and receives a rate of return that varies depending upon the success of the underlying investment. Id. at 105. Although deferred annuities have an investment component, they typically retain two insurance features: a guarantee of monthly payments for life and a benefit that is payable if the annuitant dies before the payout begins. Id. Thus, “[vjariable annuities are typically characterized as ‘hybrid products,’ possessing characteristics of both insurance products and investment securities.” Id. As hybrid products, variable annuities are properly subjects of hybrid regulation. There is nothing inappropriate or inconsistent about the securities component being subject to federal securities regulation and the insurance aspects being subject to state regulation. For that reason, nothing in SLUSA displaces state insurance regulation, nor “invalidate^, impair[s], or supersede[s] any law enacted by any State for the purpose of regulating the business of insurance.” 15 U.S.C. § 1012(b). Rather, SLUSA’s purpose is the preemption of private securities class action lawsuits, not the displacement of state insurance regulation. Indeed, SLUSA expressly preserves state governmental enforcement powers. 15 U.S.C. § 77p(e). Thus, under SLUSA, “[s]tate authorities may continue to enforce existing or new securities and insurance regulations concerning the sale of variable annuities in precisely the same manner as they have in the past.” Lander, 251 F.3d at 118. Indeed, the only actions that SLUSA preempts are specific types of private party securities class actions based upon state statutory or common law. B Patenaude claims that his action is founded on California’s statutory regulation of insurance and thus, under McCarran-Ferguson, SLUSA is inapplicable" }, { "docid": "5016123", "title": "", "text": "annuity is indeed the ‘‘usual insurance basis of stability and security” rather than growth through investment. The company’s literature clearly emphasizes the different objectives of the variable and fixed annuities: the former is “long-term capital growth,” which the latter is the more secure “long-term accumulation of funds for retirement through compound interest.” See, e.g., VALIC’s Owner's Manual, Exhibit B to Otto’s complaint. The stability of the fixed annuity was apparent to Otto, who stated that she chose this annuity instead of the variable annuity because she did not like “the fluctuating rates” and wanted “a more conservative investment.” Otto deposition, p. 25. Accordingly, VAL-IC’s fixed annuity is distinguishable from the annuities which the Supreme Court has found to be within the reach of the securities laws. Nor does the Seventh Circuit opinion in Peoria Union Stock Yards bolster Otto’s claim that the fixed annuity should be treated like a security. That case dealt with a “group deposit administration annuity contract” sold by an insurance company to pension trustees. The insurance company guaranteed interest payments (at a rate declining from 7x/2% to 3x/2%) on contributions made during the first three years of the contract, but it made no guarantee on later contributions. All the contributions, however, were to be credited with whatever investment income the insurance company could realize, less certain modest administrative charges. Thus, the Seventh Circuit found that the insurance company bore even less of the investment risk than did the company in United Benefit, and that any profits of the enterprise were due solely to the investment efforts of the insurance company. Peoria Union Stock Yards, 698 F.2d at 325. This plan is thus distinguishable from VALIC’s fixed annuity in the same way as the contracts in VALIC and United Benefit — “the insurance company is offering the pension plan a chance to share in the insurance company’s investment experience.” Id. VALIC offers this chance to its customers through the variable, not the fixed, annuity. Our decision that VALIC’s fixed annuity is not a security is supported by the SEC’s view that “neither the general account nor any" }, { "docid": "23482042", "title": "", "text": "SEC v. W.J. Howey Co., 328 U.S. 293, 298, 66 S.Ct. 1100, 1102, 90 L.Ed. 1244 (1946), which defined an investment contract for purposes of federal securities law as a contract “whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter ...,” and from SEC v. Variable Annuity Life Ins. Co. of America, 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959) (“VAL-IC ”), which held that variable annuity contracts issued by insurance companies are investment contracts under the 1933 act. True, in considering the argument that such contracts are within that act’s exemption for “any insurance or . .. annuity contract” issued by a regulated insurance company, 15 U.S.C. § 77e(a)(8), the Court in VALIC pointed out that “in common understanding ‘insurance’ involves a guarantee that at least some fraction of the benefits will be payable in fixed amounts.... The companies that issue these annuities ... guarantee nothing to the annuitant except an interest in a portfolio of common stocks or other equities' — an interest that has a ceiling but no floor.” 395 U.S. at 71-73, 79 S.Ct. at 621-23 (footnotes omitted). In this case there is a floor: the guaranty of a minimum fixed interest return on the contributions the employer makes to the deposit account during the first three years of the contract. But in this respect the contract is no different from the “Flexible Fund Annuity” contract that the Supreme Court held to be a security in SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967). The purchaser was required to make fixed annual contributions till maturity, at which time he could either withdraw his contributions, plus whatever earnings had accumulated through the insurance company’s investment of those contributions, or use them to purchase an annuity from the company. In either case the company guaranteed him a minimum value at maturity, but a low minimum: “United set its guarantee by analyzing the performance of common stocks during the first half of the 20th" }, { "docid": "12595963", "title": "", "text": "concerning the contractual terms, the court of appeals reversed its previous decision to hold that the contract was indeed a security. Id. at 1140-42. When Otto was first decided, the facts were understood as follows. Variable Annuity Life Insurance Co. (“VALIC”) had issued a contract which it termed a fixed annuity. It guaranteed the principal paid into the annuity, as well as interest at a minimum rate of 4% per year for the first ten years, and 2Jh% thereafter. The insurer held funds paid by annuitants in its general account and invested them in a variety of long-term instruments, generally in the form of debt, such as mortgages and bonds. Upon retirement, the beneficiary could either withdraw the amount accumulated in a lump sum or use it to buy an annuity. Id. at 1129. The distinguishing characteristic of the fixed annuity was its excess interest provision, allowing the insurer, at its discretion, to pay interest on top of the guaranteed rate. Id. The plaintiff class alleged that the insurer had failed to disclose the manner in which it calculated the excess interest. This method, known as “banding” or “new money,” paid the current rate of interest on current contributions only; previous contributions (so the court of appeals had been led to believe) would continue to earn interest at the excess rates declared at the time the previous contributions had been made. Id. at 1130. The current excess rate, however, could be changed at any time. The court of appeals analyzed the question in two stages. First, the court considered the matter under the law developed in the Supreme Court’s decisions, as well as the Seventh Circuit’s own decision in Peoria Union Stock Yards Co. v. Penn Mutual Life Ins. Co., 698 F.2d 320 (7th Cir.1983). The court noted that the fixed annuity had been promoted as a method of saving for retirement, rather than as an investment device. Funds paid into it were held in the insurer’s general account, and were invested in safe securities, largely debt. Principal was guaranteed, as was the base amount of interest, which though low," }, { "docid": "7022171", "title": "", "text": "RIPPLE, Circuit Judge. This successive appeal concerns retirement investments made by employees of various non-profit entities through an investment program with Variable Life Insurance Corporation (“VALIC”). After this court remanded certain matters to the district court in Otto v. Variable Life Insurance Company, 814 F.2d 1127 (7th Cir.1987), cert. denied, 486 U.S. 1026, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988), this case went to trial on two primary claims, an allegation that various defendants violated securities laws and an allegation that various defendants had breached contracts with the plaintiff class. At the close of the plaintiffs’ case, judgment was entered in favor of all defendants with the exception of VALIC. The jury returned a verdict in favor of VALIC on both of the claims, and judgment subsequently was entered on that verdict. Ms. Otto now appeals from the entry of judgment on the verdict in favor of VALIC and from the entry of judgment in favor of the Variable Annuity Marketing Company (“VAMCO”), a subsidiary of VALIC and one of the corporate defendants in whose favor judgment was entered at the close of Ms. Otto’s case. For the reasons set forth in this opinion, we affirm the decisions of the district court. I BACKGROUND A. Facts This dispute centers on the rates of return that allegedly should have been available to all investors on funds deposited in retirement accounts operated by VALIC and on disclosures that allegedly should have been made, but were not, with regard to VALIC’s methods for crediting those accounts with certain periodic interest awards. Beverly Otto brought this action on behalf of herself and a class of similarly situated Illinois residents who participated in VALIC’s fixed annuity program between October 17, 1975, and August 2,1982 (the “class period”). VALIC is a life insurance company formed under the laws of the State of Texas that sells annuity products through its group annuity program to employees of various non-profit entities, such as school districts and hospitals. 1. Group Contract and Investment Overview In March 1968, VALIC entered into a group unit purchase (“GUP”) contract with Ms. Otto’s employer," }, { "docid": "23635944", "title": "", "text": "had furnished the basis of pendent jurisdiction, the court dismissed the contract and common law fraud claims. II. Section 3(a)(8) of the Securities Act of 1933 exempts from its provisions “[a]ny insurance or endowment policy or annuity contract or optional annuity contract” issued by a corporation subject to supervision by the appropriate insurance regulatory authority. 15 U.S.C. § 77c(a)(8) (1982). The issue before us is whether the fixed annuity plan sold by VALIC is an “annuity” under section 3(a)(8) or whether the plan is an “investment contract” subject to the requirements of the 1934 Securities Act. The district court held that VAL-IC’s fixed annuity was more properly viewed as an insurance product than as an investment contract. Because we agree with the district court’s determination that the annuity in question falls within the section 3(a)(8) exemption, we hold that the district court properly granted summary judgment on the 1934 Securities Act claim. In S.E.C. v. Variable Annuity Life Insurance Co. (“VALIC”), 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959), the Su preme Court considered whether a variable annuity was a security or insurance. The Court discussed the characteristics distinguishing the variable annuity from the traditional fixed annuity. Generally, the funds underlying the fixed annuity are invested according to conservative standards, and the fixed annuity pays a specified and definite amount to the annuitant. In contrast, the variable annuity’s funds are invested primarily in common stocks and other equities, and the variable annuity’s benefits vary with the success of the company’s investment experience. The holder of a variable annuity, therefore, is not able to depend upon the annuity’s paying a fixed return. Id. at 69-70, 79 S.Ct. at 620-21. The insurance company in VALIC stressed the fact that, as with all insurance, the company assumed the mortality risks under both the variable and the fixed annuity plans. Yet the Court found this characteristic alone an insufficient basis for considering a variable annuity to be insurance. Insurance, according to the Court, “involves some investment risk-taking on the part of the company” and “a guarantee that at least some fraction of" }, { "docid": "15194187", "title": "", "text": "116. Thus, “[w]hen federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State’s administrative regime, the McCarran-Ferguson Act does not preclude its application.” Humana, Inc. v. Forsyth, 525 U.S. 299, 310, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999). Furthermore, “when the intended effect of a federal statute is to displace state regulations, we must give effect to this intent, regardless of whether an insurance company is involved.” Lander, 251 F.3d at 116—17. A As has been amply demonstrated, the sale of variable annuities has been subject to federal securities law for more than half a century, even when the variable annuities are sold by insurance companies. See Variable Annuity Life Ins. Co. of Am., 359 U.S. at 70-72, 79 S.Ct. 618. Thus, Congress has consistently indicated its intent, particularly with the passage of SLUSA, to displace state regulation insofar as it relates to the marketing of the securities component of variable annuities. However, this does not end the analysis because tax-deferred variable annuities are “hybrid” products, that is, they retain some aspects of both a security and an insurance product. To understand the interplay, we must deconstruct the product. “An annuity is a contract between a seller (usually an insurance company) and a buyer (usually an individual, also referred to as the ‘annuitant’) whereby the annuitant purchases the right to receive a stream of periodic payments to be paid either for a fixed term or for the life of the purchaser or other designated beneficiary.” Lander, 251 F.3d at 104. Traditional annuities, or annuities in which payment begins immediately or soon after purchase and the contract specifies the amount of each payment, are “typically thought of as insurance products because the annuitant receives a guaranteed stream of income for life, and the insurer assumes and spreads the ‘mortality risk’ of the annuity — the risk that the annuitant will live longer than expected, thereby receiving benefits that. exceed the amount paid to the seller of the policy.” Id. In contrast, a deferred" }, { "docid": "5016124", "title": "", "text": "a rate declining from 7x/2% to 3x/2%) on contributions made during the first three years of the contract, but it made no guarantee on later contributions. All the contributions, however, were to be credited with whatever investment income the insurance company could realize, less certain modest administrative charges. Thus, the Seventh Circuit found that the insurance company bore even less of the investment risk than did the company in United Benefit, and that any profits of the enterprise were due solely to the investment efforts of the insurance company. Peoria Union Stock Yards, 698 F.2d at 325. This plan is thus distinguishable from VALIC’s fixed annuity in the same way as the contracts in VALIC and United Benefit — “the insurance company is offering the pension plan a chance to share in the insurance company’s investment experience.” Id. VALIC offers this chance to its customers through the variable, not the fixed, annuity. Our decision that VALIC’s fixed annuity is not a security is supported by the SEC’s view that “neither the general account nor any interests therein are generally subject to the provisions of the 1933 or 1940 Acts____” Although not controlling, the Commission’s interpretation of the securities laws is entitled to considerable weight. United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 718-19, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975). Accordingly, we hold that Otto’s securities fraud claim must fail because VALIC’s fixed annuity is not a security. Count II Defendants make a two-pronged attack on the complaint’s ERISA count. First, they argue that ERISA does not cover VALIC’s fixed annuity because the annuity is not “employer maintained” — and ERISA applies only to plans or funds “established or maintained by an employer.” 29 U.S.C. §§ 1002(2)(A), 1003(a). Second, defendants argue that even if the fixed annuity were considered to be “employer maintained,” the annuity would be excluded from ERISA’s coverage because Otto’s employer is a governmental subdivision. 29 U.S.C. §§ 1002(32), 1003(b)(1). Defendants’ first argument is persuasive. Both Otto and defendants agree that the school district does no more than: (1) permit annuity contractors" }, { "docid": "15194188", "title": "", "text": "the analysis because tax-deferred variable annuities are “hybrid” products, that is, they retain some aspects of both a security and an insurance product. To understand the interplay, we must deconstruct the product. “An annuity is a contract between a seller (usually an insurance company) and a buyer (usually an individual, also referred to as the ‘annuitant’) whereby the annuitant purchases the right to receive a stream of periodic payments to be paid either for a fixed term or for the life of the purchaser or other designated beneficiary.” Lander, 251 F.3d at 104. Traditional annuities, or annuities in which payment begins immediately or soon after purchase and the contract specifies the amount of each payment, are “typically thought of as insurance products because the annuitant receives a guaranteed stream of income for life, and the insurer assumes and spreads the ‘mortality risk’ of the annuity — the risk that the annuitant will live longer than expected, thereby receiving benefits that. exceed the amount paid to the seller of the policy.” Id. In contrast, a deferred annuity is an accumulation product. Id. at 104-05. The purchaser invests money and allows the value of the account to grow and then later on draws down the value of the account. Id. at 104. In a fixed deferred annuity, the purchaser receives from the insurer an interest rate on the amount of premiums invested by the purchaser. In a variable deferred annuity, the purchaser is not guaranteed a particular rate of return; instead, the purchaser invests in one or more professionally managed diversified investment products, offered through “separate accounts” of the insurance companies, and receives a rate of return that varies depending upon the success of the underlying investment. Id. at 105. Although deferred annuities have an investment component, they typically retain two insurance features: a guarantee of monthly payments for life and a benefit that is payable if the annuitant dies before the payout begins. Id. Thus, “[vjariable annuities are typically characterized as ‘hybrid products,’ possessing characteristics of both insurance products and investment securities.” Id. As hybrid products, variable annuities are properly subjects" }, { "docid": "23208726", "title": "", "text": "Should Know, http://www. sec.gov/investors/pubs /varannty.htm (May 22, 2001) (“SEC, Variable Annuities”). After a defined number of years the policy will reach its maturity date and begin to pay benefits to the annuitant, known as the “payout” phase. The annuitant is not guaranteed a certain level of benefits under the policy, instead, the payment amount will vary depending upon the value of the portfolio upon maturity and the annuitant’s life expectancy. See id. Variable annuities are typically characterized as “hybrid products,” possessing characteristics of both insurance products and investment securities. See Boros & Thompson, swpra, at 28. For example, by providing periodic payments that will continue for the life of the annuitant,' variable annuities provide a hedge against the possibility that an individual will outlive his or her assets after retirement, thereby making the policies similar to insurance contracts. See SEC, Variable Annuities. In addition, most variable annuity contracts contain a death benefit whereby the beneficiary of the policy will receive a specified amount if the annuitant dies before the payout period begins. See id. Finally, like fixed annuities, the insurer assumes and pools the risk of policyholders outliving the expected term of the annuity. But at the same time, variable annuities possess characteristics akin to those of investment securities. Most notably, unlike the beneficiary of a fixed annuity, the variable annuitant bears the investment risk of the underlying securities. See id. Because the amount of benefits paid to the annuitant under the contract is not fixed, but will vary depending on the performance of the investment portfolio, many consumers use variable annuities as a tool for accumulating greater retirement funds through market speculation. Variable annuities must be registered with the SEC as securities under the Securities Act of 1933, codified at 15 U.S.C. § 77a et seq. See SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 69-73, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959). While variable annuities are primarily sold by insurance companies, the policies must be offered through “separate accounts.” These separate accounts must be registered with the SEC as investment companies under the Investment Company Act" }, { "docid": "12595962", "title": "", "text": "to ignore binding authority.) The SEC has wrestled with these questions as well; after extensive consideration, the agency promulgated Rule 151, 17 C.F.R. § 230.151, a safe-harbor provision that became effective on June 4, 1986 (and which the Court sets out in full later in this memorandum opinion). In putting forward Rule 151, the SEC promised that it would not treat as securities insurance products that met the rule’s requirements. The Seventh Circuit carefully analyzed Rule 151 and Supreme Court precedent in Otto. Because this Court concludes that the analysis in Otto and the terms of Rule 151 control the result here, the Court will discuss that case at length. The first point to observe about Otto is that it is really two opinions, decided upon different assumed facts concerning the insurance contract at issue. Initially, the court of appeals held that the contract was not a security, and thus affirmed the district court’s entry of summary judgment in favor of the insurer. 814 F.2d at 1130-34. Upon rehearing, after the insurer disclosed further information concerning the contractual terms, the court of appeals reversed its previous decision to hold that the contract was indeed a security. Id. at 1140-42. When Otto was first decided, the facts were understood as follows. Variable Annuity Life Insurance Co. (“VALIC”) had issued a contract which it termed a fixed annuity. It guaranteed the principal paid into the annuity, as well as interest at a minimum rate of 4% per year for the first ten years, and 2Jh% thereafter. The insurer held funds paid by annuitants in its general account and invested them in a variety of long-term instruments, generally in the form of debt, such as mortgages and bonds. Upon retirement, the beneficiary could either withdraw the amount accumulated in a lump sum or use it to buy an annuity. Id. at 1129. The distinguishing characteristic of the fixed annuity was its excess interest provision, allowing the insurer, at its discretion, to pay interest on top of the guaranteed rate. Id. The plaintiff class alleged that the insurer had failed to disclose the manner" }, { "docid": "23208727", "title": "", "text": "like fixed annuities, the insurer assumes and pools the risk of policyholders outliving the expected term of the annuity. But at the same time, variable annuities possess characteristics akin to those of investment securities. Most notably, unlike the beneficiary of a fixed annuity, the variable annuitant bears the investment risk of the underlying securities. See id. Because the amount of benefits paid to the annuitant under the contract is not fixed, but will vary depending on the performance of the investment portfolio, many consumers use variable annuities as a tool for accumulating greater retirement funds through market speculation. Variable annuities must be registered with the SEC as securities under the Securities Act of 1933, codified at 15 U.S.C. § 77a et seq. See SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 69-73, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959). While variable annuities are primarily sold by insurance companies, the policies must be offered through “separate accounts.” These separate accounts must be registered with the SEC as investment companies under the Investment Company Act of 1940, codified at 15 U.S.C. § 80a-l et seq. See Prudential Ins. Co. of Am. v. SEC, 326 F.2d 383 (3d Cir.), ceri. denied, 377 U.S. 953, 84 S.Ct. 1629, 12 L.Ed.2d 497 (1964). Under the Internal Revenue Code, funds placed in variable annuity contracts receive preferred tax treatment, and are taxed only when the annuitant begins to draw them from the account. See, e.g., 26 U.S.C. § 72. During the accumulation phase of the investment, gains derived from appreciation of the assets are not taxed. It is only during the payout phase when money is withdrawn from the policy that the income to the policyholder or beneficiary is taxed. See SEC, Variable Annuities. This tax treatment provides variable annuities with a valuable advantage over “straight” investment products such as mutual funds or other equities. The tax advantage of variable annuities, however, will not be realized if the funds used to purchase the policy are already tax deferred. See id. In other words, if funds set aside through a tax deferred investment vehicle, such" }, { "docid": "5016120", "title": "", "text": "79 S.Ct. 618, 3 L.Ed.2d 640 (1959); SEC v. United Benefit Life Insurance Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967); and Peona Union Stock Yards. These cases do shed some light on this issue, but they do not support, much less compel, the conclusion Otto reaches. The Supreme Court decided long ago that a variable annuity offered by VALIC was a security. VALIC, 359 U.S. at 71, 79 S.Ct. at 622. In doing so, the Court distinguished traditional fixed annuities from the more recently evolved variable annuities. Id., 359 U.S. at 69, 79 S.Ct. at 621. Unlike their predecessors, variable annuities were to be treated as securities rather than insurance products, in large part because they placed the entire investment risk on the annuitant. “For in common understanding ‘insurance’ involves a guarantee that at least some fraction of the benefits will be payable in fixed amounts.” Id., 359 U.S. at 71, 79 S.Ct. at 622. The Supreme Court discussed the relationship between annuities and the federal securities laws further in United Benefit. That case involved a deferred, or optional, annuity plan called a “Flexible Fund Annuity” contract, under which the purchaser agreed to make certain annual contributions until a specified maturity date. The insurance company invested most of the Flexible Fund contributions in common stocks, with the object of producing capital gains as well as an interest return. “Instead of promising to the policyholder an accumulation to a fixed amount of savings at interest, the insurer promise[d] to serve as an investment agency and allow the policyholder to share in its investment ex perience.” United Benefit, 387 U.S. 202, 208, 87 S.Ct. 1557, 1560.- Upon maturity the purchaser could either withdraw his contributions, plus the earnings that had accumulated through the insurer’s investment of those contributions, or use them to purchase an annuity from the company. Whatever his choice, the purchaser was guaranteed a low minimum value (with no interest component) at maturity. The Court found that the accumulation portion of this annuity plan was an investment contract rather than an insurance product. Although the cash" }, { "docid": "12595961", "title": "", "text": "as an insurance or annuity contract under § 3(a)(8) of the 1933 Act is insulated from private actions brought under the 1934 Act. Otto v. Variable Annuity Life Ins. Co., 814 F.2d 1127, 1130 (7th Cir.1986), cert. denied, 486 U.S. 1026, 108 S.Ct. 2004, 100 L.Ed.2d 235 (1988). The basic principles were set forth in a pair of Supreme Court decisions, see SEC v. Variable Annuity Life Ins. Co. (“VALIC”), 359 U.S. 65, 79 S.Ct. 618, 3 L.Ed.2d 640 (1959), and SEC v. United Benefit Life Ins. Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967), establishing that insurance products can be treated as securities under the federal laws if the contracts place too much of the investment risk on policyholders. See also SEC v. C.M. Joiner Leasing, Inc., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943). (Although Professors Loss and Seligman have questioned whether Congress ever intended this result, see L. Loss & J. Seligman, Securities Regulation, at 1000-02 (3d ed. 1989), it of course is not this Court’s prerogative to ignore binding authority.) The SEC has wrestled with these questions as well; after extensive consideration, the agency promulgated Rule 151, 17 C.F.R. § 230.151, a safe-harbor provision that became effective on June 4, 1986 (and which the Court sets out in full later in this memorandum opinion). In putting forward Rule 151, the SEC promised that it would not treat as securities insurance products that met the rule’s requirements. The Seventh Circuit carefully analyzed Rule 151 and Supreme Court precedent in Otto. Because this Court concludes that the analysis in Otto and the terms of Rule 151 control the result here, the Court will discuss that case at length. The first point to observe about Otto is that it is really two opinions, decided upon different assumed facts concerning the insurance contract at issue. Initially, the court of appeals held that the contract was not a security, and thus affirmed the district court’s entry of summary judgment in favor of the insurer. 814 F.2d at 1130-34. Upon rehearing, after the insurer disclosed further information" }, { "docid": "12595964", "title": "", "text": "in which it calculated the excess interest. This method, known as “banding” or “new money,” paid the current rate of interest on current contributions only; previous contributions (so the court of appeals had been led to believe) would continue to earn interest at the excess rates declared at the time the previous contributions had been made. Id. at 1130. The current excess rate, however, could be changed at any time. The court of appeals analyzed the question in two stages. First, the court considered the matter under the law developed in the Supreme Court’s decisions, as well as the Seventh Circuit’s own decision in Peoria Union Stock Yards Co. v. Penn Mutual Life Ins. Co., 698 F.2d 320 (7th Cir.1983). The court noted that the fixed annuity had been promoted as a method of saving for retirement, rather than as an investment device. Funds paid into it were held in the insurer’s general account, and were invested in safe securities, largely debt. Principal was guaranteed, as was the base amount of interest, which though low, “was not so low that ... it placed the investment risk on the policyholder in a way substantial enough to make the fixed annuity a security.” Otto, 814 F.2d at 1132. The court further contrasted the fixed annuity with the insurer’s variable annuity, which all agreed was a security. The variable annuity guaranteed neither principal nor interest, id. at 1129, and the amounts invested were kept in a special account, id. at 1133. The contractholder’s investment was directly tied to the success of the investment portfolio, which consisted of equity securities. Id. In the second stage of its analysis, the court of appeals examined the fixed annuity under the test set out in SEC Rule 151, and concluded that Rule 151 “supported” the court’s holding that the contract was not a security (though the court noted that the rule did not literally apply because it was adopted after the sale of the fixed annuity). Id. Rule 151 provides: (a) Any annuity contract or optional annuity contract (a “contract”) shall be deemed to be within the" } ]

[ { "docid": "11184910", "title": "", "text": "continuously disabled. Pub.L.No. 92-603, § 301. On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub.L.No. 92-603 to require that in addition to receiving benefits during December, 1973, an individual must have received benefits for one month prior to July, 1973, in order to qualify under the “grandfather” clause. Pub.L. No.93-233, § 9 (Dec. 31, 1973); see 42 U.S.C. § 1382c(a)(3)(E). The purpose of this amendment was “to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 changeover to SSI may have been improperly placed on the State aid to the disabled rolls.” H.R.Rep.No.93-871, 2 U.S. Code Cong. & Admin.News, p. 2808 (1974). See also H.R.Rep.No.93-627, 2 U.S.Code Cong. & Admin.News, pp. 3177, 3183 (1973). Thus, as of January 1, 1974, the federal government had for all practical purposes taken over the payments of benefits to the disabled needy. Those individuals who were receiving Missouri PTD benefits as of December 31, 1973, and who had also received such benefits for at least one month prior to July, 1973, were conclusively presumed to meet the federal standards of disability and began receiving SSI benefits. The plaintiff and members of the class in this case are individuals who were receiving state PTD benefits in December, 1973, but who had commenced receiving those benefits after July 1, 1973, and were thus not automatically qualified under the federal program. These persons had to meet the federal standard of disability in order to receive benefits under the SSI program. The last minute amendment to the “grandfather” clause presented the Secretary with the problem of dealing with those individuals who had commenced receiving benefits under a state plan between July and December, 1973, but were facing termination of benefits. Although no statutory provisions existed as of January 1, 1974, to pay benefits to these “rollback” cases as such, the Secretary used a statutory provision, ostensibly aimed at initial applicants who were found to be presumptively disabled, to continue payments to persons who had not yet been initially determined to be" } ]

[ { "docid": "11787542", "title": "", "text": "ALEXANDER HARVEY, II, District Judge: In this civil action, plaintiffs, on behalf of themselves and a class of individ uals similarly situated, seek injunctive and declaratory relief which would entitle them to continue to receive certain Social Security benefits until determined to be ineligible following adequate notice and a hearing as required by Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Named as defendant is the Secretary of the Department of Health, Education and Welfare (HEW). Before January 1, 1974, persons in Maryland who were permanently and totally disabled and whose financial resources fell below a certain level received payments under a joint federal-state program, entitled the Maryland Aid to the Permanently and Totally Disabled (APTD). In October 1972, Congress had passed Public Law 92-603, 42 U.S.C. § 1381 et seq., effective January 1, 1974, which transferred the federally-supported but state-administered program to a new federally-supported program, called Supplemental Security Income (SSI), administered by the Social Security Administration of HEW. Aged, blind or disabled persons with incomes and resources below a determined level qualified for these federal benefits under SSL In the 1972 legislation, Congress provided that any person who was permanently and totally disabled as defined in a state plan and who had received benefits under that plan in December 1973 would automatically qualify under SSI. On December 31, 1973, Congress suddenly amended this “grandfather” provision in the 1972 enactment by passing Public Law 93-233 one day before the new program was to become effective. The amendment permitted benefits to be paid without further inquiry only to those who had qualified under a state plan and who had received benefits for at least one month prior to July 1973. Therefore, those persons who first received state benefits after July 1, 1973 did not automatically and unconditionally qualify for conversion to SSI; instead, it was required that a determination of disability be made as to them by the Social Security Administration pursuant to new SSI standards. 42 U.S.C. § 1382c(a) (3) (E). Plaintiffs and their class fall within this category of persons who did not" }, { "docid": "4262998", "title": "", "text": "by this controversy in the following order: (1) the legislative and administrative history of the SSI program; (2) the factual basis for plaintiffs’ claims; (3) the merits of the case under the due process clause of the Fifth Amendment; (4) the statutory authority to make payments after December 31, 1974; and (5) the form and effect of the final injunction we will enter. 1. The legislative and administrative history of the SSI program. Because the subject matter of this action has been frequently litigated in the District Courts, we shall limit our discussion to a broad outline of the SSI program. It was enacted 'by Congress in October of 1972, Pub.L. 92-603, 86 Stat. 1465, 42 U.S.C. § 1381 et seq., to replace inter alia, the joint state-federal program known as Aid to the Permanently and Totally Disabled (APTD). The effective date of the SSI legislation was January 1, 1974. The program initially provided that persons who were permanently and totally disabled, as defined under any state plan in effect during the month of October 1972, and who were receiving aid under such plan on the basis of disability during the month of December, 1973, would automatically qualify as disabled persons who were eligible to receive SSI benefits. On December 31, 1973, however, one day before the program was to go into effect, Congress amended the statute by adding to this “grandfather” provision the additional requirement that a potential recipient must have received disability payments under a state plan for at least one month prior to July of 1978, Pub.L. 93-233, 87 Stat. 957. This new proviso, codified in 42 U.S.C. § 1382c (a)(3)(E), had the effect of requiring a disability determination with respect to those persons who had received state aid during the month of December of 1973, but not for any month prior to July of 1973, a class of persons which would automatically have been considered as eligible for disability payments under the old “grandfather” provision. The SSI program, however, was to become effective the day following the passage of Pub.L. 93-233; hence, the Social Security Administration" }, { "docid": "4263020", "title": "", "text": "intend, in enacting the December 31, 1973 amendments to the SSI program, Pub.L. 93-233, to restrict the due process rights of persons in the “rollback” category, nor did any provision of these amendments deal with payment of interim benefits, pending determination of eligibility under the federal criteria. As noted by the Court in Suarino, the- December 31, 1973 amendments were intended to redress an administrative problem which arose in New York state; it was asserted that welfare officials there were transferring AFDC mothers to APTD, in order to shift the fiscal burden from the joint state-federal AFDC program to the new federal SSI program, an action that unquestionably would have resulted in higher federal and lower state costs. Suarino, supra, at 1001-1002. As noted in the House Report which accompanied Pub.L. 93-256, the purpose of the amendments was “to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 changeover to SSI may have been improperly placed on the State aid to the disabled rolls.” H.R. No. 93-871, supra, at p. 1, U.S.Code Cong. & Admin.News 1974, at 2808. We agree with the Court in Suarino that [i]n passing the time limitation in P.L. 93-233, § 9 as an amendment to 42 U.S.C. § 1382c(a) (3) (E) Congress intended that the eligibility of persons, who did not receive AABD benefits prior to July 1, 1973, be reviewed in light of the definitions given in § 1382c(a)(3). Congress was in effect giving the SSA notice that they intended that those in the “presumptively disabled” group should be the first to be reviewed. This indication of priorities was not intended to terminate benefits while the review process was occurring nor was it intended that those who received AABD after July 1973 be treated the same as new applicants for SSI. Id., at 1002 (emphasis in original). Thus, the purpose and effect of the December 31, 1973 amendments were simply to withdraw the benefits of automatic eligibility from a certain class of APTD recipients that had been enjoyed under the original version of the statute." }, { "docid": "11184911", "title": "", "text": "for at least one month prior to July, 1973, were conclusively presumed to meet the federal standards of disability and began receiving SSI benefits. The plaintiff and members of the class in this case are individuals who were receiving state PTD benefits in December, 1973, but who had commenced receiving those benefits after July 1, 1973, and were thus not automatically qualified under the federal program. These persons had to meet the federal standard of disability in order to receive benefits under the SSI program. The last minute amendment to the “grandfather” clause presented the Secretary with the problem of dealing with those individuals who had commenced receiving benefits under a state plan between July and December, 1973, but were facing termination of benefits. Although no statutory provisions existed as of January 1, 1974, to pay benefits to these “rollback” cases as such, the Secretary used a statutory provision, ostensibly aimed at initial applicants who were found to be presumptively disabled, to continue payments to persons who had not yet been initially determined to be qualified. See 42 U.S.C. § 1383(a)(4)(B), which provides that before an initial determination of eligibility the Secretary may pay benefits for a period of up to three months to those whom he judges to be presumptively disabled. By regulation, the Secretary classified rollback cases as presumptively disabled. See 20 C.F.R. § 416.-954. Under this system, the rollback recipient would receive presumptive SSI benefits until an initial determination of eligibility. If the initial determination was adverse to the party’s claim for SSI benefits, presumptive disability benefits ceased immediately. The unsuccessful claimant then had the right to have this determination reconsidered in a proceeding where notice and hearing rights were provided. However, no benefits were provided after an adverse initial determination. The initial determination was made upon the basis of a paper review of the records maintained under Missouri’s disability assistance program and without notice or an opportunity to be heard. At the urging of the Secretary, Congress passed, in March, 1974, legislation extending the period during which the Secretary might pay presumptive SSI disability benefits to" }, { "docid": "2216299", "title": "", "text": "1973, and December 31, 1973. Prior to the amendment a person receiving such benefits as of December 1973 was conclusively presumed to meet federal standards and thus entitled to SSI benefits. After the amendment a person receiving such benefits as of December 1973 was conclusively presumed to meet federal standards only if he had also been receiving these benefits for at least one month prior to July 1973. The problem facing the Secretary was what to do about those who commenced receiving benefits under a state plan between July and December 1973. In order to avoid possible harshness and to allow time in which to resolve obvious administrative difficulties, the Secretary under existing powers ordered that SSI benefits be paid to all persons who commenced receiving state benefits between July and December 1973 for a period up to three months upon a basis of so-called presumptive disability. 42 U.S.C. § 1383(a)(4)(B). It was apparently the hope, at least, that a determination of eligibility for continued SSI benefits could be made within that three-month period. When it became evident that such was not a sufficient time to process such cases, Congress, recognizing that the abrupt suspension of such benefits could indeed be harsh, provided that pending determination of eligibility under SSI, the Secretary could continue to pay presumptive benefits until the end of 1974. Pub.L. No. 93-256, § 1 (Mar. 28, 1974). The enactment made it clear, however, that once the Secretary determined that a person was not eligible for SSI benefits, the benefits based on presumptive disability would be immediately discontinued. In Colorado, as elsewhere, the Secretary, in determining whether a person who commenced receiving state AND benefits after July 1, 1973, was eligible for federal SSI benefits, made his determination upon the basis of a paper review of the records maintained under the state’s disability assistance program. If the Secretary determined from the paper review that a person was ineligible for federal SSI benefits, the presumptive benefits were terminated, and the individual was not given notice or afforded a hearing before such termination. However, following the initial determination of" }, { "docid": "17588411", "title": "", "text": "JOHN W. PECK, Circuit Judge. This class action was brought on behalf of individuals in Kentucky, who began receiving Aid to the Permanently and Totally Disabled (APTD) benefits after July 1, 1973, but before December 31, 1973, and were initially determined to be ineligible for benefits under the federal Supplemental Security Income (SSI) program, which supplanted the Kentucky APTD in January, 1974. In October, 1972, Congress repealed the categorical assistance program of federal grants to state administered disability assistance programs, and in its stead established the SSI program, which the federal government would administer and under which it would assume the burden of providing benefits to those persons defined as disabled by the Act. 42 U.S.C. § 1381 et seq. As originally enacted, the SSI program included a “grandfather clause,” whereby persons receiving disability benefits as of December, 1973, under a state plan in effect in October, 1972, would automatically be considered disabled for purposes of the SSI program. Pub.L.No.92-603. On December 31, 1973, Congress amended the grandfather clause to require that in addition to receiving benefits in December, 1973, an individual must have received benefits for one month prior to July 1,1973. The purpose of this “rollback” provision was to prevent states from transferring their welfare recipients onto the disability rolls in anticipation of the federal takeover. The consequence of this amendment was that all persons who became qualified under a state plan subsequent to July 1 had to meet federal standards of disability in order to be- eligible under the SSI program. Because of the harsh result and administrative difficulties which would have ensued had the Secretary simply not paid any disability benefits to these so-called “rollback” recipients, the Secretary ordered that benefits be paid to all such persons for up to three months upon a basis of presumptive disability until a determination of eligibility was made. The Secretary relied upon 42 U.S.C. § 1383(a)(4)(B) as authority for his action. In March of 1974, Congress enacted Pub.L.No.93-256, which codified the Secretary’s action and authorized payment of presumptive benefits until the end of 1974, pending an initial determination of" }, { "docid": "2388173", "title": "", "text": ". if . . . for the month of December 1973 such individual was a recipient of aid or assistance under a State plan approved under title I, X, XIV, or XVI of the Social Security Act, ...” P.L. 93-66, § 211(b) Thus, under this amendment any person who in December 1973 was receiving AABD benefits (which was a state plan approved under title XIV of the Social Security Act, 42 U.S.C. § 1351 et seq.) would be automatically eligible for SSI benefits in January of 1974. This amendment providing for automatic eligibility was called the “grandfather” provision. On December 30, 1973, two days before the SSI program was to go into effect, Congress amended the “grandfather” provision by passing P.L. 93-233. P.L. 93-233, § 9 provided that: “an individual shall ... be considered to be disabled for the purposes of this title if he is permanently and totally disabled as defined under a State plan approved under title XIV or XVI of this chapter as in effect for October 1972 and received aid under such plan (on the basis of disability) for December 1973 (and for at least one month prior to July 1978), so long as he is continuously disabled as so defined.” (emphasis added) Thus, in order to be “grandfathered” into the SSI program an individual had to have received AABD benefits “at least one month prior to July 1973; ” otherwise, the individual would have to establish his or her eligibility for SSI by meeting the definitions in 42 U.S.C. § 1382c (P.L. 92-603, § 1614). As a result of this amendment, those persons who received AABD aid one month prior to July, 1973, would be automatieally eligible for SSI, but those who qualified for AABD on or after July, 1973 were excluded from automatic benefits. The plaintiffs and members of their class were those who fell into the latter category. They received AABD benefits during December 1973 but had not qualified for benefits prior to July 1973. To meet the needs of those in plaintiffs’ class, the Secretary of H.E.W. invoked authority provided to him" }, { "docid": "23710561", "title": "", "text": "same time, Congress established a program identified as Supplemental Security Income for Aged, Blind and Disabled (“SSI”), which became effective in January 1974. 42 U.S. C.A. §§ 1381-1383 (West 1974). Under the federally-administered SSI program, the federal government assumed the burden of providing benefits directly to those needy people who were “disabled” as defined in the Act. 42 U.S.C.A. § 1381 (West 1974). As part of the definition of “disability” under the Act, Congress included the following “grandfather” clause: [A]n individual shall also be considered to be disabled for purposes of this sub-chapter if he is permanently and totally disabled as defined under a State Plan approved under subchapter XIV or XVI of this chapter as in effect for October 1972 and received aid under such plan (on the basis of disability) for December 1973 (and for at least one month prior to July 1973), so long as he is continuously disabled . as so defined. 42 U.S.C.A. § 1382c(a)(3)(E) (Supp.1980). The requirement that the individual be disabled for at least one month prior to July 1973 was introduced as a last minute amendment to the original provision. The purpose of this “rollback” amendment was to prevent states from transferring their welfare recipients onto the disability rolls in anticipation of the federal takeover. Those individuals who received disability aid under a state plan during December 1973 but who had not received aid under such plan for at least one month prior to July 1973— known as “rollbacks” — were subsequently classified, pursuant to agency regulations, as “presumptively disabled” and thus were eligible to receive SSI benefits until an initial determination of eligibility could be made. See 42 U.S.C.A. § 1383(a)(4)(B) (Supp.1980); 20 C.F.R. § 416.954. In contrast, the availability of federal disability benefits to those individuals who had received aid under a state plan for at least one month prior to July 1973 — commonly known as “grandfatherees” — is controlled solely by the operation of the statutory grandfather clause. II. FINNEGAN’S ACHE On November 16, 1972 appellant Finnegan’s application for state disability was approved by the state of Washington" }, { "docid": "23710570", "title": "", "text": "Eighth Circuit noted in dicta that while grandfatherees were “conclusively presumed” to meet federal standards, rollbacks were not “automatically qualified.” Id. at 1115. Similarly, in Ryan v. Shea, 525 F.2d 268 (10th Cir. 1975), the Tenth Circuit explained that: As a part of the definition <)f eligibility, Congress included a “grandfather” clause whereby persons receiving disability benefits from a state program as of December 1973 would be conclusively presumed to meet federal standards. We would note parenthetically that the federal program was in one sense, at least, a continuation of the old federal-state program. Id. at 270. See also, Tatum v. Matthews, 541 F.2d 161, 163 (6th Cir. 1976). Finnegan’s interpretation of the grandfather clause is even more strongly supported by the district court opinions in the area. For example, in Buckles v. Weinberger, 398 F.Supp. 931 (E.D.Pa.1975), the court informatively noted: Thus, this [grandfather] provision provided, in essence, that each and every recipient under a state plan in December of that year would automatically begin to receive benefits under SSI for the following month. It is clear from this “grandfather” clause that SSI was intended by Congress as a wholesale replacement for, and continuation of, the former state-federal programs, in that the identity of recipients under the two plans of assistance would be absolute. It was only with respect to future applicants for SSI that the uniform federal criteria were to apply. Id. at 939 (emphasis in original). Similarly, in Brown v. Weinberger, 382 F.Supp. 1092 (D.Md.1974), aff. 529 F.2d 514 (4th Cir. 1975), the court noted that grandfatherees were “automatically” and “unconditionally” qualified for conversion to SSI. Id. at 1094 (dicta). Finally, the Secretary’s argument was again expressly rejected in Savrino v. Weinberger, 396 F.Supp. 992 (D.R.I.1975) where the court, in refuting a different argument advanced on behalf of the Secretary, noted: Basic to the defendant’s argument is the assumption that Congress intended to restrict SSI eligibility to only those who specifically qualified for the SSI program under SSI definitions of eligibility. This assumption, however, empirically denied by the fact that all persons who received [state] benefits prior" }, { "docid": "11750522", "title": "", "text": "of the circumstances surrounding Mrs. Musgrove’s entry into the SSI program, an issue is raised as to whether there was, in fact, an initial determination by the Secretary of Mrs. Musgrove’s disability. Mrs. Musgrove was officially put on the Pennsylvania state disability rolls in late 1973. At the inception of the federal SSI program in January 1974, Mrs. Musgrove was transferred to the federal SSI disability rolls as a result of a one-time transfer of persons disabled under state programs to SSI. A brief review of the legislative history of the SSI program and this one-time transfer under which individuals like Mrs. Musgrove became SSI recipients provides necessary background. In October 1972, Congress repealed the categorical assistance program which had provided federal grants to state-administered disability programs. Finnegan v. Matthews, 641 F.2d 1340, 1342 (9th Cir.1981); 42 U.S.C. § 1351-55, Pub.L. No. 92-603, 86 Stat. 1484 § 303 (repealed October 30, 1972). At the same time Congress provided for a program entitled Supplemental Security Income for Aged, Blind and Disabled (SSI), in which the federal government assumed the burden of providing benefits directly to certain disabled individuals and established uniform eligibility criteria. The SSI program became effective in January 1974. 42 U.S.C. §§ 1381-83. In its original form, the SSI program included a “grandfather clause,” which provided that persons who, in December 1973, were receiving benefits under a state plan which had been in effect as of October 1972 would automatically be considered disabled for purposes of the SSI program. Pub.L. No. 92-603; Finnegan, supra at 1342; Tatum v. Mathews, 541 F.2d 161, 163 (6th Cir.1976); Ryan v. Shea, 525 F.2d 268, 270 (10th Cir.1975). On December 31, 1973, one day before the SSI program was to go into effect, the grandfather clause was amended in response to the perceived “wholesale” number of persons who had been entered onto state disability rolls in anticipation of the automatic transfer to SSI rolls. The amendment or so-called “roll-back” provision required that, in order to qualify for automatic disability status under SSI, an applicant had to have received benefits under a state plan" }, { "docid": "11787543", "title": "", "text": "a determined level qualified for these federal benefits under SSL In the 1972 legislation, Congress provided that any person who was permanently and totally disabled as defined in a state plan and who had received benefits under that plan in December 1973 would automatically qualify under SSI. On December 31, 1973, Congress suddenly amended this “grandfather” provision in the 1972 enactment by passing Public Law 93-233 one day before the new program was to become effective. The amendment permitted benefits to be paid without further inquiry only to those who had qualified under a state plan and who had received benefits for at least one month prior to July 1973. Therefore, those persons who first received state benefits after July 1, 1973 did not automatically and unconditionally qualify for conversion to SSI; instead, it was required that a determination of disability be made as to them by the Social Security Administration pursuant to new SSI standards. 42 U.S.C. § 1382c(a) (3) (E). Plaintiffs and their class fall within this category of persons who did not receive state benefits until after July 1, 1973. This last minute change in a program which became effective on January 1, 1974 suddenly placed an almost impossible burden on the Social Security Administration. That agency quite understandably could not make a new determination as to eligibility for each of the thousands of such persons across the country before the monthy payments were due. Therefore, the Secretary invoked a provision included in Public Law 92-603, 42 U.S.C. § 1383(a)(4)(B), which permitted him to continue benefits up to three months for persons who were “presumptively disabled”. Those persons, like plaintiffs, who had started to receive benefits from the State after July 1, 1973 were thus initially deemed by the Secretary to be “presumptively disabled” and entitled to SSI benefits. Thereafter, Congress, in Public Law 93-256, effective March 28, 1974, ratified and confirmed this exercise of administrative authority by the Secretary and further authorized him to continue such payments to those presumptively disabled throughout 1974. Payments would cease, however, one month after the Secretary determined that an individual" }, { "docid": "1163724", "title": "", "text": "U.S. C. § 1331 (federal question) does not give the Court jurisdiction because the plaintiffs have failed to demonstrate that more than $10,000 is in controversy. He contests jurisdiction under 28 U.S.C. § 1361 (mandamus) because the plaintiffs are not seeking to compel a clear ministerial duty. Finally, defendant contends that 5 U.S.C. §§ 701-06 (Administrative Procedure Act) is not an independent grant of jurisdiction to the federal district courts. Since it is now clear in this Circuit that the Administrative Procedure Act does provide an independent basis of jurisdiction for claims such as the plaintiffs here allege, it is unnecessary to discuss defendant’s other jurisdictional objections. See Pickus v. United States Board of Parole, 165 U.S.App.D.C. -, 507 F.2d 1107 (1974). II. THE MERITS On October 30, 1972, Congress established the Supplemental Security Income Program (SSI), which is an income maintenance program for the aged, blind and disabled. Pub.L. No. 92-603, 86 Stat. 1329, 42 U.S.C.A. §§ 1381-85. The Act, which became effective on January 1, 1974, replaced state-administered programs with a new federal program which establishes uniform eligibility criteria. H.R.Rep. No. 92-231, 1972 U.S. Code Cong. & Admin.News 4992; see 42 U.S.C.A. § 1381. As originally enacted, the SSI provided that a person found permanently and totally disabled under an approved state plan would automatically be considered disabled for purposes of SSI if he received aid during December 1973 and remained continuously disabled. Pub.L. No. 92-603, § 1614(a)(3)(A) (commonly known as the disability grandfathering clause). On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub.L. No. 92-603 to require that in addition to receiving benefits during December 1973, an individual must have received benefits for 1 month prior to July 1973. Pub.L. No. 93-233, § 9(2), 42 U.S.C.A. § 1382c(a)(3)(E). The purpose of this amendment was “to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 changeover to SSI may have been improperly placed on the State aid to the disabled rolls.” H.R. Rep. No. 93-871, 1974 U.S.Code Cong. & Admin.News2808; see" }, { "docid": "4262999", "title": "", "text": "1972, and who were receiving aid under such plan on the basis of disability during the month of December, 1973, would automatically qualify as disabled persons who were eligible to receive SSI benefits. On December 31, 1973, however, one day before the program was to go into effect, Congress amended the statute by adding to this “grandfather” provision the additional requirement that a potential recipient must have received disability payments under a state plan for at least one month prior to July of 1978, Pub.L. 93-233, 87 Stat. 957. This new proviso, codified in 42 U.S.C. § 1382c (a)(3)(E), had the effect of requiring a disability determination with respect to those persons who had received state aid during the month of December of 1973, but not for any month prior to July of 1973, a class of persons which would automatically have been considered as eligible for disability payments under the old “grandfather” provision. The SSI program, however, was to become effective the day following the passage of Pub.L. 93-233; hence, the Social Security Administration was unable to make eligibility determinations with respect to these so-called “rollback” individuals before payments were scheduled to begin. Under the circumstances, the agency elected to make payments to all members of the class, pending a determination of eligibility. These payments were purportedly made pursuant to the provisions of 42 U.S.C. § 1383(a)(4)(B), which permitted payments to “presumptively disabled” persons prior to a determination of their eligibility, without subjecting such persons to liability for recoupment of overpayments, should they ultimately be found to be ineligible. Section 1383 (a)(4)(B), however, limited such payments to a three month period which was to expire on March 31, 1974. The agency was unable to complete eligibility determinations by that time; it accordingly asked Congress to extend the period of presumptive disability until December 31, 1974. See H.R. No. 93-871, 93d Cong., 2d Sess., U.S.Code Cong. & Admin.News 1974, p. 2808. Congress agreed, and passed Pub.L. 93-256, 88 Stat. 52 (Mar. 28, 1974), which permitted presumptive disability payments during the entire calendar year of 1974, without liability for repayment if" }, { "docid": "2216298", "title": "", "text": "provide that in order to qualify for federal payments not only must the individual have received benefits in December 1973, but must also have received such state benefits for at least one month prior to July 1973. 42 U.S.C. § 1382c(a)(3)(E). As indicated, then, on January 1, 1974, the federal government for all practical purposes took over the payments of benefits to the needy disabled. Those individuals who were receiving AND benefits from the State of Colorado as of December 1973, and who had also received AND benefits for at least one month prior to July 1, 1973, were conclusively presumed to meet federal standards and commenced to receive SSI benefits. The instant case is concerned with those individuals who were receiving state AND benefits in December 1973, but who had commenced receiving state AND benefits after July 1973. The last minute amendment to the grandfather clause by Congress on December 31, 1973, caused many problems, not the least of which was the one cast on those who began receiving disability benefits between July 1, 1973, and December 31, 1973. Prior to the amendment a person receiving such benefits as of December 1973 was conclusively presumed to meet federal standards and thus entitled to SSI benefits. After the amendment a person receiving such benefits as of December 1973 was conclusively presumed to meet federal standards only if he had also been receiving these benefits for at least one month prior to July 1973. The problem facing the Secretary was what to do about those who commenced receiving benefits under a state plan between July and December 1973. In order to avoid possible harshness and to allow time in which to resolve obvious administrative difficulties, the Secretary under existing powers ordered that SSI benefits be paid to all persons who commenced receiving state benefits between July and December 1973 for a period up to three months upon a basis of so-called presumptive disability. 42 U.S.C. § 1383(a)(4)(B). It was apparently the hope, at least, that a determination of eligibility for continued SSI benefits could be made within that three-month period. When" }, { "docid": "2216297", "title": "", "text": "Act a program identified as Supplemental Security Income for Aged, Blind and Disabled (SSI) which was to become effective in January 1974. Under this program the federal government was to administer the program and it assumed the burden of providing benefits to those needy persons who were disabled as defined in the Act. As a part of the definition of disability, Congress included a “grandfather” clause whereby persons receiving disability benefits from a state program as of December 1973 would be conclusively presumed to meet federal standards. We would note parenthetically that this particular provision suggests that the federal program was in one sense, at least, a continuation of the old federal-state program. In any event, as indicated, in Colorado the state plan was called Aid to the Needy Disabled (AND). Because of the conduct of certain states where persons of doubtful disability status were being switched from state welfare rolls to state disability rolls in anticipation of the federal take-over in January 1974, Congress, on December 31, 1973, modified the aforesaid grandfather clause to provide that in order to qualify for federal payments not only must the individual have received benefits in December 1973, but must also have received such state benefits for at least one month prior to July 1973. 42 U.S.C. § 1382c(a)(3)(E). As indicated, then, on January 1, 1974, the federal government for all practical purposes took over the payments of benefits to the needy disabled. Those individuals who were receiving AND benefits from the State of Colorado as of December 1973, and who had also received AND benefits for at least one month prior to July 1, 1973, were conclusively presumed to meet federal standards and commenced to receive SSI benefits. The instant case is concerned with those individuals who were receiving state AND benefits in December 1973, but who had commenced receiving state AND benefits after July 1973. The last minute amendment to the grandfather clause by Congress on December 31, 1973, caused many problems, not the least of which was the one cast on those who began receiving disability benefits between July 1," }, { "docid": "1163725", "title": "", "text": "program which establishes uniform eligibility criteria. H.R.Rep. No. 92-231, 1972 U.S. Code Cong. & Admin.News 4992; see 42 U.S.C.A. § 1381. As originally enacted, the SSI provided that a person found permanently and totally disabled under an approved state plan would automatically be considered disabled for purposes of SSI if he received aid during December 1973 and remained continuously disabled. Pub.L. No. 92-603, § 1614(a)(3)(A) (commonly known as the disability grandfathering clause). On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub.L. No. 92-603 to require that in addition to receiving benefits during December 1973, an individual must have received benefits for 1 month prior to July 1973. Pub.L. No. 93-233, § 9(2), 42 U.S.C.A. § 1382c(a)(3)(E). The purpose of this amendment was “to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 changeover to SSI may have been improperly placed on the State aid to the disabled rolls.” H.R. Rep. No. 93-871, 1974 U.S.Code Cong. & Admin.News2808; see S.Rp. No. 553, 93d Cong., 1st Sess. 250 (1973). Thus the plaintiffs, who became eligible for state disability benefits after July 1, 1973, but before December 31, 1973 (rollback cases), are not automatically grandfathered into the SSI program, but must meet the federal definition of disabled in order to qualify for SSI benefits. 42 U.S.C.A. § 1382c(a)(3)(A), (B). - Although no statutory provision existed as of January 1, 1974, to pay benefits to rollback cases as such, the Secretary of Health, Education and Welfare used a statutory provision that was ostensibly aimed at initial applicants who were found to be presumptively disabled to continue payments to rollback cases who had not been initially determined. See 42 U.S.C.A. § 1383(a)(4)(B); 20 C.F. R. § 416.954. Title 42, section 1383(a)(4)(B) provides that before an initial determination of eligibility the Secretary may pay benefits for a period of up to 3 months to those he judges to be presumptively disabled. By regulation, the Secretary classified rollback cases as presumptively disabled. 20 C.F. R. § 416.954. Under this system," }, { "docid": "11750523", "title": "", "text": "government assumed the burden of providing benefits directly to certain disabled individuals and established uniform eligibility criteria. The SSI program became effective in January 1974. 42 U.S.C. §§ 1381-83. In its original form, the SSI program included a “grandfather clause,” which provided that persons who, in December 1973, were receiving benefits under a state plan which had been in effect as of October 1972 would automatically be considered disabled for purposes of the SSI program. Pub.L. No. 92-603; Finnegan, supra at 1342; Tatum v. Mathews, 541 F.2d 161, 163 (6th Cir.1976); Ryan v. Shea, 525 F.2d 268, 270 (10th Cir.1975). On December 31, 1973, one day before the SSI program was to go into effect, the grandfather clause was amended in response to the perceived “wholesale” number of persons who had been entered onto state disability rolls in anticipation of the automatic transfer to SSI rolls. The amendment or so-called “roll-back” provision required that, in order to qualify for automatic disability status under SSI, an applicant had to have received benefits under a state plan for at least one month before July 1, 1973, as well as in December 1973, and been continuously disabled under the state plan. Pub.L. No. 93-233, § 9 (December 31, 1973); Ryan, supra at 271; Johnson v. Mathews, 539 F.2d 1111, 1115 (8th Cir.1976). In other words, after this amendment, individuals who were receiving state disability benefits as of December 1973 were conclusively presumed to meet federal standards only if they had also been receiving those benefit for at least one month prior to July 1973 and remained continuously disabled. Ryan, supra at 271; Johnson, supra at 1114. Thus, Mrs. Mus-grove, who was admitted to the state disability program in late 1973 would not be automatically entitled to SSI benefits as a “grandfatheree” (“grandmotheree”?) and would not be conclusively presumed to be disabled under SSL The Secretary was then faced with the disposition of those individuals like Mrs. Musgrove, termed “rollback cases,” who had been on state disability rolls as of December 1973 but not before July 1, 1973. In order to avoid a harsh" }, { "docid": "11750524", "title": "", "text": "for at least one month before July 1, 1973, as well as in December 1973, and been continuously disabled under the state plan. Pub.L. No. 93-233, § 9 (December 31, 1973); Ryan, supra at 271; Johnson v. Mathews, 539 F.2d 1111, 1115 (8th Cir.1976). In other words, after this amendment, individuals who were receiving state disability benefits as of December 1973 were conclusively presumed to meet federal standards only if they had also been receiving those benefit for at least one month prior to July 1973 and remained continuously disabled. Ryan, supra at 271; Johnson, supra at 1114. Thus, Mrs. Mus-grove, who was admitted to the state disability program in late 1973 would not be automatically entitled to SSI benefits as a “grandfatheree” (“grandmotheree”?) and would not be conclusively presumed to be disabled under SSL The Secretary was then faced with the disposition of those individuals like Mrs. Musgrove, termed “rollback cases,” who had been on state disability rolls as of December 1973 but not before July 1, 1973. In order to avoid a harsh result to these individuals, the Secretary utilized a statutory provision, “ostensibly aimed at initial applicants who were found presumptively disabled, to continue payments to persons who had not yet been initially determined to be qualified.” Johnson, supra at 1115; see 42 U.S.C. § 1383(a)(4)(B). By regulation, the Secretary classified rollback cases as presump tively disabled, which permitted them to receive benefits for up to three months until an initial determination of eligibility could be made. See 20 C.F.R. § 416.954. When it became apparent that three months was not a sufficient time within which to process rollback cases and make initial determinations of SSI eligibility, Congress, recognizing that abrupt cessation would be harsh, provided that pending determination of eligibility the Secretary could continue to pay presumptive benefits to rollback cases until the end of 1974. Pub.L. No. 93-256, § 1 (Mar. 28, 1974); Ryan, supra at 271. Under the presumptive disability status of rollback cases, once the Secretary made a determination that an individual was not disabled under SSI standards, benefits ceased immediately, although the" }, { "docid": "23710562", "title": "", "text": "July 1973 was introduced as a last minute amendment to the original provision. The purpose of this “rollback” amendment was to prevent states from transferring their welfare recipients onto the disability rolls in anticipation of the federal takeover. Those individuals who received disability aid under a state plan during December 1973 but who had not received aid under such plan for at least one month prior to July 1973— known as “rollbacks” — were subsequently classified, pursuant to agency regulations, as “presumptively disabled” and thus were eligible to receive SSI benefits until an initial determination of eligibility could be made. See 42 U.S.C.A. § 1383(a)(4)(B) (Supp.1980); 20 C.F.R. § 416.954. In contrast, the availability of federal disability benefits to those individuals who had received aid under a state plan for at least one month prior to July 1973 — commonly known as “grandfatherees” — is controlled solely by the operation of the statutory grandfather clause. II. FINNEGAN’S ACHE On November 16, 1972 appellant Finnegan’s application for state disability was approved by the state of Washington disability review board. Finnegan received benefits from the state until January 1, 1974 at which time he was converted to and began receiving benefits from the federal SSI program. Based on the time period during which he had received disability benefits pursuant to the state plan, Finnegan qualified as a grandfatheree under the Act. In December, 1975, Finnegan received notice that his benefits would cease on the basis that his medical condition had allegedly improved and his disability had ceased. Finnegan challenged these conclusions and contested the decision to terminate his benefits. At the agency hearing, the administrative law judge (“ALJ”) concluded that Finnegan’s medical condition had not improved, but nevertheless found that HEW was entitled, based on agency regulations, to make an “initial determination” of Finnegan’s eligibility. Reviewing the evidence presented at the hearing, and based on an independent reading of the formerly employed state statute, Washington Administrative Code, Section 388-24-370, the ALJ concluded that Finnegan was not “disabled.” The district judge affirmed the finding that Finnegan’s condition had not improved, but concluded that" }, { "docid": "23710569", "title": "", "text": "may not terminate benefits absent a showing of previous clear and specific error or medical improvement which is sufficient to establish that an applicant is no longer “continuously disabled as so defined.” B. Case Law Although it is scarce and by no means (in itself) dispositive on the issue, the case law in the area lends support to Finnegan’s interpretation of the grandfather clause. While no case directly considers the question of terminating SSI benefits to former state recipients who are covered by the. grandfather clause, several cases focusing principally on the rights of “rollbacks”, see note 1, supra, discuss the position of grandfatherees in an effort to distinguish the eligibility of the two groups. The dicta in each of these cases indicate that their judicial authors considered grandfatherees to be automatically eligible for SSI benefits and exempt from HEW’s “initial determinations.” The Courts of Appeals have consistently referred to the position of grandfatherees as “conclusively presumed” to be qualified for federal SSI benefits. In Johnson v. Mathews, 539 F.2d 1111 (8th Cir. 1976), the Eighth Circuit noted in dicta that while grandfatherees were “conclusively presumed” to meet federal standards, rollbacks were not “automatically qualified.” Id. at 1115. Similarly, in Ryan v. Shea, 525 F.2d 268 (10th Cir. 1975), the Tenth Circuit explained that: As a part of the definition <)f eligibility, Congress included a “grandfather” clause whereby persons receiving disability benefits from a state program as of December 1973 would be conclusively presumed to meet federal standards. We would note parenthetically that the federal program was in one sense, at least, a continuation of the old federal-state program. Id. at 270. See also, Tatum v. Matthews, 541 F.2d 161, 163 (6th Cir. 1976). Finnegan’s interpretation of the grandfather clause is even more strongly supported by the district court opinions in the area. For example, in Buckles v. Weinberger, 398 F.Supp. 931 (E.D.Pa.1975), the court informatively noted: Thus, this [grandfather] provision provided, in essence, that each and every recipient under a state plan in December of that year would automatically begin to receive benefits under SSI for the following month." } ]

[ { "docid": "13271829", "title": "", "text": "risk of harm”). A prison official is not liable if he “knew the underlying facts but .believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844, 114 S.Ct. at 1982; see Rich v. Bruce, 129 F.3d 336, 338 (4th Cir.1997) (holding that prison official was not deliberately indifferent because he did not actually draw the inference that the prisoner was exposed to a specific risk of harm). B. Assessed in the most favorable light possible, Johnson presented the following case to the district court on summary judgment. First, both doctors knew that acrome-galia, headaches, night sweats, vision problems, and cutis laxa are all symptoms of a pituitary tumor. Second, Johnson complained to both doctors about these symptoms. Third, neither doctor diagnosed the pituitary tumor which later caused Johnson to go blind. Without a doubt, a pituitary tumor is a serious medical condition that satisfies the objective prong of an Eighth Amendment prima facie case. Johnson’s case fails, however, because he has produced no evidence proving the subjective (deliberate indifference) prong. He has produced no evidence that the doctors subjectively knew about the pituitary tumor and deliberately failed to treat it. At most, Johnson’s case demonstrates that the doctors were negligent in missing the diagnosis. A missed diagnosis, however, does not automatically translate into deliberate indifference. See Estelle, 429 U.S. at 106, 97 S.Ct. at 292 (commenting that physician negligence “in diagnosing or treating a medical condition does not state a valid claim of medical - mistreatment under the Eighth Amendment”). Farmer, and our cases interpreting Farmer, make clear that general knowledge of facts creating a substantial risk of harm is not enough. The prison official must also draw the inference between those general facts and the specific risk of harm confronting the inmate. See Farmer, 511 U.S. at 837, 114 S.Ct. at 1978-79 (stating that “the official must both be aware that a substantial risk of serious harm exists, and he must also draw the inference”); Rich, 129 F.3d at 340 (stating that “Farmer makes clear that the defendant" } ]

[ { "docid": "22439312", "title": "", "text": "medical needs, i.e., that treatment was prescribed at all or that prescribed treatment was provided. Prison officials violate the Eighth Amendment’s prohibition against cruel and unusual punishment when they act deliberately and indifferently to serious medical needs of prisoners in their custody. This is true whether the indifference is manifested by prison doctors responding to the prisoner’s needs or by guards’ intentionally delaying or denying access to medical care that has been prescribed. See Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference has both an objective and subjective component. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The medical need must be sufficiently serious to satisfy the objective component. See id. We have held that a medical need is sufficiently serious “if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980) (quotation omitted). In terms -of the subjective component, i.e., the requisite deliberate indifference, a plaintiff must establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk, “by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847, 114 S.Ct. 1970. The Eighth Amendment also protects against future harm to an inmate. See Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Under these standards, delay in providing medical care may constitute a violation of the Eighth Amendment. See, e.g., Thomas v. Town of Davie, 847 F.2d 771, 772-73 (11th Cir.1988) (concluding that an automobile accident victim stated an Eighth Amendment claim against police officers for delay in obtaining medical care when the victim obviously needed immediate medical attention and his condition was deteriorating). Delays that courts have found to violate the Eighth Amendment have frequently involved life-threatening situations and instances in which it is apparent that delay would exacerbate the prisoner’s medical problems. See Hill v. Dekalb Regional" }, { "docid": "18027540", "title": "", "text": "indifference” to a substantial risk of serious harm to an inmate violates the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Furthermore, “the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling, 509 U.S. at 31, 113 S.Ct. at 2480. This includes environmental hazards that pose an unreasonable risk of serious damage to future health. Id. at 33-35, 113 S.Ct. at 2480-É2. Proof of mere negligence, however, will not give rise to a constitutional violation. Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir.1991)(citing Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986)). Rather, a plaintiff must demonstrate that defendants acted with deliberate indifference with respect to his safety or with a specific intent to cause him harm. Id. To prevail on an Eighth Amendment claim a plaintiff must satisfy both prongs of a bifurcated standard, i.e., he must satisfy both an objective and subjective component. See Wilson, 501 U.S. at 298-300, 111 S.Ct. at 2323-25. First, objectively, the deprivation alleged must be “sufficiently serious” to be considered cruel and unusual. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (citing Wilson, 501 U.S. at 298, 111 S.Ct. at 2323-24); McNeil v. Lane, 16 F.3d 123, 125 (7th Cir.1993). For a claim based on a failure to prevent harm, an inmate must show that he was incarcerated under conditions posing a substantial risk of serious harm. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977. As for the subjective component, a plaintiff must show that defendants had a sufficiently culpable state of mind; that is that they knew of the risk and operated with “deliberate indifference” to the inmate’s health or safety. Id. THE PRESENT MOTIONS Defendants presently move for summary judgment on the grounds that Doyle has failed" }, { "docid": "14231168", "title": "", "text": "231, 234 (1st Cir.1991), “a party against whom summary judgment is sought is [not] entitled to a trial simply because he has asserted a cause of action to which state of mind is a material element,” Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir.1975). The non-moving party must present competent evidence that shows a genuine issue for trial. Ruiz-Rosa v. Rulldn, 485 F.3d 150, 156 (1st Cir.2007). B. Analysis “The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones”; accordingly, “it is now settled that ‘the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.’ ” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). The failure of correctional offi cials to provide inmates with adequate medical care may offend the Eighth Amendment if their “acts or omissions [are] sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To succeed on an Eighth Amendment claim based on inadequate or delayed medical care, a plaintiff must satisfy both a subjective and objective inquiry: he must show first, “that prison officials possessed a sufficiently culpable state of mind, namely one of ‘deliberate indifference’ to an inmate’s health or safety,” and second, that the deprivation alleged was “objectively, sufficiently serious.” Burrell, 307 F.3d at 8. For the subjective inquiry, the Supreme Court has specified that deliberate indifference requires that “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970; see also Ruiz-Rosa, 485 F.3d at 156. The standard encompasses a “narrow band of conduct”: subpar care amounting to negligence or even malpractice does not give rise to a" }, { "docid": "22157808", "title": "", "text": "L.Ed.2d 251 (1976)). Prison officials violate this proscription “when they display ‘deliberate indifference to serious medical needs of prisoners.’ ” Greeno, 414 F.3d at 652-53 (quoting Estelle, 429 U.S. at 104, 97 S.Ct. 285). Our focus here is not centered on the objective seriousness of the need (the district court ruled in Johnson’s favor in that point) but on whether the defendants acted with deliberate indifference, which is a subjective standard. See Boyce, 314 F.3d at 889. To be deliberately indifferent, the defendants must have acted with “a sufficiently culpable state of mind.” Greeno, 414 F.3d at 653 (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). They must know of the serious risk to the prisoner’s health, i.e., the serious medical need at issue, and they must also consciously disregard that risk/ need so as to inflict cruel and unusual punishment upon the prisoner. Farmer, 511 U.S. at 837-38, 114 S.Ct. 1970; Higgins, 178 F.3d at 511. We begin our summary judgment review with Curll, a grievance counselor at Graham. Curll received a- grievance from Johnson in May 2000 (i.e., before Johnson’s first visit with Dr. McEntyre), complaining about his hernia pain and treatment. Curll, who is not a medical professional, researched Johnson’s complaint and learned that Dr. Hinderliter had seen Johnson, diagnosed him as having a reducible hernia, and determined that surgery was not required. Curll, according to his affidavit, also learned that Johnson was “told that should his condition change, he should return to the medical unit.” Based upon this information, Curll recommended to the warden that the grievance be denied. Curll’s conduct does not demonstrate a sufficiently culpable state of mind. The necessity of surgery was not obvious, see Higgins, 178 F.3d at 511, and Curll, not a medical professional, did not know whether Johnson’s condition required, surgery. However, he was aware of Johnson’s complaints of pain. See Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir.1997) (“delays in treating painful medical conditions that are not life-threatening can support Eighth Amendment claims”). Nevertheless, Curll did not disregard Johnson’s complaints. He investigated the situation, made sure that" }, { "docid": "6976206", "title": "", "text": "L.Ed.2d 447 (1979)). Accord Luckert v. Dodge County, 684 F.3d 808 (8th Cir.2012)(“Under the Fourteenth Amendment, pretrial detainees are entitled to at least as great protection as that afforded convicted prisoners under the Eighth Amendment.”). b. Prison Officials’ Duty to Insure the Safety of Inmates and Detainees. The Supreme Court has held that “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm” implicates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “[N]either prison officials nor municipalities can absolutely guarantee the safety of their prisoners,” but “[t]hey are ... responsible for taking reasonable measures to insure the safety of inmates.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999). An official violates the Eighth Amendment when two elements are met: (i) the official causes an injury that, objectively, is “sufficiently serious,” i.e., an injury that equates to the “denial of the minimal civilized measure of life’s necessities”; and (ii) the official has a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. at 834, 114 S.Ct. 1970 (internal quotation marks omitted). The second condition represents the functional application of the deliberate indifference standard. See Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.2006)(holding that prison officials violate detainees’ due-process clause rights when the officials’ “acts or omissions [are] sufficiently harmful to evidence deliberate indifference to serious medical needs.”)(quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Analyzing whether the plaintiff has satisfied the first element, the objective element, “requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused.” Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Courts should also consider “whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. at 36, 113 S.Ct. 2475 (emphasis in original). “In other words, the prisoner" }, { "docid": "7772999", "title": "", "text": "1970 (quoting Wilson v. Seiter, 501 U.S. 294, 302-03, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)); see Sanville v. McCaughtry, 266 F.3d 724, 735 (7th Cir.2001) (finding negligence insufficient to establish deliberate indifference); Henderson, 196 F.3d at 844 (requiring \"deliberate indifference\" for Eighth Amendment violation). Therefore, a prison official may be found liable only if he \"knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.\" Farmer, 511 U.S. at 837, 114 S.Ct. 1970; see Sanville, 266 F.3d at 734 (quoting Farmer's requirement that official be aware of facts supporting inference of substantial risk of harm and that he actually draw the inference); Delgado-Brunet v. Clark, 93 F.3d 339, 345 (7th Cir.1996) (same). Moreover, a supervisor cannot be held liable in a § 1983 action unless the individual was personally involved in the wrongful conduct such that he or she caused or participated in the alleged violation. See Moore v. Indiana, 999 F.2d 1125, 1129 (7th Cir.1993). In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, imposes a duty upon states to provide adequate med ical care to incarcerated individuals. See id. at 103, 97 S.Ct. 285; see also Walker v. Benjamin, 293 F.3d 1030, 1036-37 (7th Cir.2002) (noting that deliberate indifference to prisoners' serious medical needs violated the Eighth Amendment (citing Estelle, 429 U.S. at 104-05, 97 S.Ct. 285)). To create a violation by failing to provide medical care, there must be \"deliberate indifference\" to a substantial risk of harm. Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.2000) (citing Farmer, 511 U.S. at 837, 114 S.Ct. 1970). This standard requires the plaintiff to establish that: (1) his condition was objectively serious, and (2) state officials acted \"with deliberate indifference to his medical needs," }, { "docid": "7470525", "title": "", "text": "642 F.Supp. 415 (M.D.Pa.1986), as does a need to treat an ulcer, White v. Napoleon, 897 F.2d 103, 109 (3d Cir.1990), or the need for medication to control blood pressure. Id. Knowing failure of a correctional system to provide a minimum level of necessary medical service subjects prisoners to cruel and unusual punishment. See Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir.1991); Inmates of Allegheny County Jail v. Wecht, 699 F.Supp. 1137, 1146 (W.D.Pa.1988). That is, the law punishes deliberate indifference of prison officials who know of and disregard excessive risks to inmates’ health and safety. Farmer, 511 U.S. at 837, 114 S.Ct. at 1978-79. Thus, while society does not expect that prisoners will have unqualified access to health care, a prison official who does not attend to serious medical needs of an inmate violates that inmate’s constitutional right. See Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (citing Estelle, 429 U.S. at 103-04, 97 S.Ct. at 290-91). Providing inadequate medical staff effectively denies inmates access to diagnosis and treatment and constitutes deliberate indifference. Inmates of Allegheny County Jail v. Pierce, 612 F.2d at 762. Similarly, lack of screening or inadequate screening of incoming prisoners exposes prisoners to unreasonable health risks; deliberate indifference to such risks constitutes punishable behavior. Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 2481-82, 125 L.Ed.2d 22 (1993); Monmouth County Carr. Inst. Inmates v. Lanzaro, 595 F.Supp. 1417, 1442 (D.N.J.1984), modified, 695 F.Supp. 759 (D.N.J.1988), amended in part and clarified in part, 717 F.Supp. 268 (D.N.J.1989). Further, failure to refer prisoners requiring medical care from an outside specialist to such providers also constitutes deliberate indifference. Inmates of Allegheny County v. Pierce, 612 F.2d at 762. Finally, exercise is a basic human need protected by the Eighth Amendment. Wilson, 501 U.S. at 304-05, 111 S.Ct. at 2327-28. In a facility that locks down its prisoners for long time periods, the law thus requires officials to permit at least minimal out-of-cell recreation or exercise. Medical care provided at the CJC is inadequate. The health care coordinator and mental" }, { "docid": "22348545", "title": "", "text": "punishments,” the Eighth Amendment places restraints on prison officials, directing that they may not use excessive physical force against prisoners and must also “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). To establish liability under the Eighth Amendment for a claim based on a failure to prevent harm to a prisoner, plaintiffs must show that the prison officials acted with “deliberate indifference” to a substantial risk that Scott would cause prisoners serious harm. Farmer v. Brennan, 511 U.S. at 834, 114 S.Ct. 1970; Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d 22, (1993); Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.1997); Street v. Corrections Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996); Taylor v. Michigan Dep’t of Corrections, 69 F.3d 76, 79 (6th Cir.1995). The concept of “deliberate indifference” encompasses both a subjective and an objective component. The objective component requires that the deprivation alleged be “sufficiently serious.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970. Thus, “for a claim ... based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. We agree with the district court that the harm alleged by all plaintiffs, being beaten without cause by a prison guard, is sufficiently serious to fulfill the objective component of this definition. To satisfy the subjective component, plaintiffs must show that the prison officials had “a sufficiently culpable state of mind.” Id. (citation omitted). A “sufficiently culpable state of mind” is one in which “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837, 114 S.Ct. 1970. A prison official can be liable if he “disregards that risk by failing" }, { "docid": "21047399", "title": "", "text": "Id. at 35, 113 S.Ct. 2475. With respect to the objective factor, the Court noted that beyond a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS, the Eighth Amendment requires “a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. at 36, 113 S.Ct. 2475 (emphasis in original). The Court stated: “In other words, the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Id. The second prong of the Helling test is a subjective one: whether prison officials were deliberately indifferent to a serious risk of harm. Id. at 36, 113 S.Ct. 2475. The Supreme Court has held that “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In concluding, the Helling Court held that the prisoner had properly claimed that the level of ETS to which he was exposed unreasonably endangered his future health. Helling, 509 U.S. at 35, 113 S.Ct. 2475. The Court remanded the case so that the prisoner could attempt to prove the objective and subjective elements necessary to establish a violation of the Eighth Amendment. Id. Since 1993, almost every Court of Appeals that has addressed this issue has recognized that a prisoner’s right to be free from levels of ETS that pose an unreasonable risk of future harm was clearly established by Helling. See Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir.2001) (affirming District Court’s denial of Rule 12(b)(6) motion" }, { "docid": "2344284", "title": "", "text": "Cir.1985)); cf. Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir.1996) (“That pretrial detainees may have more protections or rights in general, however, does not mean that they are entitled to greater protection of rights shared in common with convicted inmates.”). Accordingly, the court will utilize Eighth Amendment analysis in addressing the plaintiffs’ § 1983 claims. The Eighth Amendment proscribes the infliction of cruel and unusual punishment. U.S. Const, amend. VIII. This prohibition extends beyond physically barbarous punishment and includes inhumane conditions of confinement. See Ort v. White, 813 F.2d 318, 321 (11th Cir.1987). Additionally, courts have found that an inmate’s Eighth Amendment rights can be violated, inter alia, when he encounters deliberate indifference to his serious psychological or medical needs, including his proclivity for inflicting injury or death upon himself. See, e.g., Belcher, 30 F.3d at 1396 (citing Estelle v. Gamble, 429 U.S. 97, 103-05, 97 S.Ct. 285, 290-92, 50 L.Ed.2d 251 (1976)). There are two essential components to an Eighth Amendment claim brought against an individual: one objective, the oth er' subjective. See Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 2481-82, 125 L.Ed.2d 22 (1993) (noting that, on remand, the plaintiff would have “to prove both the subjective and objective elements necessary to’prove an Eighth Amendment violation”). First, the alleged deprivation must be objectively serious. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1976-77, 128 L.Ed.2d 811 (1994). For a claim based on failure to prevent harm, it must be shown that the inmate was incarcerated in conditions posing a “substantial risk of serious harm”. Id. The second, subjective component of the analysis requires that the inmate caretaker must have had a sufficiently culpable state of mind at the time of the alleged violation. In prison-condition cases like this one, the required state of mind is deliberate indifference to inmate health or safety. See id. In defining “deliberate indifference” in this context, the Supreme Court has determined that “a prison official may be held hable under the Eighth Amendment for denying humane conditions of confinement only if he knows that" }, { "docid": "19988", "title": "", "text": "In Farmer, the Supreme Court reiterated the standards of liability for “failure to protect” cases: “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Id. at 828, 114 S.Ct. at 1974. Farmer clarified that “deliberate indifference” requires a showing of the official’s subjective awareness of the risk: “[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847, 114 S.Ct. at 1984. Although prison officials need not intend that a known risk will actually harm an inmate, they must intentionally ignore this known risk in order to be liable under the Eighth Amendment. See id. at 842, 114 S.Ct. at 1981-82; see also Pavlick v. Mifflin, 90 F.3d 205, 208 (7th Cir.1996). While ordinary negligence is therefore insufficient to establish liability, see Langston v. Peters, 100 F.3d 1235, 1238 (7th Cir.1996), prison officials cannot take refuge in Farmer’s subjective test by deliberately ignoring obvious risks: “[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842, 114 S.Ct. at 1981-82. Accordingly, deliberate indifference is akin to criminal recklessness. See Farmer, 511 U.S. at 836-37, 114 S.Ct. at 1978-79. Because the Eighth Amendment proscribes cruel and unusual punishments, even a prison official’s subjective awareness of a substantial risk of harm, and an ensuing injury, may be insufficient to establish liability. A prison official’s duty under the Eighth Amendment is not to provide complete safety; it is-to ensure “reasonable safety.” See Farmer, 511 U.S. at 844, 114 S.Ct. at 1982-83; see also Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 2480-81, 125 L.Ed.2d 22 (1993). Therefore, reasonable measures taken to avert known risks will insulate a prison official from Eighth Amendment liability, even if those measures proved unsuccessful. See Farmer, 511 U.S. at 844, 114 S.Ct. at 1982-83; see also Lewis" }, { "docid": "22739933", "title": "", "text": "(citations omitted). “In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (citations omitted). Although the deliberate indifference standard “describes a state of mind more blameworthy than negligence,” this standard is satisfied if “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 835, 837, 114 S.Ct. 1970. Here, Brown’s allegations regarding the improperly installed sleeping bunks deal primarily with a single problem at the prison: the unsafe sleeping environment in which the improperly installed bunks caused inmates to slide off their bunks and land on the concrete cell floor and subjected inmates to the hazzards of rolling into protruding anchor bolt studs. Pis.’ Compl. at 2. These allegations are analogous to those made in Helling v. McKinney, 509 U.S. 25, 28, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), a case in which an inmate brought a § 1983 claim against prison officials, alleging that these officials had violated his Eighth Amendment rights by forcing him to share a cell with another inmate who smoked five packs of cigarettes a day. The Supreme Court concluded that the inmate had sufficiently alleged an Eighth Amendment claim because the Eighth Amendment prohibits prison officials from exhibiting deliberate indifference toward future health problems that an inmate may develop as a result of current prison conditions. Id. at 35, 113 S.Ct. 2475. As the Court explained, “[A plaintiff] states a cause of action under the Eighth Amendment by alleging that [defendants] háve, with deliberate indifference, exposed him to levels of [Environmental Tobacco Smoke] that pose an unreasonable risk of serious damage to his future health.” Id. Like the inmate in Helling, the plaintiffs in the present case have alleged facts that could conceivably show that the warden acted with deliberate indifference towards future health problems that the inmates may develop as a result of the unsafe sleeping conditions in their" }, { "docid": "1877168", "title": "", "text": "Amendment prison cases] is that ‘punishment’ has been deliberately administered for a penal or disciplinary purpose.” Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.1973)). ' The record does not in any way suggest that the guard sexually harassed Appellant “for a penal or disciplinary purpose.” On the contrary, Appellant’s affidavit suggests that the guard attempted to manipulate Appellant in an effort to satisfy his own sexual desires. While no doubt intolerable, the guard’s actions were not “punishment” for Eighth Amendment purposes; they were independent criminal acts. Thus, my analysis focuses on the responsive actions of the prison’s supervising official, and not the independent criminal acts of one rogue guard. The question of cruel and unusual punishment under the Eighth Amendment “is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health.’ ” Farmer, 511 U.S. at 843 (quoting Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). Thus, to succeed in an Eighth Amendment claim, a prisoner must establish not only the seriousness of the offending acts — by demonstrating exposure to a substantial risk of serious damage — but also the offender’s culpable mental state of deliberate indifference. Id. at 835; see also Hope v. Pelzer, 536 U.S. 730, 737-38, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (reiterating that in evaluating an Eighth Amendment claim courts must ascertain whether the officials involved acted with deliberate indifference); Wilson, 501 U.S. at 297 (noting that a prisoner advancing an Eighth Amendment claim must at minimum allege deliberate indifference to his serious medical needs); Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(eoncluding that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment). An official acts with deliberate indifference only if “the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837 (emphasis added). For that reason, “prison officials who actually knew of a substantial risk to" }, { "docid": "16860181", "title": "", "text": "reverse the district court’s disposition of the two Eighth Amendment claims against Dr. Phillip and Administrator McClintock but affirm its resolution of the claim against Warden Stansberry. I. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const, amend. VIII. This prohibition “proscribes more than physically barbarous punishments.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). It also encompasses “the treatment a prisoner receives in prison and the conditions under which he is confined.” Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). In particular, the Eighth Amendment imposes a duty on prison officials to “provide humane conditions of confinement ... [and] ensure that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To that end, a prison official’s “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction' of pain proscribed by the Eighth Amendment.” Estelle, 429 U.S. at 104, 97 S.Ct. 285 (internal quotation marks and citation omitted). Prisoners alleging that they have been subjected to unconstitutional conditions of confinement must satisfy the Supreme Court’s two-pronged test set forth in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). First, Farmer’s “objective” prong requires plaintiffs to demonstrate that “the deprivation alleged [was], objectively, ‘sufficiently serious.’ ” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). To be “sufficiently serious,” the deprivation must be “extreme”—meaning that it poses “a serious or significant physical or emotional injury resulting from the challenged conditions,” or “a substantial risk of such serious harm resulting from ... exposure to the challenged conditions.” De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation marks and citation omitted). In medical needs cases, like the case at bar, the Farmer test requires plaintiffs to demonstrate officials’ deliberate indifference to a “serious” medical need that has either “been diagnosed by a physician as mandating treatment or" }, { "docid": "13965979", "title": "", "text": "In fourteen months, Dr. Mamis arranged for at least twelve specialist consults and prescribed physical therapy and medication for Alster’s back pain. Although Alster takes issue with Dr. Mamis twice deviating from other physicians’ prescriptions, the record reflects that Dr. Mamis did so based on his examination of Alster and the availability of medications at the pharmacy. Where the care provided is otherwise adequate, “[disagreements over medications” and “forms of treatment” are “not adequate grounds for a Section 1983 claim,” for “[t]hese issues implicate medical judgments.” Sonds, 151 F.Supp.2d at 312 (citing Estelle, 429 U.S. at 107, 97 S.Ct. 285). Accordingly, this Court grants summary judgment on Alster’s § 1983 claim based on general medical care. B. Conditions of Confinement In addition to inadequate medical treatment, inhumane conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.2002). The standard for an inhumane conditions claim is identical to that for inadequate medical treatment — objectively, “the prison officials’ transgression was ‘sufficiently serious’ and subjectively, “the officials acted, or omitted to act, with a ‘sufficiently culpable state of mind,’ i.e., with ‘deliberate indifference to inmate health or safety.’ ” Phelps, 308 F.3d at 185 (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). Under the objective element, while the Constitution “does not mandate comfortable prisons,” inmates may not be denied “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). States may not deprive inmates of their “basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety.” Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). “Nor may prison officials expose prisoners to conditions that ‘pose an unreasonable risk of serious damage to [their] future health.’ ” Phelps, 308 F.3d at 185 (quoting Helling, 509 U.S. at 35, 113 S.Ct. 2475). 1. State Prison Conditions Alster claims intolerable conditions of confinement at Green Haven based on Drs. Koenigsmann, Bernstein, and Mamis’s refusal to place him in a wheelchair-accessible cell with" }, { "docid": "1054677", "title": "", "text": "See id “The Eighth Amendment forbids prison officials from ‘unnecessarily and wantonly inflicting pain’ ” on a prisoner by acting with “deliberate indifference” to the prisoner’s serious medical needs. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The test for determining deliberate indifference based on exposure to ETS has both objective and subjective components. Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). To satisfy the objective component, a prisoner must show that his medical needs are “sufficiently serious.” Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir.1992). The exposure to smoke must cause more than “mere discomfort or inconvenience.” Id. at 735. Additionally, the prisoner must demonstrate that the risk is one which society deems “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36, 113 S.Ct. 2475. To satisfy the subjective component, a prisoner must show that prison authorities knew of, and manifested deliberate indifference to, his serious medical needs. Id. at 32, 113 S.Ct. 2475. 1. The Objective Component In Hunt, 974 F.2d at 736, we acknowledged that forcing a non-smoking prisoner with a serious medical need to share a cell with a prisoner who smokes violates the Eighth Amendment’s objective component. Among the cases we cited in Hunt was Steading v. Thompson, 941 F.2d 498 (7th Cir.1991), wherein the Seventh Circuit explained: Prisoners allergic to the components of tobacco smoke, or who can attribute their serious medical conditions to smoke, are entitled to appropriate medical treatment, which may include removal from places where smoke hovers. Id. at 500. Here, Talal alleges that he has been subjected to excessive levels of smoke at the hands of both staff and other inmates and that TCIP’s ventilation system merely re-circulates smoke-filled air. Additionally, he has substantiated that he suffers from ETS allergy. The record contains medical documentation evidencing this fact and establishing that smoke causes Talal sinus problems and dizziness. On several occasions, medical staff" }, { "docid": "22067260", "title": "", "text": "the evidence if plausible in light of the entire record, even if as the trier of fact we might have weighed it differently. Anderson, 470 U.S. at 573, 105 S.Ct. 1504. When, as here, a district court’s findings are based on a credibility determination, Rule 52(a) demands even greater deference. Id. at 573, 105 S.Ct. 1504. Although a more particularized analysis might have been helpful, the record reflects that the District Court considered the Whitley factors, and we determine that the findings made by the District Court were sufficient for a clear understanding of the basis of the decision. We find no clear error. V. Finally, Giles contends that the District Court erred in finding that the correctional officers were not deliberately indifferent to his serious medical needs when he was denied pain medication and capstunned in the prison infirmary. To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm. Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Deliberate indifference may be shown by “intentionally denying or delaying medical care.” Estelle, 429 U.S. at 104, 97 S.Ct. 285. “The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health,’ ” Farmer, 511 U.S. at 843, 114 S.Ct. 1970 (quoting Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). Under a recklessness standard, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk.” Farmer, 511 U.S. at 844, 114 S.Ct. 1970. Giles’ medical expert presented unrebutted testimony that Giles was subjected to the risk of a life-threatening injury due to the delay of over 24 hours in diagnosis and transfer to the hospital. When a rib is broken and a lung punctured, the lung collapses and outside air pressure increases in the" }, { "docid": "21080807", "title": "", "text": "v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Inadequate treatment of a serious nature can qualify, see Hughes v. Joliet Correctional Center, 931 F.2d 425 (7th Cir.1991), as can the “exposure of inmates to a serious, communicable disease,” Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Secondly, the defendants must exhibit something courts call “deliberate indifference.” Recently the Supreme Court has explicated the phrase and concluded that “subjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for ‘deliberate indifference’ under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 839-40, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). In short, the Court concluded that a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. Farmer at 847,114 S.Ct. at 1984. One thing which has long been clear in our Eighth Amendment cases is that the amendment is not coterminous with a medical malpractice claim. See Bryant v. Modigan, 84 F.3d 246 (7th Cir.1996); Oliver v. Deen, 77 F.3d 156 (7th Cir.1996); Snipes v. DeTella, 95 F.3d 586 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 980, 136 L.Ed.2d 863. Ordinary malpractice does not rise to the level of an Eighth Amendment claim. Vance v. Peters, 97 F.3d 987 (7th Cir.1996). As we said in Snipes, “the Constitution is not a medical code that mandates specific medical treatment.” At 592. Forbes’ primary problem in this case is that the conduct of the officials does not reveal anything approaching “deliberate indifference.” Forbes is seeking a specific treatment and foolproof protection from infection. The Eight Amendment does not provide her with either. And no amount of lawyering could overcome the" }, { "docid": "3151415", "title": "", "text": "which many people who are not in prison do not seek medical attention — does not ... violate the Constitution.” Cooper v. Casey, 97 F.3d 914, 916 (7th Cir.1996). Although an ear infection is a common malady that typically causes no permanent impairment, Zentmyer’s condition inflicted prolonged suffering and required treatment from a nurse and two doctors who prescribed painkillers and antibiotics for almost a month. Zentmyer also adduced evidence and expert testimony indicating that the infections lingered for months afterward and led eventually to a permanent loss of hearing. Defendants cite credible evidence that Zentmyer’s ear infection was mild at worst and that Zentmyer actually did not sustain hearing loss. However, resolving all factual ambiguities in his favor, we agree that Zentmyer raised a material question of fact whether he suffered from an objectively serious medical condition. To overturn summary judgment, Zentmyer also must demonstrate a genuine question of fact whether the defendants were deliberately indifferent to his medical condition. The Court ex plained in Farmer that “deliberate indifference entails something more than mere negligence.” Farmer, 511 U.S. at 836, 114 S.Ct. 1970; see also Pope v. Shafer, 86 F.3d 90, 92 (7th Cir.1996); Williams v. O’Leary, 55 F.3d 320, 324 (7th Cir.1995); Giron v. Corrections Corp. of Am., 191 F.3d 1281, 1286 (10th Cir.1999). For example, in Steele v. Choi, 82 F.3d 175, 178 (7th Cir.1996), a prison doctor was not deliberately indifferent, even assuming that a minimally competent doctor would have been able to identify and treat the plaintiffs injury under the circumstances, because he was not subjectively aware of the plaintiffs medical needs. Under this standard, “a prison official cannot be found hable ... for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Zentmyer cites the Court’s prohibition in Estelle on “intentionally interfering with" }, { "docid": "22067261", "title": "", "text": "Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Deliberate indifference may be shown by “intentionally denying or delaying medical care.” Estelle, 429 U.S. at 104, 97 S.Ct. 285. “The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health,’ ” Farmer, 511 U.S. at 843, 114 S.Ct. 1970 (quoting Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). Under a recklessness standard, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk.” Farmer, 511 U.S. at 844, 114 S.Ct. 1970. Giles’ medical expert presented unrebutted testimony that Giles was subjected to the risk of a life-threatening injury due to the delay of over 24 hours in diagnosis and transfer to the hospital. When a rib is broken and a lung punctured, the lung collapses and outside air pressure increases in the chest cavity outside of the collapsed lung. The pressure can cause internal organs to move, cutting off blood flow to the heart and increasing the risk of death. The delay in medical care thus exposed Giles to a substantial risk of serious damage to his future health. But it is not clear that the correctional officers who responded in the infirmary incident recklessly disregarded this risk or intentionally denied or delayed medical care under the circumstances. The District Court concluded that deliberate indifference by the correctional officers was not shown in the infirmary incident because there was no evidence that the responding officers knew of Giles’ medical condition and because Giles received medical care and assessment following each event. Giles counters with the deposition of Officer Justice, who stated in his deposition that it was customary to be informed at shift changes whether there had been fights with inmates, and that “[w]e heard ... when we came on shift” that Giles had “something wrong with one of his ribs, punctured lung, or something like that.”" } ]

[ { "docid": "22434294", "title": "", "text": "993 F.2d 718, 719 (9th Cir.1993) (“A court may grant attorney’s fees to a defendant under § 1988 only under the limited circumstances where the action is frivolous, unreasonable, or without foundation.” (internal quotation marks omitted)). As such, § 1988 cases are instructive in deciding whether fees are appropriate under the False Claims Act. An action is “clearly frivolous” when “the result is obvious or the appellant’s arguments of error are wholly without merit.” Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.1994) (articulating standard under § 1988); see also Mikes v. Straus, 274 F.3d 687, 705 (2d Cir.2001) (stating similar standard under the False Claims Act). An action is “clearly vexatious” or “brought primarily for purposes of harassment” when the plaintiff pursues the litigation with an improper purpose, such as to annoy or embarrass the defendant. E.g., Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir.1988) (stating standard under § 1988). The MTA moved for attorneys’ fees under the False Claims Act, requesting that fees be awarded against Pfingston’s counsel as well as Pfingston himself. At a hearing on the motion, the MTA withdrew its request for fees against Pfingston’s attorney. Notwithstanding the MTA’s change of position, the district court awarded $10,000 in fees to be paid solely by Pfingston’s attorney. The court provided no explanation as to why fees were warranted, why $10,000 was an appropriate amount, or why the fees were to be paid by the attorney. The plain language of the False Claims Act does not indicate that fees may be awarded against an attorney. Rather, the statute merely provides, that “the court may award to the defendant its reasonable attorneys’ fees and expenses.” 31 § 3730(d)(4). Congress adopted a standard for fees that is directly analogous to that of 42 U.S.C. § 1988. Section 1988 does not authorize the award of fees against an attorney. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 761, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980); Foster v. Mydas Assocs., Inc. 943 F.2d 139, 142 (1st Cir.1991); Brown v. Borough of Chambersburg, 903 F.2d" } ]

[ { "docid": "1278666", "title": "", "text": "at 88 (relying upon the language of section 1415(e)(4)(D) to hold that the phrase “action or proceeding” denotes administrative hearings as well as lawsuits). The legislative history of section 1415 also evinces Congress’ intent to provide attorneys’ fees for parents who are successful at the mandatory administrative hearing. For example, the Report of the Senate Committee on Labor and Human Resources on S. 415, the bill that eventually became the HCPA, states: The committee also intends that [the fee provisions] should be interpreted consistent with fee provisions of statutes such as Title VII of the Civil Rights Act of 1964 which authorizes courts to award fees for time spent by counsel in mandatory administrative proceedings under those statutes. S.Rep. No. 99-112, 99th Cong., 2nd Sess. 14, reprinted in 1986 U.S.Code Cong. & Admin.News 1798, 1804. The committee cited Carey and also expressed its intent that a court, rather than a hearing officer, award fees for time spent in mandatory EHA administrative proceedings. Id. In addition, the report of the House of Representatives Committee on Labor on H.R. 1523, the House version of the HCPA, expresses an intent to allow parents to bring a separate suit for attorneys’ fees alone. The report states: [ I]f a parent prevails on the merits ... at an administrative proceeding (and the agency does not appeal the decision), the parent may be awarded reasonable attorneys’ fees, costs, and expenses incurred in such administrative proceeding. Usually, the amount of such fees, costs, and expenses will be agreed to by the public agency. If no agreement is possible, the parent may file a law suit for the limited purpose of receiving an award of reasonable fees, costs, and expenses. H.R.Rep. No. 99-296, 99th Cong., 1st Sess. 5 (1985). Members of both houses of Congress expressed similar reasons for awarding attorneys’ fees for legal representation at the administrative level. At the floor debates during the Senate’s deliberation on S. 415, Senator Simon succinctly explained: The mandated proceedings are quasi-judicial, and intimidating to many parents. School districts often employ attorneys to consult and prepare and/or present the district’s position" }, { "docid": "23145991", "title": "", "text": "thirty days of receiving a communication from the debt collector. It follows that the letter in the case before us violates the FDCPA, because it contradicts Jacobson’s rights under § 1692g. By requiring the notice to be received by the debt collector within thirty days, the letter shortens the period during which the recipient may seek verification of the debt. We therefore reverse the district court’s decision to grant summary judgment to IV S. II. Attorneys’ Fees and Costs The FDCPA provides for fee-shifting as a matter of course to successful plaintiffs, 15 U.S.C. § 1692k(a)(3), but also gives the district court the power to award fees against abusive plaintiffs: “On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” Id. Judge Glasser made such a finding in this case, and awarded attorneys’ fees and costs to HFS. Jacobson, 434 F.Supp.2d at 141. This Court has not yet had an occasion to determine the standard of review for decisions to award attorneys’ fees under the FDCPA. We generally review decisions to award or deny attorneys’ fees for abuse of discretion. Kerin v. U.S. Postal Serv., 218 F.3d 185, 188 (2d Cir.2000). Moreover, other circuit courts hearing appeals from awards against plaintiffs under § 1692k(a)(3) have used that standard. See, e.g., Hotkey v. J.V.D.B. & Assocs., Inc., 333 F.3d 769, 774 (7th Cir.2003); Perry v. Stewart Title Co., 756 F.2d 1197, 1211 (5th Cir.1985). We adopt that approach, and hold that we review for abuse of discretion a district court’s decision to award attorneys’ fees to a defendant pursuant to the FDCPA. Doing so, we find that the district court’s determination that Jacobson brought this action “in bad faith and for the purpose of harassment” cannot stand. See Kerin, 218 F.3d at 188 (a district court abuses its discretion if it relies on “an erroneous view of the law or on a clearly erroneous assessment of the evidence” (internal quotation" }, { "docid": "11612367", "title": "", "text": "be dismissed. Plaintiff does not cite any instance when F & G made any “false, deceptive, or misleading representations” regarding the collection of Sierra’s debt. All of defendants’ collection letters to Sierra contained the clearly-worded disclaimer that F & G is a “debt collector and any information we obtain will be used in attempting to collect this debt,” and the legal warning required by law, so they were not “false and misleading.” Most importantly, plaintiff does not truly dispute that F & G is entitled to attorneys’ fees; he merely claims that the amount is unreasonable and therefore a violation of the law. At oral argument, plaintiffs counsel’s admitted that he charges between $100 and $200 per hour. At this rate, defendants’ three hours of work is not “unreasonable” as a matter of law for a debt collection. Therefore, plaintiffs claims are dismissed. Defendants now move for their costs and reasonable attorneys’ fees. Ordinarily, litigants are responsible for then-own legal fees, and unless fees are specifically authorized by statute or by contract, a party generally cannot recover its attorneys’ fees. See Cruz v. Local S, 34 F.3d 1148, 1158 (2d Cir.1994). In this case, attorneys’ fees are authorized by 15 U.S.C. § 1692k(a)(3), which provides that “[o]n a finding by the court that an action[ ] under this section was brought in bad faith or for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” Predictably, plaintiff contends that attorneys’ fees are not appropriate. However, there is ample evidence before me of “bad faith” or “harassment.” Plaintiff voluntarily abandoned his FDCPA claims once in order to have the case remanded back to state court, then he voluntarily discontinued its prosecution in state court, only to bring it once again in federal court. Those actions certainly smack of “bad faith”. Plaintiff has now compelled at least two District Judges to deal with a claim that some portion of a $507.92 attorneys’ fees assessment is unfair. Defendants should be entitled to any reasonable fees incurred in defending themselves in" }, { "docid": "22231087", "title": "", "text": "801, 803 (2d Cir.1992), rev’d in part on other grounds, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). A. Decision to Award Attorneys’ Fees Plaintiffs principal objection derives from the court’s decision to preclude all testimony regarding “Mrs. D,” defendants’ former patient who Mikes alleged was improperly examined by use of an MRI rather than by x-ray. Mikes had contended that defendants — who held a financial interest in an MRI facility — received illicit remuneration through referrals to this facility in violation of § 1320a-7b of the Medicare statute and in turn the False Claims Act. Mikes apparently sought to proffer evidence regarding Mrs. D — mistakenly believing she was a Medicare patient — -to prove that Mikes’ MRI claims were brought in good faith. But the district court reasoned that Mrs. D’s testimony should be disallowed because, as a patient under 65 years of age, she was not Medicare eligible and thus plaintiff could not rely upon Mrs. D’s treatment to plead a violation of the Medicare statute. We have not had occasion to analyze § 3730(d)(4) of the Act, which provides that a district court may award a defendant reasonable attorneys’ fees against a qui tarn relator “if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.” Any one of these three con ditions is sufficient for an award of attorneys’ fees. The Act’s legislative history suggests that the standard of § 3730(d)(4) is analogous to that used for claims for attorneys’ fees brought under 42 U.S.C. § 1988. See S.Rep. No. 99-345, at 29, reprinted in 1986 U.S.C.C.A.N. 5266, 5294. It is noteworthy that a plaintiffs subjective bad faith is not an element under § 1988. See Davidson v. Keenan, 740 F.2d 129, 132-33 (2d Cir.1984). Accordingly, there could be an award for attorneys’ fees upon a finding that the MRI claims were objectively frivolous, irrespective of plaintiffs subjective intent. A claim is frivolous when, viewed objectively, it may be said to" }, { "docid": "22967401", "title": "", "text": "the law ... Congress has legislated that in certain cases prevailing parties may recover their attorneys’ fees from the opposing side. When a statute provides for such fees, it is termed a ‘fee shifting’ statute.” Id. The FDCPA is one such statute, providing that any debt collector who fails to comply with its provisions is liable “in the case of any successful action ... [for] the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1692k(a)(3). The FDCPA’s statutory language makes an award of fees mandatory. Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir.1995). “The reason for mandatory fees is that congress chose a ‘private attorney general’ approach to assume enforcement of the FDCPA.” Id.-, see also Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir.1991) (noting that the FDCPA “mandates an award of attorney’s fees as a means of fulfilling Congress’s intent that the Act should be enforced by debtors acting as private attorneys general”). Here, pursuant to the Settlement Agreement, Bridgeport Financial agreed to pay reasonable and necessary attorneys’ fees and costs. “District courts must calculate awards for attorneys’ fees using the ‘lodestar’ method,” Ferland, 244 F.3d at 1149 n. 4, and the amount of that fee must be determined on the facts of each case, Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). “The ‘lodestar’ is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Ferland, 244 F.3d at 1149 n. 4 (citation and internal quotation marks omitted). “Although in most cases, the lodestar figure is presumptively a reasonable fee award, the district court may, if circumstances warrant, adjust the lodestar to account for other factors which are not subsumed within it.” Id. Here, the district court first found that Camacho’s three attorneys spent a reasonable number of hours on this case, specifically noting that they spent their time on motions brought by the defendant and successfully defending against an interlocutory appeal. The court made this finding after recognizing that" }, { "docid": "7266843", "title": "", "text": "(d)(1)(A) (Supp. V 1981). The only exception to this comprehensive coverage is that “cases sounding in tort” are excluded from the experimental provisions of § 2412(d)(1)(A). See notes 22-23 infra and accompanying text. Both the Civil Rights Attorney’s Fees Awards Act, see note 16 supra, and the EAJA were designed to supplement a host of more specific provisions allowing for the award of attorneys’ fees in suits brought under statutes granting or protecting various federal rights. See, e.g., 5 U.S.C. § 552(a)(4)(E) (1976) (Freedom of Information Act); 15 U.S.C. § 15 (Supp. V 1981) (Clayton Act); 15 U.S.C. § 77k(e) (1976) (Securities Act of 1933 [as amended]); 15 U.S.C. §§ 78i(e), 78r(a) (1976) (Securities Exchange Act of 1934 [as amended]); 29 U.S.C. § 107(e) (1976) (Norris-LaGuardia Act); 42 U.S.C. §§ 2000a-3(b), 2000e-5(k) (1976) (Civil Rights Act of 1964). For a comprehensive, current enumeration of these provisions, see 6 Attorney Fee Awards Rep. No. 3, at 2-3 (1983). . The full text of the provision reads: Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to [§ 2412(a)], to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. 28 U.S.C. § 2412(b) (Supp. V 1981). . See H.R.Rep. No. 1418, 96th Cong., 2d Sess. 9 (1980); S.Rep. No. 253, 96th Cong., 1st Sess. 1, 4 (1979); H.R.Rep. No. 1434, 96th Cong., 2d Sess. 25 (1980) (conference report), U.S.Code Cong. & Admin.News 1980, 4953. The two exceptions to the American Rule are discussed in the text at note 13 supra. . To be able to invoke the provision, parties must meet certain financial requirements, set forth" }, { "docid": "9341665", "title": "", "text": "Wright of any wrongdoing and awarded him $500.00 against plaintiff on a counterclaim. Thereafter, Wright filed his offer of judgment with the court as an attachment to his motion for an award of fees. II We first consider an award of fees as it relates to defendant Wright. The 1976 amendment to 42 U.S.C. § 1988 (the Civil Rights Attorney’s Fees Act of 1976) provides in relevant part: In any action or proceeding to enforce a provision of sections [42 U.S.C. §§ 1981-1983, 1985, 1986] . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. The language of § 1988 follows verbatim the text found in other civil rights attorney fee provisions. This is not coincidental. As noted in the legislative history, U.S.Code Cong. & Admin.News 1976, pp. 5908, 5909, 5910, the amendment “follows the language of Titles II and VII of the Civil Rights Act of 1964,” and is designed to “allow courts to provide the similar remedy of reasonable counsel fees to prevailing parties.” Other courts, including this one, have noted the dependence of § 1988 interpretation upon the fee award provisions of the housing and employment discrimination statutes. Wharton v. Knefel, 562 F.2d 550, 557 (8th Cir. 1977); EEOC v. Bailey Co., 563 F.2d 439, 456 (6th Cir. 1977); Keyes v. School Dist. No. 1, 439 F.Supp. 393, 399 n. 9 (D.C.Colo.); cf. Bradley v. Richmond School Bd., 416 U.S. 696, 719, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1976). The civil rights fee statutes are worded neutrally. That is, they provide for an award of fees in the court’s discretion to the prevailing party, be that party plaintiff or defendant. In interpreting the statutes, however, the plain language of legislative scheme has been overshadowed by reference to the legislative intent as it impacts on the exercise of the court’s discretion. Thus a dual standard has evolved, one for prevailing plaintiffs and another for prevailing defendants. This interpretation has had the implicit support of Congress when it enacted the 1976 amendment" }, { "docid": "22231088", "title": "", "text": "had occasion to analyze § 3730(d)(4) of the Act, which provides that a district court may award a defendant reasonable attorneys’ fees against a qui tarn relator “if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.” Any one of these three con ditions is sufficient for an award of attorneys’ fees. The Act’s legislative history suggests that the standard of § 3730(d)(4) is analogous to that used for claims for attorneys’ fees brought under 42 U.S.C. § 1988. See S.Rep. No. 99-345, at 29, reprinted in 1986 U.S.C.C.A.N. 5266, 5294. It is noteworthy that a plaintiffs subjective bad faith is not an element under § 1988. See Davidson v. Keenan, 740 F.2d 129, 132-33 (2d Cir.1984). Accordingly, there could be an award for attorneys’ fees upon a finding that the MRI claims were objectively frivolous, irrespective of plaintiffs subjective intent. A claim is frivolous when, viewed objectively, it may be said to have no reasonable chance of success, and present no valid argument to modify present law. See Caisse Nationale, 28 F.3d at 264; see also Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir.1984) (per curiam) (whether claim is frivolous under § 1988 is an objective inquiry). The district court was well justified in finding that plaintiffs MRI claims were objectively vexatious. The consulting agreement between the defendants and the MRI facility in which they held a financial interest provided for a flat consulting fee. Mikes, 98 F.Supp.2d at 524. As the defendants’ remuneration would not vary with the number of patients they referred, little incentive existed to refer extra patients to the facility. Further, Judge McMahon found no evidence that any Medicare patient inappropriately received an MRI and rejected plaintiffs reliance on the case of Mrs. D, finding such reliance objectively unreasonable. See id. at 524-25 (“Mrs. D ... was in fact in her late forties when she was seen at [defendants’ office] — a fact that should have been apparent to Dr. Mikes, and" }, { "docid": "10462162", "title": "", "text": "appeal, may be awarded reasonable attorneys’ fees, costs, and expenses by the court.” (emphasis added) 131 Cong.Rec. H9,966 (daily ed. November 12, 1985). In final debate on the bill, Representative Bartlett noted: “For the first time, we have authorized the awarding of fees at the due process hearing system level in disputes which do not go on to court on a substantive issue.” 132 Cong.Rec. H4842 (daily ed. July 24, 1986). Furthermore, the Senate report on the Senate version of the bill states: “The committee intends that S. 415 will allow the Court, ... to award fees for time spent by counsel in mandatory EHA administrative proceedings.” S.Rep. No. 112, 99th Cong., 1st Sess. 14 (1985), U.S.Code Cong. & Admin.News 1986, pp. 1798, 1804. In support of his motion to dismiss, defendant points to sections of the legislative history of HCPA which indicate that Congress intended that the amendment should be interpreted consistently with other fee-shifting civil rights statutes, such as 42 U.S.C. Sec. 1988. See S.Rep. 112, 99th Cong., 2d Sess. 13, 14, U.S.Code Cong. & Admin.News at pp. 1803, 1804; 132 Cong. Rec. H4,481-82. Defendant argues that to be consistent with rights under Sec. 1988, the EHA must be read to prohibit an independent actions seeking the award of attorney’s fees since in North Carolina Department of Transportation v. Crest Street Community Council, Inc., 479 U.S. 6, 107 S.Ct. 336, 93 L.Ed.2d 188 (1986), the Supreme Court held that under 42 U.S.C. Sec. 1988 a court may not award attorney’s fees in an independent action for fees which does not, in itself, seek to enforce the substantive provisions of the civil rights laws. The Court concludes, however, that this argument is without merit. The holding in Crest Street is based upon the plain language of Sec. 1988, and its unique legislative history. As was discussed earlier, the plain language and legislative history of HCPA support a conclusion that HCPA authorizes an independent action. Furthermore, references in the legislative history of the HCPA to Sec. 1988 are based upon Congress’ understanding of a plaintiff’s rights under Sec. 1988. The" }, { "docid": "23292095", "title": "", "text": "at the hearing which would have carried his burden of establishing the jurisdictional facts under § 3730(e)(4) in his favor. One also wonders why Relator Vuyyuru would have even needed discovery regarding, for example, how he gained direct and independent knowledge of the alleged false billings submitted by Defendants, because such information should be within his own custody and control. In sum, we hold the district court’s findings with respect to the jurisdictional issues of fact under § 3730(e)(4) are not clearly erroneous, and thus, the district court did not err as a matter of law in dismissing the Third Amended Complaint for lack of subject matter jurisdiction. Accordingly, we affirm such dismissal. III. We next address Relator Vuyyuru’s challenge to the district court’s award of attorneys’ fees and costs to The Cameron Foundation. Relator Vuyyuru’s challenge is without merit. Upon motion by The Cameron Foundation, the district court awarded it the sum of $68,228.75 in attorneys’ fees and costs under 31 U.S.C. § 3730(d)(4), which statutory subsection provides that, where the government does not proceed with an FCA claim and the relator conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. Id. From our careful reading of the district court’s August 27, 2007 Memorandum Opinion addressing The Cameron Foundation’s motion for an award of attorneys’ fees and costs, we are convinced that the district court based its attorneys’ fees/ costs award upon its findings that The Cameron Foundation prevailed in this action, and that Relator Vuyyuru’s claim of subject matter jurisdiction over his FCA claims was clearly frivolous. Relator Vuyyuru first attacks the district court’s attorneys’ fees/costs award on the basis that the district court erroneously ignored the appropriate standard in determining whether he was a proper relator under § 3730(e)(4). In this regard, Relator Vuyyuru makes much the same arguments that he made in challenging the district court’s Rule" }, { "docid": "16227121", "title": "", "text": "of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988 The statute itself contains no standard for awarding attorneys’ fees to a defendant. It merely provides that the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee. The legislative history, however, indicates that while a prevailing plaintiff “ ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust,’ ” a prevailing defendant is not routinely entitled to attorneys’ fees. Senate Report No. 94-1011 (June 29, 1976), 1976 U.S.Code Cong, and Admin.News at pp. 5908, 5912. This report states as follows: “Such ‘private attorneys general’ should not be deterred from bringing good faith actions to vindicate the fundamental rights here involved by the prospect of having to pay their opponent’s counsel fees should they lose. Richardson v. Hotel Corporation of America, 332 F.Supp. 519 (E.D.La.1971), aff’d, 468 F.2d 951 (5th Cir. 1972). (A fee award to a defendant’s employer, was held unjustified where a claim of racial discrimination, though meritless, was made in good faith.) Such a party, if unsuccessful, could be' assessed his opponent’s fee only where it is shown that his suit was clearly frivolous, vexatious, or brought for harassment purposes. United States Steel Corp. v. United States, 385 F.Supp. 346 (W.D.Pa.1974), aff’d, 9 E.P.D. ¶ 10,225 (3d Cir. 1975). This bill thus deters frivolous suits by authorizing an award of attorneys’ fees against a party shown to have litigated in “bad faith” under the guise of attempting to enforce the Federal rights created by the statutes listed in S. 2278. Similar standards have been followed not only in the Civil Rights" }, { "docid": "2051697", "title": "", "text": "so provides. Id. at 269, 95 S.Ct. at 1627. Section 1988 of Title 42 of the United States Code, the statute with which we are presently concerned, is just such an exception to the American Rule and, in fact, was enacted in 1976 as a direct consequence of the Alyeska decision. See H.R. Rep. No. 1558, 95th Cong., 2d Sess. at 2; see also S.Rep. No. 1011, 94th Cong., 2d Sess. at 1, reprinted in 1976 U.S.Code Cong. & Admin.News, p. 5908. Despite requiring congressional authorization for judicial fee-shifting, the Court in Alyeska reaffirmed its earlier holding in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct 964, 19 L.Ed.2d 1263 (1968), that where Congress has so provided, an award of attorneys’ fees should ordinarily be made to the successful plaintiff absent exceptional circumstances. Id. at 402, 88 S.Ct. at 966; Alyeska, 421 U.S. at 262, 95 5.Ct. at 1624. In seeking to determine whether Congress intended to authorize the award of fees to the plaintiffs and against the inter-venors in the instant case, we begin our analysis with the language of section 1988 itself. See Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir.1987) (plain language of a statute is the best evidence of its meaning). Entitled “Proceedings in vindication of civil rights; attorney’s fees,” section 1988 provides in relevant part: ... In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. (Emphasis added). Had plaintiffs named only state officials as defendants in their section 1983 action, they would, as prevailing parties, have been presumptively entitled to attorneys’ fees from the defendants. The presence of private intervening parties, however, may alter this result because section 1988 neither explicitly contemplates the participation of intervenors in civil rights litigation nor specifically enumerates those against whom an award of fees" }, { "docid": "15995696", "title": "", "text": "parameters of § 3730(d)(4) of the FCA which provides for the award of attorney fees as follows: If the Government does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. 31 U.S.C. § 3730(d)(4). We review the district court’s decision to award attorney fees for an abuse of discretion, but review de novo the district court’s application of the legal principles underlying that decision. Nat’l Ass’n of Prof'l Baseball Leagues, Inc. v. Very Minor Leagues, Inc., 223 F.3d 1143, 1146 (10th Cir.2000). The FCA does not define the terms “clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment,” but the Act’s legislative history suggests that the standard of § 3730(d)(4) is analogous to that used for claims for attorney fees brought under 42 U.S.C. § 1988. S.Rep. No. 99-345, at 29 (1986) (“[The False Claims Act] standard reflects that which is found in [§ ] 1988 .... ”), reprinted in 1986 U.S.C.C.A.N. 5266, 5294; see also Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1006 n. 4 (9th Cir.2002); Mikes v. Straus, 274 F.3d 687, 705 (2d Cir.2001). Consequently, our precedent reviewing attorney fees under § 1988 is instructive. Prior to engaging in that analysis, however, we must address, sua sponte, the district court’s authority to award attorney fees when the underlying action has been dismissed for lack of subject matter jurisdiction. A. Jurisdiction to Award Attorney Fees The Ninth Circuit holds that, in those instances where § 1983 subject matter jurisdiction is lacking, the district court does not have the authority to impose § 1988 attorney fees for two reasons. Branson v. Nott, 62 F.3d 287, 292-93 (9th Cir.1995). First, citing to precedent from the Eighth and Second Circuits, the court stated: By itself, § 1988 does not provide the district court with jurisdiction to grant an" }, { "docid": "17466336", "title": "", "text": "other damages. The policy that supports qualified immunity — especially removing for most public officials the fear of personal monetary liability — would be undercut greatly if government officers could be held liable in their personal capacity for a plaintiffs costs, litigation expenses, and attorneys’ fees in cases where the applicable law was so unsettled that defendants, in their personal capacity, were protected from liability for other civil damages. Title 42 U.S.C. § 1988, as amended by the Civil Rights Attorneys’ Fees Awards Act of 1976, provides in part: In any action or proceeding to enforce section[ ] ... 1983 ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 1988 (1976). The amended statute was largely a response to Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), a decision which limited judicial power to award attorneys’ fees. See S.Rep. No. 94-1011, p. 1, 4 (1976) U.S.Code Cong. & Admin.News 1976 at pp. 5908, 5911, 5912. Still, as the Senate Committee Report shows, Congress did not foresee or require the award of fees against government officers, sued in their individual capacity, when the officers avoided acting in bad faith. The legislative history reveals from whom attorneys’ fees may be collected pursuant to section 1988: [I]t is intended that the attorney’s fees, like other items of costs, will be collected either directly from the official, in his official capacity,* from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party). Id. at p. 5 U.S.Code Cong. & Admin.News 1976 at pp. 5908, 5913. (emphasis added) (all but one footnote deleted). The footnote adds a lot: “Proof that an official had acted in bad faith could also render him hable for fees in his individual capacity_” Id. at p. 5, n. 7 U.S.Code Cong. & Admin.News 1976 at p. 5913. The significance of these legislative materials is that a" }, { "docid": "10462161", "title": "", "text": "days before the proceeding begins; ... (iii) the court or administrative officer finds that the relief finally obtained by the parents or guardian is not more favorable to the parents or guardian than the offer of settlement, (emphasis added). This provision specifically links “proceeding” with “administrative,” and gives some insight into what is meant by use of the word “proceeding” in Sec. 1415(e)(4)(B). Furthermore, the references to administrative proceedings and officers in Sec. 1415(e)(4)(D) would be meaningless if civil actions in court were the only subject of the amendment. The legislative history also provides strong support for the conclusion that attorney’s fees incurred at the administrative level are recoverable in a separate action in federal court. For example, in House debate, Representative Williams, the floor manager of the house bill, explained the purpose of HCPA to provide that “a parent or guardian of a handicapped child who prevails against a school district or state education agency in a Federal or State court, or an administrative proceeding such as a due process hearing or a State appeal, may be awarded reasonable attorneys’ fees, costs, and expenses by the court.” (emphasis added) 131 Cong.Rec. H9,966 (daily ed. November 12, 1985). In final debate on the bill, Representative Bartlett noted: “For the first time, we have authorized the awarding of fees at the due process hearing system level in disputes which do not go on to court on a substantive issue.” 132 Cong.Rec. H4842 (daily ed. July 24, 1986). Furthermore, the Senate report on the Senate version of the bill states: “The committee intends that S. 415 will allow the Court, ... to award fees for time spent by counsel in mandatory EHA administrative proceedings.” S.Rep. No. 112, 99th Cong., 1st Sess. 14 (1985), U.S.Code Cong. & Admin.News 1986, pp. 1798, 1804. In support of his motion to dismiss, defendant points to sections of the legislative history of HCPA which indicate that Congress intended that the amendment should be interpreted consistently with other fee-shifting civil rights statutes, such as 42 U.S.C. Sec. 1988. See S.Rep. 112, 99th Cong., 2d Sess. 13, 14, U.S.Code" }, { "docid": "23292096", "title": "", "text": "proceed with an FCA claim and the relator conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. Id. From our careful reading of the district court’s August 27, 2007 Memorandum Opinion addressing The Cameron Foundation’s motion for an award of attorneys’ fees and costs, we are convinced that the district court based its attorneys’ fees/ costs award upon its findings that The Cameron Foundation prevailed in this action, and that Relator Vuyyuru’s claim of subject matter jurisdiction over his FCA claims was clearly frivolous. Relator Vuyyuru first attacks the district court’s attorneys’ fees/costs award on the basis that the district court erroneously ignored the appropriate standard in determining whether he was a proper relator under § 3730(e)(4). In this regard, Relator Vuyyuru makes much the same arguments that he made in challenging the district court’s Rule 12(b)(1) dismissal of the Third Amended Complaint. According to Relator Vuyyuru, the district court’s action in ignoring the appropriate standard in determining whether he was a proper relator under § 3730(e)(4) warrants reversal of the dismissal order, which reversal, in turn, “necessitates reversal of the attorney fees award.” (Relator Vuyyuru’s Opening Br. at 49). Relator Vuyyuru then goes on to argue that: even without a reversal of the dismissal, it is error on the record in this case to find that [he] clearly had no reasonable chance of success proving that he had direct and independent knowledge of the information on which the allegations were based and had voluntarily provided information to the Government before filing this action under the FCA based on the information. Id. Finally, Relator Vuyyuru argues that the amount of the attorneys’ fees/costs award is excessive. In this regard, Relator Vuyyuru challenges the number of attorney hours credited by the district court and the district court’s determination that attorney Rita Davis’ billing rate of $310 per hour is reasonable. We address" }, { "docid": "22847348", "title": "", "text": "a standard for awarding costs that was different from Rule 54(d)(1) in order to displace the Rule. See Friedman v. Ganassi, 853 F. 2d 207, 210 (CA3 1988) (holding that 15 U. S. C. § 77k(e) is not an “express provision” under Rule 54(d) because it does not provide an “alternative standard” for awarding taxable costs). The original version of Rule 54(d) is consistent with our conclusion that a statute must be contrary to Rule 54(d)(1) in order to displace it. B We now turn to whether § 1692k(a)(3) is contrary to Rule 54(d)(1). The language of § 1692k(a)(3) and the context surrounding it persuade us that it is not. 1 The second sentence of § 1692k(a)(3) provides: “On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” GRC contends that the statute does not address whether costs may be awarded in this case—where the plaintiff brought the ease in good faith—and thus it does not set forth a standard for awarding costs that is contrary to Rule 54(d)(1). In its view, Congress intended §1692k(a)(3) to deter plaintiffs from bringing nuisance lawsuits. It, therefore, expressly provided that when plaintiffs bring an action in bad faith and for the purpose of harassment, the court may award attorney’s fees and costs to the defendant. The statute does address this type of case—i. e., cases in which the plaintiff brings the action in bad faith and for the purpose of harassment. But it is silent where bad faith and purpose of harassment are absent, and silence does not displace the background rule that a court has discretion to award costs. Marx and the United States take the contrary view. They concede that the language does not expressly limit a court’s discretion to award costs under Rule 54(d)(1), Brief for Petitioner 10; Brief for United States 19, but argue that it does so by negative implication. Invoking the expressio unins canon of statutory" }, { "docid": "13862591", "title": "", "text": "a ‘private attorneys general’ enforcement provision.” Whatley v. Universal Collection Bureau, Inc. (Florida), 525 F.Supp. 1204, 1206 (N.D.Ga.1981). Indeed, Congress intended that the Act be enforced primarily by aggrieved consumers bringing civil actions against offending debt collectors. See S.Rep. No. 382, 95th Cong., 1st Sess. 5, reprinted in 1977 U.S.Code Cong. & Admin.News 1695, 1699 (“The committee views this legislation as primarily self-enforcing; consumers who have been subjected to collection abuses will be enforcing compliance.”). With the exception of cases involving egregious and multiple violations, consumers bringing suit for violation of the FDCPA will ordinarily be able to prove only minimal actual damages. Although the Act provides for recovery of attorneys’ fees, 15 U.S.C.A. § 1692k(a)(3), consumers are unlikely to incur the time and trouble inherent in bringing suit if they expect to recover only minimal damages. Congress apparently concluded that the statutory damages available under subsection 1692k(a)(2)(A) would provide incentive for consumers who could prove only minimal damages to bring suit to enforce the Act. As for the notion that exposure to suit would deter debt collectors from violating the Act, Congress seems to have concluded that the potential liability for actual damages plus up to $1,000 statutory damages plus attorneys’ fees would suffice to deter would-be violators of the Act without the need to provide multiple awards of statutory damages. The court’s construction of subsection 1692k(a)(2)(A) as providing for one award of statutory damages per plaintiff per lawsuit finds some support in the legislative history of the Act. An earlier version of the FDCPA considered by Congress contained the following provision: The multiple failure to disclose to any person any information required under this title to be disclosed in connection with a single account record shall entitle the person to a single recovery under this section.... H.R. 11969, 94th Cong., 2d Sess. § 812(f) (1976). Although different language appears in the final version of the Act, the references in subsection 1692k(a)(2)(A) to “any action” and “an individual” comport with the language of the earlier version limiting the aggrieved consumer to a single recovery per debt. The court’s construction" }, { "docid": "15995695", "title": "", "text": "and the statistics compiled by an independent service. Moreover, his investigation entailed telephone calls to gather common information, pictures taken from a public road and the review of easily attained records. In this case, Grynberg was not the individual who “ferreted out the alleged fraud.” Kennard, 363 F.3d at 1046. The same transaction was investigated by the MMS and BLM a year before Grynberg brought his claim. Consequently, we are led to the ineluctable conclusion that the character of Grynberg’s discovery and investigation is insufficient to qualify him as an original source. The district court was correct in concluding it lacked jurisdiction over Gryn-berg’s claim. We affirm. C. Praxair’s Cross-Appeal, No. 01-1242. Praxair advances two reasons for reversing the district court’s decision releasing Grynberg from liability for Praxair’s attorney fees and costs. First, it claims the district court erred as a matter of law when it imposed an unduly rigid standard, measuring the frivolousness of Grynberg’s claim only as of the time of his initial complaint. Second, they argue Grynberg’s amended complaint was within the parameters of § 3730(d)(4) of the FCA which provides for the award of attorney fees as follows: If the Government does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. 31 U.S.C. § 3730(d)(4). We review the district court’s decision to award attorney fees for an abuse of discretion, but review de novo the district court’s application of the legal principles underlying that decision. Nat’l Ass’n of Prof'l Baseball Leagues, Inc. v. Very Minor Leagues, Inc., 223 F.3d 1143, 1146 (10th Cir.2000). The FCA does not define the terms “clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment,” but the Act’s legislative history suggests that the standard of § 3730(d)(4) is analogous to that used for claims for attorney fees brought under 42" }, { "docid": "21842746", "title": "", "text": "the voting guarangees of the Fourteenth and Fifteenth Amendments. S.Rep. No. 295, 94th Cong., 1st Sess. 40 (1975), reprinted in [1975] U.S.Code Cong. & Ad.News 774, 807 (emphasis added). ”[P]rivate attorneys' general” should not be deterred from bringing meritorious actions ... by the prospect of having to pay their opponent's counsel fees .... However, such a party, if unsuccessful, should be assessed his opponent's fee where ... his suit was frivolous, vexatious, or brought for harrassment purposes ____ These provisions thus deter frivolous suits by authorizing an award of attorney’s fees against a party shown to have litigated in ‘‘bad faith”____ Id. at 807 (emphasis added). In appropriate circumstances, counsel fees ... may be awarded pendente lite.... Such awards are especially appropriate where a party has prevailed on an important matter in the course of litigation.... Id. at 808 (emphasis added). The Senate Report also indicates that fees should be awarded under Section 1973/(e) by the standards used under the 1964 Civil Rights Act. 42 U.S.C. § 2000a-3(b) and § 200Qe-5(k). Id. at 807-808. That Act and Section 1973/ (e) and the more recently adopted Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, all contain virtually identical statutory language. The legislative history to both Section 1973/(e) and Section 1988 indicate that they were intended to create consistency in fee award standards in civil rights cases. 1975 U.S. Code Cong. & Ad.News at 809-10; S.Rep. No. 1011, 94th Cong., 2d Sess. 1-4 (1976), reprinted in [1976] U.S.Code Cong. & Ad.News 5908-12. The. legislative history of each Act is thus relevant to the construction of the others. Nothing in the legislative history of Section 1988 suggests that Congress contemplated fee awards for work done in administrative proceedings unrelated to successful litigation. A contrary intent is indicated by the following excerpts from the Senate and House Reports: The purpose and effect of [§ 1988] are simple — it is designed to allow courts to provide the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866____" } ]

[ { "docid": "22382091", "title": "", "text": "ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES. Before KING, Chief Judge, and BARKSDALE, Circuit Judge. PER CURIAM: Defendant Francisco D. Pineiro was convicted in the United States District Court for the Western District of Louisiana of violating the federal controlled-substances laws. During sentencing, the district judge made various fact findings to determine Pineiro’s sentencing range under the then-mandatory U.S. Sentencing Guidelines. Pineiro objected to these judge-made findings. His objections were overruled, and he subsequently appealed his sentence to this court. Reasoning that the holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), did not apply to the U.S. Sentencing Guidelines, we affirmed Pineiro’s sentence. United States v. Pineiro, 377 F.3d 464 (5th Cir.2004). Pineiro then filed a petition for certiorari to the Supreme Court. The Supreme Court granted certiorari, vacated this court’s judgment, and remanded the case for further consideration in light of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because we find that the Sixth Amendment Booker error was not harmless, we now VACATE Pineiro’s sentence and REMAND to the district court for resentencing. I. BACKGROUND Pineiro was convicted by a jury of conspiracy to distribute “less than 50 kilograms” of marijuana and “50 grams or less” of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The Presentence Investigation Report (“PSR”) indicated that Pineiro was responsible for drug amounts much greater than the amounts found by the jury. Specifically, the PSR stated that Pineiro was responsible for 453.6 kilograms of marijuana and 1,048.95 gram's of cocaine. Based on these quantities of drugs, the PSR concluded that Pineiro’s base offense level for the conspiracy conviction was twenty-eight. See United States Sentencing Guidelines [hereinafter “U.S.S.G.” or the “Guidelines”] § 2D1.1(c). The PSR further recommended that Pineiro receive a four-level sentence enhancement under U.S.S.G. § 3B1.1(a) for being an “organizer or leader” of the conspiracy. The resulting total offense level of thirty-two, when combined with Pineiro’s criminal history category of I, yielded a Guidelines range of 121 to 151 months. Pineiro objected to the PSR" } ]

[ { "docid": "21871333", "title": "", "text": "before this Court, the Supreme Court issued its decision in United States v. Booker. In Booker, the Supreme Court extended its Sixth Amendment holding in Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 2536-37, 159 L.Ed.2d 403 (2004), to the federal Sentencing Guidelines, holding that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by the plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756. In so holding, the Court expressly stated that its decision in Booker must be applied “to all cases on direct review.” Id. Because this case was pending on direct review when Booker was decided, the holdings of Booker are applicable in the present case. Given the Supreme Court’s opinion in Booker, and this Circuit’s case law applying that decision, we are compelled to vacate Yagar’s sentence and remand for re-sentencing. The district court relied on judge-found facts to apply two sentence enhancements in the present case, a two-level enhancement under section 2Bl.l(b)(2)(A) based upon its determination that the number of victims totaled more than ten, and a four-level enhancement under section 2Bl.l(b)(l) because it found that the loss to the victims was between $10,000 and $30,000. The record indicates that Yagar’s admissions were insufficient to justify either of these enhancements. Thus, based on facts that were neither presented to a jury nor admitted by Yagar, the applicable sentencing range was increased from four to ten months (offense level of four) to twenty-one to twenty-seven months (offense level often). The district court’s reliance on judge-found facts to increase her sentence was a violation of the Supreme Court’s Sixth Amendment holding in Booker. Regardless of whether Yagar objected to her sentence on Sixth Amendment grounds in the district court, we are convinced that the proper course of action is to vacate Yagar’s sentence and remand for resen-tencing. See, e.g., United States v. McDaniel, 398 F.3d 540, 547-51 (6th Cir.2005) (holding that resentencing was required, under" }, { "docid": "23592105", "title": "", "text": "its restitution order. V. Government’s Sentencing Cross-Appeal The government cross-appeals Berger’s six month sentence and requests a remand under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Sentencing in this case occurred on September 13, 2004, before the Supreme Court issued the Booker decision, which rendered the Sentencing Guidelines advisory. The district court erroneously assumed that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), it could not apply Guideline sentencing enhancements based on facts not previously found by the jury. See Booker, 543 U.S. at 267-68, 125 S.Ct. 738. Additionally, the district court sentenced Berger under the assumption that the Sentencing Guidelines were mandatory. Accordingly, we must vacate the sentence and remand for resentencing. See United States v. Labrada-Bustamante, 428 F.3d 1252, 1266 (9th Cir.2005). Conclusion For the above reasons, we AFFIRM the conviction; AFFIRM the restitution order; VACATE the sentence and fine; and REMAND for resentencing. . Some cases have separated the second factor into two distinct factors: (1) the amount of time of deliberation following the charge and (2) the total time of deliberation. See Weaver, 197 F.3d at 366. Becáuse those two considerations must be compared with each other, we find that it is more helpful to discuss them together. . Federal Rule of Criminal Procedure 43(a) provides a similar but broader right: a defendant is entitled to be present \"at every stage of the trial including the impaneling of the jury and the return of the verdict.” See Rosales-Rodriguez, 289 F.3d at 1109. A violation of Rule 43 is harmless if \"there is no reasonable possibility that prejudice resulted from the absence.” Id. As this court has recognized, the constitutional harmless error standard is \"more stringent\" than the harmless error standard applicable to a Rule 43 violation. Frazin, 780 F.2d at 1469 n. 8 (\"The reasons supporting our determination that the constitutional error was harmless ... would necessarily satisfy the more lenient standard for nonconstitutional error....”). Because we ultimately conclude that the constitutional violation in this case was harmless beyond a reasonable doubt, we" }, { "docid": "23224237", "title": "", "text": "formed and that it existed for some time within the period set forth in the Indictment and that at least one overt act was committed to further the conspiracy within that period of time. Accordingly, the fact of conviction does not necessarily establish that the jury found the existence of any overt acts on or after November 1, 2001. It was only the district court, and not the jury, that found that the conspiracy continued beyond the trigger date for the post-2000 guidelines. This is specifically what Booker prohibits: The actual sentence ... was ... longer than the Guidelines range supported by the jury verdict alone. To reach this sentence, the judge found facts beyond those found by the jury .... “[T]he jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact” [quoting Blakely v. Washington, 542 U.S. 296, 305, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)]. Booker, 125 S.Ct. at 751. In short, the indictment charged no specific acts after August 2001, and the jury was told it could find defendants guilty without finding any overt acts on or after November 1, 2001. There is no basis on which, in the wake of Booker, we can infer that any such acts indeed occurred, i.e., that the jury, if asked, would have found them beyond a reasonable doubt. b. Because Freeman’s sentence is infected with Booker error, and he properly preserved his objection, we must vacate the sentence and remand for resentencing unless we determine that the error was harmless under Federal Rule of Civil Procedure 52(a). See United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). “Harmless error is ‘any defect, irregularity, or variance that does not affect substantial rights of the defendant,’ and ‘arises when the mistake fails to prejudice the defendant.’” Under this standard the government must demonstrate, beyond a reasonable doubt, that the error did not contribute to the sentence that the defendant received. See United States v. Olano, 507 U.S. 725," }, { "docid": "23592104", "title": "", "text": "discretion when it consulted the repealed Guideline section. The district court’s restitution calculation method was, in light of the circumstances, quite reasonable and fair. In calculating the $8.1 million restitution award, the district court devised a reasonable formula for determining the amount of the lending banks’ loss that was attributable to the fraud. The district court did not order restitution for the entire $13.3 million of the lending banks’ losses. Instead, it based its restitution calculation only on the amount of the loan advancements received due to fraudulent Borrowing Certificates. Even then, the district court discounted by the percentage the lending banks recovered when they foreclosed on Craig Electronics’ collateral. To achieve the goal of making crime victims whole, the MVRA permits “district courts to engage in an expedient and reasonable restitution process, with uncertainties resolved with a view toward achieving fairness to the victim.” Gordon, 393 F.3d at 1048. We hold that, in light of the MVRA’s goals and the complexities of the Credit Agreement, the district court did not abuse its discretion in its restitution order. V. Government’s Sentencing Cross-Appeal The government cross-appeals Berger’s six month sentence and requests a remand under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Sentencing in this case occurred on September 13, 2004, before the Supreme Court issued the Booker decision, which rendered the Sentencing Guidelines advisory. The district court erroneously assumed that, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), it could not apply Guideline sentencing enhancements based on facts not previously found by the jury. See Booker, 543 U.S. at 267-68, 125 S.Ct. 738. Additionally, the district court sentenced Berger under the assumption that the Sentencing Guidelines were mandatory. Accordingly, we must vacate the sentence and remand for resentencing. See United States v. Labrada-Bustamante, 428 F.3d 1252, 1266 (9th Cir.2005). Conclusion For the above reasons, we AFFIRM the conviction; AFFIRM the restitution order; VACATE the sentence and fine; and REMAND for resentencing. . Some cases have separated the second factor into two distinct factors: (1) the amount of" }, { "docid": "23318344", "title": "", "text": "at 1226. As demonstrated by our discussion above regarding the sufficiency of the evidence, the district court did not clearly err in finding that Lauder was either “directly involved” with the drugs attributed to him, or, at the least, that the amounts were “reasonably foreseeable quantities ... that were within the scope of criminal activity jointly undertaken].” U.S.S.G. § 1B1.3 comment, (n.2). Furthermore, in calculating drug amounts, the district court followed the procedure outlined in § 2D1.1 of the sentencing guidelines, including the directive to “approximate the quantity” where the amount of drugs seized does not reflect- the scale of the offense. U.S.S.G. § 2D1.1 comment, (n.12). We therefore decline to grant any relief to Lauder on this ground. 2. United States v. Booker Finally, Lauder urges us to remand his case for resentencing in light of United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court applied its opinion in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to the federal sentencing guidelines, holding that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756. Justice Breyer’s remedial opinion in Booker then excised portions of the Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3551 et seq., thus rendering the sentencing guidelines advisory. Id. at 757. Accordingly, prior to Booker, a district court could potentially make two distinct types of error: First, a court could err by relying upon judge-found facts, other than those of prior convictions, to enhance a defendant’s sentence -mandatorily. As Booker makes clear, the Sixth Amendment prohibits this practice. 125 S.Ct. at 756.... Second, a sentencing court could err by applying the Guidelines in a mandatory fashion, as opposed to a discretionary fashion, even though the resulting sentence was calculated solely upon facts that were admitted by the" }, { "docid": "22249862", "title": "", "text": "(2003). Except for finding that Garrett’s judgment of conviction must be amended to remove reference to 21 U.S.C. § 860, we AFFIRM the convictions of Martinez, Garrett, Harris, and Henderson on one count of conspiracy to distribute and to possess with intent to distribute cocaine, cocaine base, and marijuana. III. Defendants have raised various challenges to their sentences, some of which the government has conceded, and all of the defendants seek remand for resentenc-ing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Although this appeal was filed pre-Booker, each of the defendants asserted a Sixth Amendment claim in reliance on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Defendants’ reply and supplemental briefs address application of Booker to their sentences, and at oral argument the government conceded that resentencing is required. Our review is for plain error because none of the defendants raised Sixth Amendment claims in the district court. United States v. Oliver, 397 F.3d 369 (6th Cir.2005). The’ Supreme Court in Booker held that the Sixth Amendment applies to the federal sentencing guidelines such that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 756. Remand for resentencing is required under Booker when a defendant’s sentence was imposed in violation of the Sixth Amendment. Oliver, 397 F.3d at 377-78; see also United States v. McDaniel, 398 F.3d 540, 547-50 (6th Cir.2005). In addition, the remedy adopted in Booker, excising the provision making the guidelines mandatory, was held to apply to all defendants who were sentenced under the mandatory guideline scheme even if they did not suffer a Sixth Amendment violation. In the absence of a Sixth Amendment violation, a defendant sentenced under the mandatory guidelines is entitled to resentencing under Booker unless there is evidence in the record to rebut the presumption of prejudice." }, { "docid": "718437", "title": "", "text": "these circumstances, Cordero has not proven his entitlement to an acceptance-of-responsibility reduction. The district court did not abuse its discretion in failing to award an aceeptance-of-responsi-bility reduction. IV Cordero also claims the district court committed Booker error by finding that he committed the instant offense while on probation and sentencing him under a mandatory guidelines system. Cordero preserved his claim of Booker error by raising a Blakely objection in the district court. Therefore, the harmless-error standard applies. Under this standard, error is deemed harmful unless the government proves beyond a reasonable doubt that the error did not contribute to the sentence imposed. Cordero’s criminal history category was increased by two points after the district court found, based on information in the presentence report, that Cordero committed the offense while on probation. Cordero claims this is error under Booker, but “the fact of a prior conviction,” and related facts such as the timing of the conviction and the type and length of sentence imposed, may be judicially found at sentencing. We agree, however, that Corde-ro’s sentence must be vacated because he was sentenced under the then-mandatory sentencing guidelines regime. The government has not established beyond a reasonable doubt that the sentence imposed would have been the same if the guidelines were not mandatory. Indeed, the judge said he would reconsider Cordero’s sentence if the Supreme Court applied Blakely to the Federal Sentencing Guidelines. Therefore, harmful error has been established under our precedents. if: ^ Jfc For these reasons, we AFFIRM Corde-ro’s conviction but VACATE his sentence and REMAND the case to the district court for resentencing. . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). . United States v. Gibbs, 421 F.3d 352, 356-57 (5th Cir.2005). . United States v. Cavazos, 288 F.3d 706, 709 (5th Cir.2002). . Id. . Id. . 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). . Id. at 922, 104 S.Ct. 3405; see also United States v. Cherna, 184 F.3d 403, 407 (5th Cir.1999) (interpreting Leon). . Leon, 468 U.S." }, { "docid": "21975413", "title": "", "text": "was harmless.” Id. at 1097. Here, as in Beng-Salazar, Salazar-Gonzalez objected to the enhancement of his sentence based on facts that had not been found by a jury beyond a reasonable doubt, namely that his two prior convictions were “unrelated.” In support of his argument, he relied on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), grounding his objection in the Sixth Amendment right to a jury trial. These objections preserved Salazar-Gonzalez’s claim of nonconstitutional error under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We further hold that the government has not satisfied its burden of demonstrating that the district court’s error was harmless. Indeed, reversal is required even if “we find ourselves ‘in equipoise as to the harmlessness of the error ....’” Beng-Salazar, 452 F.3d at 1096. Because the government cannot point to any evidence establishing that it is “more probable than not that the error did not materially affect [Salazar-Gonzalez’s] sentence,” id. at 1092, we VACATE his sentence and REMAND for resentencing under the now-advisory Guidelines. Conviction AFFIRMED, sentence VACATED and REMANDED. . Salazar-Gonzalez argues that the district court erred by failing to instruct on voluntariness, and that this failure precluded him from presenting the defense that he \"inadvertently” or \"unknowingly” wandered into the United States. Although Salazar-Gonzalez argues that he was entitled to a jury instruction embodying his defense theory, his objection to the jury instructions is more appropriately viewed as a request that the jury receive an instruction on each element of the crime. Indeed, in his opening brief, Salazar-Gonzalez begins by claiming that \"[t]he district court failed, over objection, to instruct on the elements of general criminal intent.” Similarly, before the district court, defense counsel argued that \"voluntariness of return is an element which must be proven beyond a reasonable doubt.” The district court’s ruling, \"denlying] the defense motion that a voluntariness issue or element be added,\" further supports this view of Salazar-Gonzalez' request. (Emphasis added.) . We recently confirmed in an en banc decision that a panel creates circuit law when it" }, { "docid": "20640022", "title": "", "text": "(2005), the Supreme Court found the mandatory Guidelines scheme under which Williams was sentenced unconstitutional. Though Williams was sentenced before Booker, he preserved this issue for appellate review by objecting at the sentencing hearing that the sentences and the order of restitution were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). (R.18-169 at 3-6, 21-22.) The Government concedes that Williams is entitled to de novo review of his sentences, that constitutional error occurred when the district court enhanced Williams’s sentences under the mandatory Guidelines based on the court’s own findings of fact, and that the Government cannot shoulder its burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. We agree and therefore vacate the sentences and remand for resentencing. Notwithstanding the remand for resentencing, however, the district court need not reconsider the order of restitution. We have recently held that restitution orders do not violate the rule announced in Apprendi (“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”) because the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663, does not have a prescribed statutory maximum. Dohrmann v. United States, 442 F.3d 1279 (11th Cir.2006) (citing Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). We now extend the reasoning of our precedent and hold that Booker does not apply to restitution orders. We do so because restitution orders are authorized by the MVRA, a statute unaffected by Booker. See United States v. Sosebee, 419 F.3d 451, 462 (6th Cir.2005) (“Although the guidelines mandate imposition of restitution where allowable under the statutes, the restitution statutes function independently from the guidelines and do not rely on the guidelines for their validity. Thus, the Booker Court’s holding that the Sentencing Guidelines are now merely advisory does not affect orders of restitution.”). Additionally, the MVRA does not set an upper limit" }, { "docid": "1060575", "title": "", "text": "PER CURIAM: Jorge Mendoza-Bianco pleaded guilty to attempted illegal reentry following deportation in violation of 8 U.S.C. § 1326. The presentence report (“PSR”) recommend an offense level of 24, which included a 16-level increase for a prior conviction. Mendoza-Bianco objected to the PSR on the basis of Blakely v. Washington, which the district court denied in light of our decision in United States v. Pineiro. Mendoza-Bianco now appeals his 100-month sentence pursuant to United States v. Booker. Because Mendoza-Bianco preserved his claim of error and the government cannot show the error is harmless, we VACATE Mendoza-Blanco’s sentence and REMAND to the district court for resen-tencing. Because the district court sentenced Mendoza-Bianco under a mandatory Guidelines regime, it committed Fanfan error. The government concedes that Mendoza-Blanco’s objection on the basis of Blakely was sufficient to preserve his Fan-fan claim. Our review of preserved Fan-fan claims is for harmless error. Because Fanfan error is a nonconstitutional error, the government must show that the error was harmless beyond a reasonable doubt. Under harmless error, an error that does not affect a defendant’s “sub stantial rights” is disregarded. Thus, the government must prove that the outcome of the district court proceedings was not affected by the imposition of the mandatory Guidelines. Here, the government argues that no prejudice resulted to the defendant because the sentencing judge gave no indication that it wanted to impose a lesser sentence. We are not persuaded, particularly in light of the sentencing judge’s decision to impose' the minimum sentence under the Guidelines. Accordingly, we VACATE Mendoza-Blanco’s sentence and REMAND for re-sentencing. . 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). . 377 F.3d 464, 465-66 (5th Cir.2004). . 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . See United. States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.2005). . See United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.2005) (\"[I]f either the Sixth Amendment issue presented in Booker or the issue presented in Fanfan is preserved in the district court by an objection, we will ordinarily vacate and remand, unless we can" }, { "docid": "9902386", "title": "", "text": "that the Sixth Amendment requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 756. Under Booker, a court imposing a sentence by application of the mandatory federal Sentencing Guidelines can commit constitutional error and non-constitutional error. United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.2005) (en banc). Constitutional Booker error occurs when a district court, “relying upon judge-found facts, other than those of prior convictions, [ ] enhance[s] a defendant’s sentence mandatorily.” Id. at 731. Non-constitutional error results from a district court’s mandatory, as opposed to advisory, application of the Guidelines. See Booker, 125 S.Ct. at 764-65. Martinez argues, and the government concedes, that the district court committed non-constitutional Booker error. Because Martinez raised an objection under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), before the district court, we review for harmlessness. United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir.2005). In non-constitutional harmless error cases, such as this, the government bears the burden of demonstrating, by a preponderance of the evidence, that Martinez’s substantial rights were not affected. United States v. Glover, 413 F.3d 1206, 1210-11 (10th Cir. 2005). In sentencing Martinez, the district court, on its own motion, departed upward four levels. In so doing, the district court noted that the recommendation of the PSR “is inadequate as a matter of law and [it is in] the discretion of this Court to punish the defendant for his admitted and repeated violations.” There is, therefore, no “reason to think that the district judge would have imposed a less severe sentence in the exercise of his post-Booker discretion.” United States v. Riccardi, 405 F.3d 852, 876 (10th Cir.2005). Although the district court may have erred by applying the Guidelines in a mandatory fashion, the error was harmless. IY. CONCLUSION For the reasons set out above, the sentence imposed by the" }, { "docid": "22105584", "title": "", "text": "master for proposed findings of fact and recommendations as to disposition, subject to a de novo determination of the issue by the court. Id. § 3664(d)(6). “Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.” Id. § 3664(e). As indicated in Part I.C. above, the district court ordered Laken and Reifler to pay totals of $6,620,675.33 and $2 million, respectively, in restitution to the shareholders of FWEB whose stock became worthless sometime after the filing of the FWEB indictment. Laken and Reifler challenge these orders on the principal grounds (1) that in light of Booker, the district court’s entry of such restitution orders in the absence of their own admissions, or of findings by a jury beyond a reasonable doubt, that they caused shareholder losses in these amounts constituted plain error, and (2) that the restitution orders were not authorized by the MVRA. For the reasons that follow, we reject the Booker contention, but we find merit in the contention that the restitution orders did not comply with the MVRA. A. The Booker Challenges to the Restitution Orders Laken and Reifler, who were sentenced in 2003, contended in their initial appellate briefs, filed in 2004 and 2003, respectively, that the district court’s restitution orders based on factual findings made by the district judges by a preponderance of the evidence, rather than on findings by a jury beyond a reasonable doubt or on the defendants’ own admissions, violated Sixth Amendment principles as enunciated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In the wake of the Supreme Court’s 2005 decision in Booker, the parties filed supplemental briefs addressing the application of Booker to orders of restitution. Defendants concede that, because they did not argue to the district court that restitution orders based on judge-made findings constituted error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the forerunner to Blakely and Booker, their present contentions are subject to plain-error analysis. A plain error is one" }, { "docid": "7657282", "title": "", "text": "the complex nature of this case, and the voluminous transcripts and testimony involved, the government has not convinced us that the error was harmless. We therefore vacate Bonilla’s sentence and remand for re-sentencing. 4. Booker Sentencing in this case occurred after the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), but prior to its related decisions in Blakely v. Washington, 542 U.S.- 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, — U.S. --, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Booker, however, applies to cases pending on direct appeal at the time of its decision, 125 S.Ct. at 769, and Booker error did occur in this case insofar as the defendants were sentenced under a mandatory Guidelines system. See United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir.2005). All appellants except for Bonilla seek remand on the basis of Booker error, although not all have preserved the error. a. Preserved Booker error “This court deems Booker error preserved if the defendant argued at sentencing that the sentence violated Appren-di or Blakely, or that the federal Sentencing Guidelines were unconstitutional.” United States v. Gómez-Rosario, 418 F.3d 90, 109 (1st Cir.2005) (citing Antonakopoulos, 399 F.3d at 76). “Where a defendant has preserved a Booker claim, we review for harmless error, remanding for re-sentencing unless the government can show beyond a reasonable doubt that a lower sentence would not be imposed under the post-Booker regime.” Id: (citing United States v. Vázquez-Rivera, 407 F.3d 476, 489 (1st Cir.2005)). Three of the appellants, Nicolai, Pizarro and Flores, have preserved Booker claims. Nicolai asserted an Apprendi error at his-sentencing, arguing that the jury failed to specify the type and quantity of drugs for which he was convicted. The government concedes that Nicolai preserved a Booker claim and also concedes that it cannot prove harmless error. We agree and remand his case for re-sentencing. The government also concedes that Pizarro preserved a Booker claim. At his sentencing, Pizarro objected that the jury did not make a finding on the issue of" }, { "docid": "9354133", "title": "", "text": "2001. It was only the district court, and not the jury, that found that the conspiracy continued beyond the trigger date for the post-2000 guidelines. This is specifically what Booker prohibits: The actual sentence ... was ... longer than the Guidelines range supported by the jury verdict alone. To reach this sentence, the judge found facts beyond those found by the jury .... “[T]he jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact” [quoting Blakely v. Washington, 542 U.S. 296, 305, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)]. Booker, 125 S.Ct. at 751. In short, the indictment charged no specific acts after August 2001, and the jury was told it could find defendants guilty without finding any overt acts on or after November 1, 2001. There is no basis on which, in the wake of Booker, we can infer that any such acts indeed occurred, i.e., that the jury, if asked, would have found them beyond a reasonable doubt. c. Because Sudeen’s sentence was infected with Booker error, and he properly preserved his objection, we must vacate the sentence and remand for resentencing unless we determine that the error was harmless under Federal Rule of Civil Procedure 52(a). See Mares, 402 F.3d at 520 n. 9. “Harmless error is ‘any defect, irregularity, or variance that does not affect substantial rights of the defendant,’ and ‘arises when the mistake fails to prejudice the defendant.’ ” Under this standard the government must demonstrate, beyond a reasonable doubt, that the error did not contribute to the sentence that the defendant received. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The government does not meet this burden. It points to nothing that would show beyond a reasonable doubt that the court would have imposed the same sentence under an advisory guidelines regime. See Akpan, 407 F.3d at 377. 2. We do not reach Sudeen’s ex post facto claim. Under Akpan, id. at 360 n. 2, we have the authority to leave to the district court the" }, { "docid": "21975412", "title": "", "text": "a prior conviction. Rather, he contends that the district court had to examine a number of documents, including several police reports regarding arrests that had occurred between the two offenses for which Salazar-Gonzalez was convicted, to find that his prior convictions were unrelated offenses. Salazar-Gonzalez argues that this finding ran afoul of the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), because it was based on impermissible sources. We need not reach the merits of Salazar-Gonzalez’s Sixth Amendment argument, because Salazar-Gonzalez is entitled to full vacatur of his sentence and a remand for resentencing under United States v. Beng-Salazar, 452 F.3d 1088 (9th Cir.2006), regardless of whether his Sixth Amendment rights were violated. In Beng-Salazar, we held that “a defendant who raised an objection in district court based on the Sixth Amendment holdings of the Apprendi line of cases preserved his [nonconstitutional Booker ] claim that he is entitled to resentencing under the advisory Guidelines regime .... unless the Government can show that the error was harmless.” Id. at 1097. Here, as in Beng-Salazar, Salazar-Gonzalez objected to the enhancement of his sentence based on facts that had not been found by a jury beyond a reasonable doubt, namely that his two prior convictions were “unrelated.” In support of his argument, he relied on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), grounding his objection in the Sixth Amendment right to a jury trial. These objections preserved Salazar-Gonzalez’s claim of nonconstitutional error under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We further hold that the government has not satisfied its burden of demonstrating that the district court’s error was harmless. Indeed, reversal is required even if “we find ourselves ‘in equipoise as to the harmlessness of the error ....’” Beng-Salazar, 452 F.3d at 1096. Because the government cannot point to any evidence establishing that it is “more probable than not that the error did not materially affect [Salazar-Gonzalez’s] sentence,” id. at 1092, we VACATE his sentence and REMAND for" }, { "docid": "1060432", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: Gregory Wayne Woods pleaded guilty to a single count of bank fraud in violation of 18 U.S.C. § 1344. He appeals his 46-month sentence pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Woods preserved his claim of error and the Government cannot demonstrate the error was harmless, we VACATE Woods’ sentence and REMAND to the district court for re-sentencing. I. On May 7, 2004, Woods pleaded guilty to one count of bank fraud, prohibited by 18 U.S.C. § 1344. A pre-sentence report (“PSR”) calculated Woods’ total offense level at 19, including a seven-level increase because the amount of loss was between $120,000 and $200,000, a two-level increase because the offense involved more than minimal planning, and a four-level increase because of Woods’ role as an organizer or leader who recruited and instructed participants in a criminal activity that involved five or more participants. A total offense level of 19 combined with a criminal history category III resulted in a recommended Sentencing Guideline range of 37 to 46 months of imprisonment. In addition, the PSR recommended an upward departure because Woods’ criminal history score under-represented the seriousness of his criminal history or the likelihood that he would commit additional crimes. Woods objected to the PSR on the basis of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), arguing that the findings which resulted in enhancements totaling 13 levels were based on facts to which he had not admitted nor had been found by a jury. Nonetheless, the district court adopted the factual findings of the PSR and concluded that the 13 level enhancement was appropriate. The court did not adopt the PSR’s recommendation to depart upwardly, however, but stated: “Well, it’s a close call, but I’m not going to upwardly depart in this case. I am going to impose a sentence at the top of the guideline range.” The district court sentenced Woods to 46 months" }, { "docid": "3210162", "title": "", "text": "guilty beyond a reasonable doubt. Importantly, “we do not weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury.” United States v. Castorena-Jaime, 285 F.3d 916, 933 (10th Cir.2002). In this case, there was more than enough evidence presented that Waldroop was guilty of bank fraud and conspiracy to commit bank fraud. Accordingly, his challenge fails. Ill Waldroop advances two arguments challenging the district court’s sentencing decision. First, he argues that the district court violated his Sixth Amendment rights pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by relying on judge-found facts to enhance his sentence. He also argues that the district court erred in excluding his civil settlement with First State Bank when determining the amount of loss for sentencing enhancement purposes. Both of these claims lack merit. The court calculated the amount of loss for the purposes of imposing a § 2F1.1 sentencing enhancement under the 1998 edition of the United States Sentencing Guidelines manual. After rejecting Wal-droop’s argument that mandatory application of the sentencing guidelines would violate Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the court found that a seven-level enhancement was appropriate and then sentenced Waldroop to 30 months imprisonment, the top of the applicable range. The district court clearly committed constitutional Booker error by finding facts to increase a sentence. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.2005) (Constitutional Booker error occurs when the district court relies “upon judge-found facts, other than those of prior convictions, to enhance a defendant’s sentence mandatorily.”) (internal quotation marks omitted). Where a sentencing court commits constitutional Booker error, and the defendant objected below on Booker (or Blakely) grounds, the government bears the burden of proving beyond a reasonable doubt that the error was harmless. United States v. Riccardi, 405 F.3d 852, 874-75 (10th Cir.2005). It has done so in this case. Waldroop was sentenced to the highest possible term in the sentencing range. Id. at 876 (“Having exercised his limited discretion under the pre-Booker system to" }, { "docid": "22156426", "title": "", "text": "U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), both Wyman and Lee contend that their sentences were improperly based upon facts not admitted nor found by jury verdict. The superseding indictment did not allege an amount of loss nor number of victims, and the jury never made a finding as to loss, number of victims, nor obstruction of justice. As Lee’s and Wyman’s sentences were based in part on these factors, the appellants contend that their sentences violate Booker. There are two types of Booker error which a district court may commit in sentencing: constitutional and statutory. A constitutional Booker error occurs when extra-verdict enhancements are used to reach a result under the United States Sentencing Guidelines (“the Guidelines”) that is binding on the sentencing judge. United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir.2005). A statutory Booker error, in contrast, consists in sentencing a defendant under the Guidelines as if they were mandatory and not advisory, even in the absence of a Sixth Amendment violation. Id. at 1330-31. As Wyman and Lee challenge the use of extra-verdict facts in the construction of their sentences, they are alleging a constitutional Booker error. Wyman raised a Blakely objection to the district court, now construed as an objection under Booker, so we review for harmless error. United States v. Davis, 407 F.3d 1269, 1270 (11th Cir.2005). We explained in United States v. Paz, 405 F.3d 946, 948-49 (11th Cir.2005), that Booker constitutional errors are harmless where the government can show beyond reasonable doubt that the error did not contribute to the defendant’s ultimate sentence. In Paz, the defendant pled guilty to violation of 18 U.S.C. § 1029(a)(1) for using a skimming device to make counterfeit credit cards. Id. at 947. Paz’s sentence was enhanced six levels based upon a judicial finding, not admitted to by the defendant, that the amount of loss was between $30,000 and $70,000. Id. Paz objected to the loss enhancement at the sentencing hearing, but the district court overruled his objection in reliance on United States v. Reese, 382 F.3d 1308 (11th Cir.2004), vacated by —" }, { "docid": "20640021", "title": "", "text": "opportunity to defend himself by arguing at trial, as he actually did, that all the prescriptions he wrote were written in good faith, as a part of his legitimate practice of medicine. Because the district court correctly concluded that Williams’s proposed instruction was contrary to law and the instruction given by the court preserved Williams’s ability to defend based on good faith, the court did not abuse its discretion in refusing to give the proposed instruction. See United States v. Norris, 780 F.2d 1207, 1209 (5th Cir.1986) (holding that the same jury charge given in Williams’s case was a correct statement of the law under Moore because it provided both subjective and objective measures of the prescribing behavior). C. Sentences Williams appeals his sentences, arguing that his Sixth Amendment rights to trial by jury were violated because the district court sentenced him pursuant to the then-mandatory Guidelines, enhancing the sentences and ordering restitution based upon the court’s own findings of fact. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court found the mandatory Guidelines scheme under which Williams was sentenced unconstitutional. Though Williams was sentenced before Booker, he preserved this issue for appellate review by objecting at the sentencing hearing that the sentences and the order of restitution were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). (R.18-169 at 3-6, 21-22.) The Government concedes that Williams is entitled to de novo review of his sentences, that constitutional error occurred when the district court enhanced Williams’s sentences under the mandatory Guidelines based on the court’s own findings of fact, and that the Government cannot shoulder its burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. We agree and therefore vacate the sentences and remand for resentencing. Notwithstanding the remand for resentencing, however, the district court need not reconsider the order of restitution. We have recently held that restitution orders do not violate the rule announced in" }, { "docid": "23248690", "title": "", "text": "trial judge instructed that “[m]oney laundering designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of the specified unlawful activity means ... that the defendant engaged in the financial transaction knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of the specified unlawful activity of mail fraud.” Thus, the jury could not have found the defendant guilty without first determining that he knew the transactions were designed to conceal or disguise. The requested instruction was substantially covered in other parts of the charge; there was no abuse of discretion. Just as with the other requests, we are fully satisfied that the trial court’s failure to give this charge did not seriously impair Martinelli’s ability to defend himself. IV. Martinelli also says the district court erred at sentencing by using facts neither admitted by him nor found by the jury in determining the amount of loss and in imposing a four-level adjustment for his role in the offense. Martinelli raised a constitutional objection at sentencing based on the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and the Sixth Amendment. The district judge ruled that the Sentencing Guidelines were constitutional and declined to impose an alternative sentence. The government correctly acknowledges that this was error in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). When a district court commits constitutional Booker error, the government must prove beyond a reasonable doubt “that the mandatory, as opposed to the advisory, application of the guidelines did not contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269, 1271 (11th Cir.2005). The government concedes that it cannot sustain its heavy burden. After independent review we agree and, therefore, vacate Martinelli’s sentence and remand to the district court for resentencing in light of Booker. V. In short, we conclude that the district court did not" } ]

[ { "docid": "22781488", "title": "", "text": "That amendment does not purport to do more than.to restrain the construction which might otherwise be given to the constitution;■ and if this case be not oqe óf which the Supreme Court could have taken -original jurisdiction, it is not within the amend- meat. This is not, we think, a case in which the character of the defendant gives jurisdiction to the Court, if it did, the suit could be instituted only in the Supreme Court. This suit is not tó feb sustained because the Planters’ Bank is suable in the federal Courts, but because the plaintiff has a right to sue any defendant in that Court, who is not withdrawn from its jurisdiction by the constitution, or by law. The suit is against a corporation, and the judgment is to be satisfied by the property of the corporation, not by that of the individual corporators. The State does not, by becoming a corporator, identify itself with the corporation. The Planters’ Bank of Georgia is not the State of Georgia, although the State holds an interest in it. It is, we think,.a sound principle, that when a government becomes a partner in any1 trading company, it devests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with, those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. Thus, many States of this Union who have an interest in Banks, are not suable even in their own Courts; yet they never exempt the corporation from being sued/ The State of Georgia, by giving to the Bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the Bank, and waives all the privileges of that character. Asa member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator; and exercises no other power" } ]

[ { "docid": "22269543", "title": "", "text": "examined, but it probably is too solidly entrenched to be questioned at this late date”). This Court does not face Judge Posner’s disadvantage; 28 U.S.C. § 1605(a)(7) provides a clean slate. The merger of subject matter and personal jurisdictional inquiries under the FSIA has contributed to the confusion in the jurisprudence of personal jurisdiction over foreign states. The majority of cases brought under the FSIA involve commercial activity, which requires an evaluation of the activity’s effects in the United States. “Direct effects” language closely resembles that of Constitutional Due Process “minimum contacts.” Tandem consideration of these overlapping yet fundamentally discrete analyses as a matter of practice in several Circuits has exacerbated the situation. See, e.g., Hadwin A Cald, III, Interpreting the Direct Effects Clause of the Foreign Sovereign Immunities Act’s Commercial Activities Exception, 59 FORDHAM L. REV. 91 (1990). Commentators have noted this reference as a signal that, if the issue were squarely presented, it might decide that a foreign state is not a- “person” for the purposes of Constitutional Due Process. See, e.g. Sarah K. Schano, Note, The Scattered Remains of Sovereignty for Foreign States After Republic of Argentina v. Weltover- — Due Process Protection or Nothing, 27 VAND. J. TRANSNAT’L L. 63 (1994). The assumption thus persists that a full Constitutional Due Process analysis is required in all actions against foreign states. It may seem appropriate to consider the foreign state commercial actor as a “person” for the purposes of Constitutional Due Process analysis, considering that when a government becomes a partner in any trading company, it divests [sic] itself ... of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates____ Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. (9 Wheat.) 904, 907, 6 L.Ed. 244 (1824). However, the FSIA requires something more substantial than “minimum contacts” with the United States in order to sustain subject matter jurisdiction under the commercial" }, { "docid": "22791288", "title": "", "text": "security to get even with a whistle-blower, it comes clothed in police apparel says more about the state-owned nature of the commercial enterprise than about the noncommercial nature of its tortious conduct. I had thought the issue put to rest some time ago when, in a slightly different context, Chief Justice Marshall observed: “It is, we think, a sound principle, that when a government becomes a partner in any trading company, it de-vests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted.” Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 907 (1824). See also Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682, 695-696 (1976) (plurality opinion). C Contrary to the majority’s suggestion, ante, at 363, this conclusion does not involve inquiring into the purpose of the conduct. Matters would be different, I suppose, if Nelson had been recruited to work in the Saudi police force and, having reported safety violations, suffered retributive punishment, for there the Saudi authorities would be engaged in distinctly sovereign activities. Cf. House Report, at 16 (“Also public or governmental and not commercial in nature, would be the employment of diplomatic, civil service, or military personnel”); Senate Report, at 16. The same would be true if Nelson was a mere tourist in Saudi Arabia and had been summarily expelled by order of immigration officials. See Arango v. Guzman Travel Advisors Corp., 621 F. 2d 1371 (CA5 1980). In this instance, however, the state-owned hospital was engaged in ordinary commercial business and “[i]n their commercial capacities, foreign governments do not exercise powers peculiar to sovereigns. Instead, they exercise only those powers that can also be exercised by private citizens.” Alfred Dunhill, supra, at 704 (plurality opinion). As we recently stated, “when a foreign government acts," }, { "docid": "14037618", "title": "", "text": "be considered by the consent of that power as exempt from-its jurisdiction. While the court had no occasion to consider the case of a public ship used for trading purposes, Marshall (page 145) pointed out manifest distinction between the private property of the person who happens to be a prince and the military force which supports the-sovereign power and maintains the dignity and independence of a nation. A prince by acquiring private property in a foreign country may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince and assuming the character' of a private individual; but this he cannot be presumed to do with respect to any portion of that armed' force, which upholds his crown, and the nation he is entrusted to govern.” While Marshall was probably referring to the private property of a prince as a private person, it is interesting to note the similarity of his language to that employed by him in’the case of a'state engaging in a commercial undertaking. In Bank of U. S. v. Planters’ Bank of Georgia, 9 Wheat. 904, 6 L. Ed. 244, he said: “It is, we think, a sound principle that when a government becomes a-•partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs, to its associates, and to the-business which is to be transacted.” See, also, Bank of Kentucky v. Wister, 2 Pet. 318, 7 L. Ed. 437; Briscoe v. Bank of Kentucky, 11 Pet. 256, 323, 9 L. Ed. 709; Louisville R. R. v. Letson, 2 How. 497, 550, 11 L. Ed. 353; Curran v. Ark, 15 How. 304, 308, 14 L. Ed. 705; Panama R. R. v. Curran, 256 Fed. 772, 168 C. C. A. 114; Lord & Burnham v. U. S. S. B., E. F." }, { "docid": "7586057", "title": "", "text": "position as a stockholder is no different from that_of a sovereign state which is a stockholder. As was said by the Chief Justice in Bank of U. S. v. Planters’ Bank of Georgia, supra: “The state of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that character. As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act. The government of the Union held shares in the old Bank of the United States; but the privileges of the government were not imparted by that circumstance to the bank. The United States was not a party to suits brought by or against the bank in the sense of the Constitution. So with respect to the present bank. Suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a cor-porator, lays down its sovereignty, so far as respects the transactions of the corporation, and exercises no power or privilege which is not derived from the charter.” Here the case, if anything, is not so strong. The United States is not an incorporator, but a stockholder in a corporation, which, • as a condition or necessary accompaniment of its existence, can be sued and can engage in business. In enacting the statutes, supra, Congress intended, inter alia, to conserve necessaries during the war, and therefore, conferring large and almost unlimited powers to select agencies lo that end, it is fair to assume that the Congress realized that it might be necessary to engage in commercial transactions. The very incorporation of defendant demonstrates that the ordinary methods of transacting business by executive departments were inadequate, and doubtless subject to embarrassment by a maze of unworkable statutes and regulations, and that the elastic powers of a business" }, { "docid": "22791287", "title": "", "text": "claim cannot be said to “res[t] entirely upon activities sovereign in character.” See ante, at 358, n. 4. At the very least it “consists of both commercial and sovereign elements,” thereby presenting the specific question the majority chooses to elude. See ibid. The majority’s single-minded focus on the exercise of police power, while certainly simplifying the case, thus hardly does it justice. Reliance on the fact that Nelson’s employer enlisted the help of public rather than private security personnel is also at odds with Congress’ intent. The purpose of the commercial exception being to prevent foreign states from taking refuge behind their sovereignty when they act as market participants, it seems to me that this is precisely the type of distinction we should seek to avoid. Because both the hospital and the police are agents of the state, the case in my mind turns on whether the sovereign is acting in a commercial capacity, not on whether it resorts to thugs or government officers to carry on its business. That, when the hospital calls in security to get even with a whistle-blower, it comes clothed in police apparel says more about the state-owned nature of the commercial enterprise than about the noncommercial nature of its tortious conduct. I had thought the issue put to rest some time ago when, in a slightly different context, Chief Justice Marshall observed: “It is, we think, a sound principle, that when a government becomes a partner in any trading company, it de-vests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted.” Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 907 (1824). See also Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682, 695-696 (1976) (plurality opinion). C Contrary to the majority’s suggestion, ante," }, { "docid": "8391226", "title": "", "text": "purposes. The statute authorizing their creation, 12 U.S.C.A. § 1148, is silent as to whether they shall be immune from taxation. The statute is also silent as to the immunity of these corporations from suit. Yet the Supreme Court has held that they are sueable even in a tort action to recover for alleged negligence in the care of livestock entrusted to them. Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784. See also Casper v. Regional A. C. Corp., 202 Minn. 433, 278 N.W. 896; Astoria Marine Iron Works v. United States Shipping Board E. F. Corp., 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762, and the comprehensive note following the Keifer case, 83 L. Ed. 794. Whether or not these Regional Corporations shall enjoy sovereign immunity from taxation is wholly a question of Congressional intent. They are purely commercial corporations exercising no sovereign function. In the absence of statutory provision, there is no reason why they should be exempted from taxation, especially in view of Congressional policy concerning this type of corporation, evidenced by many statutory provisions expressly subjecting the real property of similar corporations to taxation. The mere fact that the United States owns all the capital stock of these corporations is not alone sufficient to endow them with sovereign immunity, nor do they acquire such immunity merely because they are the medium through which the Government carries out certain proprietary activities. Note, 83 L.Ed. 799 et seq. In Bank of United States v. Planters’ Bank, 9 Wheat. 904, 907, 6 L.Ed. 244, the Supreme Court said: “It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted.”" }, { "docid": "5450335", "title": "", "text": "Chief Justice Marshall, writing for the court, said: “Is the state of Georgia a party defendant in tbis case? If it is, then the suit, had the Eleventh Amendment never been adopted, must have been brought in the Supreme Court of the United States. Could this court have entertained jurisdiction in the case? We think it could not. To have given the Supreme Court original jurisdiction, the state must be plaintiff or defendant, as a state, and must, as a state, be a party on the record. A suit against the Planters’ Bank of Georgia is no more a suit against the state of Georgia, than against any other individual corporator. The state is not a party, that is, an entire party, in the cause.” And he added: “The suit is against a corporation, and the judgment is to be satisfied by the property of the corporation, not by that of the individual corporators. The state does not. by becoming a corporator, identify itself with the corporation. The Planters’ Bank of Georgia Is not the state of Georgia, although the state holds an interest in it.” He further stated that— “The state of Georgia, by giving to the bank the capacity to sue and be sued; voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that character. As a member of a corporation, a government never exercises its sovereignty.” When a like question came before the court in 1829 in Bank of Kentucky v. Wister, 2 Pet. 318, 323, 7 L. Ed. 437, the court declared that the question was “no longer open here.” In Bank of the United States v. Planters’ Bank of Georgia, supra, it did not appear that the state owned all the stock of the Planters’ Bank. But in the Bank of the State of Alabama v. Gibson’s Adm’rs, 6 Ala. 814, and in Owen v. Branch Bank at Mobile, 3 Ala. 258, the state apparently was the exclusive proprietor of the bank. In the Bank of Alabama Case the court, quoting from" }, { "docid": "22082255", "title": "", "text": "those funds, we are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to include the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Our cases have not yet gone so far, and we decline to expand their reach to the extent necessary to affirm the Court of Appeals. Distinguishing between the public and governmental acts of sovereign states on the one hand and their private and commercial acts on the other is not a novel approach. As the Court stated through Mr. Chief Justice Marshall long ago in Bank of the United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 907 (1824): “It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted.” Cf. Sloan Shipyards v. United States Fleet Corp., 258 U. S. 549, 567-568 (1922). In this same tradition, South Carolina v. United States, 199 U. S. 437 (1905), drew a line for purposes of tax immunity between the historically recognized governmental functions of a State and businesses engaged in by a State of the kind which theretofore had been pursued by private enterprise. Similarly, in Ohio v. Helvering, 292 U. S. 360, 369 (1934), the Court said: “If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned; but the exercise of the right is not the performance of a governmental function .... When a state enters the market place seeking customers it divests itself of its quasi" }, { "docid": "2547565", "title": "", "text": "of Cuba, 425 U.S. 682, 695-96, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976) (citing Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 22 U.S. 904, 907, 6 L.Ed. 244 (1824)) (“when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted”) The Ministry has not sufficiently rebutted S & Davis’s proof to persuade us that the General Corporation is a separate, independent entity. Therefore, we need not address the “fraud or injustice” exception nor the alter ego theory argued by S & Davis. D. Subject Matter Jurisdiction To establish subject matter jurisdiction under the FSIA, a plaintiff must overcome the presumption that the foreign state is immune from suit in the United States’ courts. See 28 U.S.C. § 1604 (1988); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The FSIA includes agents or instrumental-ities of a foreign state within the definition of “foreign state.” In order to overcome the presumption of immunity, a plaintiff must prove that the conduct which forms the basis of its complaint falls within one of the statutorily defined exceptions. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 610-11, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992); 28 U.S.C. § 1604. Once a party offers evidence that an FSIA exception to immunity applies, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply. Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1290 (11th Cir.1999) (citations omitted). S & Davis claims that the Ministry is subject to jurisdiction pursuant to exceptions set forth in § 1605 of the FSIA; the waiver exception, 28 U.S.C. §" }, { "docid": "22082254", "title": "", "text": "no such conclusion from the facts of the case before us now. As the District Court found, the only evidence of an act of state other than the act of nonpayment by interventors was “a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment.” Menendez v. Faber, Coe & Gregg, Inc., 345 F. Supp., at 545. But this merely restated re spondents’ original legal position and adds little, if anything, to the proof of an act of state. No statute, decree, order, or resolution of the Cuban Government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had as a sovereign matter determined to confiscate the amounts due three foreign importers. Ill If we assume with the Court of Appeals that the Cuban Government itself had purported to exercise sovereign power to confiscate the mistaken payments belonging to three foreign creditors and to repudiate interventors’ adjudicated obligation to return those funds, we are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to include the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Our cases have not yet gone so far, and we decline to expand their reach to the extent necessary to affirm the Court of Appeals. Distinguishing between the public and governmental acts of sovereign states on the one hand and their private and commercial acts on the other is not a novel approach. As the Court stated through Mr. Chief Justice Marshall long ago in Bank of the United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 907 (1824): “It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating" }, { "docid": "5450336", "title": "", "text": "state of Georgia, although the state holds an interest in it.” He further stated that— “The state of Georgia, by giving to the bank the capacity to sue and be sued; voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that character. As a member of a corporation, a government never exercises its sovereignty.” When a like question came before the court in 1829 in Bank of Kentucky v. Wister, 2 Pet. 318, 323, 7 L. Ed. 437, the court declared that the question was “no longer open here.” In Bank of the United States v. Planters’ Bank of Georgia, supra, it did not appear that the state owned all the stock of the Planters’ Bank. But in the Bank of the State of Alabama v. Gibson’s Adm’rs, 6 Ala. 814, and in Owen v. Branch Bank at Mobile, 3 Ala. 258, the state apparently was the exclusive proprietor of the bank. In the Bank of Alabama Case the court, quoting from the Supreme Court’s opinion in the Planters’ Bank of Georgia Case, declared that the reasoning in the latter case “applies with all force where the state is the sole corporator, as well as where it is associated with others. * * * It cannot be endured, that the Legislature, which is but the mere machinery of government, should be allowed to confer upon a moneyed corporation, established by itself, any portion of the sovereign power, which was inherent in the body politic.” In the Bank of State v. Gibbs, 3 McCord, 377, the Supreme Court of South Carolina had presented to it the question whether a simple contract debt due the bank was a debt due to the state within the meaning of a statute which entitled the state to a priority of payment. It was held that although the bank was owned entirely by the state it was not on that account entitled to claim any priority of payment. And in State Bank v. Clarke, 8 N. C. 36, the State Bank of that" }, { "docid": "14037619", "title": "", "text": "commercial undertaking. In Bank of U. S. v. Planters’ Bank of Georgia, 9 Wheat. 904, 6 L. Ed. 244, he said: “It is, we think, a sound principle that when a government becomes a-•partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs, to its associates, and to the-business which is to be transacted.” See, also, Bank of Kentucky v. Wister, 2 Pet. 318, 7 L. Ed. 437; Briscoe v. Bank of Kentucky, 11 Pet. 256, 323, 9 L. Ed. 709; Louisville R. R. v. Letson, 2 How. 497, 550, 11 L. Ed. 353; Curran v. Ark, 15 How. 304, 308, 14 L. Ed. 705; Panama R. R. v. Curran, 256 Fed. 772, 168 C. C. A. 114; Lord & Burnham v. U. S. S. B., E. F. C. (D. C.) 265 Fed. 955, 957. In U. S. v. Wilder, 3 Sumn. 308, 315 317, Fed. Cas. No. 16,694, Mr. Justice Story apparently was of the opinion that a government-owned merchant vessel might not he entitled to the same privileges and immunities as a ship of war. lie said: “A distinction was .taken in that case (The Prins Fredorik, 2 Dod. R. 451), which, indeed, has been often taken by writers on public la.w, as to the ex-, eruption of certain things from all private claims; as, for example, things devoted to sacred, religions and public purposes; things extra eoinmoreium et quorum nop est commereium. That distinction might well apply to property like public ships of war, held by the sovereign jure coronse, and not to be applicable to common property of the sovereign of a commercial character or engaged in the common business of commerce. * * - “In the case of Tbe Schooner Exchange (7 (Cranch R. 116), it was considered by the court that the ground of exemption of the" }, { "docid": "2547564", "title": "", "text": "minister who signed approving the contract, gave direct orders to terminate the contract. S & Davis also provided an affidavit from a Yemeni corporate lawyer stating the General Corporation was “wholly owned by the Government of Yemen.” Ultimately, the General Corporation failed to perform its part of. the contract, that of opening the letter of credit, and breached the contract. The Ministry, while asserting the General Corporation’s autonomy, fails to provide any evidence of an independent entity, such as papers of incorporation and corporate structure, whether there is a board of directors or stock ownership, whether or not all employees are public servants, whether the corporation maintains financial accounts in its own name, or whether it owns any assets in its own name-all allegations in the complaint which S & Davis states do not exist, therefore rendering the General Corporation a mere instrumentality of the Ministry. By issuing direct orders to terminate the contract, the sovereign became more of a managing partner over its “agency or instrumentality.” See Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695-96, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976) (citing Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 22 U.S. 904, 907, 6 L.Ed. 244 (1824)) (“when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted”) The Ministry has not sufficiently rebutted S & Davis’s proof to persuade us that the General Corporation is a separate, independent entity. Therefore, we need not address the “fraud or injustice” exception nor the alter ego theory argued by S & Davis. D. Subject Matter Jurisdiction To establish subject matter jurisdiction under the FSIA, a plaintiff must overcome the presumption that the foreign state is immune from" }, { "docid": "1847871", "title": "", "text": "1398, 1412 & n.26, 63 L.Ed.2d 673 (1980). As far back as 1824, Chief Justice Marshall stated: It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself.... Bank of the United States v. Planters’ Bank of Georgia, 9 Wheat. (22 U.S.) 904, 907, 6 L.Ed. 244 (1824). See Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 695-96, 96 S.Ct. 1854, 1861-62, 48 L.Ed.2d 301 (1976) (Opinion of White, J.) (collecting citations). This court has relied on the distinction while recognizing its limitations. See United States v. Georgia-Pacific Co., 421 F.2d 92, 100 & n.17 (9th Cir. 1970). . However, even if all other formal requirements are met, both 803(6) and 803(8) nonetheless exclude records if the sources of information or other circumstances indicate lack of trustworthiness. . Once again, the standard for reversible error set forth in Kotteakos is pertinent: The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. 328 U.S. at 765, 66 S.Ct. at 1248. I am troubled that the majority has overlooked the Kotteakos standard in concluding that even if no Confrontation Clause violation were present, sufficient evidence existed to support the jury’s verdict. Although evidence may have existed to support the jury’s verdict, I am hardly convinced that that evidence was the basis for the jury’s verdict. Because inadmissible evidence may well have infected the verdict, I would hold, in light of the Kotteakos standard, that there was reversible error." }, { "docid": "1847870", "title": "", "text": "in footnote 1, supra. Rule 803(6) derives from 28 U.S.C. § 1732. See Advisory Committee’s Note to Rule 803(6) of Proposed Federal Rules of Evidence, 51 F.R.D. 315, 426 (1971). Rule 803(8) is an expansion upon 28 U.S.C. § 1733. See J. Weinstein & M. Berger, 4 Weinstein’s Evidence f 803(8)[01] at 803-190 (1979). . Even before the Federal Rules of Evidence were adopted, this circuit allowed the hearsay exceptions later codified as Rules 803(7) and 803(10). See United States v. De Georgia, 420 F.2d 889, 892-94 (9th Cir. 1969), overruling Shreve v. United States, 77 F.2d 2, 7 (9th Cir. 1935), cert, denied, 296 U.S. 654, 56 S.Ct. 380, 80 L.Ed. 466 (1936). . Rule 803(7) is reproduced in note 4, supra. For the text of Rule 803(10), see Majority Opinion, ante, at note 2. . The distinction between government acting in its proprietary and its sovereign capacities is well settled in the law, although it has not escaped criticism. E.g., Owen v. City of Independence, 445 U.S. 622, 644 & n.26, 100 S.Ct. 1398, 1412 & n.26, 63 L.Ed.2d 673 (1980). As far back as 1824, Chief Justice Marshall stated: It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself.... Bank of the United States v. Planters’ Bank of Georgia, 9 Wheat. (22 U.S.) 904, 907, 6 L.Ed. 244 (1824). See Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 695-96, 96 S.Ct. 1854, 1861-62, 48 L.Ed.2d 301 (1976) (Opinion of White, J.) (collecting citations). This court has relied on the distinction while recognizing its limitations. See United States v. Georgia-Pacific Co., 421 F.2d 92, 100 & n.17 (9th Cir. 1970). . However, even if all other formal requirements are met, both 803(6) and 803(8) nonetheless exclude records if the sources of information" }, { "docid": "8391227", "title": "", "text": "Congressional policy concerning this type of corporation, evidenced by many statutory provisions expressly subjecting the real property of similar corporations to taxation. The mere fact that the United States owns all the capital stock of these corporations is not alone sufficient to endow them with sovereign immunity, nor do they acquire such immunity merely because they are the medium through which the Government carries out certain proprietary activities. Note, 83 L.Ed. 799 et seq. In Bank of United States v. Planters’ Bank, 9 Wheat. 904, 907, 6 L.Ed. 244, the Supreme Court said: “It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted.” When a corporation is created for commercial as distinguished from Governmental purposes, it is ordinarily implied in the absence of statutory provisions to the contrary, that such corporation shall have all the requisites and responsibilities of corporate existence, even though the United States owns all the stock. Such a corporation is an entity separate from the United States. United States v. Strang, 254 U.S. 491, 41 S.Ct. 165, 65 L. Ed. 368. In January, 1932 Congress had created RFC through which to carry out certain proprietary and commercial activities. That statute, 15 U.S.C.A. § 610, specifically provides that real property owned by RFC is subject to taxation to the same extent as other property is taxable, though certain personal property of RFC is exempt. ’ Six months later, Congress enlarged and extended RFC activities, and amongst other things authorized RFC to organize these Regional Corporations as a means through which the enlarged activities of RFC should be carried on, RFC being the sole creator of these Regionals. As said in the Keifer case [306 U.S." }, { "docid": "5695209", "title": "", "text": "cases where the furnishing was for either public or private use), stand on the same footing as like businesses conducted by a private corporation or individual (Village of Palestine v. Sitzer, 225 Ill. 630, 80 N. E. 345, 8 L. R. A. [N. S.] 205; Briegel v. Philadelphia, 135 Pa. 451, 19 A. 1038, 20 Am. St. Rep. 885; Aiken v. Columbus, 167 Ind. 139, 78 N. E. 657, 12 L. R. A. [N. S.] 416; Clark v. Manchester, 62 N. H. 577; Thurston v. St. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Coots v. Detroit, 75 Mich. 628, 43 N. W. 17, 5 L. R. A. 315; Hodgins v. Bay City, 156 Mich. 687, 121 N. W. 274, 132 Am. St. Rep. 546); that a state owned railway, in so far as it operates in another state, is a private enterprise, and subject to the sovereignty of such other state (Georgia v. City of Chattanooga, 264 U. S. 472, 44 S. Ct. 369, 68 L. Ed. 796); that, when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes on that of a private citizen (Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 6 L. Ed. 244); that a municipal corporation engaged in the business of distilling spirits is conducting a private enterprise and subject to internal revenue taxation under the laws of the United States (Salt Lake City v. Hollister, 118 U. S. 256, 6 S. Ct. 1055, 30 L. Ed. 176). It might seem from the foregoing that it should be a simple matter to determine that the operation of a street railway by a municipality is an exercise of its private, and not of its governmental, functions. A careful consideration, however, of a number of important cases dealing with this and analogous situations, and of illuminative expositions by authoritative text-writers, who have considered the historical development of public highways, loads to the conclusion that highways and means of intercommunication in which the whole community" }, { "docid": "7586056", "title": "", "text": "a business corporation cannot deprive the agent thus created of its right as a corporation to make a profit nor relieve it of its corporate liabilities. It may be, as was held in the Panama and Commercial Cable Co. Cases, supra, that when the government itself creates its own agent, and owns part or all of the stock of the agent thus created, the test as to whether the corporation is suable, or whether the agent is a department of government, is the nature of the business done; but when the sovereign uses an agency created, not by itself, but under a state statute, he takes his agent as he finds it. No case has been nor can be cited which authorized the President of the United States to change a state statute, or the powers conferred thereby, or the liabilities necessarily flowing therefrom. The property of the corporation cannot become the property of the stockholders until all provable claims are liquidated, no matter what the purpose of the stockholder may be, and the government’s position as a stockholder is no different from that_of a sovereign state which is a stockholder. As was said by the Chief Justice in Bank of U. S. v. Planters’ Bank of Georgia, supra: “The state of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that character. As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act. The government of the Union held shares in the old Bank of the United States; but the privileges of the government were not imparted by that circumstance to the bank. The United States was not a party to suits brought by or against the bank in the sense of the Constitution. So with respect to the present bank. Suits brought by" }, { "docid": "22409488", "title": "", "text": "Georgia R. 493; Nathan v. Whitlock, 3 Edwards, C. R. 215, affirmed by the chancellory (9 Paige, 152,) contain elaborate' examinations of this doctrine, and it has been affirmed' and applied in many-other cases. So far,, therefore, as the property of this bank has become vested in the State or gone tb its use, it is so vested and used, charged with a trust in favor of this complainant, as an unpaid creditor, unless there is something in the character of the parties, or the consideration upon which, or the operation of the l%ws by force of which, it has been transferred, taking the case out of the principles above laid down. Afid, first, as to the character of the parties. By the charter of this bank, the State, of Arkansas became its sole stockholder. But the bank was a distinct trading corporation, having a complete separate-existence, enabled to enter into valid contracts binding itself alone, and having a specific capital stock, provided, and held out to the public as the means to pay its debts. The obligations of its contracts,* the funds provided for their performance, and the equitable rights of its creditors were in no way affected by the fact, that a sovereign state paid in its capital, and consequently became entitled to its profits. When paid in and vested in the corporation, the capital stock became chargeable at once with the trusts;, and subject to the uses declared and fixed by the charter, to the same extent, and for the same reasons, as it would have been if contributed by private persons. That a State, by becoming interested with others in a banking corporation, or by owning all the capital stock, does not impart to that corporation any of its privileges or prerogatives, that it lays down its sovereignty, so far as respects the transactions of the corporation, and exercises no power or privilege in respect to those transactions not derived from the charter, has been repeatedly affirmed by this court, in the Bank of the United States v. The Planters Bank, 9 Wheat. 904; Bank of" }, { "docid": "22269544", "title": "", "text": "K. Schano, Note, The Scattered Remains of Sovereignty for Foreign States After Republic of Argentina v. Weltover- — Due Process Protection or Nothing, 27 VAND. J. TRANSNAT’L L. 63 (1994). The assumption thus persists that a full Constitutional Due Process analysis is required in all actions against foreign states. It may seem appropriate to consider the foreign state commercial actor as a “person” for the purposes of Constitutional Due Process analysis, considering that when a government becomes a partner in any trading company, it divests [sic] itself ... of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates____ Bank of the United States v. Planters’ Bank of Georgia, 22 U.S. (9 Wheat.) 904, 907, 6 L.Ed. 244 (1824). However, the FSIA requires something more substantial than “minimum contacts” with the United States in order to sustain subject matter jurisdiction under the commercial activity exception. See 28 U.S.C. § 1605(a)(2); Verlinden, 461 U.S. at 490 (“Congress protected from this danger ... by enacting substantive provisions requiring some form of substantial contact with the United States.”). The other exceptions to immunity each have an inherent jurisdictional nexus with the United States, which exceeds “minimum contacts” requirements. See id; h.rep. 94-1487 at 13-14, reprinted at 1976 U.S.C.C.AN. at 6611-12. Therefore, an inquiry into personal jurisdiction over a foreign state need not consider the rubric of “minimum contacts”; the concept of “minimum contacts” is inherently subsumed within the exceptions to immunity defined by the statute. See Id. Citing South Carolina v. Katzenbach, 383 U.S. at 323-24 and Insurance Corp. of Ireland, Inc. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), Judge Silberman has noted the inadequacy of personal jurisdiction doctrine in cases involving disputes between governments within federal systems. See United States v. Ferrara, 54 F.3d 825, 832-33 (D.C.Cir.1995) (Silberman, J., concurring); see also Harold S. Lewis, Jr., The Three Deaths of" } ]

[ { "docid": "4215248", "title": "", "text": "the probable effect which the advertiser’s handiwork will have upon the eye and mind of the reader. It is therefore necessary in these cases to consider the advertisement in its entirety and not to engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately. “[T]he buying public does not ordinarily carefully study or weigh each word in an advertisement. The ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied.” Aronberg v. Federal Trade Commission, 132 F.2d 165, 167 (7th Cir., 1942). Unlike that abiding faith which the law has in the “reasonable man,” it has very little faith indeed in the intellectual acuity of the “ordinary purchaser” who is the object of the advertising campaign. “The general public has been defined as ‘that vast multitude which includes the ignorant, and unthinking and the credulous, who, in making purchases, do not stop to analyze but too often are governed by appearances and general impressions.’ The average purchaser has been variously characterized as not ‘straight thinking,’ subject to ‘impressions,’ uneducated, and grossly misinformed; he is influenced by prejudice and superstition; and he wishfully believes in miracles, allegedly the result of progress in science * * *. The language of the ordinary purchaser is casual and unaffected. He is not an ‘expert in grammatical construction’ or an ‘educated analytical reader’ and, therefore, he does not normally subject every word in the advertisement to careful study.” 1 Callman, Unfair Competition and Trademarks § 19.2(a) (1), at 341-44 (1950), and the eases there cited. It is well established that advertising need not be literally false in order to fall within the proscription of the act. Gone for the most part, fortunately, are the days when the advertiser was so lacking in subtlety as to represent his nostrum as superlative for “arthritis, rheumatism, neuralgia, sciatica, lumbago, gout, coronary thrombosis, brittle bones, bad teeth, ' malfunctioning glands, infected tonsils, infected appendix, gall stones, neuritis, underweight, constipation, indigestion, lack of energy, lack of vitality, lack" } ]

[ { "docid": "22896510", "title": "", "text": "commerce, . - . shall be liable to a civil action . by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. 15 U.S.C. § 1125(a). . See notes 3-4 supra. . The judge also held that the advertising does not represent that Anacin provides faster analgesic action or that Anacin is harmless to the stomach, again on the basis of consumer reaction. American Home Prods. Corp. v. Johnson & Johnson, 436 F.Supp. 785, 796 (S.D.N.Y. 1977). See Part III infra. Accordingly, no findings on the truth or falsity of these alleged representations were made. . The flaw in appellant’s logic is its conclusion of truthfulness from the district court’s candid recognition that it could not determine whether the anti-inflammatory claim was true or false. Judge Stewart did not find this claim truthful: Accordingly, we find that there is no reliable evidence showing that ASA reduces inflammation to a clinically significant extent in the conditions listed in the advertisements at OTC dosages. On the other hand, we think that McNeil has not proved by a preponderance of the evidence that this claim is, or tends to be, false. 436 F.Supp. at 801. . Appellants apparently solely refer to the claims of superior anti-inflammatory effect as the “truthful and unambiguous product claim.” We have already pointed out, note 10 supra, the fallacy of interpreting the district court’s finding of unsubstantiation as a finding of truthfulness. Additionally, appellants err in their failure to recognize that the advertisement must be viewed in its entirety. As stated by Judge Kaufman in FTC v. Sterling Drug, Inc., 317 F.2d 669, 674 (2d Cir. 1963): It is therefore necessary ... to consider the advertisement in its entirety and not to engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately. “(T]he buying public does not ordinarily carefully study or weigh each word in an advertisement. The ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also" }, { "docid": "10474071", "title": "", "text": "Jartran, 522 F.Supp. at 1253 (“advertising statements placed in an ad knowing or intending that they are of the type that will affect the consumer’s judgment, are not puffery, but rather constitutes actionable representations within the meaning of the Lanham Act”). West-wood’s claims to superiority, flowing as they do from purported independent tests, do more than simply allege general superiority. Accordingly, I find them not protected as mere puffery. B. Irreyarable Harm A February 9, 1987 affidavit from Leo LeClair, President and Chief Executive Officer of Stiffel, describes Stiffel’s asserted risk of damage if an injunction is not granted. “As these [false] superiority claims will be disseminated to the consuming public very shortly (if that has not already occurred), many trade accounts are likely to determine that they no longer need or want Stiffel lamps in their stock since Westwood lamps are cheaper or, at a minimum, they may shift a significant proportion of their lamp purchases from Stif-fel to Westwood.” (LeClair Affidavit, 113.) LeClair contends Stiffel is also threatened by the use of the Display, Brochure and Card which contain Westwood advertising previously described. (Id. at II4.) Stiffel contends “the entire trade has now been led to believe that the WestPro lamp ‘outperforms the competition including STIF-FEL’ and that Westwood possesses ‘test after test’ that ‘proves’ the superiority of its lamp over Stiffel lamps.” (Stiffel’s Brief in Support of Injunctive Relief at p. 14.) “These untruths, if not promptly stopped by court order, will quickly spread to and throughout the consuming public and cause irremediable damage to [Stif-fel’s] business, reputation and good will.” (LeClair Affidavit, ¶ 5.) The Second Circuit has held that the moving party carries its burden of demonstrating irreparable harm when it offers “proof providing a reasonable basis for the belief that .... [it] is likely to be damaged as a result of the false advertising.” Vidal Sassoon, 661 F.2d at 278, quoting, Carter-Wallace, Inc., 631 F.2d at 190. The court noted: Sassoon and [defendant’s] Body on Tap compete in the same market, and it is quite likely that the apparently effective suggestions of competitive superiority," }, { "docid": "10474072", "title": "", "text": "Display, Brochure and Card which contain Westwood advertising previously described. (Id. at II4.) Stiffel contends “the entire trade has now been led to believe that the WestPro lamp ‘outperforms the competition including STIF-FEL’ and that Westwood possesses ‘test after test’ that ‘proves’ the superiority of its lamp over Stiffel lamps.” (Stiffel’s Brief in Support of Injunctive Relief at p. 14.) “These untruths, if not promptly stopped by court order, will quickly spread to and throughout the consuming public and cause irremediable damage to [Stif-fel’s] business, reputation and good will.” (LeClair Affidavit, ¶ 5.) The Second Circuit has held that the moving party carries its burden of demonstrating irreparable harm when it offers “proof providing a reasonable basis for the belief that .... [it] is likely to be damaged as a result of the false advertising.” Vidal Sassoon, 661 F.2d at 278, quoting, Carter-Wallace, Inc., 631 F.2d at 190. The court noted: Sassoon and [defendant’s] Body on Tap compete in the same market, and it is quite likely that the apparently effective suggestions of competitive superiority, if repeatedly communicated to consumers, would eventually result in loss of sales to Sassoon.... Although Sassoon offered no evidence of actual sales loss directly traceable to the alleged misrepresentations, proof of diversion of sales is not required for an injunction to issue pursuant to § 43(a) [of the Lanham Act]. Id. at 278 (citations omitted). Westwood has already published and disseminated false, deceptive and misleading advertisements to the trade and to consumers. Accordingly, injunctive relief is justified to prevent the continuation of such an advertising program. Giving due consideration to Westwood and the public interest, Continental Group, Inc., 614 F.2d at 357, the grant of a preliminary injunction is appropriate, in light of the publication and dissemination of the Trade and Consumer Advertisement and point-of-purchase materials. Westwood is engaged in false advertising as reflected in the Brochure and the Card, and in deceptive or misleading advertising as reflected in the Trade and Consumer Advertisements. Because the public, as well as competitors, are to be protected from false, deceptive and misleading advertising, injunctive relief is appropriate." }, { "docid": "23085119", "title": "", "text": "the Court concluded that the claim that “Hertz has more new cars than Avis has new cars” could only be understood as referring to the companies’ rental fleets. The Court elaborated: Fundamental to any task of interpretation is the principle that text must yield to context. Recognizing this, the Supreme Court long ago inveighed against “the tyranny of literalness.” In his determination to “go by the written word” and to ignore the context in which the words were used, the district judge in the present ease failed to heed the familiar warning of Judge Learned Hand that “[tjhere is no surer way to misread any document than to read it literally,” as well as his oft-cited admonition that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.” These and similar invocations against literalness, though delivered most often in connection with statutory and contract interpretation, are relevant to the interpretation of any writing, including advertisements. Thus, we have emphasized that in reviewing FTC actions prohibiting unfair advertising practices under the Federal Trade Commission Act a court must “consider the advertisement in its entirety and not ... engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately.” ... Similar approaches have been taken in Lanham Act cases involving the claim that an advertisement was false on its face. Id. at 385 (citations omitted). At first glance, American Home Products and Avis Rent A Car may appear to conflict. American Home Products counsels that when an advertisement is not false on its face, but instead relies on indirect intimations, district courts should look to consumer reaction to determine meaning, and not rest on their subjective impressions of the advertisement as a whole. Avis Rent A Car, on the other hand, instructs district courts to consider the overall context of an advertisement to discern its true meaning, and holds that the message conveyed by an advertisement may be viewed as not false in the context of the business at issue, even though the written words are" }, { "docid": "11056182", "title": "", "text": "and the Lanham Act allow Regina to refer to Consumer Reports in its advertising.” Defendants’ Memorandum at 22. The argument, however, assumes the very outcome of this action. Whether defendants’ advertisements confuse consumers as to CU’s sponsorship of the commercials, its endorsement of the Powerteam 6910, or the sale of its trademark is precisely the issue to be decided. If plaintiff fails to prove by a preponderance of the evidence that defendants’ advertisements create consumer confusion, there can be no false designation of origin and hence no violation of section 43(a). Under those circumstances, there would be no direct clash between section 43(a) and the First Amendment. If defendants contend rather that plaintiff should not be allowed to proceed on its Lanham Act cause of action without some preliminary showing of the confusion central to the Lanham Act, lest CU be allowed to choke the protected flow of commercial information contained in their advertisements, they are mistaken. As the Second Circuit has already noted, First Amendment concerns for commercial speech do not justify altering standards or burdens of proof in Lanham Act cases. Vidal Sassoon Inc. v. Bristol-Myers Co., supra, 661 F.2d at 276 n. 8. The standard to apply on this motion is simply the ordinary one of whether any factual issues remain to be tried and whether defendants have shown that they are entitled to judgment as a matter of law. C. Evidence of Consumer Confusion. The ultimate issue in this case is whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled into believing that CU sponsored or otherwise approved the use of its mark in defendants’ advertisements. See Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 115 (2d Cir.1984). Summary judgment therefore would be appropriate only if after viewing the parties’ submissions the Court were satisfied that no such likelihood existed. Id. at 116; see Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 918 (2d Cir.1980) (granting summary judgment to counterclaim defendant on issue of likelihood of consumer confusion); B & L Sales Associates" }, { "docid": "23085120", "title": "", "text": "actions prohibiting unfair advertising practices under the Federal Trade Commission Act a court must “consider the advertisement in its entirety and not ... engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately.” ... Similar approaches have been taken in Lanham Act cases involving the claim that an advertisement was false on its face. Id. at 385 (citations omitted). At first glance, American Home Products and Avis Rent A Car may appear to conflict. American Home Products counsels that when an advertisement is not false on its face, but instead relies on indirect intimations, district courts should look to consumer reaction to determine meaning, and not rest on their subjective impressions of the advertisement as a whole. Avis Rent A Car, on the other hand, instructs district courts to consider the overall context of an advertisement to discern its true meaning, and holds that the message conveyed by an advertisement may be viewed as not false in the context of the business at issue, even though the written words are not literally accurate. On closer reading, however, the two cases can be reconciled. In American Home Prodructs, we did not say that context is irrelevant or that courts are myopically bound to the explicit words of an' advertisement. Rather, we held that where it is “clear that ... the language of the advertisement ] is not unambiguous,” the district court should look to consumer response data to resolve the ambiguity. Am. Home Prods., 577 F.2d at 164. In Avis Rent A Car, we concluded that there was no ambiguity to resolve because even though the statement, “Hertz has more new cars than Avis has cars,” did not expressly qualify the comparison, given the surrounding context, it “unmistakably” referred to the companies’ rental fleets. Avis Rent A Car, 782 F.2d at 384. These two cases, read together, compel us to now formally adopt what is known in other circuits as the “false by necessary implication” doctrine. See, e.g., Scotts Co. v. United Indus. Corp., 315 F.3d 264, 274 (4th Cir.2002); Clorox Co. Puerto Rico v. Proctor" }, { "docid": "10474055", "title": "", "text": "misleading. As stated by the Second Circuit: “When a merchandising statement or representation is literally or explicitly false, the court may grant relief without reference to the advertisement’s impact on the buying public.” Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 317 (2d Cir.1982). Yet when the advertising under attack is not so clearly false, the court’s inquiry must focus on the advertisement’s tendency to deceive those at whom it was directed: “Whether or not the statements made in the advertisements are literally true, § 43(a) of the Lanham Act encompasses more than blatant falsehoods. It embraces ‘innuendo, indirect intimations, and ambiguous suggestions’ evidenced by the consuming public’s misapprehension of the hard facts underlying an advertisement.” Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 277 (2d Cir.1981), quoting, American Home Products Corp., 577 F.2d at 165. Stiffel need not prove an intent to deceive on the part of Westwood to estab lish a violation of Section 43(a) of the Lanham Act. See, Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186, 189 (2d Cir.1980). However, Stiffel must show the advertising is “likely to influence the purchasing decision.” Skil Corp. v. Rockwell Int’l Corp., 375 F.Supp. 777, 783 (N.D.Ill.1974). Nor must Stiffel prove consumers were in fact deceived or that sales were actually diverted. See, Ames Publishing Co. v. Walker-Davis Publications, Inc., 372 F.Supp. 1, 12 (E.D.Pa.1974); See also John Wright, Inc. v. Casper Corp., 419 F.Supp. 292, 325 (E.D.Pa.1976), aff'd and rev’d in part on other grounds, Donsco, Inc. v. Casper Corp., 587 F.2d 602 (3d Cir.1978). As stated by the Third Circuit, there seems to be no requirement that purchasers actually be deceived, but only that the false advertisements have a tendency to deceive. This seems to be the result desired by Congress in that Section 43(a) confers a right of action upon any person who “believes that he is or is likely to be damaged” by defendant’s practices. While it would be going too far to read the requirement of customer reliance out of this section so far as damages are concerned, we believe that this" }, { "docid": "2187597", "title": "", "text": "succeed on a false advertising claim by proving either that the defendant’s advertisement is literally false or implicitly false—that is, the advertisement is true or ambiguous yet misleading. See id. Where the advertisement is literally false, a violation may be established without evidence of consumer deception. See id.; Balance Dynamics Corp. v. Schmitt Indus., 204 F.3d 683, 693 (6th Cir.2000) (noting that when a statement is literally false, “a plaintiff need not demonstrate actual customer deception in order to obtain relief ”). Where the advertisement is implicitly false, however, “an additional burden is placed upon the plaintiff to show that the advertisement ... conveys a misleading message to the viewing public.” Clorox, 228 F.3d at 33. In addition, this Court has recognized a difference in the burdens of proof between injunctive relief claims and monetary damages claims under the Lanham Act. In Quabaug Rubber Co. v. Fabiano Shoe Co., Inc., 567 F.2d 154 (1st Cir.1977), we held that whereas a showing that the defendant’s activities are likely to cause confusion or to deceive customers is sufficient to warrant injunctive relief, a plaintiff seeking damages must show actual harm to its business. See id. at 160-61. With these elaborate and intricate statutory requirements in mind, we assess plaintiffs’ claims to determine if there is enough competent evidence for a reasonable factfinder to conclude that they have satisfied their burdens of proof under the Lanham Act. A. Concessions For the purposes of this appeal, defendants concede that they have made a false or misleading statement of fact in describing their blazers. Defendants also concede that they placed these misrepresentations in interstate commerce. B. Materiality The materiality component of a false advertising claim requires a plaintiff to prove that the defendant’s deception is “likely to influence the purchasing decision.” Clorox, 228 F.3d at 33 n. 6. One method of establishing materiality involves showing that the false or misleading statement relates to an “inherent quality or characteristic” of the product. Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 855 (2d Cir.1997). On their first claim, plaintiffs argue that overstating the cashmere content of" }, { "docid": "10483775", "title": "", "text": "33 L.Ed.2d 131 (1972). The second approach balances the “the public interest in free expression against the public interest in avoiding consumer confusion.” Cliffs Notes v. Bantam Doubleday Dell Publishing Group, 886 F.2d 490, 496 (2d Cir.1989); accord Anheuser-Busch, 28 F.3d at 776. The Second Circuit originated this approach in Rogers v. Grimaldi 875 F.2d 994 (2d Cir.1989). In Rogers; the court held that although the defendant’s movie title was artistic expression deserving First Amendment protection, the fact that it was sold in the commercial marketplace made the “danger of consumer deception a legitimate concern that warrants some governmental regulation.” Id. at 997. The court cited as support for this proposition Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) and Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272 (2d Cir.1981). However, the proposition taken from Central Hudson, that “government may ban forms of communication more likely to deceive the public than inform it,” 447 U.S. at 563, 100 S.Ct. at 2350, described the lower standard of protection accorded commercial speech; it did not state any general proposition as to governmental authority to ban misleading noncommercial speech. Id. at 562-63, 100 S.Ct. at 2349-50. Vidal Sassoon dealt with an advertisement, also a clear form of commercial speech. 661 F.2d at 276 n. 8. Thus the Second Circuit’s generation of this balancing test for noncommercial speech must be viewed as entirely sui generis. The Eighth Circuit’s unquestioning adoption of it is not very persuasive; both its decision to apply the test and its determination that a likelihood of confusion existed are rather questionable. See Anheuser-Busch, 28 F.3d at 774-77. The third approach calls for a straightforward refusal to apply the Lanham Act to noncommercial speech. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 33 (1st Cir.1987) (“The legitimate aim of the anti-dilution statute is to prohibit the unauthorized use of another’s trademark in order to market incompatible products or services. The Constitution does not, however, permit the range of the anti-dilution statute to encompass the unauthorized use" }, { "docid": "13709171", "title": "", "text": "Reed’s database in exclusive projects and a 3:1 advantage in all projects. Reed claims that these statements were literally false. A. Advertising As a preliminary matter, the Court must determine whether the challenged statements constitute “advertising and promotion” within the meaning of the Lanham Act. The Second Circuit has adopted a three-part inquiry for determining what constitutes “advertising or promotion.” Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 58 (2d Cir.2002). Under the Fendi test, “the contested representations must be [1] commercial speech; ... [2] made for the purpose of influencing consumers to buy defendant’s goods or services; and, [3] ... disseminated sufficiently to the relevant purchasing public.” Id. at 56 (quoting and partially adopting the test from Gordon & Breach Sci. Publishers S.A. v. Am. Inst. of Physics, 859 F.Supp. 1521, 1536 (S.D.N.Y.1994) (Sand, J.)). Here, the first two issues are not contested. McGraw Hill argues only that some of the misrepresentations described above, when considered in isolation, were not disseminated widely enough to satisfy Fendi. Before the Court can consider whether the statements were sufficiently distributed, it must answer a preliminary question: are the statements to be considered together or in isolation? The ad hoc comparisons, for example, were distributed to many different customers, sometimes one at a time. Calling a single customer is not “advertising or promotion” within the meaning of Fendi, so if the comparisons are considered one by one, many will not make the cut. McGraw-Hill argues that the Court should look at the statements one by one, while Reed argues that the Court should consider the statements as part of an overall campaign of publicity. Courts assessing Lanham Act claims are to consider an allegedly false “advertisement ... in its entirety,” Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 385 (2d Cir.1986) (Friendly, J.), and should “not ... engage in disputatious dissection.” Id. In this case, though, the question is whether a series of individual statements to customers constitutes one “advertisement”—that should not be disputatiously dissected—or a series of advertisements for which dissection is appropriate." }, { "docid": "7036328", "title": "", "text": "show?”, 62% of the participants indicated that the tests showed that Body on Tap was competitively superior, either in a general way (38%), or as specifically compared with one or more other brands (24%). In answer to another question, 53% stated that the primary message of the commercial was Body on Tap’s competitive superiority. On the basis of the evidence submitted to him, Judge Stewart concluded that Sassoon had demonstrated a probability of success on the merits and a possibility of irreparable injury if the dissemination of the advertisements did not cease. Accordingly, he granted Sassoon’s motion for a preliminary injunction. II Turning now to the legal issues, we conclude that Judge Stewart properly ruled that Sassoon had met its burden for the issuance of a preliminary injunction by showing “probable success on the merits and possible irreparable injury,” Sonesta Int’l Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973). Viewing the “entire mosaic” of the advertisements rather than “each tile separately,” FTC v. Sterling Drug, Inc., 317 F.2d 669, 674 (2d Cir. 1963), we find that Judge Stewart did not err, nor did he abuse his discretion, see Triebwasser & Katz v. AT&T, 535 F.2d 1356, 1358 (2d Cir. 1976), in concluding that the advertisements were ambiguous and misleading in violation of § 43(a) of the Lanham Act. We have previously endorsed the ASI format as probative of the meaning consumers derive from commercial advertising. American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 167-69, 167 n.15 (2d Cir. 1978). The results of the test ASI conducted for Sassoon suggest that most potential purchasers would incorrectly believe that the 900 women in the MISI survey made product-to-product comparisons among two or more shampoos. The study also presents evidence that con sumers, after viewing the “Ferrare-900 Women” television commercial, would assume that Body on Tap was competitively superior when a combination of qualitative rating categories different from the one used by Bristol would yield no more than a showing of virtual competitive parity between Body on Tap and Sassoon. Whether or not the statements made" }, { "docid": "22048087", "title": "", "text": "were misled. We do not disagree with those findings. We note, moreover, that despite these flaws the district court ruled that there were at least a small number of clearly deceived ASI interviewees. Our examination of the Burke test results leads to the same conclusion, i.e., that a not insubstantial number of consumers were clearly misled by the defendant’s ad. Together these tests provide sufficient evidence of a risk of irreparable harm because they demonstrate that a significant number of consumers would be likely to be misled. The trial court should have considered these studies on the issue of irreparable injury. If it had, we think that it would surely have concluded, as did this Court in Vidal Sassoon and Johnson & Johnson, that the commercial will mislead consumers and, as a consequence, cause them to shift their purchases from plaintiff’s product to defendant’s. Coke, therefore, demonstrated that it is likely to suffer irreparable injury. Ill Likelihood of Success on the Merits Once the initial requisite showing of irreparable harm has been made, the party seeking a preliminary injunction must satisfy either of the two alternatives regarding the merits of his case. We find that Coca-Cola satisfies the more stringent first alternative because it is likely to succeed on the merits of its false advertising action. Coke is entitled to relief under the Lanham Act if Tropicana has used a false description or representation in its Jenner commercial. See 15 U.S.C. § 1125(a). When a merchandising statement or representation is literally or explicitly false, the court may grant relief without reference to the advertisement’s impact on the buying public. American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 165 (2d Cir. 1978); American Brands, Inc. v. R. J. Reynolds Tobacco Co., 413 F.Supp. 1352, 1356 (S.D.N.Y.1976). When the challenged advertisement is implicitly rather than explicitly false, its tendency to violate the Lanham Act by misleading, confusing or deceiving should be tested by public reaction. American Home Products, 577 F.2d at 165. In viewing defendant’s 30-second commercial at oral argument, we concluded that the trial court’s finding that this" }, { "docid": "23068878", "title": "", "text": "(“The Act’s purpose, as defined in § 45, is exclusively to protect the interests of a purely commercial class against unscrupulous commercial conduct.”), cert. denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971); Joseph P. Bauer, A Federal Law of Unfair Competition: What Should be the Reach of Section 43(a) of the Lanham Act?, 31 UCLA L.Rev. 671, 681 (1984) (“[T]he Act leans toward the protection of owners of trademarks from misuse of those marks, rather than the protection of the public from deception.”). Because of the Lanham Act’s primary focus upon protection of private parties from false advertising, actual harm to the party alleging a Lanham Act violation is a necessary element of a Lanham Act claim. “The plaintiff must ... show that defendant’s misrepresentation is ‘material, in that it is likely to influence the purchasing decision.’ ” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 922 (3d Cir.1990) (quoting Toro Co. v. Textron, Inc., 499 F.Supp. 241, 251 (D.Del.1980) (Stapelton, J.)); see also Sandoz, 902 F.2d at 231 (noting that a Lanham Act plaintiff must prove that “the defendant’s promotions contained a material representation or description”). Generally, the preferred evidence of an advertisement’s influence over purchasing decisions is actual consumer survey evidence. Even if an advertisement contains inadequately substantiated claims: a [Lanham Act] plaintiff must produce consumer surveys or some surrogate therefor to prove whether consumers expect an advertising claim to be substantiated and whether they expect the level of substantiation to be greater than that which the defendant has performed. The effect of the advertisement is the critical determination, and it must be demonstrated by a Lanham Act plaintiff regardless of whether the claim is facially ambiguous. Sandoz, 902 F.2d at 229. The only exception to the burden to prove that an advertisement is misleading through consumer survey evidence is if the advertisement is “literally false.” Sandoz, 902 F.2d at 228. This is so because a court may presume that a “literally false” advertisement will deceive the consuming public and, therefore, excuse the plaintiff from the time consuming and expensive task" }, { "docid": "23107399", "title": "", "text": "must prove “that the deception is material in that it is likely to influence purchasing decisions”) (citations and internal quotation marks omitted), cert. denied, — U.S. —, 115 S.Ct. 1838, 131 L.Ed.2d 757 (1995); ALPO Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 964 (D.C.Cir.1990) (false or misleading ads must be “material in their effects on buying decisions”); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1500 (5th Cir.1990) (deception must be “material, in that it is likely to influence the purchasing decision”); see also 3 McCarthy on Trademarks § 27:35 at 27-54 (there must be “some showing that the defendant’s misrepresentation was ‘material’ in the sense that it would have some effect on consumers’ purchasing decisions.”). The district court found, “[a]fter viewing the complained-of statements in this action in their context,” that “[t]he statements as to the particular origin of game updates constitute nothing more than minutiae about SportsTrax.” 939 F.Supp. at 1110. We agree with the district court that the statements in question are not material in the present factual context. The inaccuracy in the statements would not influence consumers at the present time, whose interest in obtaining updated game scores on pagers is served only by SportsTrax. Whether the data is taken from broadcasts instead of being observed first-hand is, therefore, simply irrelevant. However, we note that if the NBA were in the future to market a rival pager with a direct datafeed from the arenas — perhaps with quicker updates than SportsTrax and official statistics — then Motorola’s statements regarding source might well be materially misleading. On the present facts, however, the complained-of statements are not material and do not misrepresent an inherent quality or characteristic of the product. IV. CONCLUSION We vacate the injunction entered by the district court and order that the NBA’s claim for misappropriation be dismissed. We affirm the district court’s dismissal of the NBA’s claim for false advertising under Section 43(a) of the Lanham Act. . The other three SportsTrax modes involve information that is far less contemporaneous than that provided in the \"current” mode. In the “statistics\" mode, the" }, { "docid": "10474059", "title": "", "text": "and lighting product superiority (which go far beyond the durability of the lacquer). See Johnson & Johnson v. Quality Pure Mfg., Inc., 484 F.Supp. 975, 983 (D.N.J.1979) (absence of credible substantiation for an advertising claim is a violation of the Lanham Act and forms a basis for an injunction). Accordingly, I find Stiffel will likely prevail on its Lanham Act claim against West-wood’s Brochure and Card advertisements. The other half of the probability of success question in this case is whether Stiffel has demonstrated it will likely prevail on its claims against Westwood's Trade and Consumer Advertisements. Because these advertisements, unlike the Brochure and Card, do not so blatantly proclaim the superiority of Westwood lamps in areas other than those concerning the finish of Westwood’s WestPro lamps, I do not find those advertisements to be facially false. Thus, the question must be resolved by reference to representative reactions of the trade and consuming public. See Vidal Sassoon, 661 F.2d at 277; Upjohn Co. v. Riahom Corp., 641 F.Supp. 1209, 1222 (D.Del.1986) (“[w]hen the challenged advertisement is literally true, but creates a deceptive impression about the product, the Court must find that the ad has a tendency to deceive the consumer”). Stiffel has submitted the results of two buyer reaction surveys — one conducted on representatives of the lamp buying trade and the other on representatives of the general consuming public — to demonstrate a significant number of lamp purchasers in the trade and in the general public are and will be deceived by the Westwood Trade and Consumer Advertisements. The studies were conducted by Opinion Research Corporation (“ORC”), alleged to be one of the nation’s oldest and most reputable market research organizations. The two studies were overseen by James Heisler, Vice President of ORC, who alleges he has eighteen years of experience in conducting such studies. The first study will be referred to as the “Trade Survey,” the second as the “Consumer Survey.” In the Trade Survey, ORC employees conducted fifty face-to-face interviews with individuals responsible for buying lamps for resale at retail furniture and lighting stores, twenty-five in Chicago" }, { "docid": "23107398", "title": "", "text": "that the game updates come “from the arena” is not literally false, presumably because the factual information does originate in the arena. To establish a false advertising claim under Section 43(a), the plaintiff must demonstrate that the statement in the challenged advertisement is false. “Falsity may be established by proving that (1) the advertising is literally false as a factual matter, or (2) although the advertisement is literally true, it is likely to deceive or confuse customers.” Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir.1995). However, in addition to proving falsity, the plaintiff must also show that the defendants “misrepresented an ‘inherent quality or characteristic’” of the product. National Assoc. of Pharmaceutical Mfrs. v. Ayerst Lab., 850 F.2d 904, 917 (2d Cir.1988) (quoting Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 278 (2d Cir.1981)). This requirement is essentially one of materiality, a term explicitly used in other circuits. See American Tel. & Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1428 n. 9 (3d Cir.1994) (plaintiff alleging false advertising must prove “that the deception is material in that it is likely to influence purchasing decisions”) (citations and internal quotation marks omitted), cert. denied, — U.S. —, 115 S.Ct. 1838, 131 L.Ed.2d 757 (1995); ALPO Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 964 (D.C.Cir.1990) (false or misleading ads must be “material in their effects on buying decisions”); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1500 (5th Cir.1990) (deception must be “material, in that it is likely to influence the purchasing decision”); see also 3 McCarthy on Trademarks § 27:35 at 27-54 (there must be “some showing that the defendant’s misrepresentation was ‘material’ in the sense that it would have some effect on consumers’ purchasing decisions.”). The district court found, “[a]fter viewing the complained-of statements in this action in their context,” that “[t]he statements as to the particular origin of game updates constitute nothing more than minutiae about SportsTrax.” 939 F.Supp. at 1110. We agree with the district court that the statements in question are not material in the present factual context. The" }, { "docid": "22896511", "title": "", "text": "dosages. On the other hand, we think that McNeil has not proved by a preponderance of the evidence that this claim is, or tends to be, false. 436 F.Supp. at 801. . Appellants apparently solely refer to the claims of superior anti-inflammatory effect as the “truthful and unambiguous product claim.” We have already pointed out, note 10 supra, the fallacy of interpreting the district court’s finding of unsubstantiation as a finding of truthfulness. Additionally, appellants err in their failure to recognize that the advertisement must be viewed in its entirety. As stated by Judge Kaufman in FTC v. Sterling Drug, Inc., 317 F.2d 669, 674 (2d Cir. 1963): It is therefore necessary ... to consider the advertisement in its entirety and not to engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately. “(T]he buying public does not ordinarily carefully study or weigh each word in an advertisement. The ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied.” Aronberg v. Federal Trade Commission, 132 F.2d 165, 167 (7th Cir. 1942). By paraphrasing the language of the advertisements simply to state that Anacin reduces inflammation while Tylenol cannot, they overlook the obvious ambiguous nature of the advertisements. See note 12 & accompanying text infra. . The television commercial initially states that “[y]our body knows the difference between these pain relievers . . . and Adult Strength Anacin,” thereby suggesting that the individual is going to feel the difference in pain reduction from use of Anacin. The reference to superior analgesic properties without mention of inflammation ‘is quite apparent. The commercial then goes on to say that “[fjor pain other than headache Anacin reduces the inflammation that often comes with pain,” while the competition does not. This statement is ambiguous because it does not state that “for conditions other than headache, Anacin reduces inflammation.” It says “for pain other than headache,” implying that by reducing the inflammation that often comes with pain, the pain is itself reduced. Again, after" }, { "docid": "13709198", "title": "", "text": "Lanham Act claim was dismissed because “[t]he inaccuracy in the statements would not influence consumers.” Id. at 855. Although the Second Circuit ultimately adopted a belt-and-suspenders approach, employing both the language of “inherent quality” and “materiality,” the court equated its standard with standards that use only a consumer-impact-focused model of materiality. Id. (describing consumer-impact-focused materiality standards in the Third Circuit, Fifth Circuit, and D.C. Circuit before concluding that “on the present facts ... the complained-of statements are not material and do not misrepresent an inherent quality or characteristic of the product.”) (emphasis added). Therefore, although at least part of McGraw Hill’s campaign focused on the quality of the databases qua databases, the Court must also ask whether these campaigns materially influenced consumers’ purchasing decisions. Reed has not presented sufficient evidence of materiality to survive summary judgment for the same reason it has not presented sufficient evidence to sustain its claim of consumer confusion. At worst, one customer relied on McGraw-Hill’s misrepresentations when making purchasing decisions. Every other customer testified that the Roper Reports and ad hoc comparisons were immaterial. Thus, even if a presumption of materiality applied under Resource Developers, 926 F.2d at 140-and it does not—McGraw—Hill has amply rebutted that presumption. Because, after much discovery, only one consumer has testified that he was influenced by McGraw-Hill’s statements, no reasonable juror could conclude that those statements were material to consumers’ purchasing decisions. D. Conclusion For the foregoing reasons, McGraw-Hill’s motion for summary judgment on Reed’s claims under Section 43(a) of the Lanham Act is granted. V. Antitrust McGraw Hill seeks summary judgment oh Reed’s claims that McGraw Hill’s disparaging advertisement constituted monopolization and attempted monopolization in violation of Section 2 of the Sherman Act. The parties do not contest most of the elements of a Sherman Act claim. (See Plaintiffs Memorandum, at 61.) Instead, McGraw-Hill argues that its conduct could not have had more than a de minimis effect on competition. In the Second Circuit, “a plaintiff asserting a monopolization claim based on misleading advertising must overcome a presumption that the effect on competition of such a practice was de" }, { "docid": "13709172", "title": "", "text": "can consider whether the statements were sufficiently distributed, it must answer a preliminary question: are the statements to be considered together or in isolation? The ad hoc comparisons, for example, were distributed to many different customers, sometimes one at a time. Calling a single customer is not “advertising or promotion” within the meaning of Fendi, so if the comparisons are considered one by one, many will not make the cut. McGraw-Hill argues that the Court should look at the statements one by one, while Reed argues that the Court should consider the statements as part of an overall campaign of publicity. Courts assessing Lanham Act claims are to consider an allegedly false “advertisement ... in its entirety,” Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 385 (2d Cir.1986) (Friendly, J.), and should “not ... engage in disputatious dissection.” Id. In this case, though, the question is whether a series of individual statements to customers constitutes one “advertisement”—that should not be disputatiously dissected—or a series of advertisements for which dissection is appropriate. “Level of generality is destiny in interpretive disputes.... ” Thomas More Law Ctr. v. Obama, 651 F.3d 529, 560 (6th Cir.2011) (Sutton, J., concurring), abrogated by Nat’l Federation of Independent Business v. Sebelius, — U.S. -, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). Here, the Court must decide a sensible level of generality at which to assess the challenged statements. McGraw Hill cites Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1385 (5th Cir.1996) to support its position that the Court ought to consider each statement separately. There, however, the Fifth Circuit held that “presentation materials ... specifically developed to target ... independent bottlers[ ] and convince them, based on comparative statistics, to switch from 7UP to Sprite,” id, were “advertising” for Lanham Act purposes. Coca-Cola had presented the materials to eleven bottlers in separate presentations; the presentation in its entirety may only have been shown to two bottlers. Nonetheless, the “presentation” was advertising. The court appeared to consider the presentation as a whole and evaluated the total number of people to whom it was" }, { "docid": "13555647", "title": "", "text": "317; SmithKline Beecham, 906 F.Supp. at 181. If the advertisement is implicitly false, it is necessary for the plaintiff to demonstrate that the advertisement is confusing or misleading by reference to public reaction before an injunction will issue. See Coca-Cola, 690 F.2d at 317; SmithKline Beecham, 906 F.Supp. at 181. Here there is no question that the designation “AS SEEN ON T.V.” is literally false as applied to the BCST can openers distributed in all areas of the country except for the suburban Chicago area. Wilton admits it had not advertised on television on a national level, at least until October 15,1997. Its only television advertising occurred on cable preview channels in the suburban Chicago area during the month of June 1997. Thus, since there is no evidence of any hand-held can opener other than defendants’ BCST can opener that offers the unique safety claims of plaintiffs SAFETY CAN, plaintiff need not demonstrate the impact of-the packaging of defendants’ product with that logo on the consumer in order to obtain relief in all areas of the country except Chicago. A requirement in a Lanham Act case is that the false or misleading statement constitute a “material misrepresentation,” in other words, one that would have an impact on a consumer’s decision whether to purchase the product. See Project Strategies Corp. v. National Communications Corp., No. CV-94-4925, 1995 WL 669655, at *4 (E.D.N.Y. Oct.27, 1995). In the Second Circuit, a false or misleading statement is a material misrepresentation if it pertains to an “inherent quality or characteristic” of the product. See Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 278 (2d Cir.1981); Project Strategies, 1995 WL 669655, at *4. The logo “AS SEEN ON T.V.” reminds the consumer of advertising she has seen, advertising that highlights the unique virtues of a product, and thus the logo may influence her to purchase the product in question as the one advertised on television. As seen in this light, it is clear that the false use of the “AS SEEN ON T.V.” logo pertains to an “inherent quality or characteristic” of the product —" } ]

[ { "docid": "11839758", "title": "", "text": "to review final decisions of district courts, and the “denial of summary judgment is ordinarily not a final judgment.” Armstrong v. City of Melvindale, 432 F.3d 695, 698 (6th Cir.2006) (citations omitted). A district court’s denial of a claim of qualified immunity on summary judgment, however, is an appealable final decision, so long as the facts are not disputed. Id. (citing Mitchell v. Forsyth, 472 U.S. 611, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Here, as discussed above, defendants concede to the facts viewed in a light most favorable to plaintiff, and claim only that those facts do not demonstrate a violation of clearly established law as required to overcome the affirmative defense of qualified immunity. Accordingly, this Court reviews the district court’s denial of qualified immunity de novo'under the usual summary judgment standard. Id. at 698-99. Qualified immunity shields public officials who perform discretionary functions from tort liability, so long as their conduct does not violate clearly established rights viewed under the applicable constitutional standard, here, the Due Process Clause of the Fourteenth Amendment. Id.; see also Harlow, 457 U.S. at 818, 102 S.Ct. 2727. Qualified immunity is an affirmative defense that, once asserted, shifts the burden of proof to the plaintiff to show that the defendant is not entitled to qualified immunity. Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir.2002). The application of qualified immunity is determined on a “fact-specific, case-by-case basis.” Armstrong, 432 F.3d at 699. In order to determine whether a defendant is entitled to qualified immunity, this Court uses a two-part test: “(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly estab lished.” Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir.2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). A. Violation of a Constitutional Right In order to determine whether a constitutional right has been violated, we must first decide whether there exists a constitutional right under the Fourteenth Amendment to be free" } ]

[ { "docid": "16440142", "title": "", "text": "If not, the officer receives qualified immunity. “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “We do not require a case directly on point, but existing precedent must have placed the ... constitutional question beyond debate.” Id.; see also Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (explaining that the qualified immunity inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition” (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001))). We agree with the district court that it was not clearly established on January 7, 2012, that using deadly force in this situation, even viewed in the light most favorable to Plaintiffs, would constitute excessive force under the Fourth Amendment. Bennallack is therefore immune from liability under section 1983 for his use of deadly force, so we affirm the grant of summary judgment on the Fourth Amendment claim. B. State Law Claims “[T]he doctrine of qualified immunity does not shield defendants from state law claims.” Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013); see also Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir. 2009) (“California law is clear that the doctrine of qualified governmental immunity is a federal doctrine that does not extend to state tort claims against government employees” (citations, alterations, and internal quotation marks omitted)). Because we conclude that the district court erred in holding that the use of deadly force was objectively reasonable as a matter of law, we reverse the district court’s grant of summary judgment on the state law claims and remand them for further proceedings. AFFIRMED IN PART, REVERSED" }, { "docid": "22502969", "title": "", "text": "motion to dismiss, we \"accept[ ] the facts alleged in the complaint as true, drawing all reasonable inferences in the plaintiff's favor.\" Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010). To avoid dismissal, the \"complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.\" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A complaint is plausible on its face when it contains sufficient facts to support a reasonable inference that the defendant is liable for the misconduct alleged. Id. II. Qualified Immunity A. Standard Defendants argue that they are entitled to qualified immunity on Plaintiff's federal constitutional claims asserted under § 1983. \"Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.\" Dalrymple v. Reno , 334 F.3d 991, 994 (11th Cir. 2003) (internal quotation marks omitted). \"When properly applied, [qualified immunity] protects 'all but the plainly incompetent or those who knowingly violate the law.' \" Ashcroft v. al-Kidd , 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). To be clearly established, a right must be well-established enough \"that every reasonable official would have understood that what he is doing violates that right.\" Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (internal quotation marks omitted and alteration adopted). In other words, \"existing precedent must have placed the statutory or constitutional question beyond debate\" and thus given the official fair warning that his conduct violated the law. Id . (emphasis added); Coffin v. Brandau , 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (\"The critical inquiry is whether the law provided [Defendant officers] with 'fair warning' that their conduct violated the Fourth Amendment.\"). Fair warning is most commonly provided by materially similar precedent from the Supreme Court, this Court, or the highest state court in which the case arose. See Terrell v. Smith" }, { "docid": "20450613", "title": "", "text": "constitutional right; and (2) whether that constitutional right was clearly established at the time of the alleged violation.” Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir.2009) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Beyond asserting that the ADEA precludes a § 1983 claim, the Individual Defendants do not challenge the first prong on appeal. Thus, for our purposes, we need only briefly discuss the second prong of the qualified immunity analysis. “A right is clearly established when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 473-74 (7th Cir.2011) (internal quotation marks and brackets omitted) (quoting Ashcroft v. al-Kidd, — U.S. —, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011)). Judge Coar’s opinion granted qualified immunity as to Levin’s § 1983 equal protection claim, finding that “whether the Seventh Circuit permits equal protection claims for age discrimination in light of the ADEA is unclear.” Levin I, 697 F.Supp.2d at 972. Accordingly, Judge Coar believed that the constitutional right was not clearly established and qualified immunity was appropriate. Id. On reconsideration, Judge Chang reversed Judge Coar’s ruling, noting that “irrational age discrimination is clearly forbidden by the Equal Protection Clause” and the issue of qualified immunity is “not a question concerning whether a particular procedural vehicle (i.e., cause of action) is available.” Levin II, 2011 WL 2708341, at *12. We agree with Judge Chang. At the time of the alleged wrongdoing, it was clearly established that age discrimination in employment violates the Equal Protection Clause. See Kimel, 528 U.S. at 83, 120 S.Ct. 631. Although age is not a suspect classification, states may not discriminate on that basis if such discrimination is not “rationally related to a legitimate state interest.” Id. Whether or not the ADEA is the exclusive remedy for plaintiffs suffering age discrimination in employment is irrelevant, and as Judge Chang noted, it is “odd to apply qualified" }, { "docid": "13158032", "title": "", "text": "summary judgment on the basis of qualified immunity, but the district court denied relief, and the defendants now appeal. II We begin our analysis with Officers Bader, Thompson, and Carter, each of whom insists he is entitled to qualified immunity for his role in the search of Mr. Kerns’s house on the night of the crash. Law enforcement officers are, of course, entitled to a presumption that they are immune from lawsuits seeking damages for conduct they undertook in the course of performing their jobs. “If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit.” Lewis, 604 F.3d at 1230. A plaintiff can overcome this presumption of immunity only by carrying the heavy burden of showing both that (1) the defendant-officer in question violated one of his constitutional rights, and (2) the infringed right at issue was clearly established at the time of the allegedly unlawful activity such that “every reasonable official would have understood that what he [was] doing” violated the law. Ashcroft v. al-Kidd, — U.S.-, 131 S.Ct. 2074, 2080, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). Failure on either qualified immunity element is fatal to the plaintiffs cause. In fact, the Supreme Court has recently instructed that courts should proceed directly to, “should address only,” and should deny relief exclusively based on the second element, Camreta v. Greene, — U.S. -, 131 S.Ct. 2020, 2032, 179 L.Ed.2d 1118 (2011), in seven particular circumstances outlined in Pearson v. Callahan, 555 U.S. 223, 236-42, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) — namely when (1) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (2) “it appears that the question will soon be decided by a higher court”; (3) deciding the constitutional question requires “an uncertain interpretation of state law”; (4) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the ... claim ... may be hard to identify”; (5) tackling the first element “may create a risk of bad" }, { "docid": "307841", "title": "", "text": "summary judgment burden of proof.” Id. We draw all inferences in favor of the plaintiff (i.e., the nonmovant), but once a state official (i.e., the movant) asserts the defense, the burden shifts to the plaintiff to show that the defense is not available. Kovacic, 628 F.3d at 211. The plaintiff therefore bears the burden of showing a genuine and material dispute as to whether the official is entitled to qualified immunity. Brown, 623 F.3d at 253. “But, as explained above, in an interlocutory appeal we lack the power to review the district court’s decision that a genuine factual dispute exists. Therefore, we do not apply the standard of Rule 56 but instead consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment.” Kinney, 367 F.3d at 348. “Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs’ version of the facts as true.” Id. The doctrine of qualified immunity “insulatefs]” state officials from liability to the extent that the officials’ actions do not violate “clearly established statutory or constitutional rights.” Kovacic, 628 F.3d at 213 (internal quotation marks omitted). The basic steps of our qualified-immunity inquiry are well-known: a plaintiff seeking to defeat qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir.2011) (en banc) (quoting Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011)). We have discretion “in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 242, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); see also Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014) (“[W]e begin in this case with the question whether the officers’ conduct violated the Fourth Amendment. This approach, we believe," }, { "docid": "5557582", "title": "", "text": "the wrong rule prejudiced them in any way. The district court didn’t rule on this motion until months after plaintiffs had filed their timely notice of appeal, which deprived the district court of jurisdiction. Consistent with the text of Rule 17 and our case law interpreting it, we conclude that the district court abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party and thus cure the defective complaint. B. Qualified Immunity Defendants argue that we should nonetheless affirm the district court’s judgment on qualified immunity grounds. Although the district court didn’t reach the issue on the relevant Fourth Amendment claims, both parties briefed it below, so the issue is ripe for our consideration. Because the issue will no doubt arise on remand, we exercise our discretion to review it. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citation omitted). To overcome a claim of immunity, plaintiffs must plead “facts showing (1) that the official violated a statutory or constitutional’ right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). “A Government official’s conduct violates clearly established\"law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would; have understood that what he is doing violates that right.’ Id., at 741, 131 S.Ct. 2074 (alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The Supreme Court doesn’t “require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. 1. Reasonable Conduct In evaluating Fourth Amendment claims, we ask whether the officers’ conduct was reasonable under the circumstances. See Scott v. Harris, 550 U.S. 372, 383," }, { "docid": "15601210", "title": "", "text": "such, the Court does not find a connection between Plaintiffs criminal matters and the instant lawsuit to apply the fugitive disentitlement doctrine. b. Qualified Immunity Having established the availability of Bivens, the Court considers Defendants’ argument that Chang and Garcia are entitled to qualified immunity. Opp’n to Mot. to Am. at 7; Agents MTD at 26-28. “[T]he qualified immunity analysis is identical under either [section 1983 or Bivens] eause[s] of action.” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Thus, “[e]ven in circumstances in which a Bivens remedy is generally available, an action under Bivens will be defeated if the defendant is immune from suit.” Hui v. Castaneda, 559 U.S. 799, 807, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010); see F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th Cir.1989) (“Federal officials may raise a defense of qualified immunity to a Bivens action.”). “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, —— U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)). It “is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.” Iqbal, 556 U.S. at 672, 129 S.Ct. 1937 (internal quotation omitted). Qualified immunity purports “to strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’ ” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.2011) (en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). An official is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S.Ct. at 2080 (quoting" }, { "docid": "12315545", "title": "", "text": "in this case, Gibson v. Kilpatrick, 734 F.3d 395 (5th Cir.2013), the Supreme Court decided Lane, vacated our judgment, and remanded for further consideration in light of that opinion, Gibson v. Kilpatrick, — U.S. -, 134 S.Ct. 2874, 2874, 189 L.Ed.2d 829 (2014) (mem.). II. Qualified Immunity A. Standard of Review Typically, a party may not immediately appeal a district court’s decision to deny summary judgment, but the denial of a motion for summary judgment based on qualified immunity is a collateral order capable of immediate review. Brown v. Strain, 663 F.3d 245, 248 (5th Cir.2011). This court has jurisdiction over such an order only “to the extent that the district court’s order turns on an issue of law.” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir.2010). We may not review a district court’s decision to deny qualified immunity based on evidentiary sufficiency on an interlocutory appeal, because such a determination is not considered a “final decision.” Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir.2006). This court “consider[s] only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment.” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.2004) (en banc). “Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs’ version of the facts as true.” Id. “In reviewing the district court’s conclusions concerning the legal consequences — the materiality — of the facts, our review is of course de novo.” Id. at 349. B. Discussion To rebut a defendant’s qualified immunity defense, the plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citation omitted). A court may consider either prong of the qualified immunity analysis first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)." }, { "docid": "13173314", "title": "", "text": "for summary judgment on the basis of qualified immunity on the Fourth and Fifth Amendment claims. Chadbourne and Riccio moved to dismiss Morales’s Fourth Amendment supervisory liability claim against them, also on the basis of qualified immunity. On February 12, 2014, the district court denied defendants’ motions, and defendants timely filed interlocutory appeals. II. A. Claims Against Donaghy 1. Fourth Amendment Claim We begin by addressing Dona-ghy’s contention that he is entitled to qualified immunity on Morales’s Fourth Amendment claim. We review de novo a district court’s denial of a federal officer’s qualified immunity defense. See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 97 (1st Cir.2013). To determine whether a defendant is entitled to qualified immunity, we generally proceed through a two-part analysis, considering whether “(1) the facts alleged show the defendant[’]s conduct violated a constitutional right, and (2) the contours of this right are ‘clearly established’ under then-existing law so that a reasonable officer would have known that his conduct was unlawful.” Santana v. Calderón, 342 F.3d 18, 23 (1st Cir.2003). Donaghy makes two arguments with regard to Morales’s Fourth Amendment claim. His first argument implicates only the second prong of the qualified immunity analysis. He contends that the law was not clearly established in 2009 that an ICE agent needed probable cause when issuing a detainer. His second argument implicates both prongs of the qualified immunity analysis. He argues that, if probable cause was required, the undisputed facts of this case demonstrate that he had probable cause, and, moreover, the law was not clearly established in 2009 that these facts fell short of probable cause. We address each argument in turn. a. Whether Probable Cause Was Required A government official’s conduct violates clearly established law when, “at the time of the challenged conduct, [t]he contours of [a] right [are] sufficiently clear that every reasonable official would ... understand] that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). There does not need to be a ease exactly on point, “but existing precedent must" }, { "docid": "23392417", "title": "", "text": "315 F.3d 158, 164 (2d Cir.2003). 3. Qualified Immunity A federal official is entitled to qualified immunity from suit for money damages unless the plaintiff shows that the official violated a statutory or constitutional right, and that the right was “clearly established” at the time of the challenged conduct. Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Id. at 2083 (citation and internal quotation marks omitted). Courts “do not require a ease directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. If an official’s conduct did not violate a clearly established constitutional right, or if the official reasonably believed that his conduct did not violate such a right, then he is protected by qualified immunity. Sudler v. City of N.Y., 689 F.3d 159, 174 (2d Cir.2012). Although courts should resolve the question of qualified immunity at the “earliest possible stage in litigation,” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citation and internal quotation marks omitted), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), “a defendant presenting an immunity defense on a Rule 12(b)(6) motion instead of a motion for summary judgment must accept the more stringent standard applicable to this procedural route,” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). B. Application We conclude that the district court erred by dismissing Walker’s complaint for failure to state a claim. First, he plausibly alleged conditions that, perhaps alone and certainly in combination, deprived him of a minimal civilized measure of life’s necessities. Second, he plausibly alleged that defendants were deliberately indifferent to this deprivation. Third, he plausibly alleged violations of clearly established rights. We address" }, { "docid": "9729549", "title": "", "text": "if the claims were timely filed, I believe his claims against the individual officers fail on qualified immunity grounds. To satisfy the “clearly established” prong of the qualified immunity analysis, “a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (alterations and internal quotation marks omitted). That is, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). “This clearly established standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring that officials can reasonably anticipate when their conduct may give rise to liability for damages.” Reichle, 132 S.Ct. at 2093 (emphasis added) (alteration and internal quotation marks omitted). In applying the “clearly established” standard, we “ordinarily need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest court of the state in which the case arose. If a right is recognized in some other circuit, but not in this one, an official will ordinarily retain the immunity defense.” Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir.1999) (internal quotation marks, alterations, and citation omitted). In deciding “whether the right at issue was clearly established at the time of the officer’s conduct,” Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir.2013) (emphasis added) (internal quotation marks omitted), we are interested in relevant decisions that were decided before the conduct currently at issue occurred, not decisions announced afterward—even if those post-dated decisions involved underlying violations that occurred prior to the alleged violations in this case, see Fields v. Prater, 566 F.3d 381, 390 (4th Cir.2009) (qualified immunity protects defendants from being “retroactively subject to significant penalties at law for which they did not have proper notice”). Owens was convicted by a jury in March 1988 and sentenced in April 1988. Accordingly, for qualified immunity to be overcome, it must have been" }, { "docid": "15601211", "title": "", "text": "of the challenged conduct.” Reichle v. Howards, —— U.S. -, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)). It “is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.” Iqbal, 556 U.S. at 672, 129 S.Ct. 1937 (internal quotation omitted). Qualified immunity purports “to strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.’ ” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.2011) (en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). An official is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S.Ct. at 2080 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[C]ourts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.” Id. To determine “whether the constitutional right was clearly established at the time of the conduct — the critical question is whether the contours of the right were ‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Mattos, 661 F.3d at 442 (quoting al-Kidd, 131 S.Ct. at 2083; some internal marks omitted). “The plaintiff bears the burden to show that the contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir.2011). While there need not be “a case directly on point, ... existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 131 S.Ct. at 2080. Courts do not “define clearly established law at a high level of generality.” Id. at 2084. Instead, “[t]he inquiry ... must be undertaken in the light of the specific" }, { "docid": "10762156", "title": "", "text": "defendants, on the causes of action alleging excessive force, warrantless entry, malicious prosecution, state-law torts, and municipal liability. II. A. We review de novo a district court’s summary judgment order. Murray-Ruhl v. Passinault, 246 Fed.Appx. 338, 342 (6th Cir.2007); Black v. Roadway Express, Inc., 297 F.3d 445, 448 (6th Cir.2002). Under Federal Rule of Civil Procedure 56, a district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). “A genuine issue of material fact exists when, assuming the truth of the non-moving party’s evidence and construing all inferences from that evidence in the light most favorable to the non-moving party, there is sufficient evidence for a trier of fact to find for that party.” Murray-Ruhl, 246 Fed.Appx. at 342. “Qualified immunity is an affirmative defense that generally shields government officials from suit under § 1983 for their discretionary actions.” Cummings v. City of Akron, 418 F.3d 676, 685 (6th Cir.2005). To overcome that defense, a plaintiff must show that, when the facts are viewed in the light most favorable to him, (1) the defendant deprived him of a constitutionally protected right, and (2) the right was “clearly established” at the time of the violation. Morrison v. Bd. of Trustees of Green Twp., 583 F.3d 394, 400 (6th Cir.2009). “Courts may [] address these prongs in either order; indeed one may be dispositive.” Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 496 (6th Cir.2012). “If either one is not satisfied, qualified immunity will shield the officer from civil damages.” Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir.2013). With regard to the second prong, “[a] Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks and" }, { "docid": "997309", "title": "", "text": "defense provides ‘ample room for mistaken judgments’ and protects all but the ‘plainly incompetent and those who knowingly violate the law.’” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). To overcome a defendant’s invocation of qualified immunity, a plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted). “If either inquiry is answered in the negative, the defendant official is entitled to summary. judgment.” Gibbs, 755 F.3d at 537. Courts are free “to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. Because the answer to this inquiry is dispositive, we address only whether the right at issue was clearly established. The plaintiff bears the burden of demonstrating that a right was clearly established at the time the alleged violation occurred. Kiddy-Brown v. Blagojevich, 408 F.3d 346, 359 (7th Cir. 2005). For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Mullenix, 136 S.Ct. at 308 (citation omitted). The right must be “sufficiently clear that every reasonable official would understand that what he is doing violates that right.” Id. (citation and quotation marks omitted). The Supreme Court has instructed that “clearly established law should not be defined at a high level of generality.” White v. Pauly, — U.S. —, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per cu-riam) (citation and .quotation marks omitted). While a case directly on point is not required, “the clearly established law must be ‘particularized’ to the facts of the case,” Id. at 551 (citation omitted). The Court has found that “[s]uch specificity is especially important in the Fourth Amendment context, where ... ‘it is" }, { "docid": "20450612", "title": "", "text": "622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980)). Without the availability of a § 1983 claim, a state employee (like Levin) who suffers age discrimination in the course of his employment is left without a federal damages remedy. See Mustafa, 196 F.Supp.2d at 955 (“[T]he practical effect [of ADEA preclusion] is elimination of all age discrimination claims made against state actors in federal court.”). In light of our analysis of the ADEA and the relevant case law, and given these divergent rights and protections, we conclude that the ADEA is not the exclusive remedy for age discrimination in employment claims. D. Qualified Immunity Because the ADEA does not preclude Levin’s § 1983 equal protection claim, we now turn to the issue of qualified immunity. We review a district court’s denial of summary judgment based on qualified immunity de novo. Surita, 665 F.3d at 868. To determine whether state actors are entitled to qualified immunity, we consider “(1) whether the facts, taken in the light most favorable to the plaintiffs, show that the defendants violated a constitutional right; and (2) whether that constitutional right was clearly established at the time of the alleged violation.” Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir.2009) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Beyond asserting that the ADEA precludes a § 1983 claim, the Individual Defendants do not challenge the first prong on appeal. Thus, for our purposes, we need only briefly discuss the second prong of the qualified immunity analysis. “A right is clearly established when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 473-74 (7th Cir.2011) (internal quotation marks and brackets omitted) (quoting Ashcroft v. al-Kidd, — U.S. —, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011)). Judge Coar’s opinion granted qualified immunity as to Levin’s § 1983 equal protection claim, finding that “whether the Seventh Circuit permits equal protection claims" }, { "docid": "307842", "title": "", "text": "liability to the extent that the officials’ actions do not violate “clearly established statutory or constitutional rights.” Kovacic, 628 F.3d at 213 (internal quotation marks omitted). The basic steps of our qualified-immunity inquiry are well-known: a plaintiff seeking to defeat qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir.2011) (en banc) (quoting Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011)). We have discretion “in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 242, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); see also Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014) (“[W]e begin in this case with the question whether the officers’ conduct violated the Fourth Amendment. This approach, we believe, will be beneficial in developing constitutional precedent in an area that courts typically consider in cases in which the defendant asserts a qualified immunity defense.” (alterations and internal quotation marks omitted)). In conducting the qualified immunity analysis, we “may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan, 134 S.Ct. at 1866. Within this framework, we address Wade’s entitlement to qualified immunity vel non in Part III. We address the claim against Walling in Part TV. III. The district court denied qualified immunity to Wade on the Trents’ two Fourth Amendment claims. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” As the text makes clear, “reasonableness” is “the ultimate touchstone of the Fourth Amendment.” Fernandez v. California, — U.S. -, 134 S.Ct. 1126, 1132, 188 L.Ed.2d 25 (2014) (internal quotation marks omitted); see also New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (“[T]he underlying command of" }, { "docid": "14173200", "title": "", "text": "§ 623(a), who is represented in this case by Keen in his official capacity. Therefore, any ADEA claims against defendants in their individual capacities are dismissed. iii. § 1983 claims The supplemental complaint also contains causes of action under 42 U.S.C. § 1983, alleging violations of plaintiffs constitutional rights to Equal Protection and Due Process. As already discussed, any official-capacity claim against the defendants other than Keen is dismissed on the basis of Eleventh Amendment immunity- Defendants are also immune from most of the individual-capacity claims under the doctrine of qualified immunity. “Qualified immunity provides government officials immunity from suit rather than a mere defense to liability.” Looney v. Black, 702 F.3d 701, 705 (2d Cir.2012) (internal citations and quotation marks omitted). When considering a claim of qualified immunity, courts ask first whether there was a violation of a clearly established constitutional right. Id. at 706. “A right is clearly established if the law (1) was ‘defined with reasonable clarity,’ (2) has been affirmed by ‘the Supreme Court or the Second Circuit!,]’ and (3) where the conduct at issue would have been understood by a reasonable defendant to be unlawful under the existing law.” Id. (quoting Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir.1998)); see also Ashcroft v. al-Kidd, 563 U.S. -, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (“We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”); accord Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (“[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”). Here, the § 1983 causes of action appear to refer to four distinct constitutional rights, the first of which is clearly established. First is a right to be free from disparate treatment in employment on the basis of age, which is clearly established in this Circuit. Plaintiff also appears to assert a right under the Equal Protection Clause to be free from retaliation for engaging in age discrimination litigation. Neither the Supreme Court" }, { "docid": "13301786", "title": "", "text": "motion with new arguments and evidence if he chose to do so. Moreover, filing a motion to strike out of apparent spite over discovery disputes is not an appropriate reason to limit Plaintiffs response to the renewed sum mary judgment motion. Accordingly, the undersigned concludes that Defendant’s Motion to Strike New Allegations and Evidence in Plaintiffs Response to the Renewed Motion for Summary Judgment [Dkt. No. 129] should be denied. III. Qualified Immunity “Qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Winston, 390 Fed.Appx. at 383 (quoting Pearson, 555 U.S. at 231, 129 S.Ct. 808); see also Harlow, 457 U.S. at 818, 102 S.Ct. 2727. A plaintiff must satisfy a two-prong test in order to overcome a qualified immunity defense. First, the plaintiff must show “that the official violated a statutory or constitutional right.” Ashcroft, v. al-Kidd, - U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). Put another way, the question is “whether the plaintiff has alleged a violation of a constitutional right.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir.2008). Second, he must show that “the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S.Ct. at 2080 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). Even if the government official’s conduct violates a clearly established right, the official is entitled to immunity if his conduct was objectively reasonable. See Davis v. McKinney, 518 F.3d 304, 317 (5th Cir.2008). Taken together, the second step in the analysis requires the Court to determine “whether the defendant’s conduct was objectively reasonable in light of the clearly established law at the time of the incident.” Charles, 522 F.3d at 511. In both their original and renewed summary judgment motions, the Individual Defendants assert that they are entitled to qualified immunity from Plaintiffs Section 1983 retaliation claims against them because their actions were objectively reasonable. See Dkt. No. 61 at 57; Dkt. No. 62 at 55; Dkt. No. 108 at 3-5." }, { "docid": "10762157", "title": "", "text": "Cir.2005). To overcome that defense, a plaintiff must show that, when the facts are viewed in the light most favorable to him, (1) the defendant deprived him of a constitutionally protected right, and (2) the right was “clearly established” at the time of the violation. Morrison v. Bd. of Trustees of Green Twp., 583 F.3d 394, 400 (6th Cir.2009). “Courts may [] address these prongs in either order; indeed one may be dispositive.” Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 496 (6th Cir.2012). “If either one is not satisfied, qualified immunity will shield the officer from civil damages.” Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir.2013). With regard to the second prong, “[a] Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks and brackets omitted). Whether a right has been clearly established should not be determined at “a high level of generality.” Id. at 2084. Courts “do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at 2083. Thus, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). “The essence of qualified immunity [] is to give government officials cover when they resolve close calls in reasonable (even if ultimately incorrect) ways.” Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 511 (6th Cir.2012). “[S]ince the legal question of immunity is completely dependent upon which view of the facts is accepted by the jury,” Brandenburg v. Cureton, 882 F.2d 211, 216 (6th Cir.1989), “summary judgment is inappropriate where there are contentious factual disputes,” Sova v. City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir.1998). B. The Fourth Amendment to the United States Constitution" }, { "docid": "20714036", "title": "", "text": "official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (emphasis added). Qualified immunity is not available as a defense in § 1983 cases “against a municipality” or “against individuals where injunctive relief is sought instead of or in addition to damages.” Pearson v. Callahan, 555 U.S. 223, 242, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Defendants do not dispute the law on this point. We therefore reverse the district court’s dismissal of Count Eleven, which seeks only injunctive relief, and reverse the dismissal of Count One with respect to the claims for injunctive relief and the damages claim against Clark County. Qualified immunity simply does not apply to these claims. Qualified immunity is, however, a possible defense to the claims for damages against the individual defendants in Count One. Even if a complaint sufficiently alleges that a government official violated a federal constitutional or statutory right, that official is entitled to qualified immunity from money damages if the right was not “clearly established” at the time of the challenged conduct. See al-Kidd, 131 S.Ct. at 2080. “A Government official’s conduct violates clearly established law when, at the time of the challenged con- duct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Id. at 2083 (internal quotation marks and alterations omitted). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal citations omitted). In this case, the district court’s qualified immunity analysis was too narrow. The district court looked at Plaintiffs’ detailed factual allegations and essentially determined that Defendants were entitled to qualified immunity because the “very action[s] in question” had not" } ]

[ { "docid": "19182017", "title": "", "text": "a voluntary Chapter 7 petition in May 1995. In September 1995, the Commission obtained a judgment against the individual defendants, including Debtor, ordering them to disgorge various amounts of money (“Disgorgement Judgment”) and deposit the funds with the Receiver. Debtor was ordered to disgorge more than $6.6 million dollars. The Commission also filed a proof of claim and a complaint objecting to Debtor’s discharge under 11 U.S.C. § 528(a)(2)(A). The Receiver filed two complaints against the Debtor, one under § 523(a)(4) and (6) seeking to except from discharge $7.25 million dollars that Debtor allegedly misappropriated from CFS and the other under § 727(a)(2)(A) and (4)(A). On December 12, 1996, the bankruptcy court entered an order denying the Commission standing for purposes of § 523(a)(2)(A) on the grounds that it was not a “creditor” because the District Court expressly ordered the Debtor to “pay the judgment” to the Receiver. The court found that it was the Receiver who had a “right to payment” and not the Commission. SEC v. Cross (In re Cross), 203 B.R. 456, 458 (Bankr.C.D.Cal.1996). II. STANDARD OF REVIEW This appeal involves statutory interpretation which is reviewed de novo. In re Mayton, 208 B.R. 61, 63 (9th Cir. BAP 1997). III. DISCUSSION To challenge the dischargeability of a debt under § 523(a)(2)(A), “the creditor to whom such debt is owed” must request the bankruptcy court to except the debt from discharge. 11 U.S.C. § 523(e)(1). A “creditor” is an entity that has a claim against the debtor or his estate. 11 U.S.C. § 101(10)(A). An “entity” is defined as a “person, estate, trust [and] governmental unit....” 11 U.S.C. § 101(15) (emphasis added). “Claim” is broadly defined as meaning either a “right to payment ... or a right to an equitable remedy for breach of performance if such breach gives rise to a right to payment.” 11 U.S.C. § 101(5). “Right to payment” means “nothing more nor less than an enforceable obligation.” Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 2154, 115 L.Ed.2d 66 (1991) (quoting Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S." } ]

[ { "docid": "11318242", "title": "", "text": "refer to sections of the Bankruptcy Code (Title 11). . The receiver was, in relevant part, immediately authorized, empowered, and directed ... to employ attorneys and others to investigate and, where appropriate, to defend, institute, pursue, and prosecute all claims and causes of action of whatever kind and nature which may now or hereafter exist as a result of the activities of present or past employees or agents of Whitworth, Williston, Amerivest and their subsidiaries and affiliates, including but not limited to Insured Energy Drilling Program 1986-4, a limited partnership, et al., v. Trust Company of the West, a California trust company, et al., Case No. BC 108-297, pending in Los Angeles County Superior Court. Sherman I, 491 F.3d at 953 n. 2 (internal quotation marks omitted). . Section 523(a)(4) creates an exception to discharge for debts \"for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” Section 523(a)(6) excepts debts \"for willful and malicious injury by the debtor to another entity or to the property of another entity.” . Specifically, we held that because the disgorgement judgment gave the SEC an enforceable right against Sherman that had not been extinguished by a settlement agreement, the SEC was considered a creditor with respect to the disgorgement order and therefore had Article III standing to seek dismissal of the Shermans’ bankruptcy petition. Sherman I, 491 F.3d at 965. We also held that the bankruptcy court’s entry granting discharge under § 727 did not moot the appeal because it did not terminate the bankruptcy petition. Id. . We also noted that the SEC was time-barred from seeking non-dischargeability under § 523(a)(2), (4), (6), and (15). Sherman I, 491 F.3d at 975 n. 39. . We review de novo a district court’s decision on appeal from a bankruptcy court. Greene v. Savage (In re Greene), 583 F.3d 614, 618 (9th Cir.2009). We review the bankruptcy court’s conclusions of law de novo, but defer to its factual findings unless they are clearly erroneous. Id. . In Ross, we carefully distinguished between someone, such as an “employee or vendor,” who “receive[s] compensation" }, { "docid": "19951132", "title": "", "text": "Board as agent for the injured employees,” 344 U.S. at 27, 73 S.Ct. 80 (emphasis added), but the disgorgement order in the present case is not to be paid directly to the SEC as agent for the injured investors. As explained below, however, we conclude that these possible distinctions lack force, and that the SEC has creditor status under the Bankruptcy Code. First, that the SEC is not the sole enforcer of all sections of the statute at issue in the Whitworth action does not deprive the SEC of creditor status. The two circuits that have addressed whether an entity can be a creditor if it is not the sole enforcer of a statute have come to conclusions in some tension with each other. Compare Davis, 194 F.3d at 575 (“[Agencies need not be the only party entitled to enforce the Acts as their standing as creditors in the nondischargeability actions obtains regardless of whether the actual beneficiaries were authorized under federal law to prosecute the action in their own right.”), with, Missouri ex rel. Ashcroft v. Cannon (In re Cannon), 741 F.2d 1139, 1142 (8th Cir.1984) (holding that the state of Missouri was not a creditor under the statute at issue and distinguishing Na-thanson by noting, among other differences, that “under the Missouri statutory scheme, the Attorney General is not the only party entitled to enforce” the statute because it “provides for a private right of action”). In accordance with the Fifth Circuit’s opinion in Davis, we hold that the fact that the SEC is not the sole enforcer of the securities laws does not deprive it of creditor status. To hold otherwise “would be contrary to legislative intent.” Maio, 176 B.R. at 172. Congress created an express cause of action for violations of section 17(a) of the 1933 Act, section 10(b) of the 1934 Act, and Rule 10b-5 promulgated thereunder, but it did so only for the SEC, not for private parties. See 15 U.S.C. § 77t(b) (expressly creating a cause of action for the SEC under the 1933 Act); id. § 78u(d)(l) (expressly creating a cause of" }, { "docid": "19951176", "title": "", "text": "bankruptcy, ... including] his duly authorized agent, attorney, or proxy.” 11U.S.C. § 1(11) (1946) (repealed 1978), quoted in Nathanson, 344 U.S. at 27 n. 1, 73 S.Ct. 80. . Several bankruptcy courts have held that the fact that the SEC is not the sole enforcer of the securities laws does not deprive the SEC of creditor status under Nathanson. See Hodge, 216 B.R. at 936; Kane, 212 B.R. at 700; Maio, 176 B.R. at 171-72. . Davis distinguished Cannon as a case in which: the Attorney General of Missouri lacked standing to object to the discharge of debts owed by the debtor to eight individuals under the Missouri Merchandising Practicing Act because the Act did not grant him authority to sue on behalf of private individuals in a private action to seek the restitution payments; rather, the Attorney General could only seek an injunction on behalf of the state itself prohibiting the underlying unlawful practice. Davis, 194 F.3d at 576. That distinction holds here as well, as the SEC, like the Ad-ministratrix in Davis, is not limited to injunc-tive relief. . The National Labor Relations Board Compliance Manual in effect today requires that, absent exceptional circumstances, respondents pay injured employees by issuing them a check and sending the check to the Board for delivery, or by directly paying the discri-minatees. See Nat’l Labor Relations Board, Casehandling Manual (Part Three), Compliance Proceedings §§ 10635.1-.4 (1993), available at http://www.nlrb.gov/nlrb/legal/manuals/chm 3-11.pdf (describing the usual payment procedures); id. §§ 10640.1-.2 (describing the circumstances in which payment is made to the Board). . Cannon did accord significance to its understanding that in Nathanson, the money was to be passed through the agency. See Cannon, 741 F.2d at 1142 (holding that the state of Missouri was not a creditor under the statute at issue and distinguishing Nathanson by stating that in contrast to Nathanson, \"[i]n this case the state court specifically ordered restitution be made to the individuals''). However, as noted, Cannon involved a different statutory scheme than the one at issue here, and also, in our view, did not properly understand Nathanson. . While the" }, { "docid": "11429769", "title": "", "text": "agency chosen by Congress to enforce the Securities Act, has standing as creditor to bring actions under § 523(c) of the Bankruptcy Code to have judgments for securities violations declared nondischargeable. Securities and Exchange Comm’n v. Kane, 212 B.R. 697, 700 (Bankr.D.Mass.1997); Securities and Exchange Comm’n v. Maio, 176 B.R. 170, 171 (Bankr.S.D.Ind.1994). Under Texas law, Ms. Fezler, the Ad-ministratrix, is the judicially appointed officer chosen and authorized by law to enforce a claim and right to payment under the Texas Wrongful Death statute. See Tex. Civ. Prac. & Rem. § 71.004(c). Therefore, as Administratrix, Ms. Fezler has standing in a § 523(c) adversarial proceeding to have the wrongful death claim declared nondischargeable. That the Ad-ministratrix has authority to bring suit in her own name and capacity for the ultimate benefit of others, in the absence of their own actions, and that the Administra-trix is not the final recipient of all the monies owed does not affect her standing. See Nathanson, 344 U.S. at 27, 73 S.Ct. 80; Kane, 212 B.R. at 700; Maio, 176 B.R. at 171-72. Moreover, denial of the Adminis-tratrix of the right to bring nondischarge-ability complaints would unduly hinder the State of Texas in its ability to implement and enforce its wrongful death law. Cf. Nathanson, 344 U.S. at 27, 73 S.Ct. 80; Maio, 176 B.R. at 172. The district court’s narrow interpretation of § 523(c)(1) fails to take into account the analogous jurisprudence recognizing that federal administrative agencies by virtue of their authority to enforce the administrative law are creditors in their own right with standing to object to discharge in the enforcement of federal statutory provisions, even though the agencies may not be the ultimate recipients of the debt payments. See, e.g., Kane, 212 B.R. at 700 (SEC is creditor with standing under § 523(c) to object to discharge of disgorgement debts); In re Egea, 236 B.R. 734, 744-45 (Bankr.D.Kan.1999)(Secretary of Labor is creditor with standing to object to the discharge of claim against employer-debtor for breach of fiduciary duties under ERISA); Securities and Exchange Comm’n v. Bilzerian, 1995 WL 934184, at *2 (M.D.Fla.1995)" }, { "docid": "19951143", "title": "", "text": "independent theories for collecting the money: (1) the Receiver was entitled to the money under the terms of the contract Sherman and the Oxford companies entered into for Sherman’s representation in the contingency suits; and (2) the Receiver was entitled to the money under the California Rules of Professional Conduct, which state that attorneys shall “[p]romptly pay or deliver, as requested by the client, any funds ... in the possession of the [attorney] which the client is entitled to receive.” Cal. Rules Of Prof’l Conduct R. 4-100(B)(4), available at http://www.calbar.ca.gov/calbar/pdfs/ethics/ 2006 — Rules-Prof-Conduct.pdf. In contrast, the SEC’s claim to this money stemmed from its role as the public enforcer of the federal securities laws and was obtained under a Colello theory. Under Colello, so long as Sherman retained some of the funds fraudulently obtained by his clients as a deposit on possible future fees, the SEC retained an interest in requiring that he disgorge those funds. Such a disgorgement would further the SEC’s goals of deterring securities laws violations and compensating de frauded investors. See Colello, 189 F.3d at 677. That the Receiver recovered some of the money at issue in the disgorgement judgment to settle his contract and ethics claims does not mean that the SEC’s securities law claim was extinguished. For all of these reasons, the Agreement did not entirely extinguish the SEC’s right to enforce the disgorgement judgment. The SEC is therefore a creditor under the Bankruptcy Code with respect to the disgorgement judgment. As a creditor, the SEC has Article III standing to pursue the dismissal of the Shermans’ bankruptcy petition because, given that status, it satisfies all three prongs of the Article III standing test. First, the SEC suffered the requisite “injury in fact” because the pendency of the bankruptcy action did affect the SEC’s ability to enforce its judgments: If the bankruptcy petition was not dismissed, Sherman’s debt resulting from the SEC’s disgorgement judgment, like all of his other debts, might be discharged. Second, the SEC’s injury is “fairly traceable” to the Shermans’ bankruptcy petition, City of Sausalito, 386 F.3d at 1197 (internal quotation" }, { "docid": "19951138", "title": "", "text": "It must have meant merely that the back pay order was to be considered, for purposes of the Bankruptcy Act, as an “amount owed the Board.” Moreover, even if the Court in Nathan-son did assume that the payment was to be made to the Board in the first instance, we do not think creditor status could turn on that circumstance. Whether a governmental agency initially collects a back pay award for distribution to the directly affected individuals or, instead, simply obtains in its name an equitable order requiring payments directly to private individuals does not in any meaningful way affect the agency’s interest in the money in question. In either instance, the authority to enforce the order to make payment of funds resides in the holder of the judgment — in Nathanson, the Board, here, the SEC. In either instance, the agency does not end up with the funds, but assures that affected individuals are compensated. And in either event, the agency has an “enforceable obligation” to require the debtor to pay money, Johnson, 501 U.S. at 83, 111 S.Ct. 2150, the sine qua non of creditor status. Thus, the fact that the disgorgement judgment did not order that Sherman deposit the money at issue with the SEC does not affect the SEC’s creditor status. Cf. Cross, 218 B.R. at 79 (“The Receiver’s role as depository [for disgorged funds] ... did not deprive the [SEC] of creditor status [for purposes of a § 523 discharge-ability action related to a disgorgement judgment].”) We conclude that the SEC is a “creditor” in the present case, as that term is used by the Bankruptcy Code, unless the Agreement extinguished its interest in the disgorgement judgment, a consideration to which we now turn. B. Whether the Agreement Extinguished the SEC’s Rights We conclude that the Agreement, entered into after the bankruptcy court denied the SEC’s dismissal motion, did not extinguish the SEC’s right to enforce the disgorgement judgment. First, the Receiver did not purport to settle the SEC’s claim. Second, the Receiver and the SEC are independent entities, and the Receiver did not have" }, { "docid": "19951174", "title": "", "text": "The disgorgement motion was granted only with respect to the SEC and did not specify who was to receive the disgorged funds. Furthermore, the legal theories underlying the Receiver’s interest in the money at issue differed from the legal theory underlying the SEC's interest in the same money. See infra Part 11(B). . The foregoing cases address whether the SEC has standing as a creditor under the Bankruptcy Code to file a complaint under 11 U.S.C. § 523 to determine the dischargeability of a particular debt. See 11 U.S.C. § 523(c); Fed. R. Bankr P. 4007(a) (\"[A]ny creditor may file a complaint to obtain a determination of the dischargeability[under § 523] of any debt.” (emphasis added)). In contrast, in the present case, the SEC argues that it has standing under the Bankruptcy Code to pursue the dismissal of the bankruptcy petition under 11 U.S.C. § 707(a), which does not in terms require that any motion be brought by a creditor. Nonetheless, the SEC's basis for asserting Article III standing is that it is a creditor for purposes of the Bankruptcy Code, so the pertinent standing considerations are the same. . The Bankruptcy Act of 1898, in effect before the adoption of the Bankruptcy Code, defined a \"creditor” as \"anyone who owns a debt, demand, or claim provable in bankruptcy.” 11 U.S.C. § 1(11) (1976) (repealed 1978) (emphasis added). Under the Code, the creditor is no longer required to \"own” a claim, only to \"ha[ve]” one. See 2 Collier on Bankruptcy § 101.10 (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2005); see also Fezler v. Davis (In re Davis), 194 F.3d 570, 577 (5th Cir.1999) (noting this difference). The change appears to accord with the broad definition of “claim” in the Code, which includes “the right to an equitable remedy.” 11 U.S.C. § 101(5)(B). . The parties do not argue that the district court's disgorgement judgment was in error under Colello. . The Bankruptcy Act provision at issue in Nathanson defined “creditor” slightly differently from the Code, as “anyone who owns a debt, demand, or claim provable in" }, { "docid": "19951124", "title": "", "text": "Bankruptcy Code if the agency has obtained a monetary judgment entered in an SEC enforcement action. The Bankruptcy Appellate Panel of the Ninth Circuit and several bankruptcy courts have, however, concluded that the SEC can in such circumstances have standing as a creditor under the Bankruptcy Code. See, e.g., SEC v. Cross (In re Cross), 218 B.R. 76, 78-80 (B.A.P. 9th Cir.1998); SEC v. Hodge (In re Hodge), 216 B.R. 932, 935-36 (Bankr.S.D.Ohio 1998); SEC v. Kane (In re Kane), 212 B.R. 697, 700 (Bankr.D.Mass.1997); SEC v. Maio (In re Maio), 176 B.R. 170, 171-72 (Bankr.S.D.Ind.1994). In concert with these tribunals, we hold that in the present case, the SEC is a “creditor” for purposes of the Bankruptcy Code, assuming the absence of a settlement agreement extinguishing its rights. The Bankruptcy Code’s definition of “creditor” includes an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. § 101(10)(A). The Code provides that the term “ ‘entity’ includes ... governmental unit,” id. § 101(15), and the Code defines “claim” as a (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. Id. § 101(5). The Supreme Court has stated that “Congress intended by this language to adopt the broadest available definition of ‘claim’ ” and has held that “ ‘right to payment’ [means] nothing more nor less than an enforceable obligation.” Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (alteration in original) (one set of internal quotation marks omitted) (quoting Penn. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 559, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990)). Applying these provisions to the present case, we see that" }, { "docid": "19951144", "title": "", "text": "Colello, 189 F.3d at 677. That the Receiver recovered some of the money at issue in the disgorgement judgment to settle his contract and ethics claims does not mean that the SEC’s securities law claim was extinguished. For all of these reasons, the Agreement did not entirely extinguish the SEC’s right to enforce the disgorgement judgment. The SEC is therefore a creditor under the Bankruptcy Code with respect to the disgorgement judgment. As a creditor, the SEC has Article III standing to pursue the dismissal of the Shermans’ bankruptcy petition because, given that status, it satisfies all three prongs of the Article III standing test. First, the SEC suffered the requisite “injury in fact” because the pendency of the bankruptcy action did affect the SEC’s ability to enforce its judgments: If the bankruptcy petition was not dismissed, Sherman’s debt resulting from the SEC’s disgorgement judgment, like all of his other debts, might be discharged. Second, the SEC’s injury is “fairly traceable” to the Shermans’ bankruptcy petition, City of Sausalito, 386 F.3d at 1197 (internal quotation marks omitted), because the filing of the bankruptcy petition made it likely that the disgorgement judgment would not be fully paid. Third, “it is likely, as opposed to merely speculative” that the SEC’s injury will be redressed by a favorable decision, as such a result would mean that the disgorgement judgment will not be discharged in bankruptcy. Id. (internal quotation marks omitted). III. Mootness The Shermans argue that even if the SEC did have standing, this appeal is moot because the bankruptcy court has already entered an order granting them a discharge under 11 U.S.C. § 727. We conclude, however, that although the bankruptcy court retained jurisdiction to enter an order granting the discharge while the SEC appealed the denial of its motion to dismiss, this appeal is not moot because the entry of a discharge order alone did not terminate the Shermans’ bankruptcy petition, and a grant of the dismissal order could have triggered reconsideration of the discharge order. Federal Rule of Bankruptcy Procedure 4004 determines when a bankruptcy court may grant a discharge" }, { "docid": "19951188", "title": "", "text": "debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b). . In its brief to the district court in the appeal of the denial of the motion to dismiss, the SEC stated that it believed that relief would have been available under § 523 for the contempt judgment but not for the disgorgement judgment. . In relevant part, § 523(a)(2) excepts from discharge debt: (2) for money ... obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider’s financial condition; (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor's or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive.... 11 U.S.C. § 523(a)(2)(A)-(B). It appears that in many cases in which the SEC is attempting to ensure that a debtor in bankruptcy disgorges funds as required by the securities laws, it does so by invoking § 523(a)(2). See Cross, 218 B.R. at 78; Hodge, 216 B.R. at 933; Kane, 212 B.R. at 699. Unlike the cited cases, the present case involves a debtor who was not found to have himself violated the securities laws and has not been alleged to have committed other acts of fraud by the SEC. The SEC has indicated that this distinction is the reason it did not file a nondischarge action. Whether that distinction matters or whether, instead, § 523(a)(2) nonetheless applies to the present circumstances because the funds themselves meet the statutory standard and Sherman was essentially a depository of the funds, having no rightful claim to them, is a question we do not decide. See Colello, 139 F.3d at 676-77. . Section 523(a)(4) excepts from discharge debt \"for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. § 523(a)(4). . Section 523(a)(6) excepts from discharge debt \"for willful and malicious injury by the debtor to" }, { "docid": "19951122", "title": "", "text": "and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir.2004) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). At argument, the SEC expressly waived any contention that its role as statutory guardian of the federal securities laws supplies a non-pecuniary interest sufficient to create standing. Cf. SEC v. U.S. Realty & Improvement Co., 310 U.S. 434, 459-60, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940). Instead, the SEC now premises its standing solely on its asserted status as a “creditor” under the Bankruptcy Code with respect to the contempt and disgorgement judgments. The SEC argues that because it is a “creditor” under the Bankruptcy Code and its debts could be discharged if the petition is not dismissed, it has Article III standing. We therefore must decide whether the SEC is a “creditor” for purposes of the Bankruptcy Code with respect to the contempt judgment or the disgorgement judgment. We conclude that the SEC is a creditor with respect to the disgorgement judgment. Because we so conclude, we do not reach the question of whether the SEC is also creditor with respect to the contempt judgment. In Part 11(A), we explain why the SEC was a creditor under the Bankruptcy Code in the absence of a settlement agreement, and in Part 11(B), we address why the Agreement between Sherman and the Receiver did not extinguish the SEC’s right to enforce the disgorgement judgment. A. SEC’s Right To Enforce the Disgorgement Judgment We first decide whether the SEC is a “creditor” for purposes of the Bankruptcy Code with respect to the disgorgement judgment, assuming the absence of a settlement agreement. Neither the Supreme Court nor any federal court of appeals has addressed the question whether the SEC can be a creditor under the" }, { "docid": "19951175", "title": "", "text": "for purposes of the Bankruptcy Code, so the pertinent standing considerations are the same. . The Bankruptcy Act of 1898, in effect before the adoption of the Bankruptcy Code, defined a \"creditor” as \"anyone who owns a debt, demand, or claim provable in bankruptcy.” 11 U.S.C. § 1(11) (1976) (repealed 1978) (emphasis added). Under the Code, the creditor is no longer required to \"own” a claim, only to \"ha[ve]” one. See 2 Collier on Bankruptcy § 101.10 (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2005); see also Fezler v. Davis (In re Davis), 194 F.3d 570, 577 (5th Cir.1999) (noting this difference). The change appears to accord with the broad definition of “claim” in the Code, which includes “the right to an equitable remedy.” 11 U.S.C. § 101(5)(B). . The parties do not argue that the district court's disgorgement judgment was in error under Colello. . The Bankruptcy Act provision at issue in Nathanson defined “creditor” slightly differently from the Code, as “anyone who owns a debt, demand, or claim provable in bankruptcy, ... including] his duly authorized agent, attorney, or proxy.” 11U.S.C. § 1(11) (1946) (repealed 1978), quoted in Nathanson, 344 U.S. at 27 n. 1, 73 S.Ct. 80. . Several bankruptcy courts have held that the fact that the SEC is not the sole enforcer of the securities laws does not deprive the SEC of creditor status under Nathanson. See Hodge, 216 B.R. at 936; Kane, 212 B.R. at 700; Maio, 176 B.R. at 171-72. . Davis distinguished Cannon as a case in which: the Attorney General of Missouri lacked standing to object to the discharge of debts owed by the debtor to eight individuals under the Missouri Merchandising Practicing Act because the Act did not grant him authority to sue on behalf of private individuals in a private action to seek the restitution payments; rather, the Attorney General could only seek an injunction on behalf of the state itself prohibiting the underlying unlawful practice. Davis, 194 F.3d at 576. That distinction holds here as well, as the SEC, like the Ad-ministratrix in Davis, is" }, { "docid": "11429770", "title": "", "text": "B.R. at 171-72. Moreover, denial of the Adminis-tratrix of the right to bring nondischarge-ability complaints would unduly hinder the State of Texas in its ability to implement and enforce its wrongful death law. Cf. Nathanson, 344 U.S. at 27, 73 S.Ct. 80; Maio, 176 B.R. at 172. The district court’s narrow interpretation of § 523(c)(1) fails to take into account the analogous jurisprudence recognizing that federal administrative agencies by virtue of their authority to enforce the administrative law are creditors in their own right with standing to object to discharge in the enforcement of federal statutory provisions, even though the agencies may not be the ultimate recipients of the debt payments. See, e.g., Kane, 212 B.R. at 700 (SEC is creditor with standing under § 523(c) to object to discharge of disgorgement debts); In re Egea, 236 B.R. 734, 744-45 (Bankr.D.Kan.1999)(Secretary of Labor is creditor with standing to object to the discharge of claim against employer-debtor for breach of fiduciary duties under ERISA); Securities and Exchange Comm’n v. Bilzerian, 1995 WL 934184, at *2 (M.D.Fla.1995) (SEC is creditor with standing to object to bankruptcy discharge of disgorgement judgment); Maio, 176 B.R. at 171 (SEC has standing to enforce federal securities laws through bankruptcy nondischargeability complaint); In re Austin, 138 B.R. 898, 904-05 (Bankr.N.D.Ill.1992)(Federal Trade Commission (FTC) is creditor under § 523(c) with respect to debtor’s liability on a consent judgment to make restitution to defrauded customers); In re Black, 95 B.R. 819, 823 (Bankr.M.D.Fla.1989)(FTC is creditor with standing to file a nondis-chargeability complaint as to debtor’s liability in a pending lawsuit based on alleged violations of the Federal Trade Commission Act and Truth and Lending Act); 2 Collier on Bankruptcy, ¶ 101.10 at 101-55; cf. In re W. Tex. Marketing Corp., 82 B.R. 829, 830 (Bankr.N.D.Tex.1988)(Department of Energy (DOE) is a creditor for purposes of filing a proof of claim for restitution); In re Evans Products Co. 60 B.R. 863, 867 (S.D.Fla.1986) (FTC is a creditor for purposes of filing proof of claim). The agencies need not be the only party entitled to enforce the Acts as their standing as" }, { "docid": "12810673", "title": "", "text": "by a creditor. 11 U.S.C. § 523(c) (1994). A creditor is an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. § 101(10)(A) (1994). A “claim” is defined as a “right to payment, whether or not such right is reduced to judgment ...” 11 U.S.C. § 101(5)(A) (1994). As the holder of the disgorgement order, the Commission has a claim. Nathanson v. National Labor Relations Bd., 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23 (1952), is the landmark Supreme Court case on this question. In Nathanson, the Court held that the N.L.R.B. was a creditor within the meaning of the Bankruptcy Act, and therefore had standing to bring a cause of action against a bankrupt employer for back pay owed its employees. Id. at 27. The court noted that the N.L.R.B. was, the “public agent chosen by Congress to enforce the National Labor Relations Act.” Id. Much like the N.L.R.B., the Commission is the agency chosen by Congress to enforce the security laws. In Securities and Exch. Commission v. Maio (In re Maio), 176 B.R. 170 (Bankr.S.D.Ind.1994), the court held that the Commission had standing in a proceeding to have a judgment against a chapter 11 debtor for securities violations declared nondischargeable. The court came to this conclusion even though the Commission does not have exclusive authority to bring suit. That the Commission will not be the ultimate recipient of the monies owed does not effect its standing. Id. at 171. Denial to the Commission of the right to bring nondischargeability complaints would unduly hinder its ability to enforce the Securities Act. Id. at 172. Securities and Exch. Comm’n v. Cross (In re Cross), 203 B.R. 456 (Bankr.C.D.Cal.1996), is the only decision holding the Commission does not have standing in a nondisehargeability action. That ease is distinguishable from the present case in that the prior court order there required the disgorgement to be paid to a receiver, not the Commission. Id. at 457. As a result, the court reasoned that the Commission had" }, { "docid": "19951139", "title": "", "text": "U.S. at 83, 111 S.Ct. 2150, the sine qua non of creditor status. Thus, the fact that the disgorgement judgment did not order that Sherman deposit the money at issue with the SEC does not affect the SEC’s creditor status. Cf. Cross, 218 B.R. at 79 (“The Receiver’s role as depository [for disgorged funds] ... did not deprive the [SEC] of creditor status [for purposes of a § 523 discharge-ability action related to a disgorgement judgment].”) We conclude that the SEC is a “creditor” in the present case, as that term is used by the Bankruptcy Code, unless the Agreement extinguished its interest in the disgorgement judgment, a consideration to which we now turn. B. Whether the Agreement Extinguished the SEC’s Rights We conclude that the Agreement, entered into after the bankruptcy court denied the SEC’s dismissal motion, did not extinguish the SEC’s right to enforce the disgorgement judgment. First, the Receiver did not purport to settle the SEC’s claim. Second, the Receiver and the SEC are independent entities, and the Receiver did not have the authority to compromise the SEC’s claim. Third, the rights at issue in the Agreement are different from the rights at issue in the disgorgement judgment. As to the first point, the Receiver did not purport to settle the SEC’s claim with respect to the disgorgement judgment. Although the Agreement was reached while the SEC’s appeal of its motion to dismiss was pending, the SEC was not a party to the Agreement. Only Sherman and the Receiver were parties. In addition, the Agreement stated that “[e]ach of the Parties to this Agreement acknowledges that no other party, nor any agent or attorney of any other party, has made any promise, representation, inducement or warranty whatsoever, express or implied, which is not expressly contained in this Agreement.” The SEC thus never itself relinquished its rights to enforce the disgorgement judgment or to pursue its motion to dismiss the bankruptcy petition, and the Agreement so recognized. Moreover, the only pending action addressed in the Agreement was the Receiver’s nondischarge action. The stipulation filed pursuant to the Agreement" }, { "docid": "11429768", "title": "", "text": "Court held that the National Labor Relations Board (NLRB) was a creditor within the meaning of the Bankruptcy Act, and therefore had standing to bring a cause of action against a bankrupt employer for back pay owed its employees. 344 U.S. 25, 27, 73 S.Ct. 80, 97 L.Ed. 23 (1952). The Court noted that the NLRB was the “public agent chosen by Congress to enforce the National Labor Relations Act.” Id. The back pay award was a debt owed the NLRB, even though it was ultimately to be distributed to the employee- victims. Id. Implicit in the Court’s holding is that denying creditor status to the NLRB would frustrate its ability “to vindicate the public policy of the [National Labor Relations Act] by making the employees whole for losses suffered on account of an unfair labor practice.” Id. (citing Phelps Dodge Corp. v. National Labor Relations Bd., 313 U.S. 177, 197, 61 S.Ct. 845, 85 L.Ed. 1271 (1941)). Bankruptcy Courts have held that, much like the NLRB, the Securities and Exchange Commission (SEC), as the agency chosen by Congress to enforce the Securities Act, has standing as creditor to bring actions under § 523(c) of the Bankruptcy Code to have judgments for securities violations declared nondischargeable. Securities and Exchange Comm’n v. Kane, 212 B.R. 697, 700 (Bankr.D.Mass.1997); Securities and Exchange Comm’n v. Maio, 176 B.R. 170, 171 (Bankr.S.D.Ind.1994). Under Texas law, Ms. Fezler, the Ad-ministratrix, is the judicially appointed officer chosen and authorized by law to enforce a claim and right to payment under the Texas Wrongful Death statute. See Tex. Civ. Prac. & Rem. § 71.004(c). Therefore, as Administratrix, Ms. Fezler has standing in a § 523(c) adversarial proceeding to have the wrongful death claim declared nondischargeable. That the Ad-ministratrix has authority to bring suit in her own name and capacity for the ultimate benefit of others, in the absence of their own actions, and that the Administra-trix is not the final recipient of all the monies owed does not affect her standing. See Nathanson, 344 U.S. at 27, 73 S.Ct. 80; Kane, 212 B.R. at 700; Maio, 176" }, { "docid": "18555", "title": "", "text": "a liability on a claim. 11 U.S.C. § 101(12). The Debtor admits that he owes a debt based on the Note, but, after extensive trial and appellate proceedings, the question remains: to whom is the debt owed? Bankruptcy Rule 4007(a) provides that a debtor or any creditor may file a complaint to determine the dischargeability of any debt, and a creditor of the debtor has standing to bring a cause of action based on a violation of § 523(a)(2)(A). 11 U.S.C. § 523(c)(1); Securities and Exchange Commission v. Kane (In re Kane), 212 B.R. 697, 700 (Bankr.D.Mass.1997). At the outset, therefore, to proceed with its § 523(a)(2)(A) action, Premier had the burden of proving, in the bankruptcy court, that it is a creditor. See id.; Fed. R. Bankr.P. 4007(a). A “creditor” is “an entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor,” 11 U.S.C. § 101(10)(A), and a “claim” is a “right to payment, whether or not such right is reduced to judgment.” 11 U.S.C. § 101(5)(A). The Supreme Court has explained that the definition of “claim” is to be construed broadly, and that a “right to payment” means “nothing more nor less than an enforceable obligation.” Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 559, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990). “Absent an overriding federal interest, the existence of a claim in bankruptcy is generally determined by state law.” Cross, 218 B.R. at 78 (analyzing whether plaintiff had standing to bring § 523(a)(2)(A) action against chapter 7 debtor). State law applies in this instance because the underlying transaction is purely commercial in nature and there is no apparent federal interest, overriding or otherwise. Therefore, it is Premier’s burden to show that under Massachusetts law it has an enforceable obligation against the Debtor. See id. Under Massachusetts law, Article 3 of the Uniform Commercial Code is used to determine questions of title to negotiable instruments. Under the U.C.C., a negotiable instrument is: (a) [... ] an unconditional promise or order to pay a" }, { "docid": "19951173", "title": "", "text": "instances in which the appellant was the party that brought the motion at issue on appeal. Instead, we have invoked it when the appellant is a party other than the moving party. See, e.g., Duckor Spradling & Metzger v. Baum Trust (In re P.R.T.C., Inc.), 177 F.3d 774, 776-77 (9th Cir.1999); Tilley v. Vucurevich (In re Pecan Groves of Ariz.), 951 F.2d 242, 244 (9th Cir.1991); Fondiller, 707 F.2d at 442. Here, the SEC brought the dismissal motion in the first place and therefore was formally a party to the dismissal litigation. We therefore conclude that the SEC need not establish prudential appellate standing in addition to Article III standing in the present case. . The \"creditor” analysis for the two judgments is slightly different. The contempt order in the Whitworth action, entered on a motion brought by the SEC and the Receiver, was premised on the finding that Sherman violated the freeze order in the SEC action. In the contempt order, the court required Sherman to pay $54,980 plus prejudgment interest \"to the Receiver.” The disgorgement motion was granted only with respect to the SEC and did not specify who was to receive the disgorged funds. Furthermore, the legal theories underlying the Receiver’s interest in the money at issue differed from the legal theory underlying the SEC's interest in the same money. See infra Part 11(B). . The foregoing cases address whether the SEC has standing as a creditor under the Bankruptcy Code to file a complaint under 11 U.S.C. § 523 to determine the dischargeability of a particular debt. See 11 U.S.C. § 523(c); Fed. R. Bankr P. 4007(a) (\"[A]ny creditor may file a complaint to obtain a determination of the dischargeability[under § 523] of any debt.” (emphasis added)). In contrast, in the present case, the SEC argues that it has standing under the Bankruptcy Code to pursue the dismissal of the bankruptcy petition under 11 U.S.C. § 707(a), which does not in terms require that any motion be brought by a creditor. Nonetheless, the SEC's basis for asserting Article III standing is that it is a creditor" }, { "docid": "19951123", "title": "", "text": "dismissed, it has Article III standing. We therefore must decide whether the SEC is a “creditor” for purposes of the Bankruptcy Code with respect to the contempt judgment or the disgorgement judgment. We conclude that the SEC is a creditor with respect to the disgorgement judgment. Because we so conclude, we do not reach the question of whether the SEC is also creditor with respect to the contempt judgment. In Part 11(A), we explain why the SEC was a creditor under the Bankruptcy Code in the absence of a settlement agreement, and in Part 11(B), we address why the Agreement between Sherman and the Receiver did not extinguish the SEC’s right to enforce the disgorgement judgment. A. SEC’s Right To Enforce the Disgorgement Judgment We first decide whether the SEC is a “creditor” for purposes of the Bankruptcy Code with respect to the disgorgement judgment, assuming the absence of a settlement agreement. Neither the Supreme Court nor any federal court of appeals has addressed the question whether the SEC can be a creditor under the Bankruptcy Code if the agency has obtained a monetary judgment entered in an SEC enforcement action. The Bankruptcy Appellate Panel of the Ninth Circuit and several bankruptcy courts have, however, concluded that the SEC can in such circumstances have standing as a creditor under the Bankruptcy Code. See, e.g., SEC v. Cross (In re Cross), 218 B.R. 76, 78-80 (B.A.P. 9th Cir.1998); SEC v. Hodge (In re Hodge), 216 B.R. 932, 935-36 (Bankr.S.D.Ohio 1998); SEC v. Kane (In re Kane), 212 B.R. 697, 700 (Bankr.D.Mass.1997); SEC v. Maio (In re Maio), 176 B.R. 170, 171-72 (Bankr.S.D.Ind.1994). In concert with these tribunals, we hold that in the present case, the SEC is a “creditor” for purposes of the Bankruptcy Code, assuming the absence of a settlement agreement extinguishing its rights. The Bankruptcy Code’s definition of “creditor” includes an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. § 101(10)(A). The Code provides that the term “ ‘entity’ includes ... governmental" }, { "docid": "11429771", "title": "", "text": "(SEC is creditor with standing to object to bankruptcy discharge of disgorgement judgment); Maio, 176 B.R. at 171 (SEC has standing to enforce federal securities laws through bankruptcy nondischargeability complaint); In re Austin, 138 B.R. 898, 904-05 (Bankr.N.D.Ill.1992)(Federal Trade Commission (FTC) is creditor under § 523(c) with respect to debtor’s liability on a consent judgment to make restitution to defrauded customers); In re Black, 95 B.R. 819, 823 (Bankr.M.D.Fla.1989)(FTC is creditor with standing to file a nondis-chargeability complaint as to debtor’s liability in a pending lawsuit based on alleged violations of the Federal Trade Commission Act and Truth and Lending Act); 2 Collier on Bankruptcy, ¶ 101.10 at 101-55; cf. In re W. Tex. Marketing Corp., 82 B.R. 829, 830 (Bankr.N.D.Tex.1988)(Department of Energy (DOE) is a creditor for purposes of filing a proof of claim for restitution); In re Evans Products Co. 60 B.R. 863, 867 (S.D.Fla.1986) (FTC is a creditor for purposes of filing proof of claim). The agencies need not be the only party entitled to enforce the Acts as their standing as creditors in the nondischarge-ability actions obtains regardless of whether the actual beneficiaries were authorized under federal law to prosecute the action in their own right. See Bilzerian, 1995 WL 934184 at *3 (the SEC does not lack standing in the nondisehargeability action because private parties can bring damage actions under the Securities and Exchange Act); Maio, 176 B.R. at 171-72 (“a private right of action does not strip the Commission of standing to enforce federal securities laws through nondisehargeability actions”). Similarly, state officers or local entities, when authorized by law, may object to the discharge of debts in bankruptcy on behalf of others. See, e.g., In re Taibbi, 213 B.R. 261, 267 (Bankr.E.D.N.Y.1997)(county consumer protection agency, as the agency chosen by Suffolk County in its Consumer Protection Law to investigate fraud and deceptive trade practices perpetrated against county consumers and having the power to seek equitable relief such as restitution, has standing under § 523(c)); In re Volpert, 175 B.R. 247, 255-56 (Bankr.N.D.Ill.1994)(the Illinois Securities Law provides sufficient statutory authority for the Secretary of State" } ]

[ { "docid": "5372596", "title": "", "text": "in the district court. O’Brien now contends that he should be allowed to intervene in the instant case under Fed.R.Civ.P. 24(a). The district court denied his petition to intervene, finding it untimely. II. DISCUSSION In order to intervene as a matter of right under Fed.R.Civ.P. 24(a), “a plaintiff must (1) make timely application, (2) have an interest relating to the subject matter of the action, (3) be at risk that that interest will be impaired, as a practical matter, by the action’s disposition and (4) lack adequate representation of the interest by the existing parties.” Nissei Sangyo America, Ltd. v. United States, 31 F.3d 435, 438 (7th Cir.1994) (internal citations omitted); see also B.H. v. McDonald, 49 F.3d 294, 297 (7th Cir.1995). “Failure to satisfy any one of these requirements is sufficient grounds to deny an application.” United States v. City of Chicago, 798 F.2d 969, 972 (7th Cir.1986), cert. denied, 484 U.S. 1041, 108 S.Ct. 771, 98 L.Ed.2d 858 (1988). The district court determined that O’Brien’s action was not timely and that the parties in the case would suffer significant prejudice if an intervention were allowed at this late date. The court also found that O’Brien would not suffer great prejudice from the denial of his motion to intervene, as his concerns could and should be addressed in his pending tax protest cases. We review the timeliness decision for abuse of discretion, while the other factors are reviewed de novo. Nissei, 31 F.3d at 438. The timeliness factor is essentially a reasonableness inquiry, requiring potential intervenors to be reasonably diligent in learning of a suit that might affect their rights, and upon learning of such a suit, to act to intervene reasonably promptly. Nissei, 31 F.3d at 438. However, “[intervention is unavailable to the litigant who ‘dragged its heels’ after learning of the lawsuit.” Id. This circuit has established four factors to be considered in determining if a motion to intervene is timely. They are 1) the length of time the intervenor knew or should have known of his interest in the case, 2) the prejudice to the original" } ]

[ { "docid": "15426155", "title": "", "text": "of Bight An applicant for intervention as a matter of right under Rule 24(a)(2) must satisfy four requirements: (1) the application must be timely; (2) the applicant must have a direct and substantial interest in the subject matter of the litigation; (3) the applicant’s interest must be impaired by disposition of the action without the applicant’s involvement; and (4) the applicant’s interest must not be represented adequately by one of the existing parties. Fed.R.Civ.P. 24(a)(2); Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336. The applicant bears the burden of proving that each of these elements has been satisfied. American National Bank & Trust Co. v. City of Chicago, 865 F.2d 144, 146 (7th Cir. 1989). We accept as true the non-conclusory allegations of the applicants’ motion to intervene. Lake Investors Dev. Group v. Egidi Dev. Group, 715 F.2d 1256, 1258 (7th Cir. 1983). Applicants’ motion to intervene is timely and their ability to protect their interest in the M/WBE program could be impeded by the outcome of this case. The only questions are whether applicants have a legally-protectable interest in the program, and whether this interest is adequately represented by the City. The Builders Association argues that applicants do not have a “direct and substantial interest” in this litigation, because they do not have a constitutional right to the preferential treatment given to them by the M/WBE program. This argument misconstrues the nature of applicants’ claim. Applicants are not seeking to protect their constitutional rights, but rather their rights under the ordinance at issue in this case. As MBEs and WBEs, applicants are the direct beneficiaries of the M/WBE program, and will suffer significant financial losses should the ordinance be invalidated. Interests such as this have long been recognized as sufficiently “direct and substantial” to justify intervention under Rule 24(a)(2). See New York Public Interest Research Group, Inc. v. Regents of the University of the State of New York, 516 F.2d 350 (2d Cir.1975) (allowing association of pharmacists to intervene in action challenging state regulation prohibits ing advertising" }, { "docid": "16137428", "title": "", "text": "around the rights and interests of the St. Croix. This may or may not be true. If the Settlement Agreement is unlawful, as the St. Croix claims it is, it can bring a suit under the APA challenging as arbitrary and capricious the Secretary’s ultimate decision (assuming, of course, it is then able to demonstrate the necessary adverse interest). B. Permissive intervention Permissive intervention is allowed under Rule 24(b), once again upon timely application, “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Permissive intervention under Rule 24(b) is wholly discretionary 'and will be reversed only for abuse of discretion. Keith v. Daley, 764 F.2d 1265, 1272 (7th Cir.1985). The district court denied St. Croix’s motion to intervene under Rule 24(b) for a reason that applied with equal force to the motion under Rule 24(a); in each instance, the court found the motion untimely. “The purpose of the [timeliness] requirement is to prevent a tardy intervenor from derailing a lawsuit within sight of the terminal. As soon as a prospective intervenor knows or has reason to know that his interests might be adversely affected by the outcome of the litigation he must move promptly to intervene.” United States v. South Bend Community Sch. Corp., 710 F.2d 394, 396 (7th Cir.1983), quoted in United States v. City of Chicago, 870 F.2d 1256, 1263 (7th Cir.1989). We consider the following factors to determine whether a motion is timely: (1) the length of time the intervenor knew or should have known of his interest in the case; (2) the prejudice caused to the original parties by the delay; (3) the prejudice to the interve-nor if the motion is denied; (4) any other unusual circumstances. Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir.1991), citing South v. Rowe, 759 F.2d 610, 612 (7th Cir.1985). In the district court and here on appeal, the St. Croix argues that its motion was timely — despite being filed five years after the initial complaint — because it could not have expected the outcome of the Settlement Agreement:" }, { "docid": "1295044", "title": "", "text": "for lack of subject-matter jurisdiction. Sandoz Inc. v. Amgen Inc., 773 F.3d 1274, 1277 (Fed.Cir.2014). Where, as here, no timeliness issue is present, we review denial of intervention as of right de novo. See Stauffer v. Brooks Bros., Inc., 619 F.3d 1321, 1328 (Fed.Cir.2010) (denial of intervention reviewed under regional circuit’s law); Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 945 (7th Cir.2000) (de novo review of denial of motion to intervene). A We begin by confirming Mylan’s right to be a party in this case because of its obvious stake in the dispute. Rule 24(a) of the Federal Rules of Civil Procedure establishes a right to intervene when a person “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Mylan readily meets that standard. In this action, Apotex seeks to cause a forfeiture of Mylan’s presumed market-exclusivity 'period, and Mylan has a concrete monetary interest in retaining such exclusivity — six months of more sales and/or higher prices than are likely when Apotex enters the market. Although Daii-chi likely benefits from the 180-day exclusivity period as well, Mylan’s interest exists apart from that of Daiichi, which, as a rival of Mylan’s, has its own incentives affecting decisions about how to conduct this litigation. Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.1985) (interest must “belong[ ] to the proposed intervenor rather than to an existing party in the suit”). Mylan’s interest here is “ ‘of such a direct and immediate character that [Mylan] will either gain or lose by the direct legal operation and effect of the judgment’ ” sought by Apotex. Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed.Cir.1989) (emphases removed) (quoting United States v. AT & T Co., 642 F.2d 1285, 1292 (D.C.Cir.1980)). And Apotex does not defend the district court’s conclusion that Mylan’s interest in the case was rendered moot by the dismissal of" }, { "docid": "5465996", "title": "", "text": "as of right, a movant must demonstrate four elements: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (1) timely application; (2) an interest relating to the subject matter of the action; (3) potential impairment, as a practical matter, of that interest by the disposition of the action; and (4) lack of adequate representation of the interest by the existing parties to the action. Shea v. Angulo, 19 F.3d 343, 346 (7th Cir.1994) (quoting Southmark Corp. v. Cagan, 950 F.2d 416, 418 (7th Cir.1991)); Midway Airlines, Inc. v. Northwest Airlines, Inc. (In re Midway Airlines, Inc.), 154 B.R. 248, 252 (N.D.Ill.1993). The movant has the burden of establishing all four elements. Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.), cert. denied sub nom. Illinois Pro-Life Coalition, Inc. v. Keith, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985). The Trustee denies that Skadden has sufficiently alleged the second element (“an interest relating to the subject matter of the action”), and that will be the focus of our discussion. In determining whether a movant has demonstrated the requisite interest in the subject matter of the action, a court should define “interest” broadly. Lake Investors, 715 F.2d at 1259; Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 203-04 (7th Cir.1982) (both relying on Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967)). Nevertheless, the movant must demonstrate a significantly protect-able interest (Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 542, 27 L.Ed.2d 580 (1971)); a legally protectable interest (Keith, 764 F.2d at 1268; United States v. 36.96 Acres of Land, 754 F.2d 855, 858 (7th Cir.1985), cert." }, { "docid": "9458499", "title": "", "text": "interest by the existing parties. See Nissei Sangyo America, Ltd. v. United States, 31 F.3d 435, 438 (7th Cir.1994). Mr. Hawk is required to prove each of these four elements; the lack of one element requires that the motion to intervene be denied. See Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.1985). The district court denied this motion on the ground that Mr. Hawk had not shown that his interests were inadequately represented by class counsel. With the exception of the first factor, which relates to the timeliness of the inter vention and is reviewed for abuse of discretion, we review de novo the denial of an intervention of right. See Nissei Sangyo, 31 F.3d at 438. However, it is clear that the district court based much of its determination regarding this issue on its assessment of Mr. Hawk’s testimony, a finding to which we owe deference. See Rush v. Martin Petersen Co., 83 F.3d 894, 896 (7th Cir.1996) (regarding factual finding, deference given to district judge “who had the opportunity to observe the witnesses firsthand, to assess their credibility and weigh their testimony”). The district court determined that Mr. Hawk had failed to articulate reasons as to why he was not represented adequately by class counsel. Ample evidence exists to support the district court’s conclusion that Mr. Hawk could not demonstrate why he was represented inadequately in this action. Although both of his motions to intervene argue that the settlement’s terms were unfair, Mr. Hawk showed a lack of familiarity with the content of those terms. He did not know when he was required to decide to opt out of the settlement, was unclear on the amount of attorneys’ fees sought by class counsel and PCH’s counsel and he showed general unfamiliarity with the motions to intervene filed on his behalf. He thought, incorrectly, that to receive a refund under the settlement he must return the actual magazines that he had purchased from PCH. Also worrisome was Mr. Hawk’s ignorance of the terms of the injunctive relief contained in the settlement. When asked whether he had “any concept" }, { "docid": "23201010", "title": "", "text": "the litigation), and Reproductive Health and Counseling Center (\"RHCC\"), Allentown Women’s Center (\"AWC”), Planned Parenthood of Southeastern Pennsylvania (\"Planned Parenthood”), and Women's Medical Services (\"WMS”). The district court dismissed these last four clinics for lack of standing. ■ . The Cherry Hill Women’s Center (\"CHWC”), a non-party clinic that was included in the court’s temporary restraining order, has also appealed the district court’s refusal to award it civil contempt damages. . One non-defendant, Tina Krail, who was held in civil contempt for violating the district court’s temporary restraining order, also joins in the appeal. . We recognize that two pregnant women, Jane Roe and Mary Moe, were among the original plaintiffs in this lawsuit. But the situation existing at the inception of this case differed significantly from the situation that exists now. In June of 1988, plaintiffs knew that Operation Rescue was planning to blockade abortion clinics during a specific week. It was therefore readily apparent that Operation Rescue presented a real and immediate threat to women, such as Roe and Moe, who had scheduled abortions during that particular week. Now, however, the dates of defendants' future demonstrations are unknown, and women thus cannot foresee when their rights will be directly threatened by these protests. . We do not think that our decision is at odds with Keith v. Daley, 764 F.2d 1265 (7th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985). In Keith, the court rejected the Illinois Pro-Life Coalition’s Rule 24(a)(2) motion to intervene as of right in a lawsuit challenging the constitutionality of an Illinois statute regulating abortion. The IPC, because it was the chief proponent of the statute in the Illinois legislature, asserted as an interest justifying intervention its intensive lobbying efforts. Id. at 1267. The Seventh Circuit, however, found this interest insufficiently direct and substantial to support intervention, noting that the named defendants—i.e., the Attorney General and Cook County State's Attorney—were adequately defending the statute. Id. at 1270. This case is easily distinguishable, for the Keith decision may be explained by the court’s unwillingness to allow lobbyists to intervene in" }, { "docid": "2308351", "title": "", "text": "for Act 10. But these arguments fail for the same reasons stated above— such line—drawing is not for the courts. The Unions also label as “wholly implausible” the legislature’s fear that a payroll prohibition on public safety employees would trigger an illegal strike. But rational basis review does not require the state to “produce evidence to sustain the rationality” of the law, provided the law has “some footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 320-21,113 S.Ct. 2637. The state’s fear is rational, particularly considering the controversy surrounding passage of Act 10 and the Unions’ own admission before the district court that the effect of the payroll prohibition would be “catastrophic.” Consequently, the payroll dues prohibition survives rational basis review. C. The District Court Did Not Err in Denying Proposed Intervenors’ Motion to Intervene The Employees filed a motion to intervene as of right in support of the state. See Fed.R.Civ.P. 24(a)(2). A party has a right to intervene when: (1) the motion to intervene is timely filed; (2) the proposed intervenors possess an interest related to the subject matter of the action; (3) disposition of the action threatens to impair that interest; and (4) the named parties inadequately represent that interest. Ligas ex rel. Foster v. Maram, 478 F.3d 771, 773 (7th Cir.2007). The Unions oppose intervention and challenge only two of these elements: the relationship between the Employees’ interest and the subject-matter of the suit, and the adequacy of the state in representing the Employees’ interests. This Court applies de novo review to the district court’s determination on these two elements, id., neither of which the Employees satisfy. 1. Direct and Substantial Interest Intervention as of right requires a “direct, significante,] and legally protectable” interest in the question at issue in the lawsuit. Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.1985). That interest must be unique to the proposed intervenor. Id. Moreover, the question of “[w]hether an applicant has an interest sufficient to warrant intervention as a matter of right is a highly fact-specific determination, making comparison to other cases" }, { "docid": "23259352", "title": "", "text": "NIP-SCO has owned the land since 1932, which presently is subject to a mortgage to secure various bond instruments sold by NIP-SCO. In 1976, the value of the land, including the sea wall, was approximately $1,762,000. The Save The Dunes Council is an Indiana not-for-profit corporation. The Council, a public interest group incorporated in 1952, seeks legal protection for public use of the Indiana Dunes. Since its incorporation the Council has lobbied extensively for national legislation protecting the dunes and expanding the protected areas. The Council lobbied hard for the passage of the 1976 amendments to the Indiana Dunes Act, which authorized acquisition of Crescent Dune, and prepared the base map used to determine the official boundary information for the 1976 amendments. Although the United States’ condemnation action was filed in August 1978, the Council did riot move to intervene until April 1982. The Council also filed a complaint for mandamus in the United States District Court for the District of Columbia and in the Northern District of Indiana against the Secretary of the Interior on October 19, 1983. These mandamus actions are still pending. On September 7, 1983, the government and NIPSCO submitted to the trial court a stipulation and joint motion to dismiss. Following briefing and a hearing on the Council’s motion to intervene, the district court denied the motion. II Four requirements must be met before intervention will be granted as of right. The application must be timely. The intervenor must show an interest relating to the property or transaction which is the subject of the action. The intervenor must show that the disposition may as a practical matter impair or impede the intervenor’s ability to protect that interest. And, the intervenor must show that that interest is not adequately represented by existing parties. Gautreaux v. Pierce, 690 F.2d 616, 635 (7th Cir.1982). The proposed intervenors must satisfy each requirement before a court will grant the motion to intervene. CFTC v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 (7th Cir.1984). The district court found that the Council met only the first requirement of timeliness of" }, { "docid": "1331792", "title": "", "text": "interest in the subject matter of the litigation; 2) that its ability to protect the interest may be impaired if it is not allowed to intervene; and 3) that its interest will not be adequately represented by an existing party. See, e.g., Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985). Maine contends that the disposition of this action could, as a practical matter, impair its ability to protect its interest in the proper interpretation of Maine’s environmental enforcement statutes. Maine further contends that its interest will not be adequately represented by the existing parties. We note, however, that Maine and the town of Jay are in substantial agreement as to the proper outcome of this case. Both not only take the position that IP’s claims are without merit, but, insofar as appears, have few if any material differences over reasoning. Maine claims, nonetheless, that its “concern with the statewide application of the court’s interpretation” will not be adequately protected by Jay’s “more parochial interest in the validity of its own ordinance.” In addition, Maine asserts that it disagrees with the town as to “whether a federal court should interpret the scope and effect of Maine’s environmental laws.” IP, while not disputing the timeliness of Maine’s petition to intervene, argues that Maine has not demonstrated a legal interest sufficient to justify intervention under Rule 24(a)(2). IP insists that Maine’s general interest in the proper interpretation of its laws is not a “significantly protectable interest.” IP further argues that even if Maine has demonstrated a protectable interest, it has not here demonstrated sufficient impairment. Finally, IP argues that even if these first two requirements are met, the town of Jay will adequately represent Maine’s interests. The district court held that Maine had failed to show that the resolution of this lawsuit will impair or impede Maine's ability to protect its interest in its environmental regulatory program. 124 F.R.D. at 509. The district court observed that since a federal court’s interpretation of Maine’s environmental laws will not be binding in" }, { "docid": "14928688", "title": "", "text": "court erred in its disposition of the coverage issue. Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that “anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject matter of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” An applicant for intervention under the rule must demonstrate that each of four requirements is met: (1) the application is timely; (2) the applicant has an “interest” in the property or transaction which is the subject of the action; (3) disposition of the action as a practical matter may impede or impair the applicant’s ability to protect that interest; and (4) no existing party adequately represents the applicant’s interest. United States v. City of Chicago, 798 F.2d 969, 972 (7th Cir.1986); United States v. 36.96 Acres of Land, 754 F.2d 855, 858 (7th Cir.1985). There is no dispute in this ease as to the timeliness of LaSalle’s application to intervene as of right, nor does Security contend that any interest LaSalle may have is being adequately represented by an existing party. Security does argue that LaSalle fails to meet the second and third requirements for intervention as a matter of right. The real question, then, is whether LaSalle has an interest in the underlying determination of whether the Security policy covers LaSalle’s claims against Schipporeit. After all, if LaSalle does have the necessary interest, it is difficult to argue that that interest would not be jeopardized by a default judgment against Schipporeit. Judge Zagel stated that he could not “imagine a more pressing, more clear, and more obvious interest than the LaSalle Street Church has in this case.” We review the district court’s determination of interest de novo. Nissei Sangyo America, Ltd. v. United States, 31 F.3d 435, 438 (7th Cir.1994). The “interest” required by Rule 24(a)(2) has never been defined with" }, { "docid": "21549388", "title": "", "text": "represented by existing parties. Thus, a nonparty has an absolute right of intervention when it satisfies each and every requirement of Rule 24(a)(2): timeliness; sufficient interest in the litigation; an impairment of its ability to protect that interest; and inadequate representation by a party to the suit. Mothersill D.I.S.C. Corp., 831 F.2d at 61. The district court denied intervention on the ground of insufficient interest: The would-be intervenors had not demonstrated a “legally cognizable interest” in the underlying action. 117 F.R.D. at 548. That definition of the type and sufficiency of interest required for intervention of right has arisen from the case law that developed around Rule 24 in the absence of the Rule’s own offering of a more precise explanation. The Supreme Court has stated that an applicant’s interest must be “sufficient,” Trbovich v. Mine Workers, 404 U.S. 528, 538, 92 S.Ct. 630, 636, 30 L.Ed.2d 686 (1972) and “significantly protectable,” Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48 (1986), quoting Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 542, 27 L.Ed.2d 580 (1971). The Courts of Appeals have, for the most part, adopted the requirement carefully honed by Judge Skelly Wright in Hobson v. Hansen, 44 F.R.D. 18 (D.D.C.1968), that intervention of right requires “a direct, substantial, legally protectable interest in the proceedings.” 44 F.R.D. at 24. See, e.g., Panola Land Buying Ass’n v. Clark, 844 F.2d 1506, 1509 (11th Cir.1988); Mothersill D.I.S.C. Corp., 831 F.2d at 62; Harris v. Pernsley, 820 F.2d at 596; Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.1985), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985). In practice, it is widely recognized that Rule 24 was intended to give courts the power to resolve intervention disputes pragmatically by considering “all the competing and relevant interests raised by an application for intervention.” Harris v. Pernsley, 820 F.2d at 597, quoting United States v. Hooker Chemicals & Plastics Corp., 749 F.2d at 983. Courts may consider the practical consequences of the litigation in passing on an application to intervene as of" }, { "docid": "7312152", "title": "", "text": "2671, 65 L.Ed.2d 784 (1980), Charles v. Daley, 749 F.2d 452 (7th Cir.1984); Planned Parenthood Association-Chicago Area v. Kempiners, 700 F.2d 1115 (7th Cir.1983); Wynn v. Carey (II), 599 F.2d 193 (7th Cir.1979), and Wynn v. Carey (I), 582 F.2d 1375 (7th Cir.1978). After the matter was briefed and after oral argument, the district court denied the motion without a written opinion on September 28, 1984. The court did grant IPC leave to participate as amicus curiae stating that it would carefully consider “any briefs filed by IPC.” II The Federal Rules of Civil Procedure set forth four requirements which a proposed intervenor must satisfy before intervention of right is allowed: (1) the application must be timely; (2) the applicant must have a direct and substantial interest in the subject matter of the litigation, (3) the applicant’s interest must be impaired by disposition of the action without the applicant’s involvement; and (4) the applicant’s interest must not be represented adequately by one of the existing parties to the action. Fed.R.Civ.P. 24(a)(2); United States v. 36.96 Acres of Land, 754 F.2d 855, 858 (7th Cir.1985). The applicant has the burden of proving each of the four elements of intervention as of right; the lack of one element requires that the motion to intervene be denied. 36.96 Acres, 754 F.2d at 858; CFTC v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 (7th Cir.1984). Plaintiffs conceded that the defendants had filed their motion to intervene in a timely fashion and the district court gave no indication that IPC had failed to meet the timeliness requirement. We hold, however, that IPC lacks the direct interest required to support intervention as of right and we will discuss only this criteria. Because the four requirements, however, are facets of the same problem, 3B Moore’s Federal Practice ¶ 24.07[1] at 24-51, some of our analysis will refer to the other factors of impairment and representation. A proposed intervenor must demonstrate a direct, significant and legally protectable interest in the property at issue in the law suit. The interest must be based on a right that" }, { "docid": "23259353", "title": "", "text": "on October 19, 1983. These mandamus actions are still pending. On September 7, 1983, the government and NIPSCO submitted to the trial court a stipulation and joint motion to dismiss. Following briefing and a hearing on the Council’s motion to intervene, the district court denied the motion. II Four requirements must be met before intervention will be granted as of right. The application must be timely. The intervenor must show an interest relating to the property or transaction which is the subject of the action. The intervenor must show that the disposition may as a practical matter impair or impede the intervenor’s ability to protect that interest. And, the intervenor must show that that interest is not adequately represented by existing parties. Gautreaux v. Pierce, 690 F.2d 616, 635 (7th Cir.1982). The proposed intervenors must satisfy each requirement before a court will grant the motion to intervene. CFTC v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 (7th Cir.1984). The district court found that the Council met only the first requirement of timeliness of the motion but failed to meet the other three requirements. The Council bases its challenge to the court’s denial of intervention on the ground that its interest in Crescent Dune is legitimate, tangible and demonstrable, is unprotected by the parties to this action, and will be substantially impaired if the Council is denied intervention. The district court examined the Council’s alleged interest in the Crescent Dune and determined that “[w]hile the Council has played a laudatory role in the development of the Indiana Dunes National Lake Shore [sic], with respect to this tract of land, [the Council] is essentially a private citizen with no interest in the property sought to be condemned.” Order at 5. Moreover, the district court determined that NIPSCO had the “paramount ... [and] only legal interest” in Crescent Dune. Id. To obtain intervention as of right under Rule 24(a)(2), a proposed intervenor must show “a direct, significant legally protectable interest in the property or transaction subject to the action” in which intervention is sought. Wade v. Goldschmidt, 673 F.2d 182, 185" }, { "docid": "9458498", "title": "", "text": "at 15. Ultimately, the court levied sanctions in the amount of $50,000. To arrive at that figure, it used the attorneys’ fees that class counsel and the defendants’ counsel generated. in response to the motions to intervene as a “marker”, but not a dispositive one. Id. at 20. It directed that the fees were to be paid directly to the Greater East St. Louis Community Fund, Inc., a local charitable organization. Mr. Hawk appealed the denial of his motion to intervene and the judgment certifying the class and approving the settlement. Mr. Selden and Mr. Rosenthal appealed the imposition of Rule 11 sanctions. All three appeals were consolidated into the present case. II DISCUSSION A. Motion to Intervene 1. Mr. Hawk sought to intervene as of right under Rule 24(a), which required him to (1) make a timely application, (2) have an interest relating to the subject matter of the action, (3) be at risk that that interest will be impaired by the action’s disposition and (4) demonstrate a lack of adequate representation of the interest by the existing parties. See Nissei Sangyo America, Ltd. v. United States, 31 F.3d 435, 438 (7th Cir.1994). Mr. Hawk is required to prove each of these four elements; the lack of one element requires that the motion to intervene be denied. See Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.1985). The district court denied this motion on the ground that Mr. Hawk had not shown that his interests were inadequately represented by class counsel. With the exception of the first factor, which relates to the timeliness of the inter vention and is reviewed for abuse of discretion, we review de novo the denial of an intervention of right. See Nissei Sangyo, 31 F.3d at 438. However, it is clear that the district court based much of its determination regarding this issue on its assessment of Mr. Hawk’s testimony, a finding to which we owe deference. See Rush v. Martin Petersen Co., 83 F.3d 894, 896 (7th Cir.1996) (regarding factual finding, deference given to district judge “who had the opportunity to observe the" }, { "docid": "23709323", "title": "", "text": "Cagan, 950 F.2d 416, 419 (7th Cir.1991); Keith v. Daley, 764 F.2d 1265, 1272 (7th Cir.1985). The district judge may have worried that, if she allowed intervention, objectors would enter the case and, as parties, block the settlement by withholding agreement to its terms. But as Crawford observed that worry is insubstantial; a judge can solve the problem by limiting intervenors to the privilege of appealing. For this limited-purpose intervention, it is irrelevant whether the class members come in under Rule 24(a) (intervention as of right) or Rule 24(b) (permissive intervention). See Crawford, 201 F.3d at 881; Vollmer v. Publishers Clearing House, 248 F.3d 698, 707 (7th Cir.2001). District judges are not entitled to block appellate review of their decisions by the expedient of denying party status to anyone who seems likely to appeal, as the district judge apparently tried to do in this case. Crawford’s requirement that “district courts freely allow the intervention of class members who object to proposed settlements” means that the intervenors must be given their say in this case. We reverse the district court and grant the objecting class members a place at the table. Whether we can do anything for the intervenors now that they are parties is the next question. The intervenors appealed from the district court’s denial of their motions to intervene, but not from the final judgment embodying the settle ment. A decision reversing an order denying intervention usually leads to a remand, not to a decision on the merits. See Jessup v. Luther, 227 F.3d 993, 998-99 (7th Cir.2000). Yet there would be nothing to do on remand here; the settlement’s approval ended the case. No further ap-pealable judgment could be entered, so the objecting class members seem to be out of luck. This problem has a ready solution, however. Blair v. Equifax Check Services, Inc., 181 F.3d 832, 834 (7th Cir.1999), instructs putative intervenors that, when a substantive appeal is contingent on the success of the intervention appeal, they should file two notices of appeal: one from the denial of intervention and a second springing or contingent appeal from" }, { "docid": "14928692", "title": "", "text": "appropriate. Rule 24(b)(2) states that permissive intervention may be allowed “when an applicant’s claim or defense and the main action have a question of law or fact in common.” The rule goes on to note that “[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Two requirements must be met before a court may exercise its discretionary power to grant intervention under 24(b)(2). The proposed intervenor must demonstrate that there is (1) a common question of law or fact, and (2) independent jurisdiction. Reedsburg Bank v. Apollo, 508 F.2d 995, 1000 (7th Cir.1975). Other than these two requirements, which are clearly met in this ease, intervention under 24(b)(2) is entirely discretionary. Keith v. Daley, 764 F.2d 1265, 1272 (7th Cir.1985). In exercising that discretion, the court must give some weight to the impact of the intervention on the rights of the original parties. It is hard to see how those rights might be compromised in this ease. Security can hardly be said to be prejudiced by having to prove a lawsuit it chose to initiate. Indeed, it is the policy of this circuit to favor trials on the merits over default judgments. C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984). By contrast, the benefits of allowing La-Salle to intervene are considerable. Perhaps the most obvious benefits of intervention in general are the efficiency and consistency that result from resolving related issues in a single proceeding. In this case, denial of intervention would in all likelihood have created additional litigation and the possibility of conflicting results. If the district court had denied intervention, Security would probably have won, by default, a judgment that it had no duty to defend or indemnify Schipporeit for LaSalle’s claims. From the record, it seems probable that Schipporeit would not have defended against LaSalle in the state court action. LaSalle could then have sought, and probably obtained, a default judgment in its state court action. With that judgment in hand, LaSalle could have sought" }, { "docid": "18774654", "title": "", "text": "the characterization the district court placed on the Tenneco-Erlanger dealings; if the judge thought that these dealings and payments bypassed Saxony, FICC would lose a receivable that was part of its security. The district court declined to allow FICC to intervene — not for the natural reason that FICC already was a party, but because it thought Erlanger’s claim against Tenneco conceptually distinct from any of Saxony’s and FICC’s claims. Assuring FICC that nothing it did in adjudicating Erlanger’s claims would injure FICC, the court said it would decide the motion for summary judgment without FICC’s participation. FICC then appealed, arguing that it was entitled to intervene as of right under Fed. R.Civ.P. 24(a)(2) because Tenneco, Erlanger, FICC, and Saxony are all claiming interests “relating to the [same] property or transaction ... and [FICC] is so situated that the disposition of the action may as a practical matter impair or impede [FICC’s] ability to protect [its] interest”. See American National Bank v. Bailey, 750 F.2d 577, 583-84 (7th Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 2324, 85 L.Ed.2d 842 (1985); United States v. 36.96 Acres of Land, 754 F.2d 855 (7th Cir.1985); Keith v. Daley, 764 F.2d 1265 (7th Cir.1985). FICC would have a strong case under Rule 24 if it were not already a party. There is one complex series of transactions among Tenneco, Saxony, Erlanger, and FICC, and FICC surely is entitled to be heard on the question of the appropriate characterization of these transactions. It may be, as the district court said, that Tenneco could be liable directly to Erlanger and still be liable to Saxony (and hence FICC); that court has since granted summary judgment to Erlanger in a way that appears to leave open Saxony’s claims against Tenneco. But the characterization of the transactions is a question on the merits that ought not to be finally resolved by the device of telling one of the participants it is not entitled to be heard. “Finally” resolved is the important qualification. If FICC is a party to the litigation it is entitled to be heard on" }, { "docid": "11553237", "title": "", "text": "believed creation of the monument improperly thwarted the operation of an underground coal mine that would presum ably have proceeded under previous plans. It is thus not speculative to conclude that the protection accorded the intervenors’ interest in preserving the wilderness nature of the monument land would be diminished if the land were to lose its designation as a national monument. Plaintiffs also contend the intervenors’ interests are not impaired because they would be able to participate in the formulation of a revised land use plan for the area should it lose its monument status. Again we disagree. “[WJhere a proposed intervenor’s interest will be prejudiced if it does not participate in the main action, the mere availability of alternative forums is not sufficient to justify denial of a motion to intervene.” Commodity Futures Trading Comm’n v. Heritage Capital Advisory Serv., 736 F.2d 384, 387 (7th Cir.1984). Moreover, the possibility of impairment is not eliminated by the intervenors’ opportunity to participate in the formulation of a revised land use plan that, at most, would not provide the level of protection to the intervenors’ interests that the current plan offers. Finally, as the intervenors point out, this court has held that “the stare decisis effect of the district court’s judgment is sufficient impairment for intervention under Rule 24(a)(2).” See Coalition, 100 F.3d at 844. The intervenors argue that a judgment in favor of plaintiffs in this case would impair the intervenors’ interest in promoting their environmental protection goals by seeking presidential designation of other national monuments in the future. In light of these considerations, we conclude the intervenors have demonstrated that their interests may be impaired or impeded by the disposition of this lawsuit. V Adequacy of Representation The intervenors have shown that their motion to intervene was timely, they claim an interest relating to the property which is the subject of the action, and as a practical matter their ability to protect that interest may be impaired or impeded by the disposition of the action. Under Rule 24(a)(2), they are therefore entitled to intervene as of right unless that interest" }, { "docid": "5465997", "title": "", "text": "elements. Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir.), cert. denied sub nom. Illinois Pro-Life Coalition, Inc. v. Keith, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985). The Trustee denies that Skadden has sufficiently alleged the second element (“an interest relating to the subject matter of the action”), and that will be the focus of our discussion. In determining whether a movant has demonstrated the requisite interest in the subject matter of the action, a court should define “interest” broadly. Lake Investors, 715 F.2d at 1259; Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 203-04 (7th Cir.1982) (both relying on Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967)). Nevertheless, the movant must demonstrate a significantly protect-able interest (Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 542, 27 L.Ed.2d 580 (1971)); a legally protectable interest (Keith, 764 F.2d at 1268; United States v. 36.96 Acres of Land, 754 F.2d 855, 858 (7th Cir.1985), cert. denied sub nom. Save the Dunes Council dnc. v. United States, 476 U.S. 1108, 106 S.Ct. 1956, 90 L.Ed.2d 364 (1986)); and a direct and substantial interest (36.96 Acres of Land, 754 F.2d at 858; Lake Investors, 715 F.2d at 1259; Meridian Homes, 683 F.2d at 204)). Furthermore, the interest “must be based on a right that belongs to the proposed intervenor rather than to an existing party in the suit.” Keith, 764 F.2d at 1268 (citation omitted). An interest is significantly protectable if it states a legally cognizable claim. United States v. City of Chicago, 798 F.2d 969, 976 n. 10 (7th Cir.1986), cert. denied sub nom. O’Sullivan v. United States, 484 U.S. 1041, 108 S.Ct. 771, 98 L.Ed.2d 858 (1988). An interest is direct if it is “so direct that the applicant would have ‘a right to maintain a claim for the relief sought.”’ Keith, 764 F.2d at 1268 (citation omitted). Therefore, in order to determine whether an interest is sufficient for purposes of Rule 24(a)(2), a court must consider the legal validity," }, { "docid": "7312153", "title": "", "text": "Acres of Land, 754 F.2d 855, 858 (7th Cir.1985). The applicant has the burden of proving each of the four elements of intervention as of right; the lack of one element requires that the motion to intervene be denied. 36.96 Acres, 754 F.2d at 858; CFTC v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 (7th Cir.1984). Plaintiffs conceded that the defendants had filed their motion to intervene in a timely fashion and the district court gave no indication that IPC had failed to meet the timeliness requirement. We hold, however, that IPC lacks the direct interest required to support intervention as of right and we will discuss only this criteria. Because the four requirements, however, are facets of the same problem, 3B Moore’s Federal Practice ¶ 24.07[1] at 24-51, some of our analysis will refer to the other factors of impairment and representation. A proposed intervenor must demonstrate a direct, significant and legally protectable interest in the property at issue in the law suit. The interest must be based on a right that belongs to the proposed intervenor rather than to an existing party in the suit. Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir.1982). The interest must be so direct that the applicant would have “a right to maintain a claim for the relief sought.” Heyman v. Exchange National Bank of Chicago, 615 F.2d 1190, 1193 (7th Cir.1980). IPC first asserts that the “interest” factor must be broadly construed in public law cases where public interest organizations seek intervention. IPC asserts that this court supported a more liberal reading of public law intervention requirements in United States v. Board of Sch. Com’rs, Indianapolis, Inc., 466 F.2d 573 (7th Cir. 1972). IPC also relies on several commentators who assert that the “complexity and multiplicity of interests in modern claims for relief” require “liberalized intervention practices.” IPC Brief at 5, citing Albert, Standing to Challenge Administrative Action An Inadequate Surrogate for Claim to Relief, 83 Yale L.J. 425, 484 & n. 285 (1974); Bremet, A Study in the Allocation of Scarce Judicial Resources: The Efficiency of Federal Intervention" } ]

[ { "docid": "9735932", "title": "", "text": "OPINION OF THE COURT SEITZ, Chief Judge. This is an appeal by Harvlan, Inc. (“defendant”) from a district court judgment entered on a jury verdict awarding $40,000 to Clifford A. Hour-ston (“plaintiff”) as a finder’s fee. A previous jury had awarded plaintiff $50,000 which was set aside and a new trial ordered. On cross-appeal plaintiff challenges the new trial order and seeks reinstatement of the original verdict. We have decided that the judge presiding over the first trial abused his discretion in granting defendant’s motion for a new trial. Therefore, only the events of that first proceeding as they related to the court’s order need be evaluated. The five grounds given by the court in support of its new trial order will be treated seriatim. Preliminarily, however, we note that this Circuit varies the standard controlling a review of an order granting a new trial in accordance with the particular ground which the trial court adopts for its decision. Thus we have stated that on appeal a broad discretion should be recognized in the trial court when its order granting a new trial is based on its conclusion that evidence was improperly admitted or that prejudicial statements were made by counsel. See Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir. 1960). If the order rests on the court’s belief that the verdict was against the weight of the evidence, however, closer scrutiny is required by us on review. This is especially true when, as here, “the litigation deals with material which is familiar and simple, lying well within the comprehension of [the] jurors. . . .” Id. at 91. See Grove v. Dun & Bradstreet, Inc., 438 F.2d 433, 438 (3d Cir. 1971). (1) THE EVIDENCE AS A WHOLE PREPONDERATED IN FAVOR OF THE DEFENDANT The appropriate test to be applied by the court in considering defendant’s motion for a new trial was not whether the evidence “preponderated” in favor of one party or another. Rather, the court was required to decide whether sufficient evidence existed on the record which, if accepted by the jury, could sustain" } ]

[ { "docid": "21325513", "title": "", "text": "HICKENLOOPER, Circuit Judge. Plaintiff in the court below appeals from a judgment entered upon a verdict for the defendant, directed at the close of all the evidence, in an action wherein she sought to recover for the alleged wrongful death of her-intestate. On November 21, 1928, decedent was riding as a passenger or guest in the automobile of a friend, when it was struck by one of defendant’s trains at the grade crossing of Guinea road east of the unincorporated village or hamlet of Branch Hill, approximately twenty miles north of the city of Cincinnati. Both occupants of the automobile were instantly killed. The negligence alleged in the petition was in failing to give the statutory warning required by Ohio General Code, § 8853, that is, failure to sound the whistle at a distance of at least 80 and not farther than 100 rods from the crossing, and failure on behalf of the defendant to take cxtrastatutory precautions, such as by maintaining flash signals, warning bell, gates, or watchman, for which the necessity was said to have arisen from the peculiarly heavy traffic on this road and obstructions to the view of approaching trains. We have carefully reviewed the evidence and fail to find any substantial support for the latter contention. It is true that there was a slight embankment on each side of the defendant’s right of way, but at the time of day and year of the accident in question the traffic was no heavier than upon the ordinary country crossing, and it is practically undisputed that, when within 15 feet west of the west rail of the south-bound track (decedent was approaching from the west when struck by a south-bound train), travelers upon the highway had an unobstructed view of approximately 1,000 feet of the track to the north. The decision in the instant ease must therefore depend upon whether there was substantial evidence of negligence, proximately causing the injury, other than failure to take extrastatutory precautions. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 421, 12 S. Ct. 679, 36 L. Ed. 485; Evans" }, { "docid": "15066013", "title": "", "text": "HAMLIN, Circuit Judge. Gary Anderson Moran, 18-year-old son of appellants, was killed in a crossing collision between a pickup truck in which he was riding as a guest passenger and the engine of a logging train owned and operated by appellee. The accident took place at a point in Idaho on State Highway No. 8 near Bovill, Idaho, where the highway is crossed at approximately a right angle by the railroad tracks of appellee. Appellants filed an action for damages against appellee in the United States District Court for the District of Idaho. The action was tried by a jury which rendered a verdict for appellants in the sum of $5,000. Appellee, having moved for a directed verdict at the close of the evidence, moved for judgment notwithstanding the verdict, and the District Court granted said motion, set aside the jury’s verdict, and entered judgment for appellee. This appeal is from said order of the District Court. Jurisdiction was in the District Court by reason of diversity of citizenship, and jurisdiction is in this Court under 28 U.S.C.A. § 1291. An examination of the record discloses the following facts. The decedent resided with his parents, the appellants, at Bovill, Idaho, and attended a high school at Deary, Idaho. Normally, the' decedent traveled to high school daily by means of a school bus. On the morning of the accident the decedent proceeded to the school bus stop, and while there a friend of his, Kenneth White, drove up in his father’s 1951 Chevrolet pickup truck and offered to give decedent and another boy, named Wendell Boyce, a ride to school, which offer was accepted. The three boys in the pickup truck then proceeded along State Highway No. 8, shortly before 8 a. m., for the high school at Deary with White driving, Boyce in the middle, and the decedent on the right hand side of the pickup. About five miles from Bovill, State Highway No. 8 runs generally in a north and south direction and is crossed by the tracks of the appellee which run generally in an east and west" }, { "docid": "7941939", "title": "", "text": "track. There he came to a complete stop to permit a westbound car on Front Street to pass ahead of him. When the car had passed, the driver of the Brinson vehicle drove straight ahead toward the tracks in low gear and no one in the car was aware of the presence of defendant’s east-bound train, which was then approaching Chicago Street from the west, until the engine was right upon them. The collision occurred on the main-line track when the right front portion of the diesel engine struck the left side of the car. Both the driver of the car and his sister were familiar with the location of the crossing having gone over it many times. The evidence shows that certain farm machinery identified as “combines” was stored on the south side of the defendant’s right of way just west of the Chicago Street crossing, and this machinery blocked the view of any motorist driving north on Chicago Street until he reached a point approximately thirty feet south of the main-line track. The evidence further shows that the night was misty and foggy, but not to such an extent as to impede the vision of the eyewitnesses who testified that they saw the train's large headlight burning brightly, and illuminating at least fifty feet on each side of the main-line track. It also affirmatively appears that the air horn on the diesel engine was blown shortly before the accident, and the bell had been ringing for some distance before it reached Chicago Street. We agree with appellants that the issue of contributory negligence is ordinarily for the jury, but it is well-settled that where there is no substantial conflict in the evidence which conditions it, and when, from the undisputed facts, reasonable men in the exercise of a fair judgment would be compelled to reach the same conclusion, the court may properly withdraw it from the jury. Smith v. Fidelity Mut. Ins. Co., 5 Cir., 206 F.2d 549. Applying these principles to the undisputed facts as disclosed by this record, we think it plain that the driver, in" }, { "docid": "20549637", "title": "", "text": "OPINION WEBER, District Judge. This is a diversity negligence action controlled by Pennsylvania law. Plaintiff’s decedent met his death in a collision between an automobile which he was driving and defendant’s train at a grade crossing near Lottsville, Warren County, Pennsylvania. The highway, running north and south, crosses two sets of tracks at approximately right angles. These tracks are approximately eighty feet apart. Going north as he was proceeding the driver would first come upon a crossbuek railroad warning sign which warned of the crossing and additionally of “two sets of tracks”, at the side of the road to his right. Directly thereafter he would pass the first set of tracks which was a side-track or “town track” which cut off from the main track some distance to the east of the highway and went westward across the highway into a feed mill located along the west side of the highway at this point From the first set of tracks described the highway rises at an approximately eight percent grade for about eighty feet to a crest where it crosses the main line track of defendant railroad. Beyond the main line track to the north was another cross-buck railroad warning sign on the west side of the highway to warn south-bound traffic of the crossing. Plaintiff argues that the position of these two warning signs at the extreme outer borders of both sets of tracks and approximately one hundred feet apart establish this area as a single railroad “crossing” with consequent duties upon the parties in relation thereto. Other physical features of the crossing affect this case. On the west side of the highway to the left of the north-bound driver there is a feed mill at the point where the side track crosses the highway. This feed mill blocks a driver’s view of defendant’s east-bound trains coming from the west on the main line track for some distance. However, at the point sixty feet before reaching the main line tracks the driver passes the feed mill and has a clear view of approaching trains from the west for a" }, { "docid": "21511339", "title": "", "text": "MANTON, Circuit Judge. On April 28, 1929, the Jarrett family, husband, wife, and two young daughters, were motoring near Chatham in the Province of Ontario, Canada, when, while crossing the appellant’s railroad tracks at road grade on Provincial Highway No. 2, their motorcar was struck by a railroad freight train proceeding west. The collision resulted in the death of Mr. Jarrett and his daughter, Betty Jane. Mrs. Jarrett and her daughter, Suzanne, sustained personal injuries. The motorcar was damaged. The jury rendered a verdict for the appellee for each of these losses. This family were driving from Detroit to their home in Brooklyn, N. Y., and at the time were on the public highway proceeding north across the railroad roadbed upon which there were two tracks running about east and west. As Mr. Jarrett, who'was driving the car, approached the crossing, he stopped his ear to allow an east-bound freight train to pass. He was thus stopped about 1% minutes when another motorcar drew up on his left, stopped, and waited for the freight to pass. As the caboose of the east-bound freight train passed, the motorcar to the left of the Jarrett ear started ahead, crossing the rails, and other ears headed in the opposite or south-bound direction proceeded to cross. Mr. Jarrett was obliged to slow up somewhat to accommodate the passage of these motor-ears. As he proceeded across the first track, another freight train bound in the westerly direction approached and he turned his car to the right to avoid collision with it, but was unsuccessful, and the forward part of the locomotive struek his ear causing this serious loss. The crossing is unprotected by gates, flagman, lights, or automatic signal. There were no street or highway lights. It was a much-traveled highway and was heavily traveled on this evening, at about 10 o’clock, when the collision occurred. The evidence justified the jury in finding that both Mr. and Mrs. Jarrett looked both ways and were alert to hear signals of passing trains. Although both were strangers to the crossing, they were fully informed of its location" }, { "docid": "18018897", "title": "", "text": "GEWIN, Circuit Judge: Appellants, Marion and Edith Thomas, invoked diversity jurisdiction and brought separate claims of negligence against appellee Illinois Central. The claims were consolidated, the parties went to trial and at the close of the evidence, the district judge granted a directed verdict in favor of the railroad company. On this appeal appel lants contend they adduced sufficient evidence under Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969) to create a question for the jury. We reverse and remand. Marion and Edith Thomas are residents of Baton Rouge, Louisiana. Both are deaf mutes. On February 28, 1975 they were traveling south on Monterrey Boulevard in Baton Rouge in a Pontiac owned and driven by Mr. Thomas. Mrs. Thomas was a guest passenger. Monterrey Boulevard runs north and south and intersects South Choctaw Drive which runs east-west. There are a series of overhead lights regulating traffic at the intersection. Approximately 75 feet north of the intersection is a railroad crossing. At this point a railroad track owned by appellee Illinois Central crosses Monterrey, running parallel to South Choctaw. Monterrey Boulevard is a heavily used thoroughfare and has four lanes, two for south bound traffic and two for north bound traffic, in the area of the crossing. Appellants reached the crossing at about 5:30 p. m., during the peak of rush-hour traffic. Vehicles were moving slowly at a bumper-to-bumper pace. The traffic lights at the South Choctaw-Monterrey intersection changed to red, backing up traffic and appellant Thomas stopped his automobile immediately behind a Cadillac which had stopped on the tracks. There were 3 or 4 vehicles situated between the Cadillac and the red light. The crossing was not protected by barricades, but did have electric bells and flashing lights to warn of trains. When Thomas stopped his automobile behind the Cadillac he was roughly abreast the signals and unable to see them from this position. After the Cadillac had stopped on the track, its driver, Manuel, heard bells ringing. He immediately looked and observed a train approaching from the east. Manuel testified at trial that the train initially appeared" }, { "docid": "18275635", "title": "", "text": "THOMPSON, District Judge. This case is before the Court on appeal from the decision of the District Court denying appellant’s motion to set aside the verdict of the jury and to enter judgment for appellant or to order a new trial on the single issue of damages or on all the issues. The appellant, personal representative of J. ,W. Bell, deceased, plaintiff in the trial court, and the appel-lee, Pennsylvania Railroad Company, defendant in the trial court, will be referred to herein as plaintiff and defendant, respectively. Seaman 2nd Class J. W. Bell was killed when the automobile operated by him collided with the side of defendant’s moving train where the highway intersects defendant’s double-track main line railroad in Northampton County, Virginia. Plaintiff brought this action for damages on account of Bell’s death. The defendant’s evidence tended to show that: at the point where the highway crosses the tracks, the railroad ran generally north and south, and the highway ran generally east and west. Bell was alone in his automobile traveling west, it was daylight and the weather was clear; the train was proceeding south at a speed of 22 to 25 miles per hour. Bell had a clear view of the crossing for 500 feet before he reached it, and the track was visible to him in the direction from which the train was approaching for a distance of several hundred feet when his vehicle was 300 to 400 feet from the crossing. The railroad crossing was indicated by prominently displayed signs along the highway for several hundred feet east of the crossing which was equipped with electrically activated gates, flashing lights, and bells. The gate on the east side of the track, when lowered, extended across the west-bound highway traffic lane and similarly, the gate on the west side of the track, when lowered, extended across the eastbound traffic lane. The only eye-witness to the collision testified that the locomotive whistle was blowing, its headlight burning, and its bell ringing as it approached the crossing; the gates were down, and the decedent attempted to “beat” the train across" }, { "docid": "9429915", "title": "", "text": "OPINION OF THE COURT VAN DUSEN, Circuit Judge. The plaintiff in this diversity action appeals from a jury verdict in favor of the defendant. Clyde D. Sturdevant (“Sturdevant”) died from injuries sustained in a railroad grade crossing accident on May 2, 1968, when his car, traveling north on Route 957, collided with an eastbound train of the defendant at one of two tracks at a crossing near Lottsville, Warren County, Pennsylvania. At the time of the accident, a driver approaching this crossing from the south on Route 957 would first pass a cross-buck warning sign on the right side of the road indicating “two sets,of tracks,” then cross a sidetrack and travel approximately 80 feet to the main line track of the defendant railroad, and finally, after crossing the main line track, pass a crossbuek warning sign on the left side of the road alerting southbound motorists of the railroad crossing. On the left side of Route 957 (going north), there was an inoperative feedmill close to the side tracks which obscured the northbound driver’s vision to the west until he was within 60-65 feet of the main track, that is, until 15-20 feet after he had crossed the side track. At this point 60-65 feet south of the main track, the driver would have a clear view of a train on the main track, although he would not be able to see the actual main track at the crossing until he was ■ 8-12 feet from it because of an 8% grade in the road and a slight “bump” at the point that Route 957 crossed the main track. On the day of the accident, Sturde-vant was driving at daybreak (approximately 6:10 A.M.) in foggy weather with his lights on. He had made this same northbound trip almost daily for the preceding two to three weeks. While Sturdevant approached the crossing, an irregularly scheduled eastbound train of the defendant was proceeding on the main track at a speed of approximately 35 miles per hour, its headlight on, its horn sounding, and its bell operating. The engineer in this train" }, { "docid": "5362662", "title": "", "text": "yet, where there is any substantial doubt, the question of whether due care was exercised is one for the jury. Here the truck was approaching the crossing at a moderate rate of speed, the warning signal showed the crossing to be clear and there was no signal given by the approaching train. The driver of the truck felt secure in continuing to cross the track without stopping and when he got where he could see the approaching train it may have been too late for him to stop. All the occupants of the truck are dead and cannot testify as to whether they looked or saw the train and whether any effort was made to stop the track. There was evidence to the effect that the crossing was in very bad condition and rough, one witness testified that it appeared to him that the wheel of the truck was spinning, showing that the truck may have been stalled when hit. That there was some doubt in the mind of the trial judge, is shown by the following statement in his opinion: • “If the accident here had occurred on the first track (switch track), or possibly on the second track (south bound main track), perhaps the jury should have been permitted to pass on the contributory negligence, due to the evidence tending to show that the electric signals were not flashing.” The defendant relies upon the decision of this court in Calloway v. Pennsylvania R. Co., 62 F.2d 27, but that is a case in which the automobile was driven into a train already on the crossing and was plainly a case of contributory negligence. Under the facts of this case, we are of the opinion that the question as to whether the plaintiff’s intestate used due care at the crossing was one for the jury. The judg ment appealed from is accordingly reversed and the cause is remanded with direction that judgment be entered for the plaintiff upon the verdict in her favor returned by the jury. Reversed. Note: Coleman v. Atlantic Coast Line R. Co., 153 N.C. 322," }, { "docid": "20549639", "title": "", "text": "considerable distance. Continuing to the north toward the main track upgrade a driver does not come in sight of the rails of the main track until he is within eight to twelve feet from them. The weather was foggy, it was breaking daylight, the driver’s headlights were on, and the driver had traversed this crossing almost daily for two or three weeks prior thereto. The defendant’s train was approaching from the west, its headlight was on and its diesel horn was sounded on approaching the crossing. The engineer of defendant’s train observed the lights of the automobile as it passed behind the feed mill when the train was about one thousand feet from the crossing. There is no evidence as to whether the driver stopped before crossing the side track but he continued to approach the main track at a low rate of speed and appeared to be slowing down. The car did not stop and was struck in the front by the train immediately upon entering upon the main line track. The jury returned a verdict for the defendant railroad and plaintiff has moved for a new trial citing errors in the court’s charge. The principal argument directed against our charge with respect to the question of decedent’s contributory negligence concerns whether this is a multitrack crossing where the strict rule of Stop, Look and Listen at each track is modified. Plaintiff argues that the Stop, Look and Listen rule is applied to a “crossing”; that the driver must stop before entering a “crossing” as that word is employed in Tomasek v. Monongahela Rwy. Co., 427 Pa. 371, 235 A.2d 359 [1967], but that once having entered upon a multi-track crossing the decedent had no affirmative duty to stop a second time. In the Tomasek case the court uses the word “crossing” throughout, but the opinion indicates that only one set of tracks is involved. “But, having once stopped in the exercise of reasonable care before entering upon the crossing, he was not bound, as a matter of law, to stop again on or between the tracks to look" }, { "docid": "13340805", "title": "", "text": "Perry was bound by what he could have discovered in the exercise of ordinary care. Flitchum v. Clinchfield R. Co., supra. In light of the circumstances attending the collision here, the trial court determined that had Perry been exercising due care for his own safety, he would have been able to avoid the accident. We agree. The conclusion is inescapable that in driving upon the tracks and into the path of the train, plaintiff’s decedent was guilty of contributory negligence. It is equally clear that his negligence operated concurrently with any of the defendant and was a “predominant” cause of his death, and thus, under the standards set forth in Grigsby & Co. v. Bratton, 128 Tenn. 597, 163 S.W. 804 (1912) and Todd v. Cincinnati, N. O. & T. P. Ry. Co., 135 Tenn. 92, 185 S.W. 62 (1915), was proximate rather than remote, as a matter of law. We conclude, therefore, that the district court properly granted defendant-appellee’s motion for judgment notwithstanding the verdict. It is therefore unnecessary to consider appellant’s claims respecting the charge to the jury. Affirmed. . 59-845. Obedience to signal indicating approach of train. — (a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when : 1. A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train ; 2. A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train; 3. A railroad train approaching within approximately one thousand five hundred (1,500) feet of the highway crossing emits a signal audible from such distance # and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard; 4. An approaching railroad train is" }, { "docid": "2865541", "title": "", "text": "STALEY, Circuit Judge. This is a diversity action in which plaintiff seeks to recover damages for the death of Joseph A. Dostal in a grade crossing collision between the automobile owned and operated by the decedent and the passenger train of defendant. This is the second trial of the case, the jury in the first trial having failed to agree. In the second trial the jury rendered a verdict for plaintiff. Defendant’s motions for judgment n. o. v. or, in the alternative, for a new trial were denied. Defendant argues on appeal that judgment n. o. v. should have been granted because plaintiff’s decedent was guilty of contributory negligence as a matter of law. The contention urged upon us is that the facts of the instant case call for the application of the “incontrovertible physical facts” rule. Defendant also urges that certain alleged errors in the charge of the district judge constituted prejudicial error and render a new trial necessary. The facts are as follows: The place of the accident was the Lyndora crossing of defendant railroad in Butler County, Pennsylvania; the time was February 20, 1946, shortly before 7 p. m., as 'twilight was merging into night. Immediately prior to the accident, decedent was driving his sedan in a westerly direction along Route 8, the highway between Butler and Pittsburgh. Although this highway has a generally north-south orientation, the particular stretch of Route 8 with which we are concerned runs approximately in an east-west direction. This segment of the highway is paralleled on the north by the single track of defendant railroad. Motorists on Route 8 who wish to travel in the direction of Lyndora must turn northward from Route 8 and cross the Lyndora crossing of defendant railroad. The approach to this crossing is in the form of a Y. Travelers coming from the east naturally use the eastern leg of the fork; those from the west, the western leg. The decedent, traveling in a westerly direction from Butler, turned right onto a fork of the Y, preparatory to crossing defendant’s track. There is eye-witness testimony to the" }, { "docid": "6514258", "title": "", "text": "KALODNER, Circuit Judge. Earl F. Smith (“decedent”) was killed when the pickup truck that he was driving collided with a train of the defendant, Reading Company, at a crossing in Topton, Pennsylvania. Plaintiff, as administrator of decedent’s estate, brought this suit in the District Court for the Eastern District of Pennsylvania to recover damages under the Pennsylvania Wrongful Death and Survival Acts. Judgment was entered in favor of defendant pursuant to the finding of the jury, in answer to a special interrogatory, that decedent was negligent. Plaintiff’s motion for new trial was denied, and this appeal followed. Jurisdiction exists by reason of diversity. Pennsylvania law governs. Plaintiff seeks a new trial on the basis of several alleged trial errors. Defendant contends that we need not consider the alleged errors, inasmuch as the District Court should have directed a verdict for defendant on the ground that decedent was guilty of contributory negligence as a matter of law. Before turning to the alleged trial errors, we will first consider defendant’s contention. Plaintiff’s own testimony, says the defendant, established that (1) the approaching train was visible before decedent reached the railroad crossing, and (2) warning signals flashing red gave notice of the approaching train before decedent reached the crossing. Defendant’s first point is without merit. There was positive testimony by plaintiff’s witness Schofer that the train was not visible at the point where decedent reached the crossing. Indeed, the trial judge specifically commented on Schofer’s testimony to that effect in presenting to the jury the issue as to visibility raised by conflicting testimony with respect to it. Defendant relies on the testimony of plaintiff’s witness Hertzog as establishing the flashing of red warning signal lights before decedent reached the crossing. Hertzog was driving his vehicle south on Haas Street to the rear of decedent’s truck. On direct examination he was questioned as to the sounding of warning signals by the train horn, whistle or bell and the actions of decedent after he embarked on the crossing. Defendant, nevertheless, was permitted on cross-examination to question Hertzog with respect to the flashing of signal lights," }, { "docid": "3967906", "title": "", "text": "it is the duty of the traveler to stop. Apart from his knowledge of this crossing this driver had warning of the railroad track ahead of him by the flasher signal when he was yet over 150 feet distant. If his view to his right and left was obscured at that time, it became his duty to approach the track with his car under control. Had he done so, when he reached the point 55 feet from the track, he would have had a clear view of the approaching train from the north.” In the case of Union Railway Co. v. Jinks, 55 Tenn.App. 491, 402 S.W.2d 495 (1965), the significant facts were that the plaintiff had driven her car upon a railroad crossing without stopping during daylight hours when visibility was adequate for the plaintiff to have seen the approaching train had she looked. Quoting extensively from the Anderson, Ledbetter and Snyder cases, supra, the Court held that “reasonable men should not differ in concluding that the negligence of Mrs. Jinks constituted at least a part of the proximate cause of the collision and its resulting injuries.” In the case of Dean v. Southern Railway Co., 327 F.2d 757 (C.A.6, 1964), the Court of Appeals set aside a jury verdict and entered a judgment for the defendant in an action arising out of a railroad crossing accident. Although the accident occurred in Virginia, the case was tried in the United States District Court for the Eastern District of Tennessee, Northeastern Division. Noting that “It is immaterial whether Virginia law or Tennessee law applies, for they are the same,” the Court stated: “Under Virginia law, whether or not Mr. Dean was familiar with the crossing, he was not relieved from the duty to use his faculties of sight and hearing. He was bound to know that other roads intersect highways as well as railroads, that people travel such intersecting roads and trains move over grade crossings. Charged with that knowledge the duty evolved upon him to exercise care commensurate with the hazards imposed upon him. ****** “There can be no" }, { "docid": "7151050", "title": "", "text": "McLAUGHLIN, Circuit Judge. The trial judge directed a verdict in favor of the defendant railroad in this negligence suit which arose out of a grade crossing accident. Plaintiff appeals. Plaintiff’s decedent, Carroll D. Hague, on May 12, 1954, was employed at the Empire Steel Castings plant, Muhlenberg Township, Pennsylvania. Around 3:30 P.M., Daylight Saving Time, having finished his shift, he, in his automobile, proceeded north on Frush Valley Road from the company parking lot. The latter is adjacent to the Frush Valley Road grade crossing of the Reading Company. He drove on to the crossing where his car was struck by the engine of a westbound Reading train. Hague lost his life as a result of the accident. The cause is in the federal court because of the diverse citizenship of the parties. Pennsylvania law therefore governs. The trial judge held that there was no negligence shown against the railroad and that Hague was contributorily negligent. As to the latter he said: \"Giving him the benefit of all the presumption there may be in his favor, it is obvious that with the train whistle blowing and bell ringing, and headlight on, coming down its railroad track, that this decedent in spite of the fact the red light was blinking right in his face, drove right out in front of a train. The duty to stop, look and listen has been repeatedly declared by the courts to require a man not to make a perfunctory stop to look and listen, but to look and listen where it will be effective.” The double railroad tracks at the crossing run east and west. Six hundred feet east there is a curve in the tracks. On the date of the accident some foliage existed in the right side crossing zone. There was a red flasher signal at the crossing which, as far as westbound trains were concerned, was put into operation when such a train reached a point on the tracks 2716 feet east of the crossing. The evidence unmistakably indicates that the flasher was working properly at the time of the accident. The" }, { "docid": "8703037", "title": "", "text": "LINDLEY, Circuit Judge. Plaintiff sued to recover damages for personal injuries incurred in a collision between a passenger train operated by defendant and a tractor-trailer which he was driving, as employee of Ellis Trucking Company, Inc., hereinafter referred to as Ellis or plaintiff’s employer. Defendant counterclaimed for the damage to its locomotive in the same collision. A jury found for plaintiff on both complaint and counter-claim. Defendant appeals from the judgment entered on the verdict and assigns error upon the action of the District Court in denying its motions for a directed verdict and for judgment notwithstanding the verdict, which were based on its contention that plaintiff was guilty of contributory negligence as a matter of law. The essential evidence, viewed most favorably to plaintiff, follows. The accident occurred at a crossing within the city limits of Anderson, Indiana, where defendant’s main line, extending in a general southwesterly and northeasterly direction, intersects an east-west street known as West 25th. A second street, Arrow Avenue, runs north and south and dead-ends into 25th a short distance west of the crossing, with a cut-off for east bound traffic from Arrow crossing defendant’s tracks to intersect with 25th, just east of the crossing, thus forming a Y highway intersection. The crossing on West 25th lies west of the center of the fork of the Y formed by the approaches from Arrow. The crossing was guarded by warning signals, topped with the usual “railroad crossing” sign, so arranged that one or more of the alternately flashing red lights faced in each direction, east and west, on 25th and each approach of the Arrow Avenue lanes. In his trips between Detroit and Indianapolis, plaintiff had passed over this highway many times. On the morning of April 26, 1950, about 6 A.M., he approached the railroad from the east on 25th Street, traveling at approximately 20 miles per hour, but reducing to 15 when he was about 80 feet east of the crossing. At the same time defendant’s passenger train, composed of two locomotives and thirteen baggage and passenger cars, came from the northeast, traveling in" }, { "docid": "2865542", "title": "", "text": "defendant railroad in Butler County, Pennsylvania; the time was February 20, 1946, shortly before 7 p. m., as 'twilight was merging into night. Immediately prior to the accident, decedent was driving his sedan in a westerly direction along Route 8, the highway between Butler and Pittsburgh. Although this highway has a generally north-south orientation, the particular stretch of Route 8 with which we are concerned runs approximately in an east-west direction. This segment of the highway is paralleled on the north by the single track of defendant railroad. Motorists on Route 8 who wish to travel in the direction of Lyndora must turn northward from Route 8 and cross the Lyndora crossing of defendant railroad. The approach to this crossing is in the form of a Y. Travelers coming from the east naturally use the eastern leg of the fork; those from the west, the western leg. The decedent, traveling in a westerly direction from Butler, turned right onto a fork of the Y, preparatory to crossing defendant’s track. There is eye-witness testimony to the effect that he stopped, the front of his car being estimated as from 10 to 15 feet from the first rail of the crossing. Upon proceeding across the track, decedent was hit by the train of defendant. The testimony of defendant’s locomotive engineer is that the auto was hit “nearly in the rear.” There is compelling evidence that the headlight of the train was burning. It is admitted that the crossing was not protected by a watchman, gates, or signal lights. There is a sharp conflict in the testimony as to whether the train sounded any signal in the way of bell or whistle. Defendant railroad asserts that if the decedent had stopped at a point where plaintiff’s witness testified he did stop, decedent would have had an unobstructed view to his right of over 2200 feet. Hence, even if the evidence of defendant’s negligence is viewed in a light most favorable to plaintiff, defendant’s contention is that decedent could not have looked and listened; for, had he exercised the standard of care imposed upon" }, { "docid": "8450267", "title": "", "text": "westbound track (R. 85), is a metal standard having at its top a crossbuck bearing the words “Railroad Crossing”, below it a plate with the words “2 Tracks”, below that a horizontal cross-arm bearing at each end red electric lights, two facing south and two facing nor.th, and near the bottom a sign reading “Stop On Red Signal.” A similar standard stands in the west shoulder of Bishop Avenue north of the crossing. The lights are called blinker lights. When operating, one light in each pair is turned on for a few seconds and goes out, whereupon the other light of the pair is turned on for a few seconds and goes out. The lights in each pair thus light alternately. The blinker lights on both standards work at the same time, so that a person approaching the crossing can-see lights flashing on both standards. The blinker lights are put into operation automatically when a train on the westbound track arrives at a point 2,845 feet east of the crossing (R. 322). The lights go out when the train clears the crossing. There is no bell, crossing watchman, or safety gate. On the date of the collision a total of 74 trains traversed the crossing, half eastbound and half westbound (R. 78). During the morning and evening rush hours (7:30-10:30 a. m. and 4:30-7:30 p. m.) shortly after the collision, surveys showed that some 2,100 automobiles traversed the crossing daily. There was evidence that the blinker lights at Bishop Avenue sometimes operated for periods of a number of minutes without the appearance of trains at the crossing, but there was no evidence that the driver of the automobile knew of this (R. 207). Persons approaching the Bishop Avenue crossing from the south have a very limited view down the tracks to the right. On the south side of the crossing there is a two-story dwelling 46½ feet east of the east side of Bishop Avenue and 46½ feet south of the nearest rail of the eastbound track (R. 85, 86). There are a total of three steps up from the" }, { "docid": "17233779", "title": "", "text": "ORDER CARR, District Judge. This is an FELA case in which the plaintiffs, crew members of a CSX Transportation train, seek to recover for injuries sustained in a fatal grade crossing accident. Plaintiffs’ claims against the estate of the decedent, who drove a pickup truck and trailer into the train’s path, and the estate’s administrator have been dismissed on a motion for summary judgment filed by those defendants. Pending is a motion for summary judgment filed by the railroad. For the reasons that follow, the motion shall be granted. The driver who was killed in the collision, John D. Reese, was proceeding north on Rumbaugh Road in Allen County, Ohio, at about 4:00 p.m. on July 16, 2000. The road’s crossing with a CSX single line t^ack, which runs East to West, was “unguarded”: i.e., only cautionary signs, a stop line in the pavement, standard cross-bucks, and a sign warning of increased train traffic would be seen as a motorist approached the crossing. Plaintiffs’ train was proceeding from East to West at fifty miles per hour. Its warning equipment — horn, whistle, and ditch lights — was operating properly. As they approached the crossing, plaintiffs noticed “a blotch of white,” “a flash of light” headed toward the crossing; they did not, however, apprehend that the decedent’s truck would be entering their path until it had begun to cross at an estimated five miles per hour. At that point, the plaintiffs could not slow their train sufficiently to avoid the collision. As they came toward the crossing, plaintiffs’ view to the south of Rumbaugh Road was obscured by buildings on the adjacent property. In addition, branches and leaves of a large tree on that property hung over the right of way, though not in the path of the train. According to the plaintiffs, if they had been able to see the decedent’s truck sooner, they would have been able to stop the train before colliding with it. On impact, both plaintiffs were bounced around. Neither was physically injured, aside from some minor bruises that did not require medical attention. Thus, while" }, { "docid": "15561086", "title": "", "text": "of that nature had ever been maintained, so far as suggested by the record. There was evidence tending to show negligence in each of the other respects charged. Defendant denied negligence on its part, and alleged contributory negligence on the part of deceased. Trial was' had to a jury, which rendered verdict for defendant. The complaints which we shall discuss are, first, that the court excluded as a ground of actionable negligence the failure to provide a watchman or gates at the crossing; second, the refusal to permit the plaintiff to show’ that within 2 years previous to the accident there had been three fatal accidents at this same crossing from Erie southbound passenger trains, as well as “other numerous escapes from like accidents” in that period; third, that the court in its charge upon the subject of contributory negligence placed too severe a burden on decedent. 1. The charge as to contributory negligence. Decedent was 52 years of age. He operated a farm, a country bank, and a coal mine. His habits were good. He was familiar with the crossing in question, being in the habit of driving over it in going to and from Youngstown. The daughter testified that they waited about 10 minutes after - the freight train passed before crossing the railroad tracks (apparently an exaggerated estimate of time); that her mother sat in the middle and was driving, her father being upon the mother’s right, the daughter being upon the left side of the carriage, the top being up, and side and back curtains on; that after the freight passed the father told the mother to look up the tracks, and he would look down; that both leaned forward and looked,-and that the daughter looked; that both the father and mother continued to look while crossing the tracks, the father saying, “Be careful, there is more than one track;” that no bell or whistle was heard, nor any light seen (except that of the freight); and that there was nothing to indicate the approach of the passenger train until they were struck. The speed of" } ]

[ { "docid": "13833238", "title": "", "text": "a clipboard as individuals passed through the doctors’ entrance. App. at 213-14, 639 n. 9, 644. The hearing officer also found that Kay Tillow, who made numerous trips to the doctors’ entrance by ear to pick up union organizers and to check on voter turnout, had a voter eligibility list in her car. App. at 414, 448-50, 639 n. 9. III. Discussion The Board has stated that “[i]n election proceedings, it is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.” General Shoe Corp., 77 N.L.R.B. 124, 127 (1948). As one means of preserving those laboratory conditions, the Board has long maintained a policy prohibiting anyone from keeping a list, aside from the official eligibility list, of employees voting in a representation election. Masonic Homes of California, Inc., 258 N.L.R.B. 41, 41 n. 4, 47-48 (1981); Piggly-Wiggly # Oil, 168 N.L.R.B. 792, 792-93 (1967); International Stamping Co., 97 N.L.R.B. 921, 922-23 (1951). In the interest of ensuring free, non-coereed elections, the Board has set aside elections “if employee voters know, or reasonably can infer, that their names are being recorded” on unauthorized lists. Masonic Homes, 258 N.L.R.B. at 48; see also Marathon Le Tourneau Co., 208 N.L.R.B. 213, 223-24 (1974); Belk’s Department Store of Savannah, Ga., Inc., 98 N.L.R.B. 280 (1952). Absent such knowledge or inference on the part of voters, any list-keeping activity, although technically prohibited, obviously could not interfere with the exercise of voter free choice and would not warrant setting aside an election. The party objecting to an election can prove voter knowledge, however, both by direct evidence and by circumstantial evidence. Piggly-Wiggly, 168 N.L.R.B. at 792-93; A.D. Juillaird and Co., 110 N.L.R.B. 2197, 2199 (1954). Once voter knowledge has been proven, the Board has not required a showing that the list-keeping actually interfered with the free choice of any voter. International Stamping, 97 N.L.R.B. at 923. In some cases the Board has refused to set aside elections where it has concluded that the list-keeping had only" } ]

[ { "docid": "13833240", "title": "", "text": "a de minimis impact on the election. See Robert’s Tours, Inc., 244 N.L.R.B. 818, 824-25 (1979), enforced, 633 F.2d 223 (9th Cir.1980) (where only one voter had seen the list-keeping and where 15 of 26 eligible voters had voted for the union); Tom Brown Drilling Co., 172 N.L.R.B. 1267 (1968) (no evidence that any voters had seen the list-keeping); Juilliard, 110 N.L.R.B. 2197 (same); see also N.L.R.B. v. South Mississippi Electric Power Association, 616 F.2d 837, 839 (5th Cir.1980); N.L. R.B. v. Fenway Cambridge Motor Hotel, 601 F.2d 33, 38 (1st Cir.1979). In this case the Board noted that the Hospital had offered direct evidence establishing that only one voter, Earline Clark, was actually aware of the list-keeping. It further concluded that the circumstantial evidence in this case was inadequate to support the inference that any other voters were similarly aware. It commented “that the union supporters attempted to hide their unauthorized voting lists and that these efforts were largely successful.” App. at 661. The Board then concluded that in a unit of over 300 employees, only one voter knew of the Union’s conduct. Thus the Board determined that the list-keeping had only a de minimis impact on the election. Examining the facts in this case, we find that the Board’s determination of de minimis impact is not supported by substantial evidence on the record. This case does not involve isolated, short-lived incidents of list-keeping. Rather it concerns public voter tallying by members of the Union’s organizing committee at locations proximate to the polling area. The Board concluded that only one unit employee, Earline Clark, was aware of the list-keeping. There was testimony, however, that another unit employee, Mary Fedeyski, also was aware of the prohibited activity. The hearing officer failed to consider that testimony as it relates to the Hospital’s list-keeping objection. Rather he considered Fedeyski’s testimony only as it related to another of the Hospital’s objections, not renewed here, that the two women with the clipboard attempted to convince Fedeyski, an eligible voter, not to vote in the afternoon session. We find Fedeyski’s testimony obviously relevant to the" }, { "docid": "3578197", "title": "", "text": "to the employees and the union who are parties to a representation election. See Excelsior Underwear, Inc,, 156 N.L.R.B. 1236 (1966), approved in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (plurality opinion). Such disclosure is not uncommon. Second, disclosure of any information in addition to a name or address is within the control of the employee contacted by the person having access to the Excelsior list. The employee retains the option of refusing to answer any questions. (4) Alternative means of obtaining the information. Finally, other forms of direct communication might not be as effective. Employees could feel uncomfortable near their place of employment answering questions about the validity of the election and the collective bargaining agreement. And questioning employees on their way to or from work, in a hurried atmosphere, is probably not much better. CONCLUSION In light of these four factors, we conclude that the district court did not clearly err when it ruled that disclosing the Excelsior list does not constitute a clearly unwarranted invasion of personal privacy under Exemption 6. The district court’s order is AFFIRMED. . Van Bourg, Allen, Weinberg & Roger is a law firm representing Carpet, Linoleum, and Soft Tile Workers Local 1288. . The disclosure requirements of the FOIA do not apply, among other things, to: (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential .... (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy .... 5 U.S.C. § 552(b)(4), (6) (1982). . A petition for decertification alleges that the labor organization currently recognized or certified as the bargaining agent no longer represents the majority of employees. The petition must demonstrate a 30% interest in decertification. 29 U.S.C. § 159(c)(l)(A)(ii) (1976); 29 C.F.R. § 101.18 (1983). . An Excelsior list is a list of the names and addresses of all employees eligible to vote in a Board-conducted election. Since its decision in Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966), approved in NLRB v. Wyman-Gordon Co., 394" }, { "docid": "2323756", "title": "", "text": "of the National Labor Relations Act. Robert’s Tours admitted its refusal to bargain, but contested the validity of the election. On a motion for summary judgment, the Board found Robert’s Tours in violation of the Act, denying the claims of election improprieties. This appeal followed. This court finds the Board’s order approving the election and finding Robert’s Tours to be in violation of the Act to be deficient in two respects. We order the matter returned for certain specific findings by the Board. The first of these deficiencies involves the keeping of an unauthorized voter list. It has been a long established policy of the Board to prohibit anyone from keeping a list of those who have voted other than the official eligibility list. Tom Brown Drilling Co., 172 NLRB 1267 (1968); Piggly-Wiggly # 011, 168 NLRB 792 (1967); A.D. Juilliard and Co., 110 NLRB 2197 (1954); Belk’s Department Store, 98 NLRB 280 (1952); International Stamping Co., 97 NLRB 921 (1951). The Regional Director’s investigation concluded that several Union supporters were stationed between 100 and 150 feet from the polls. These employees had a list of voters. It appears that at least one employee was asked how he was going to vote as he headed toward the polling place. His name was then checked off of the list. Under the above cited authority, the keeping of this list would require a new election, but there is a recognized exception to this blanket prohibition. If none of the voters, or only a small number, know that the list is being kept, then the possibility of coercion resulting from the list keeping is greatly reduced. Locust Industries, Inc., 218 NLRB 717, 717 n.2 (1975); Tom Brown Drilling Co., supra; A.D. Juilliard and Co., supra. To support the Board’s approval of the election, there would have to be a specific finding that the effect of the list keeping was de minimus. But, no such finding appears in the record. As a result, this court cannot say the exception to the rule ■has been met in this particular case. The second deficiency involves Robert’s" }, { "docid": "2323755", "title": "", "text": "TRASK, Circuit Judge: Robert’s Tours is petitioning this court for review of a National Labor Relations Board (NLRB) order requiring it to bargain with ILWU, Local 142 (the Union). The Board is seeking enforcement of its decision and order reported at 232 NLRB No. 97 (1977). Pursuant to a Stipulation for Certification Upon Consent Election, employees of Robert’s Tours approved the Union as its bargaining agent by a 15 to 3 vote with 7 challenged, but undeterminative, ballots. Objections to the election were filed by Robert’s Tours. For the purposes of this appeal, the key objections were 1) the maintenance by employees of a voter list, and 2) electioneering by union supporters along the line of march to the polls. An investigation of these charges was conducted, with the Regional Director concluding that no improper conduct occurred. The Regional Director’s report and recommendations were adopted by the Board. Thereafter, Robert’s Tours refused to bargain with the Union. The Union filed an unfair labor practice charge with the Board alleging violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act. Robert’s Tours admitted its refusal to bargain, but contested the validity of the election. On a motion for summary judgment, the Board found Robert’s Tours in violation of the Act, denying the claims of election improprieties. This appeal followed. This court finds the Board’s order approving the election and finding Robert’s Tours to be in violation of the Act to be deficient in two respects. We order the matter returned for certain specific findings by the Board. The first of these deficiencies involves the keeping of an unauthorized voter list. It has been a long established policy of the Board to prohibit anyone from keeping a list of those who have voted other than the official eligibility list. Tom Brown Drilling Co., 172 NLRB 1267 (1968); Piggly-Wiggly # 011, 168 NLRB 792 (1967); A.D. Juilliard and Co., 110 NLRB 2197 (1954); Belk’s Department Store, 98 NLRB 280 (1952); International Stamping Co., 97 NLRB 921 (1951). The Regional Director’s investigation concluded that several Union supporters were stationed between 100 and" }, { "docid": "9584930", "title": "", "text": "Dalleske’s employment with Dacas until after the stipulation was executed. From this, the Board argues, we should hold that the parties’ minds did not meet as to whether Dalleske would be considered a per diem nurse for voting purposes. Assuming, for argument’s sake, that the stipulation’s clear terms permit us to consider such extrinsic evidence, we nevertheless reject the Board’s contention. Restated, the Board’s argument is that, notwithstanding the stipulation’s language to the contrary, the parties actually thought in terms of specific individuals rather than groups of employees. If the Union believed it knew of every potential voter, however, and yet still chose to use classes of nurses rather than individual employees, then this suggests that the court should leave the parties to the stipulation for which they have bargained. As we stated in Tennessee Packers: “If the parties had intended to include all truck drivers wherever located it would have been simple for the language to so indicate.... But the stipulation reads to the contrary.” 379 F.2d at 182. While the decision in Tennessee Packers, as we discuss more fully below, resulted in the exclusion of certain challenged voters, its reasoning and straight-forward contract analysis apply with equal force here. Our conclusion is strengthened, moreover, when considering that ONA had at its disposal the means for binding Dacas to a bargaining unit comprised of individuals rather than groups. Instead of settling upon the stipulation quoted from above, with its attendant Excelsior list, the Union could have asked for a Norris-Thermador agreement. See Norris-Thermador Corp., 119 N.L.R.B. 1301 (1958); Kheel, n. 2 supra, at § 7A.04[2]. Unlike an Excelsior list, which specifies eligible voters in accordance with the terms of a previously agreed upon stipulation, under a Norris-Thermador agreement, the employee list itself constitutes the stipulation. See Speedway Petroleum, 768 F.2d at 157 n. 6. Once executed, the agreement normally is dispositive of questions as to voter inclusion and preclusion. Id. What we are left with is a case where ONA wants it both ways. After all, the Union, not Dacas, wanted per diem nurses to vote. Then, having achieved" }, { "docid": "3771135", "title": "", "text": "the Board rule excluding pre-work activities such as filling out employment forms and undergoing orientation from the definition of “working\" under the “hired and working” voting eligibility requirement. . Section 9(a) (29 U.S.C. § 159(a)) provides in pertinent part: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . Section 8(a)(1) and (5) (29 U.S.C. § 158(a)(1) and (5)) provides in pertinent part: (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title. . The \"community of interest” standard is traditionally the touchstone of the Board’s determination whether an individual employee or job classification should be included in a particular collective bargaining unit. The test includes “a consideration of whether the employee works at regularly assigned hours per week; performs duties similar to those of unit employees; and shares the same supervision, working conditions, wages, and fringe benefits as the unit employees.” NLRB v. Boston Beef Co., 652 F.2d 223, 226 (1st Cir.1981). See Westchester Plastics of Ohio, Inc. v. NLRB, 401 F.2d 903, 907-08 (6th Cir.1968). It is normally applied when the Board makes its own independent determination defining the appropriate bargaining unit or when the Board is deciding whether or not to approve a pre-election stipulation. . Because we affirm the Board's exclusion of employee Corrigan's ballot we do not consider the exclusion of employee Smith’s. . In Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1961), the Board held that shortly after the scheduling of an election, an employer must furnish a list of the names and addresses of all employees eligible to vote. If the employer fails" }, { "docid": "5873910", "title": "", "text": "stipulated unit of production and maintenance employees in Singleton’s seafood processing plant in Tampa, Florida. The Regional Director of the National Labor Relations Board directed the Company to furnish a list of the names and addresses of all eligible voters in accordance with the Board’s then recent decision in Excelsior Underwear. Singleton conditioned its compliance with the order upon assurance from the Board that the list would be “used for the union’s legitimate purposes only during the current organizational campaign” and a promise of indemnification “against loss arising out of this publication of said list”. The Regional Director refused to make such assurances. May 9, 1966, the Regional Director conducted an election which the Union lost by a vote of 237 to 180 (there were 30 challenged ballots). The Union filed timely objections on two grounds: Singleton’s refusal to furnish the Excelsior list, and pre-election misconduct by Singleton that interfered with the employees’ free choice. After making an investigation, the Director sustained the Union’s charges and recommended to the Board that the election be set aside. On August 24 the Board set aside the election on the first ground and declined to reach the second. Then, the cycle recommenced. Still no court had ruled on Excelsior’s validity at the time of the Board’s order. Apparently hoping to force the Board to subpoena the list of employees and thus subject Excelsior to judicial review, Singleton refused to cooperate “in any way whatsoever in conducting a second election”. It refused to allow the balloting to be conducted on its premises, refused to comply with the Excelsior order, refused to participate in a pre-election conference, refused to designate election observers, and refused to permit individual notices of the election to be delivered to its employees at the plant. Indeed, the Company strenuously urged its employees to boycott the election. To no one’s surprise, therefore, few employees voted in the election on October 13 and those who did voted for the Union. The Union won the election by a vote of 136 to one; there were 14 challenged ballots and one void ballot. It" }, { "docid": "3578198", "title": "", "text": "of personal privacy under Exemption 6. The district court’s order is AFFIRMED. . Van Bourg, Allen, Weinberg & Roger is a law firm representing Carpet, Linoleum, and Soft Tile Workers Local 1288. . The disclosure requirements of the FOIA do not apply, among other things, to: (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential .... (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy .... 5 U.S.C. § 552(b)(4), (6) (1982). . A petition for decertification alleges that the labor organization currently recognized or certified as the bargaining agent no longer represents the majority of employees. The petition must demonstrate a 30% interest in decertification. 29 U.S.C. § 159(c)(l)(A)(ii) (1976); 29 C.F.R. § 101.18 (1983). . An Excelsior list is a list of the names and addresses of all employees eligible to vote in a Board-conducted election. Since its decision in Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966), approved in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (plurality opinion), the Board has required the employer, before an election, to provide such a list to the employees and to the union involved in the election. . The Court reviewed H.R.Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966); 1966 U.S.Code Cong. & Admin.News 2418, 2428; S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965); and S.Rep. No. 1219, 88th Cong., 2d Sess. 14 (1964). . See supra note 3 (discussing decertification petitions). . In some cases, the interest in withholding even a name and an address may outweigh the interest in disclosure. Such a case, however, is not before us." }, { "docid": "5873909", "title": "", "text": "WISDOM, Circuit Judge: In Excelsior Underwear, Inc., 156 N.L.R.B. No. 111 (1966) the National Labor Relations Board held that an employer may be required to submit to a Regional Director the names and addresses of employees eligible to vote in a representation election; the Director makes the list available to the parties involved in the election. Singleton Packing Corporation’s opposition to the Excelsior rule and the Company’s determination to subject the rule to judicial review generated this case now before the Court. Unfortunately for Singleton, by the time the litigation reached the stage of judicial review both this Court and the United States Supreme Court had approved the rule. Howell Refining Co. v. NLRB, 5 Cir. 1968, 400 F.2d 213, 215-216; NLRB v. Wyman-Gordon Co., 1969, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709. As a result of Singleton’s having made the wrong guess and having pursued a course of action based on that guess, only the remnants of the case remain. I. April 4, 1966, the Union petitioned for an election in a stipulated unit of production and maintenance employees in Singleton’s seafood processing plant in Tampa, Florida. The Regional Director of the National Labor Relations Board directed the Company to furnish a list of the names and addresses of all eligible voters in accordance with the Board’s then recent decision in Excelsior Underwear. Singleton conditioned its compliance with the order upon assurance from the Board that the list would be “used for the union’s legitimate purposes only during the current organizational campaign” and a promise of indemnification “against loss arising out of this publication of said list”. The Regional Director refused to make such assurances. May 9, 1966, the Regional Director conducted an election which the Union lost by a vote of 237 to 180 (there were 30 challenged ballots). The Union filed timely objections on two grounds: Singleton’s refusal to furnish the Excelsior list, and pre-election misconduct by Singleton that interfered with the employees’ free choice. After making an investigation, the Director sustained the Union’s charges and recommended to the Board that the election be set" }, { "docid": "3771136", "title": "", "text": "the Board’s determination whether an individual employee or job classification should be included in a particular collective bargaining unit. The test includes “a consideration of whether the employee works at regularly assigned hours per week; performs duties similar to those of unit employees; and shares the same supervision, working conditions, wages, and fringe benefits as the unit employees.” NLRB v. Boston Beef Co., 652 F.2d 223, 226 (1st Cir.1981). See Westchester Plastics of Ohio, Inc. v. NLRB, 401 F.2d 903, 907-08 (6th Cir.1968). It is normally applied when the Board makes its own independent determination defining the appropriate bargaining unit or when the Board is deciding whether or not to approve a pre-election stipulation. . Because we affirm the Board's exclusion of employee Corrigan's ballot we do not consider the exclusion of employee Smith’s. . In Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1961), the Board held that shortly after the scheduling of an election, an employer must furnish a list of the names and addresses of all employees eligible to vote. If the employer fails to comply with the Excelsior requirement, the election will be set aside. See 2 T. Kheel, Labor Law § 7A.04[3] (1985). The Company did not attempt to enter a \"Norris-Thermador” agreement, which must be distinguished from an Excelsior list. See Smith & Smith Aircraft Co. v. NLRB, 735 F.2d 1215, 1216-17 (10th Cir.1984); Norris-Thermador Corp., 119 N.L.R.B. 1301 (1958). A \"Norris-Thermador” agreement is an agreement upon a list of particular individuals designated as eligible to vote in the election including the stipulation that the agreement conclusively resolves eligibility issues (so long as it does not contravene the NLRA or established Board policy). Smith & Smith Aircraft, supra; 2 T. Kheel, supra, at § 7A.04[2]. . Because of our ruling with respect to employee Corrigan, we need not address the Board’s contention that the Company waived any argument regarding the preclusive effect of the preelection stipulation with regard to employee Smith. See § 10(e) of the NLRA, 29 U.S.C. § 160(e); Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66, 102 S.Ct. 2071, 2082-2083," }, { "docid": "22398370", "title": "", "text": "J. SKELLY WRIGHT, Circuit Judge. This case is before the court on appeal by the National Labor Relations Board from a judgment of the District Court ordering the Board to “provide [appellees] with names and addresses of employees eligible to vote in approximately 35 elections to be designated by [appellees], as soon as those names and addresses are in [the Board’s] possession.” Although the immediate controversy arises in a labor law context, the central decisional issue involves the right to and limits on disclosure of Government information under the Freedom of Information Act. I The history of this action begins with a request by appellees on October 28, 1969 that the Board furnish them the names and home addresses of employees eligible to vote in certain representation elections. The Board now maintains lists of such names and addresses pursuant to its decision in Excelsior Underwear, Inc., 156 NLRB 1236 (1966), to assure that unions have a fair chance to communicate with employees before elections and to facilitate the Board’s function of resolving challenges to voter eligibility. Appellees, who are professors of labor law engaged in an NLRB voting study, seek a limited number of Excelsior lists in the Board’s possession to facilitate scheduling of interviews with employees before and after certain elections. Appellees propose to question willing employees regarding their atti tudes toward the election process, especially about the impact of campaign tactics utilized by both employers and unions. On the basis of general statutory authority, the Board has developed an elaborate structure of rules governing the behavior of parties during a campaign. The purpose of appellees’ study is to provide an empirical basis for evaluating the wisdom and utility of these regulations. On April 22, 1970, the Board denied appellees’ request for the Excelsior lists because, in its judgment, their proposed study would be likely to upset the “laboratory conditions” required for conducting a fair representation election. Even if the proposed interviews would not actually prejudice elections, the Board feared that it would be obliged to conduct investigations and hold hearings concerning interview-related objections, and that this delay would" }, { "docid": "17357440", "title": "", "text": "America, AFL-CIO v. N.L.R.B., 5 Cir. 1974, 496 F.2d 1342 n. 11: If the vote margin in a representational election is very narrow, minor violations should be more closely scrutinized. In other words, when the apparent degree and multitude of the violations are small and the margin of the vote is wide, the less merit inheres in a petition for overturning the Board’s decision upholding an election or denying an evidentiary hearing. Majoritarianism is not, of course, uniformly redemptive. We cannot say that because the Union won by a large margin, it has been cleansed of all its sins. Rather, the landslide tells us that unless a sin was truly grievous, it probably was not “material.” . We are offended by the Company’s implicit suggestion that we should take judicial notice of the fact that these employees were not very bright. . The facts in Bancroñ and Sewell are summarized in text, infra. . See generally Bancroñ, supra; N.L.R.B. v. Baltimore Luggage Co., 4 Cir. 1967, 387 F.2d 744, enforcing 162 N.L.R.B. 1230; Aristocrat Linen Supply Co., Inc., 1965, 150 N.L.R.B. 1448; Archer Laundry Co., 1965, 150 N.L.R.B. 1427; Allen-Morrison Sign Co., Inc., 1962, 138 N.L.R.B. 73. Cf. Sewell, supra; N.L.R.B. v. Schapiro & Whitehouse, Inc., 4 Cir. 1966, 356 F.2d 675. . The Company argues that this mailing to whites should be discounted as a demonstration of even-handedness, since the Excelsior mailing list given the Union by the Company did not specify the race of the employees, and thus the Union could not feasibly contact only the blacks. See Excelsior Underwear, Inc., 1966, 156 NLRB 1236. If it had been the intent of the Union to limit its campaign exclusively to blacks, however, the Union could simply have eschewed the colorblind mailing which obviously would reach whites, and concentrat ed instead on other more individualized forms of information dissemination. . We will consider again the racial orientation of the campaign in the context of a separate issue, infra. . Sylvester Hicks is deja vu. He was also the major union organizer in Bancroñ, supra. . The record reveals two" }, { "docid": "9584931", "title": "", "text": "Packers, as we discuss more fully below, resulted in the exclusion of certain challenged voters, its reasoning and straight-forward contract analysis apply with equal force here. Our conclusion is strengthened, moreover, when considering that ONA had at its disposal the means for binding Dacas to a bargaining unit comprised of individuals rather than groups. Instead of settling upon the stipulation quoted from above, with its attendant Excelsior list, the Union could have asked for a Norris-Thermador agreement. See Norris-Thermador Corp., 119 N.L.R.B. 1301 (1958); Kheel, n. 2 supra, at § 7A.04[2]. Unlike an Excelsior list, which specifies eligible voters in accordance with the terms of a previously agreed upon stipulation, under a Norris-Thermador agreement, the employee list itself constitutes the stipulation. See Speedway Petroleum, 768 F.2d at 157 n. 6. Once executed, the agreement normally is dispositive of questions as to voter inclusion and preclusion. Id. What we are left with is a case where ONA wants it both ways. After all, the Union, not Dacas, wanted per diem nurses to vote. Then, having achieved this concession from Dacas, the Union cried foul when it discovered a voting per diem nurse who was not on the telephone list. Naturally, ONA opposes Dalleske’s vote when, without it, the Union has now gained a majority vote of 12 to 11 and when, with the vote counted, the result may possibly be different. As logical as this might seem from the Union’s viewpoint, it is not a principled basis for objection especially when ONA did not challenge the ballots of per diem nurses Somora and Colla who had similarly weak ties to Dacas. See n. 1, supra. With these considerations in mind, and coupling the stipulation’s facial clarity with the absence of any allegations of fraud or overreaching against Dacas, there is no reason to give the Union more than that for which it has bargained. B. POLICY CONSIDERATIONS. Having concluded that the stipulation unambiguously requires that Dalleske’s vote be counted, we can set that stipulation aside only if it violates either a federal statute or some settled NLRB policy. Tennessee Packers, 379" }, { "docid": "4452929", "title": "", "text": "remand for further evidentiary determinations. Compare S. H. Kress v. N.L.R.B., 430 F.2d 1234 (5th Cir., 1970). . Indeed, Cactus was a factor for the other companies in the Basin to contend with in their wage, negotiations. In War-ton Drilling Co., 164 N.L.R.B. 357 (1967), the economics of Permian Basin drilling contractors was considered. The Board there sustained an employer who, two days before his company’s employees voted in a certification election, told his workers that his ability to obtain new contracts would be impaired and some new wells would not be drilled if the Union obligated him to pay higher wages than his competitors. . See footnotes 3 and 4, supra. . The statement quoted comes from a letter which was itself undated, but was mailed sometime after the Union received the list of Cactus eligible employees on June 29, 1967. The Union and N.L. R.B. have referred to the letter as that of July 3, 1967, while the company refers to it as that of July 9, 1967, when it claims to have first been alerted to the letter. From July 9 until the election on July 14, Cactus made no further election presentations to its employees, or to those eligible to vote. . E. g. Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966) ; accord, N.L.R.B. v. Southern Food Products, 434 F.2d 717 (5th Cir., 1970). . In considering Union campaign literature, the Board in Hollywood Ceramics stated: “The omission, of any identification of the plant being compared with the employer’s operation could only serve to induce the employees to lend credence to the Union’s assertions. Had the name of the plant and the type of work performed been disclosed, the employees might have had some basis for evaluating the information. For, they then might have learned of the actual dissimilarity of the work and skill that the two plants compared.” 140 N.U.R.B. 221 (1962). As further indicated at note 17 infra, a literal reading of this standard would seem to indicate that the Union’s statements here suffered from the same vice. . The futility of attempting to" }, { "docid": "13833246", "title": "", "text": "the election. That objection raises the issue of the reach of the Board’s decision in Milchem, Inc., 170 N.L.R.B. 362 (1968), in which the Board established a per se rule prohibiting Union or employer representatives from engaging in certain conduct directed at voters who are waiting in line to vote. Given our disposition of this petition on the list-keeping objection alone, we have no occasion to address the electioneering objection. . The hearing officer did not determine that Fedeyski’s testimony lacked credibility with respect to what she claimed occurred. Rather, he overruled the Hospital’s objection because he found insufficient evidence that union agents were involved, thus not attributing the incident to the union. In addition, he found that the incident did not rise to the level of “campaign trickery” or misrepresentation which interfered with the election results. Appendix at 648-49. As to the hearing officer’s conclusion that there was no evidence that the two women with the clipboard were union agents, we note that there is absolutely no evidence in the record that any other two women, besides organizers Olshesky and Berninger, were ever at the employees’ entrance with a clipboard. Furthermore, we note that even where it has not been established that a list-keeper is an agent of the employer or the union, the Board has still set aside an election if it has concluded that anyone has materially violated its policy against list-keeping during an election. Belt’s Dep't Store, 98 N.L.R.B. at 281 (“it is the policy of the Board to prohibit anyone from keeping any list of persons who have voted. .. .”) (emphasis in original). A. LEON HIGGINBOTHAM, Jr., Circuit Judge, dissenting. I respectfully dissent from the majority’s conclusion that there was not “substantial evidence on the record” to support “the Board’s determination that the Union’s list-keeping had only a de minimis impact on the election”, p. 1001. This is indeed a classic case concerning the degree of judicial restraint a court must exercise when reviewing an agency’s factual determination that we may have decided differently if we had had the obligation to consider the matter" }, { "docid": "13833239", "title": "", "text": "of ensuring free, non-coereed elections, the Board has set aside elections “if employee voters know, or reasonably can infer, that their names are being recorded” on unauthorized lists. Masonic Homes, 258 N.L.R.B. at 48; see also Marathon Le Tourneau Co., 208 N.L.R.B. 213, 223-24 (1974); Belk’s Department Store of Savannah, Ga., Inc., 98 N.L.R.B. 280 (1952). Absent such knowledge or inference on the part of voters, any list-keeping activity, although technically prohibited, obviously could not interfere with the exercise of voter free choice and would not warrant setting aside an election. The party objecting to an election can prove voter knowledge, however, both by direct evidence and by circumstantial evidence. Piggly-Wiggly, 168 N.L.R.B. at 792-93; A.D. Juillaird and Co., 110 N.L.R.B. 2197, 2199 (1954). Once voter knowledge has been proven, the Board has not required a showing that the list-keeping actually interfered with the free choice of any voter. International Stamping, 97 N.L.R.B. at 923. In some cases the Board has refused to set aside elections where it has concluded that the list-keeping had only a de minimis impact on the election. See Robert’s Tours, Inc., 244 N.L.R.B. 818, 824-25 (1979), enforced, 633 F.2d 223 (9th Cir.1980) (where only one voter had seen the list-keeping and where 15 of 26 eligible voters had voted for the union); Tom Brown Drilling Co., 172 N.L.R.B. 1267 (1968) (no evidence that any voters had seen the list-keeping); Juilliard, 110 N.L.R.B. 2197 (same); see also N.L.R.B. v. South Mississippi Electric Power Association, 616 F.2d 837, 839 (5th Cir.1980); N.L. R.B. v. Fenway Cambridge Motor Hotel, 601 F.2d 33, 38 (1st Cir.1979). In this case the Board noted that the Hospital had offered direct evidence establishing that only one voter, Earline Clark, was actually aware of the list-keeping. It further concluded that the circumstantial evidence in this case was inadequate to support the inference that any other voters were similarly aware. It commented “that the union supporters attempted to hide their unauthorized voting lists and that these efforts were largely successful.” App. at 661. The Board then concluded that in a unit of over 300" }, { "docid": "13833243", "title": "", "text": "that time were unit employees. However, at least ten to twelve unit employees had to have passed through the entrance while Olshesky and Berninger were stationed there because that is the number of unit employees whose names were checked off on their list. Thus, the testimony of at least five witnesses belies the Board’s conclusion that the union adherents were successful in their efforts to conceal their improper lists. Furthermore, the election in this case was a close one. The Union received a bare majority of the votes cast. If one voter who voted for the Union had instead voted against the Union, the Union would not have received the requisite majority without the resolution of the challenged ballots. We have often indicated that where an election is close, we will require closer scrutiny by the Board of election objections. Jamesway, 676 F.2d at 71; Monmouth Medical Center v. NLRB, 604 F.2d 820, 823 n. 4 (3d Cir.1979); Aircraft Radio Corp. v. NLRB, 519 F.2d 590, 594 (3d Cir.1975) (misrepresentation cases). The Board focused only on the size of the employee unit in making its de minimis determination. The factor of the closeness of the election, however, is important where the Union has admittedly engaged in prohibited conduct and where the only question is whether that conduct had more than a de minimis impact on the outcome of the election. We therefore conclude that the Board’s determination that the Union’s list-keeping had only a de minimis impact on the election is not supported by substantial evidence on the record. The Board’s longstanding policy against list-keeping represents an exercise of the Board’s wide discretion to establish safeguards for conducting representation elections. See NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); Monmouth Medical Center, 604 F.2d at 823. However, the Board’s “[ejection rules which are designed to guarantee free choice must be strictly enforced against material breaches in every case, or they may as well be abandoned.” International Stamping, 97 N.L.R.B. at 923. IV. Conclusion We accordingly will grant the Hospital’s petition for" }, { "docid": "976855", "title": "", "text": "As we have observed, the Hondo eligibility formula is not the radical departure from prior practice that Hondo would represent. See note 9 supra. . N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 770, 89 S.Ct. 1426, 1432, 22 L.Ed.2d 709 (1969) (concurring opinion). . 5 U.S.C. § 553. . 156 NLRB 1236 (1966). . 424 F.2d 1321 (5th Cir. 1970). . 424 F.2d at 1329. . Id. . 394 U.S. at 765, 766, 89 S.Ct. at 1429. . The footnote in question states: In view of the nature of the employment in this industry, we direct that both the Union and the Employer cooperate to the fullest extent with the Regional Director for Region 16 in the preparation and compilation of an election eligibility list containing the names and addresses of all eligible voters. In addition, we shall require that an election eligibility list containing the names and addresses of all known eligible voters be filed by the Employer with the Regional Director for Region 16 within 7 days after the date of this Decision and Direction of Election, and that a supplemental list containing the names and addresses of the remaining eligible voters be filed by the Employer with said Regional Director within 7 days after the issuance of the Notice of Election by the Regional Director. No extension of time to file these lists shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with these requirements shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear, Inc., 156 NLRB 1236. . See N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 766, 89 S.Ct. 1426 (1969) (Fortas, J.)." }, { "docid": "9584925", "title": "", "text": "and remains — at least in a technical sense — a per diem nurse at Dacas. After stipulating to the bargaining unit, Dacas provided ONA with its initial Excelsior list containing the names and addresses of employees eligible to vote. This list was incomplete and later amended. The amended list contained, for the first time, Dalleske as an eligible voter. ONA initially voiced a verbal objection to her inclusion in the bargaining unit and later, at the election, filed a formal challenge to Dalleske’s ballot. Of approximately 30 eligible Dacas voters, 24 cast ballots with 12 in favor of the Union and 11 against. Dalleske’s ballot remains unopened and, given the marginality of the Union’s victory, her vote has the potential to affect the outcome. Following the election, ONA filed objections to Dacas’ pre-election conduct and, additionally, prosecuted the challenge to Dal-leske’s ballot. Dalleske, ONA argued, was only a casual employee who should not have been considered with the per diem nurses for voting purposes. A hearing on several of the objections and the challenged ballot was held on October 9-10, 1991. The hearing officer recommended that the NLRB sustain ONA’s challenge to the ballot. In reaching her conclusion, the hearing officer opined that the parties’ stipulated intent to include all per diem nurses in the bargaining unit, as applied to Dalleske, contravened the NLRB’s policy against allowing casual employees to vote in union elections. The Board followed the hearing officer’s recommendation and certified ONA as the collective bargaining representative for Da-cas’ nurses. Thereafter, Dacas refused to bargain with ONA, and the Union brought an unfair labor practice charge against the company. The Board granted summary judgment to the Union on June 24, 1992, and ordered Dacas to collectively bargain with ONA. The instant petition for review and cross-application for enforcement followed. II. DISCUSSION Our appellate review is clear and well-established: We will enforce the Board’s order if its fact-finding and application of law to facts are supported by substantial evidence, unless the Board has premised its ruling upon an erroneous legal foundation. See N.L.R.B. v. Pentre Electric, Inc., 998" }, { "docid": "13833247", "title": "", "text": "two women, besides organizers Olshesky and Berninger, were ever at the employees’ entrance with a clipboard. Furthermore, we note that even where it has not been established that a list-keeper is an agent of the employer or the union, the Board has still set aside an election if it has concluded that anyone has materially violated its policy against list-keeping during an election. Belt’s Dep't Store, 98 N.L.R.B. at 281 (“it is the policy of the Board to prohibit anyone from keeping any list of persons who have voted. .. .”) (emphasis in original). A. LEON HIGGINBOTHAM, Jr., Circuit Judge, dissenting. I respectfully dissent from the majority’s conclusion that there was not “substantial evidence on the record” to support “the Board’s determination that the Union’s list-keeping had only a de minimis impact on the election”, p. 1001. This is indeed a classic case concerning the degree of judicial restraint a court must exercise when reviewing an agency’s factual determination that we may have decided differently if we had had the obligation to consider the matter ab initio as the original factfinders. Thus, if my esteemed colleagues were writing as hearing officers or as members of the National Labor Relations Board, their findings might be appropriate and permissible; accordingly, a reviewing court could conclude that even the quite different findings now made by the majority are supported by substantial evidence. However, the vice of the majority opinion is its failure to appreciate that, on appeal, one record may contain substantial evidence to support two diametrically opposed conclusions — just as in a negligence case there can be substantial evidence which supports the diametrically opposed conclusions that the plaintiff was negligent or that the plaintiff was not negligent. The hearing officer stressed that “only one voter .. ., Earline Clark, whose testimony I credit, was shown to have known that the unauthorized list of voters was being maintained.” App. at 644 (Emphasis added). He found “that the list-keeping [was] de minimis ... where it [was] shown that only one employee in a bargaining unit of over 300 employees knew of the unauthorized" } ]

[ { "docid": "18457731", "title": "", "text": "damages to the extent of its value. This petition, also styled as a writ of replevin, was earlier construed by this Court to be a motion under Rule 41(e), Fed.R.Crim.P., for the return of illegally seized property. See Mayo v. United States, 413 F.Supp. 160, (E.D.Ill.1976). The United States has answered the motion, asserting the following affirmative defenses: (1) Mayo’s claims are moot because all of the seized property has been returned to him or destroyed; (2) Mayo’s claim for money damages may only be asserted under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1970); and (3) because Mayo has failed to exhaust his administrative remedies as required by the act, 28 U.S.C. § 2675, this Court is currently without jurisdiction to rule on Mayo’s claims. It is worth noting at this point that although the press was destroyed “on or about September 17, 1973,” this Court was not apprised of the destruction until May, 1976. The Court also notes that no evidence was adduced at the June 21, 1976 hearing to show that the press was used in a prohibited manner that would subject it to forfeiture. There is also no evidence that a forfeiture hearing was held prior to destruction. See United States v. Three Thousand Two Hundred Thirty-Six Dollars, 167 F.Supp. 495 (D.Alaska 1958). II Before proceeding to the central issue presented by this case, it is necessary to dispose of two preliminary questions. First, this Court must decide whether Judge Holder’s ruling on the legality of the Jonesboro search is binding on this action. Second, it must be decided whether destruction of the press was legally permissible; if it was, neither Rule 41(e) nor the Tort Claims Act entitle Mayo to relief. This Court has concluded that Judge Holder’s suppression order may not be reconsidered in this case. Other cases hold that a second hearing of a motion to sup press evidence is not warranted absent exceptional circumstances. United States v. Greeley, 138 U.S.App.D.C. 161, 425 F.2d 592 (1970); McRae v. United States, 137 U.S.App.D.C. 80, 420 F.2d 1283 (1969). This is" } ]

[ { "docid": "18457735", "title": "", "text": "41(e) support a claim for money damages for illegally seized and destroyed property? Rule 41(e) provides that “a person aggrieved by an unlawful search and seizure may move the district court . for the return of the property.” The rule does not specifically provide a remedy where the property is no longer in existence and the Court has found no cases construing this rule to allow money damages. District Court jurisdiction under Rule 41(e) is supervisory in nature and derives from the inherent authority of Courts over those who are its officers. See, e. g., Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975); Hunsucker v. Phinney, 497 F.2d 29 (5th Cir. 1974). This supervisory jurisdiction must be exercised with some caution, however, because it is not based on express Congressional authorization, Grant v. United States, 282 F.2d 165 (2d Cir. 1960); because it may be exercised when the jurisdictional amount of 28 U.S.C. § 1331 is not satisfied, id.; and because the United States, as sovereign, may be sued and enjoined under Rule 41(e) even when it has not consented to be sued. Lord v. Kelley, 223 F.Supp. 684 (D.Mass.1963) (Wyzanski, J.). Thus, the general rule with respect to Rule 41(e) jurisdiction is that courts should exercise their unique powers under the Rule sparingly and with an eye to equitable principles. This Court after examining Rule 41(e), Fed.R.Crim.P. and the case law construing it is of the opinion that Rule 41(e) will not support petitioner’s claim for money damages. First, the language of the rule does not specifically provide for such a remedy but only states that the property unlawfully seized may be returned. Secondly, pursuant to traditional equity notions, equity will not intervene where an adequate remedy at law exists. In the present case, an adequate remedy at law existed, the Federal Tort Claims Act, 28 U.S.C. § 2671. Finally, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946) and Bivens v. Six Unknown Named Agents of Federal" }, { "docid": "11313581", "title": "", "text": "successfully resisted by asserting that the property is subject to forfeiture. If the property is subject to forfeiture, appropriate proceedings should be started expeditiously. Third, the Government argues that adequate civil remedies exist for appellant’s relief. That is true. He could also bring a civil action, but, as we just noted, that neither discharges the district court’s duties nor disturbs its jurisdiction. Fourth, the Government maintains that the $2,550 is in the District of Columbia’s bank account. Apparently, this is an argument of administrative inconvenience. It can be accorded no weight, particularly where, as here, the inconvenience appears to be minor, the property is appellant’s, and, as stated by Government counsel at oral argument, the disposition of the money was a “decision almost by indecision.” Whoever holds the money holds it subject to the order of the federal court and is subject to its judgment and the execution thereof. The denial by the district court of the April 7, 1975 motion is reversed, and the cause is remanded to the district court to order the payment of $2,550 to appellant. Judgment accordingly. . Rule 41(e) provides: A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. . From the tape recording of oral argument on appeal, December 17, 1975: Judge MacKinnon: Do you think that there’s any basis here to sustain the claim that this man isn’t entitled to this money? Government counsel: I could" }, { "docid": "22110590", "title": "", "text": "at law, an independent civil action, is available. Id. at 122-123. We find these reasons unpersuasive in light of the equitable powers of the court. When a citizen has invoked the jurisdiction of a court by moving for return of his property, we do not think that the government should be able to destroy jurisdiction by its own conduct. The government should not at one stroke be able to deprive the citizen of a remedy and render powerless the court that could grant the remedy. Our decision in United States v. Palmer, 565 F.2d 1063 (9th Cir.1977), is instructive. In Palmer, after the defendant was convicted of bank robbery, the government attempted to retain money seized prior to trial apparently to return it to the bank. We held that it could not. While we wholeheartedly approve the proposition that victims of crime should have compensation from the criminal, we feel that even at the cost of judicial time it is preferable to accomplish this end through traditional judicial procedures rather than to leave it to the police, state or federal, to find nonjudicial ways and means by which to secure compensation from the criminal. Accordingly, we reject any claim of the United States to possession of the money for such purpose. Id. at 1064-65. If we were to allow the government to moot a motion for return of property by giving the property away or destroying it, we would be encouraging precisely the sort of unilateral nonjudicial conduct condemned in Palmer. The remedy proposed by the Mayo court and by the government, a separate civil action, is inadequate in light of the time and expense involved, particularly where the court considering the motion already has jurisdiction over the matter. Cf. United States v. Wilson, 540 F.2d 1100, 1104 (D.C.Cir.1976) (existence of civil remedies does not eliminate the court’s duty and jurisdiction to return property after the government’s need for it ends). Once a court of equity has asserted jurisdiction over a motion to return property, it maintains its jurisdiction as long as necessary to provide an adequate remedy to the" }, { "docid": "19814850", "title": "", "text": "of seized property after conviction. The leading case is United States v. Wilson, 176 U.S.App.D.C. 321, 540 F.2d 1100 (1976). In Wilson, the defendant had made a pre-trial motion for the return of cash seized during a search of his apartment pursuant to a search warrant. He subsequently pled guilty without pressing the motion but did make an oral motion for return of the cash at the time of sentencing which was not ruled on. Several months later, after fruitless attempts to resolve the claim, defendant filed a motion in the criminal case for return of the money. It was the denial of this last motion which was before the Court of Appeals for the District of Columbia. Id. 1101-1102. Judge MacKinnon, for the court, considered the Government’s arguments in turn. First, he found that ancillary jurisdiction to dispose of the property existed under the criteria of Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969) even though sentenc ing had taken place. Id. at 1103. Second, he turned to the Government’s argument that Rule 41(e) was inapplicable because defendant had by his guilty plea waived any claim of illegality of the search and seizure. The court’s opinion recognized the failure of the Federal Rules of Criminal Procedure to discriminate between proceedings to suppress evidence and proceedings for the return of seized property but held that the court had both the jurisdiction and the duty to return the seized property once its need for the property terminated regardless of the validity of the search and seizure. Judge MacKinnon for the court went on to say that property seized in a criminal case may be disposed of either in the criminal proceeding or in a separate civil action but that judicial economy favored having the matter disposed of in the criminal proceeding by the judge who tried the case. Id. at 1103-1104. Finally, after agreeing with the Government’s argument that the defendant’s claim could have been asserted in a civil proceeding, the court’s opinion concluded that the availability of civil remedies did not discharge the court’s duties nor" }, { "docid": "22939531", "title": "", "text": "the district court should have construed his petition liberally as “one that seeks relief on any possible basis, and not merely Rule 41(e) of the Federal Rules of Criminal Procedure.” On April 2, 1991 the trial court denied this motion ruling that, regardless of the basis sought for relief, “[t]he court cannot direct the government to return property which it doesn’t have.” Mora filed a timely notice of appeal from this order. DISCUSSION A. Rule 41(e) With regard to seized property, Rule 41(e) is designed to accomplish two objectives: the return of the property to its owner and, where criminal proceedings have been initiated, the suppression of illegally seized property as evidence. It states [a]person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue , of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. Fed.R.Crim.P. 41(e). In its initial opinion the trial court decided the requirements of Fed.R.Crim.P. 12 applied and, because the motion was not made prior to Mora’s trial, that it was untimely filed under Rule 12(b). On reconsideration it recognized, as does the government on appeal, that it had jurisdiction — ancillary to its jurisdiction over the criminal ease — to decide this post-trial motion for the return of seized property. See United States v. Wilson, 540 F.2d 1100, 1103 (D.C.Cir.1976) (“the district court has both the jurisdiction and duty to return [seized] property”); United States v. LaFatch, 565 F.2d 81, 83" }, { "docid": "19814853", "title": "", "text": "the criminal proceedings have terminated. See McSurely v. Ratliff, 398 F.2d 817 (6th Cir. 1968).” Id. at 83. The Wilson holding was followed in a recent case from the Southern District of New York, United States v. Ortega, 450 F.Supp. 211 (S.D.N.Y.1978). As in Wilson, the defendant Ortega had filed a pretrial motion to suppress and for return of the seized property but had subsequently pled guilty. The district judge found that jurisdiction over the post-conviction motion to return money was ancillary to jurisdiction over the criminal proceeding. In Ortega, the defendant had admitted that most of the money seized was derived from an illegal drug transaction. Nevertheless, since such proceeds are not subject to forfeiture, the court ordered the government to return to the defendant the full amount seized from him at the time of his arrest. The weight of authority supports the court’s jurisdiction over post-conviction motions for return of seized property as being ancillary to its jurisdiction over the criminal case. Although Rule 41(e) by its terms applies only to return of illegally seized evidence, it has been held that federal district courts have both the jurisdiction and the duty to order the return of seized evidence to its rightful owner, whether or not the seizure was illegal, once the need for the evidence has terminated. This being the case, it seems to be irrelevant whether a motion for return of the seized property was made prior to trial or conviction. Indeed, where there is no allegation that the property was illegally seized, there may be no basis for a motion for return of property until after trial since the property seized may be used as evidence in the trial. The USA has also asserted that To-taro’s claim is barred by the two year statute of limitations prescribed by 28 U.S.C. § 2401(b) which states that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues . . . .” Part (a) of this section states “every civil" }, { "docid": "19814851", "title": "", "text": "argument that Rule 41(e) was inapplicable because defendant had by his guilty plea waived any claim of illegality of the search and seizure. The court’s opinion recognized the failure of the Federal Rules of Criminal Procedure to discriminate between proceedings to suppress evidence and proceedings for the return of seized property but held that the court had both the jurisdiction and the duty to return the seized property once its need for the property terminated regardless of the validity of the search and seizure. Judge MacKinnon for the court went on to say that property seized in a criminal case may be disposed of either in the criminal proceeding or in a separate civil action but that judicial economy favored having the matter disposed of in the criminal proceeding by the judge who tried the case. Id. at 1103-1104. Finally, after agreeing with the Government’s argument that the defendant’s claim could have been asserted in a civil proceeding, the court’s opinion concluded that the availability of civil remedies did not discharge the court’s duties nor disturb its jurisdiction. Id. at 1104. The Ninth Circuit has adopted the holding of Wilson and apparently rejected its earlier per curiam opinion in Bartlett, supra. In United States v. Palmer, 565 F.2d 1063 (9th Cir. 1977), it was held that jurisdiction existed over the defendant’s post-conviction motion for the return of personal property and cash which were seized at the time of his arrest and were placed in evidence at his trial. Id. at 1064. The court concluded that in the absence of any cognizable adverse claim of ownership or right to possession the district court should have returned the seized money to the defendant. Id. at 1065. The Sixth Circuit has also approved of the Wilson doctrine that judicial efficiency dictates that motions for return of seized evidence be resolved by the criminal trial court. United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977). In LaFatch, Chief Judge Phillips, for the Court, said: “The general rule is that seized property, other than contraband, should be returned to its rightful owner once" }, { "docid": "18457736", "title": "", "text": "id.; and because the United States, as sovereign, may be sued and enjoined under Rule 41(e) even when it has not consented to be sued. Lord v. Kelley, 223 F.Supp. 684 (D.Mass.1963) (Wyzanski, J.). Thus, the general rule with respect to Rule 41(e) jurisdiction is that courts should exercise their unique powers under the Rule sparingly and with an eye to equitable principles. This Court after examining Rule 41(e), Fed.R.Crim.P. and the case law construing it is of the opinion that Rule 41(e) will not support petitioner’s claim for money damages. First, the language of the rule does not specifically provide for such a remedy but only states that the property unlawfully seized may be returned. Secondly, pursuant to traditional equity notions, equity will not intervene where an adequate remedy at law exists. In the present case, an adequate remedy at law existed, the Federal Tort Claims Act, 28 U.S.C. § 2671. Finally, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) are inapposite for the reason that there petitioners sought recovery “squarely on the ground that respondents violated the Fourth and Fifth Amendments”. Bell v. Hood, supra, 327 U.S. at 681, 66 S.Ct. at 775, whereas here Mayo did not claim damages for the act of violating his constitutional rights but merely sought the return of his property , or in the alternative its monetary value. Also, unlike Bivens and Bell, petitioner here has named the United States Government as party respondent, rather than individuals. For these reasons, notwithstanding sympathy for petitioner’s plight, the Court concludes that money damages is not available pursuant to Rule 41(e) and must therefore deny relief. Even if the lawsuit were construed as an action filed pursuant to the Federal Tort Claims Act, petitioner could not recover money damages. Under the Federal Tort Claims Act, 28 U.S.C. § 2675, an individual cannot bring an action without first presenting the claim to the appropriate federal agency. The claim must" }, { "docid": "11314833", "title": "", "text": "the appropriate remedy. See Def.’s Mot. 7. Rule 41(g) provides, “A pei’son aggrieved by ... the deprivation of property may move for the property’s return,” and requires that plaintiff file a motion in the district where the property was seized, precluding this court from exercising jurisdiction. Fed.R.Crim.P. 41(g); Carter v. United States, 62 Fed.Cl. 365, 369 (2004). For purposes of deciding this motion, it is irrelevant how plaintiffs property came under continuing government control. Whether the property was forfeited or simply seized and held, this court lacks jurisdiction over plaintiffs wrongful forfeiture claim. Furthermore, Mr. Phang has not argued, and this court does not find, that 28 U.S.C. § 2465 is a money-mandating statute providing jurisdiction under the Tucker Act to award as damages the value of property forfeited by the government. In order to prove a claim arising under a statute, plaintiff must show that the statute is money mandating. Worthington v. United States, 168 F.3d 24, 26 (Fed.Cir.1999) (“To fall within the Tucker Act’s jurisdictional grant, a claim must invoke a statute that mandates the payment of money damages.”). If the statute “relied on by plaintiff as the basis of a claim is not reasonably amenable to being interpreted to constitute a money-mandating source, this court must dismiss the claim due to the lack of subject matter jurisdiction.” Intersport, 84 Fed.Cl. at 466. Section 2465(a)(1) provides that if judgment is entered for the claimant in a forfeiture proceeding, the property “shall be returned forthwith to the claimant.” 28 U.S.C. § 2465(a)(1). Thus, § 2465(a)(1) provides only for the return of property and is not reasonably amenable to the reading that it is money mandating. The Federal Circuit has determined that § 2465 did not waive the sovereign immunity of the United States to a claim for damages for depreciation of a vehicle wrongfully forfeited during the plaintiffs prison term. United States v. One 1979 Cadillac Coupe De Ville (One Cadillac), 833 F.2d 994, 999 (Fed.Cir.1987). The court reasoned, “If Congress had intended the government not only to return the seized property but also to make the claimant whole”" }, { "docid": "16214173", "title": "", "text": "proceeded to state that even if sufficient evidence is presented demonstrating the property’s destruction, the district court could fashion an equitable remedy under Rule 41(e). Id. at 1314-15. However, the Court held that an award of money damages against the government under Rule 41(e) was barred by sovereign immunity. Id. at 1315-16. In a footnote, the Court stated, “[bjecause Ramirez brought his claim under only Rule 41(e), we express no view as to whether alternative legal avenues may afford [him] some relief.” Id. at 1316 n. 10. In United States v. Hall, 269 F.3d 940, 941 (8th Cir.2001), Hall filed a Rule 41(e) motion seeking the return of property seized by the government. The district court granted the motion and the government returned some of the property to him. Id. The remaining property, however, could not be returned because it had been turned over to a towing service and was no longer in the government’s custody. Id. Consequently, Hall filed an amended motion seeking money damages in lieu of the missing property. Id. The district court granted the motion, awarding Hall the fair market value of the missing property and rejecting the government’s argument that it lacked jurisdiction to award money damages under Rule 41(e). Id. On appeal, the Eighth Circuit reversed and remanded. Id. Although recognizing its previous holding that Rule 41(e) proceedings are not moot merely because the government no longer possesses the subject property, it held that because Rule 41(e) does not contain the explicit waiver of sovereign immunity required to authorize monetary relief against the government, the district court exceeded its Rule 41(e) jurisdiction in awarding monetary relief. Id. at 942-43. However, rather than order dismissal, the Court remanded for a determination of whether Hall could rely on an alternative legal remedy, such as the Federal Tort Claims Act (FTCA). Id. at 943. It stated: “[W]hen a district court conducting a Rule 41(e) proceeding learns that the government no longer possesses property that is the subject of the motion to return, the court should grant the movant (particularly a movant proceeding pro se such as Hall)" }, { "docid": "11313577", "title": "", "text": "Motion for Return of Seized Property entered in this action on the 7th day of April, 1975, and from the order denying his Motion for Reconsideration and for Hearing entered in this action on the 4th day of June, 1975.” II At oral argument in this court, the Government disclaimed the position that defendant was not entitled to the money and disclaimed reliance on the prosecutor’s letter of September 26,1974. Given the difficult-to-trace nature of cash currency, we believe the Government’s disclaimers were proper. Appellant here argues his right to the money under Fed.R.Crim.P. 41(e) and a due process right to have his property returned. The Government’s position, as reiterated at oral argument, rests on four arguments. We deal with each of the Government’s arguments in turn. First, the Government, conceding that the district court had jurisdiction to dispose of the property before sentencing, argues that after sentencing the criminal matter terminated, and the district court thereafter lacked the requisite ancillary jurisdiction to dispose of the property. The Government asserts that the case does not meet the second and fourth criteria of Morrow v. District of Columbia, 135 U.S.App. D.C. 160, 172, 417 F.2d 728, 740 (1969): [Ajncillary jurisdiction should attach where (1) the ancillary matter arises from the same transaction which was the basis of the main proceeding, or arises during the course of the main matter, or is an integral part of the main matter; (2) the ancillary matter can be determined without a substantial new fact-finding proceeding; (3) determination of the ancillary matter through an ancillary order would not deprive a party of a substantial procedural or substantive right; and (4) the ancillary matter must be settled to protect the integrity of the main proceeding or to insure that the disposition in the main proceeding will not be frustrated. As to the second criterion, Government counsel has acknowledged that the remaining $2,550 is appellant’s. The fine has been paid. ■ There are no facts left to determine. As to the fourth criterion, it is fundamental to the integrity of the criminal justice process that property involved in" }, { "docid": "16214176", "title": "", "text": "41(e) motion for the return of property seized by government agents. In their motion, they largely sought monetary damages based on their assertion that the government had destroyed most of the seized property. Id. The district court awarded the claimants monetary relief for the destroyed property. Id. Although the government did not appeal the district court’s decision, in its responsive brief, it asserted the district court was without jurisdiction to award monetary damages against it in a Rule 41(e) action due to its sovereign immunity. Id. at 412. The Third Circuit agreed. Id. Although recognizing that Rule 41(e) allows a district court to award equitable relief, it found that this equitable power did not override the government’s sovereign immunity. Id. at 413-14. Contrary to the above cases, the Second and Ninth Circuits have allowed monetary damages in a Rule 41(e) action where the property has been destroyed by the government. In United States v. Martinson, 809 F.2d 1364, 1366 (9th Cir.1987), Martin-son filed a Rule 41(e) motion, seeking the return of nine rifles seized from him at the time of his arrest. The district court denied the motion and Martinson appealed. Id. After oral argument, the government informed the Ninth Circuit that federal agents had destroyed the guns six months prior to oral argument. Id. The Ninth Circuit held it had jurisdiction over the appeal despite the destruction of the subject property. Id. at 1369. In so holding, the Court stated: “When a citizen has invoked the jurisdiction of a court by moving for return of his property, we do not think that the government should be able to destroy jurisdiction by its own conduct.” Id. at 1368. It remanded the case to the district court, stating Martinson should be allowed to amend his motion to request damages if he so desires. Id. at 1370. In Mora v. United States, 955 F.2d 156, 159 (2d Cir.1992), the Second Circuit, relying on Martinson, held that a Rule 41(e) motion does not become moot merely because the government no longer possesses the subject property and that an award of damages may be" }, { "docid": "705633", "title": "", "text": "MEMORANDUM TENNEY, District Judge. Defendant German Ortega pleaded guilty on December 5, 1977 to one count of conspiracy to distribute cocaine and one count of distribution of cocaine. On January 30, 1978, he was sentenced to a term of imprisonment, which he is presently serving. At the time of his arrest, Ortega’s briefcase was seized and was found to contain $13,200 in American currency. That property was the subject of a timely pretrial motion to suppress its use as evidence and to return it to Ortega; this motion became moot with Ortega’s guilty plea. Ortega now moves for the return of the money, contending that there is no valid reason for its retention by the Government. For the reasons stated below, the motion is granted. [1] Jurisdiction over this application lies in this Court as ancillary to jurisdiction over the criminal proceeding. As the court stated under virtually identical circumstances in United States v. Wilson, 176 U.S. App.D.C. 321, 325, 540 F.2d 1100, 1104 (1976): Property which is seized in a criminal proceeding . . . may be ultimately disposed of by the court in that proceeding or in a subsequent civil action. It makes for an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case. While the instant case never went to trial, this Court has become familiar with its facts and circumstances in the process of taking the guilty pleas of the three defendants involved and in passing sentence upon these defendants. Thus, the assignment of this application to another judge of this court as a separate civil case would be a needless waste of judicial time and energy. Id. 176 U.S.App.D.C. at 324, 540 F.2d at 1103. The defendant stated under oath, and the Government has offered no evidence to the contrary, that $10,000 of the money in the briefcase represented the proceeds of the cocaine prosecution upon which the defendant was convicted and that the remaining $3,200 was what was left of the money that he had brought into the country to pay his" }, { "docid": "22110591", "title": "", "text": "the police, state or federal, to find nonjudicial ways and means by which to secure compensation from the criminal. Accordingly, we reject any claim of the United States to possession of the money for such purpose. Id. at 1064-65. If we were to allow the government to moot a motion for return of property by giving the property away or destroying it, we would be encouraging precisely the sort of unilateral nonjudicial conduct condemned in Palmer. The remedy proposed by the Mayo court and by the government, a separate civil action, is inadequate in light of the time and expense involved, particularly where the court considering the motion already has jurisdiction over the matter. Cf. United States v. Wilson, 540 F.2d 1100, 1104 (D.C.Cir.1976) (existence of civil remedies does not eliminate the court’s duty and jurisdiction to return property after the government’s need for it ends). Once a court of equity has asserted jurisdiction over a motion to return property, it maintains its jurisdiction as long as necessary to provide an adequate remedy to the movant. See United States v. Frank, 763 F.2d 551, 553 (3d Cir.1985) (IRS converting contested check to cash does not remove jurisdiction over proceeds); United States v. Francis, 646 F.2d 251, 262-63 (6th Cir.1981) (motion for return of money not mooted by government’s giving it to State of Michigan; question of whether it did so lawfully' remains); United States v. Wright, 610 F.2d 930, 938 (D.C.Cir.1979) (irrelevant that money which was subject of motion not in possession of government); Wilson, 540 F.2d at 1104 (same). We hold that this court has jurisdiction to decide this case, and that our jurisdiction has not been mooted by the actions of the government in destroying the property sought to be returned. II. MERITS As there must be a remand to permit Martinson to amend his pleadings, preliminary to further district court consideration of his rights in this matter we wish to clarify certain matters raised on this appeal. 1. Burden of Proof. When a motion for return of property is made before an indictment is filed (but a" }, { "docid": "19814849", "title": "", "text": "a per curiam opinion, adopted the holding of the district judge in Nirenberg that a defendant has no right under Rule 41(e), F.R.Crim.P. after conviction, Bartlett v. United States, 317 F.2d 71 (9th Cir. 1963). The third opinion cited by the USA in support of this contention, United States v. Rapp, 539 F.2d 1156 (8th Cir. 1976), was decided under the present version of Rule 41(e). In Rapp, quoting the Ninth Circuit’s per curiam opinion in Bartlett, Judge Heaney for the court denied the Rule 41(e) motion in that case on the alternative ground that it had been filed after the defendant had pled guilty and been sentenced. The primary holding in Rapp, however, was that, in any event, due to the provisions of Rule 54(b)(5), Rule 41(e) could not provide a jurisdictional basis in the circumstances of that case which involved a motion to return property which had been the subject of civil forfeiture proceedings. The USA’s argument overlooks several recent cases which have allowed a defendant to proceed on a motion for return of seized property after conviction. The leading case is United States v. Wilson, 176 U.S.App.D.C. 321, 540 F.2d 1100 (1976). In Wilson, the defendant had made a pre-trial motion for the return of cash seized during a search of his apartment pursuant to a search warrant. He subsequently pled guilty without pressing the motion but did make an oral motion for return of the cash at the time of sentencing which was not ruled on. Several months later, after fruitless attempts to resolve the claim, defendant filed a motion in the criminal case for return of the money. It was the denial of this last motion which was before the Court of Appeals for the District of Columbia. Id. 1101-1102. Judge MacKinnon, for the court, considered the Government’s arguments in turn. First, he found that ancillary jurisdiction to dispose of the property existed under the criteria of Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969) even though sentenc ing had taken place. Id. at 1103. Second, he turned to the Government’s" }, { "docid": "18457734", "title": "", "text": "the owner was convicted of counterfeiting. In this case, the parties have stipulated that Mayo, though convicted of interstate transportation of forged securities, was not convicted of counterfeiting. No evidence of other convictions involving counterfeiting has been adduced. There has been no evidence adduced to show that a libel in rem was brought by the government against the press and no evidence to show that the press was used to produce forged securities. Petitioner did not admit that he had used the press for illegal purposes. The fact that Mayo has been convicted of an offense involved forged securities and the location of the press under the porch was the only evidence introduced to show illegal use. Though giving rise to adverse inferences, these two factors are not enough to meet the government's burden of showing illegal use. Because the government has not met its burden, the Court therefore concludes that Mayo’s press was illegally. destroyed. Ill The Court now turns to the root issue presented by the case as it now stands: Will Rule 41(e) support a claim for money damages for illegally seized and destroyed property? Rule 41(e) provides that “a person aggrieved by an unlawful search and seizure may move the district court . for the return of the property.” The rule does not specifically provide a remedy where the property is no longer in existence and the Court has found no cases construing this rule to allow money damages. District Court jurisdiction under Rule 41(e) is supervisory in nature and derives from the inherent authority of Courts over those who are its officers. See, e. g., Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975); Hunsucker v. Phinney, 497 F.2d 29 (5th Cir. 1974). This supervisory jurisdiction must be exercised with some caution, however, because it is not based on express Congressional authorization, Grant v. United States, 282 F.2d 165 (2d Cir. 1960); because it may be exercised when the jurisdictional amount of 28 U.S.C. § 1331 is not satisfied," }, { "docid": "19814852", "title": "", "text": "disturb its jurisdiction. Id. at 1104. The Ninth Circuit has adopted the holding of Wilson and apparently rejected its earlier per curiam opinion in Bartlett, supra. In United States v. Palmer, 565 F.2d 1063 (9th Cir. 1977), it was held that jurisdiction existed over the defendant’s post-conviction motion for the return of personal property and cash which were seized at the time of his arrest and were placed in evidence at his trial. Id. at 1064. The court concluded that in the absence of any cognizable adverse claim of ownership or right to possession the district court should have returned the seized money to the defendant. Id. at 1065. The Sixth Circuit has also approved of the Wilson doctrine that judicial efficiency dictates that motions for return of seized evidence be resolved by the criminal trial court. United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977). In LaFatch, Chief Judge Phillips, for the Court, said: “The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated. See McSurely v. Ratliff, 398 F.2d 817 (6th Cir. 1968).” Id. at 83. The Wilson holding was followed in a recent case from the Southern District of New York, United States v. Ortega, 450 F.Supp. 211 (S.D.N.Y.1978). As in Wilson, the defendant Ortega had filed a pretrial motion to suppress and for return of the seized property but had subsequently pled guilty. The district judge found that jurisdiction over the post-conviction motion to return money was ancillary to jurisdiction over the criminal proceeding. In Ortega, the defendant had admitted that most of the money seized was derived from an illegal drug transaction. Nevertheless, since such proceeds are not subject to forfeiture, the court ordered the government to return to the defendant the full amount seized from him at the time of his arrest. The weight of authority supports the court’s jurisdiction over post-conviction motions for return of seized property as being ancillary to its jurisdiction over the criminal case. Although Rule 41(e) by its terms applies only to return of" }, { "docid": "11313576", "title": "", "text": "As a result of his analysis, the prosecutor returned $175 of the confiscated total to appellant. Appellant has paid the $1,000 fine. On December 3, 1974, approximately one year after its seizure, the remaining sum $2,725 less $175, or $2,550, was deposited by the property clerk of the Metropolitan Police into the General Revenue fund of the District of Columbia, where it now remains. On April 7, 1975, appellant renewed his earlier request, through new counsel, by filing a motion in the criminal case for the return of the remaining sum. The motion bore the criminal case number and relied both upon Fed.R.Crim.P. 41(e) and upon appellant’s simple claim to have his property returned. The motion was denied by fiat on the same date. On April 17 appellant filed a motion for reconsideration and for a hearing. The Government filed an opposition stating that the money was subject to forfeiture. On June 4 the court denied the motion, again by fiat. On June 13 appellant filed a notice of appeal “from the order denying his Motion for Return of Seized Property entered in this action on the 7th day of April, 1975, and from the order denying his Motion for Reconsideration and for Hearing entered in this action on the 4th day of June, 1975.” II At oral argument in this court, the Government disclaimed the position that defendant was not entitled to the money and disclaimed reliance on the prosecutor’s letter of September 26,1974. Given the difficult-to-trace nature of cash currency, we believe the Government’s disclaimers were proper. Appellant here argues his right to the money under Fed.R.Crim.P. 41(e) and a due process right to have his property returned. The Government’s position, as reiterated at oral argument, rests on four arguments. We deal with each of the Government’s arguments in turn. First, the Government, conceding that the district court had jurisdiction to dispose of the property before sentencing, argues that after sentencing the criminal matter terminated, and the district court thereafter lacked the requisite ancillary jurisdiction to dispose of the property. The Government asserts that the case does not" }, { "docid": "18457730", "title": "", "text": "trailer’s front door, but it appears that the press was not in plain view of Agent Graper. Mayo was subsequently charged in a five-count indictment with transporting forged securities in interstate commerce, a violation of 18 U.S.C. § 2314. Trial on these charges was held in United States District Court for the Southern District of Indiana before the Honorable Cole Holder. A verdict of guilty was returned on each count, and Mayo was sentenced to ten years imprisonment for each violation, with all sentences to be served concurrently. During the trial, Judge Holder ruled that Mayo’s printing press was the fruit of an illegal search and seizure, and was therefore inadmissible as evidence at Mayo’s trial. Relying on this order, Mayo filed a petition styled as a writ of replevin in Judge Holder’s court. This petition, filed in October, 1973, sought return of the press, but it was dismissed for procedural defects and improper venue in May, 1974. Late in 1974, Mayo filed a petition in this Court seeking return of his press or money damages to the extent of its value. This petition, also styled as a writ of replevin, was earlier construed by this Court to be a motion under Rule 41(e), Fed.R.Crim.P., for the return of illegally seized property. See Mayo v. United States, 413 F.Supp. 160, (E.D.Ill.1976). The United States has answered the motion, asserting the following affirmative defenses: (1) Mayo’s claims are moot because all of the seized property has been returned to him or destroyed; (2) Mayo’s claim for money damages may only be asserted under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1970); and (3) because Mayo has failed to exhaust his administrative remedies as required by the act, 28 U.S.C. § 2675, this Court is currently without jurisdiction to rule on Mayo’s claims. It is worth noting at this point that although the press was destroyed “on or about September 17, 1973,” this Court was not apprised of the destruction until May, 1976. The Court also notes that no evidence was adduced at the June 21, 1976 hearing" }, { "docid": "11313580", "title": "", "text": "and proceedings for the return of seized property. Bova v. United States, 460 F.2d 404, 406 n. 5 (2d Cir. 1972). We hold that the district court, once its need for the property has terminated, has both the jurisdiction and the duty to return the contested property here regardless and independently of the validity or invalidity of the underlying search and seizure. It is unnecessary to examine the Government’s position on Rule 41(e). Property which is seized in a criminal proceeding either by search warrant or subpoena may be ultimately disposed of by the court in that proceeding or in a subsequent civil action. It makes for an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case. It goes without saying, that if the Government seeks to forfeit the property a proper proceeding should be instigated to accomplish that purpose. In Re Brenner, 6 F.2d 425, 426-27 (2d Cir. 1925). A claim by the owner for the return of his property cannot be successfully resisted by asserting that the property is subject to forfeiture. If the property is subject to forfeiture, appropriate proceedings should be started expeditiously. Third, the Government argues that adequate civil remedies exist for appellant’s relief. That is true. He could also bring a civil action, but, as we just noted, that neither discharges the district court’s duties nor disturbs its jurisdiction. Fourth, the Government maintains that the $2,550 is in the District of Columbia’s bank account. Apparently, this is an argument of administrative inconvenience. It can be accorded no weight, particularly where, as here, the inconvenience appears to be minor, the property is appellant’s, and, as stated by Government counsel at oral argument, the disposition of the money was a “decision almost by indecision.” Whoever holds the money holds it subject to the order of the federal court and is subject to its judgment and the execution thereof. The denial by the district court of the April 7, 1975 motion is reversed, and the cause is remanded to the district court to order the" } ]

[ { "docid": "473819", "title": "", "text": "even hints that any other court may be given the power to quash or enforce them. See Productos Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 227-29 (D.P.R.1992) (quoting Advisory Committee Notes on 1991 amendments). There are other textual difficulties with transfer of motions to quash. Rule 45(c)(3)(A)(ii) directs the issuing court to quash or modify a subpoena that requires a nonparty to travel more than 100 miles from the place where the nonparty “resides, is employed or regularly transacts business in person.” This restriction is obviously hard to square with a principle that allows the issuing court to transfer the motion to quash to another district—in this case, the parties tell us, a district 892 miles away. Perhaps more significant, not only would a transferee court lack statutory authority to quash or enforce another court’s subpoena, it would often lack personal jurisdiction over the non-party. The principle that courts lacking jurisdietion over litigants cannot adjudicate their rights is elementary, and cases have noted the problem this creates for the prospect of transferring nonparty discovery disputes. See Byrnes, 111 F.R.D. at 70 & nn.l & 2; cf. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981) (noting requirement of personal jurisdiction in alternative forum for dismissal under the forum non conveniens doctrine); 28 U.S.C. § 1404(a) (allowing transfer to any other district “where [the action] might have been brought”). More generally, the rules governing subpoenas and nonparty discovery have a clearly territorial focus. Applications for orders compelling disclosure from nonparties must be made to the court in the district where the discovery is to be taken; failure to comply with such an order is a contempt of that court. Fed.R.Civ.P. 37(a)(1); 37(b). Subpoenas for attendance at a trial must issue from the court for the district in which the trial is held; for attendance at a deposition, from the court for the district in which the deposition is to be taken. Fed.R.Civ.P. 45(a)(2). (Rule 34(c) explicitly makes the subpoena process of Rule 45 the route to compelling production of documents from nonparties.) It" } ]

[ { "docid": "20890220", "title": "", "text": "designed to address the Petitioner’s purported “jurisdictional” and other objections to the January Subpoena, clearly make the latest, August Subpoena the operative subpoena. According to the Respondents, the August Subpoena reflects their most current “good-faith attempt to narrow the issues in dispute between the parties and to expedite adjudication of Judicial Watch’s compliance with Plaintiffs’ document requests.” Resp’ts’ Resp. OTSC at 5. The Respondents’ persistent insistence that judicial resources and attention be expended resolving disputes over the old January Subpoena is nonsensical and undercuts this “good faith attempt.” For these reasons, the Respondents’ Motion to Compel, which is not focused on the operative August Subpoena, is denied as moot. Second, the Respondents’ Motion to Transfer, ECF No. 8, expressly requests transfer of two motions that have been denied as moot and, consequently, that motion is no longer pending and available for transfer. Finally, the Petitioner’s Motion to Stay Briefing on Non-Jurisdietional Issues Raised in the Motion to Compel Compliance with Subpoena Duces Tecum, ECF No. 13, is denied as moot, since the Respondents’ Motion to Compel, which is the subject of the motion for a stay, has been denied as moot. III. CONCLUSION Accordingly, for the foregoing reasons, the Court finds that “exceptional circumstances” exist such that the United States District Court for the District of Arizona, where the underlying action is pending, should resolve the Petitioner’s Motion to Quash and/or for a Protective Order, ECF No. 24. The remaining motions pending in this miscellaneous matter are denied as moot. An appropriate order consistent with this Memorandum Opinion will be contemporaneously filed. The Clerk of the Court is directed to close this matter. SO ORDERED. . The Petitioner also filed a Motion to Quash Subpoena Duces Tecum, ECF No. 1, which initiated this matter, but that motion has been withdrawn. Pet’r’s/Cross-Resp't's Notice of Withdrawal of Mot., ECF No. 25. . The parties agree that the withdrawal of the May Subpoena renders moot the Petitioner's first Motion to Quash, ECF No. 1, and the portion of the Respondents’ Motion to Transfer, ECF No. 8, seeking transfer of the Petitioner's Motion to" }, { "docid": "20890221", "title": "", "text": "Compel, which is the subject of the motion for a stay, has been denied as moot. III. CONCLUSION Accordingly, for the foregoing reasons, the Court finds that “exceptional circumstances” exist such that the United States District Court for the District of Arizona, where the underlying action is pending, should resolve the Petitioner’s Motion to Quash and/or for a Protective Order, ECF No. 24. The remaining motions pending in this miscellaneous matter are denied as moot. An appropriate order consistent with this Memorandum Opinion will be contemporaneously filed. The Clerk of the Court is directed to close this matter. SO ORDERED. . The Petitioner also filed a Motion to Quash Subpoena Duces Tecum, ECF No. 1, which initiated this matter, but that motion has been withdrawn. Pet’r’s/Cross-Resp't's Notice of Withdrawal of Mot., ECF No. 25. . The parties agree that the withdrawal of the May Subpoena renders moot the Petitioner's first Motion to Quash, ECF No. 1, and the portion of the Respondents’ Motion to Transfer, ECF No. 8, seeking transfer of the Petitioner's Motion to Quash. Resp’ts’ Notice of Withdrawal, at 1, ECF No. 19; Pet’r’s Notice of Withdrawal of Motion to Quash, ECF No. 25. The Respondents contend, however, that \"[t]he following [three] motions are unaffected by this withdrawal: Plaintiffs' Cross-Motion to Compel (Dkt. No. 7), Plaintiffs’ Motion to Transfer as it pertains to their Cross-Motion to Compel (Dkt. No. 8), and Judicial Watch’s Motion to Stay (Dkt. No. 13).” Resp’ts’ Resp. Notice of Withdrawal, at 1. . Petitioner contests whether this Court has jurisdiction to resolve the Respondent's motion to compel compliance with the January Subpoena since it is neither the \"issuing court” nor the \"compliance court,\" as those terms are used in Federal Rule of Civil Procedure 45. See Pet'r’s/ Cross-Resp't’s Resp. to Resp'ts’/Cross-Pet'rs’ Sept. 15, 2014 Notice Supp. Authority, ¶ 6; ECF No. 34; id. ¶ 8 (\"This Court does not have jurisdiction over the January 8th subpoena. It is not the 'court of compliance.' It is not even the 'issuing court.’ ”). While both parties seek resolution of this jurisdictional issue, the Court concludes it" }, { "docid": "473812", "title": "", "text": "Opinion for the Court filed by Circuit Judge WILLIAMS. Concurring Opinion filed by Circuit Judge HENDERSON. WILLIAMS, Circuit Judge: Respondent, defendant in a civil case pending in the United States District Court for the Eastern District of Arkansas, served a subpoena duces tecum on petitioner, a law firm, demanding production of documents and testimony at a deposition in Washington, D.C. That subpoena, in conformance with Federal Rule of Civil Procedure 45(a)(2), issued from the United States District Court for the District of Columbia. When petitioner objected to the subpoena, respondent filed a motion to compel in district court here, and petitioner responded with a motion to quash the subpoena, also in district court here. Further, suggesting that the trial court in Arkansas was more familiar with the issues presented, respondent moved the district court here to transfer the motions to the Eastern District of Arkansas. Petitioner objected, but the trial court granted the transfer motion. Petitioner thereupon sought review of the transfer order via this mandamus petition. Finding that the district court lacked authority to transfer the motions under the Federal Rules of Civil Procedure, we vacate the order. I. Mandamus will issue only upon a showing that the petitioner’s right is “clear and indisputable,” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143-44, 99 L.Ed.2d 296 (1988), and that “no other adequate means to attain the relief’ exist, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). We leave to part II the analysis of petitioner’s right and here determine only the threshold issue of the adequacy of other means of relief. A conceivable alternative would have been for petitioner to proceed by direct appeal. In all likelihood, of course, the only consequence of finding that this was a viable alternative would be a need to relabel the mandamus action an appeal, but it turns out that appeal is not available. Ordinarily a discovery order is not considered final and hence may not be immediately appealed under 28 U.S.C. § 1291. A party seeking interlocutory" }, { "docid": "20890208", "title": "", "text": "to explain, among other things, inter alia, (1) ‘Why both Respondents-Cross Petitioners’ Motion to Compel Compliance with Subpoena Duces Tecum (Doc. No. 7) and Motion to Transfer its Motion (Doc. No. 8), and Petitioner-Cross Respondent’s Motion to Stay Respondents-Cross Petitioners’ Motion (Doc. No. 13), should not all be denied as moot” and (2) “Why Petitioner-Cross Respondent’s Motion to Quash and/or for Protective Order (Doc. No. 24), which is directed at the August 4, 2014 Subpoena Duces Tecum, should not be transferred to the District of Arizona, pursuant to Federal Rule of Civil Procedure 45(f).” The parties’ responses to the Order to Show Cause have informed the Court’s consideration of the pending motions. In sum, pending before the Court are the following four motions: (1) the Respondents’ Motion to Compel the Petitioner’s compliance with the January Subpoena, ECF No. 7; (2) the Respondents’ Motion to Transfer, ECF No. 8, which seeks to transfer only the Petitioner’s Motion to Quash the May Subpoena, ECF No. 1, and the Respondents’ Motion to Compel compliance with the January Subpoena, ECF No. 7; (3) the Petitioner’s Motion for a Stay, ECF No. 13, which requests that the Court address the validity of the January and May subpoenas before requiring a response on the adequacy of the Petitioner’s subpoena response; and (4) the Petitioner’s Motion to Quash the August Subpoena and/or for a Protective Order, ECF No. 24. These motions are addressed in short order, with the last motion transferred, pursuant to Federal Rule of Civil Procedure 45(f), to the issuing court presiding over the Arizona Case for resolution, and the remaining three motions denied as moot. II. DISCUSSION Federal Rule of Civil Procedure 45(f) is a new subsection added in 2013 authorizing transfer of subpoena-related motions by “the court where compliance is required” to the “issuing court,” either when the person subject to the subpoena consents or “if the court finds exceptional circumstances.” The Rules do not define “exceptional circumstances” but the Advisory Committee Note accompanying the amendment provides guidance on application of this new subsection. Specifically, the authority to transfer subpoena-related motions under Rule" }, { "docid": "23589630", "title": "", "text": "failed to satisfy its burden in moving to quash the subpoena. (Plaintiff’s Memo at 13-15.) Merrill Lynch disputes each of plaintiffs’ three assertions. (Memorandum of Law in Further Support of Motion of Nonparty Witness Merrill Lynch to Quash Subpoena, Concord Boat Corp. v. Brunswick Corp., No. M. 8-85 (“Merrill’s Memo in Support”), at 2-7 (Oct. 14, 1996).) This Court briefly will review the legal principles underlying the parties’ dispute before moving on to the three specific issues raised in the parties’ respective papers. I. Rule 26 and Rule 45 Rule 26 of the Federal Rules of Civil Procedure sets forth the “General Provisions Governing Discovery” for civil suits in the' federal courts. It authorizes parties to obtain “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and all information “reasonably calculated to lead to discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Rule 26(c), however, curtails this power by providing that [u]pon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery maybe had only on specified terms and conditions. Fed.R.Civ.P. 26(c). Rule 45 provides a corresponding level of protection for persons subject to subpoena. 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2449, at p. 75 (1995). Rule 45(c), entitled “Protection for Persons Subject to Subpoenas,” in relevant part states: (c)(2)(B) ... a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney" }, { "docid": "2108835", "title": "", "text": "PER CURIAM: Appellant, Arthur Jones, is the defendant/eounter-plaintiff in a civil action currently pending in the United States District Court for the Middle District of Florida. In connection with discovery in this action, Jones initiated the present action by causing the clerk for the United States District Court for the Southern District of Florida to issue a subpoena duces tecum to be served on the United States Olympic Committee’s agent, C.T. Corporation, in Miami, Florida. The Olympic Committee is not a party to the action pending in the middle district of Florida. On June 19,1980, the Olympic Committee filed a motion to quash the subpoena issued by the southern district court. On July 10, 1980 the district judge issued an order granting the Olympic Committee’s motion to quash the subpoena. The court found “that it would be burdensome and unfair to require the petitioner, a federally chartered corporation with virtually no contacts with this state, to produce the documents requested and to be deposed in this judicial district over litigation occurring outside this district.” This appeal followed. Before addressing the merits of the parties’ contentions, we must determine whether this court can properly exercise jurisdiction over this case. An order quashing a subpoena is not a final judgment in the usual sense. Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir.1961). Consequently a discovery order incident to a pending action is generally not subject to appeal. Honig v. E.I. duPont de Nemours & Co., 404 F.2d 410 (5th Cir.1968). However, “[i]f a court in oné district quashes a subpoena or otherwise denies discovery from a person not a party to the action and the action is pending in a different district, the order is a final disposition of the only proceeding in that district concerning the controversy and the party seeking discovery may appeal.” 8 C. Wright and A. Miller, Federal Practice and Procedure § 2006 (1970); see National Life Insurance Co. v. Hartford Accident and Indemnity Co., 615 F.2d 595 (3d Cir.1980); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 (2d Cir. 1967); Gladrow v. Weisz," }, { "docid": "6915772", "title": "", "text": "storage or computer processing.” Id., § 2702(a)(2). C. Whether a Party May Move to Quash a Subpoena Directed to a Third Party Under the SCA Defendants argued to Judge McDermott, and again in this court, that Crispin cannot assert the rights of Media Temple, Facebook, and MySpace, none of whom moved to quash the subpoenas directed to them. Judge McDermott did not address this issue in his decision. “Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.” 9A Charles Wright & Ar thur Miller, Federal Practice & Procedure, § 2459 (3d ed. 2008). See also In re REMEC, Inc. Securities Litigation, Civil No. 04cv1948 JLS (AJB), 2008 WL 2282647, *1 (S.D.Cal. May 30, 2008) (“As a general proposition, a party lacks standing under Federal Rules of Civil Procedure Rule 45(c)(3) to challenge a subpoena issued to a non-party unless the party claims a personal right or privilege with respect to the documents requested in the subpoena”); Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D.Cal.2005) (“A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash”); Schmulovich v. 1161 Rt. 9 LLC, Civil Action No. 07-597(FLW), 2007 WL 2362598, *2 (D.N.J. Aug. 15, 2007) (“Personal rights claimed with respect to bank account records give a party sufficient standing to challenge a third party subpoena served upon financial institutions holding such information”); Richards v. Convergys Corp., Nos. 2:05-CV-00790-DAK, 2:05-CV-00812 DAK, 2007 WL 474012, *1 (D.Utah Feb. 7, 2007) (“[A] party has a personal right with respect to information contained in his personnel files sufficient to confer standing to move to quash a subpoena for his employment records served on a third party”); Arias-Zeballos v. Tan, No. 06 Civ. 1268(GEL)(KN), 2007 WL 210112, *1 (S.D.N.Y. Jan. 25, 2007) (“individuals, whose banking records are subpoenaed, have a privacy interest in their personal financial affairs that gives them" }, { "docid": "23589651", "title": "", "text": "the terms of the Brunswick Subpoena would subject numerous Merrill Lynch employees and managers in several branch offices to countless hours of research, analysis, and compilation. Plaintiffs’ arguments to the contrary do not require a different result. Plaintiffs are correct that courts — including this Court— have held resolution of a motion to quash a subpoena turns on the size and resources of a subpoena recipient, the nature and importance of the subject matter of the underlying litigation, and whether a given the document request will not “denude [Merrill] of files and records essential for its continued operation.” See IBM, 83 F.R.D. at 108-09. Plaintiffs are incorrect, however, that the cases they cite in support of these holdings control this Court’s resolution of the instant case. As this Court noted in IBM, the aforementioned factors are relevant to motions to quash made by a subpoena recipient who is a party to, or who will necessarily be affected by the final judgment entered in, the underlying litigation. Id (denying motion to quash brought by defendant’s Chairman of the Board); United States v. International Bus. Mach. Corp., 62 F.R.D. 507, 509-10 (S.D.N.Y.1974) (denying motion to quash brought by members of computer industry which would necessarily be affected by final judgment in litigation). In the instant case, movant Merrill Lynch neither is a party to the underlying antitrust litigation, nor will be affected by the final judgment rendered in that litigation. Consequently, this Court rejects plaintiffs’ claims regarding this issue. Accordingly, this Court finds that compliance with the Brunswick Subpoena would subject non-party Merrill Lynch to an undue burden in contravention of the terms of Rule 45(c)(2)(B) and (c)(3)(A)(iv). As a result, this Court finds that the Brunswick Subpoena must be quashed or modified, pursuant to Rule 45(c)(3)(A). 9A Wright & Miller, § 2463, at p. 70. In the instant case, this Court finds that quashing the Brunswick Subpoena is the appropriate relief for Merrill Lynch. Although Rule 45 empowers a district court to “modify” a subpoena, Fed.R.Civ.P. 45(c)(3)(A); 9A Wright & Miller, § 2459, at p. 52 & § 2463, at p." }, { "docid": "23589633", "title": "", "text": "*1, 1991 U.S.Dist. LEXIS 14486, at *2 (N.D.Ohio June 21, 1991); Krewson, 120 F.R.D. at 7; Celanese Corp. v. E.I. duPont de Nemours & Co., 58 F.R.D. 606, 609-10 (D.Del.1973). Courts find such unusual circumstances where: (1) “the subpoena is overbroad on its face and ‘exceeds the bounds of fair discovery,’” Semtek, 1996 WL 238538, at *2; Krewson, 120 F.R.D. at 7; (2) the subpoenaed witness is a non-party acting in good faith, Semtek, 1996 WL 238538, at *2; and (3) counsel for witness and counsel for subpoenaing party were in contact concerning the witness’ compliance prior to the time the witness challenged legal basis for the subpoena. Id.; Goodyear, 1991 WL 172930, at *2, 1991 U.S.Dist. LEXIS 14486, at *2-3; Celanese Corp., 58 F.R.D. at 610. As this Court frequently has noted, “the burden of persuasion in a motion to quash a subpoena issued in the course of civil litigation is borne by the movant.” United States v. International Bus. Mach Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979); IBM, 70 F.R.D. at 702; see 9A Wright & Miller, § 2449, at p. 46. Whether a subpoena imposes upon a witness an “undue burden” depends upon “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” IBM, 83 F.R.D. at 104. In addition, the status of a witness as a non-party to the underlying litigation “entitles [the witness] to consideration regarding expense and inconvenience.” Fed.R.Civ.P. 45(c)(2)(B) (“an order to compel production shall protect any person who is not a party from significant expense.... ”); Semtek, 1996 WL 238538, at *2. The determination of issues of burden and reasonableness is committed to the sound discretion of the trial court. Id. at *3; 9A Wright & Miller, Federal Practice and Procedure, § 2463. Of the three issues raised in the parties’ submissions to this Court, the timeliness of Merrill Lynch’s motion to quash is a threshold issue that this Court must resolve before considering movant’s substantive objections" }, { "docid": "473818", "title": "", "text": "Advisory Committee’s Note to the 1970 amendments to Rule 26(c), but the place to start, whatever the Note’s ultimate relevance, is the text of Rule 45. That text offers no authorization to transfer a motion to quash and seems at least implicitly to forbid it. The rule permits, and in some circumstances requires, “the issuing court” to quash or modify a subpoena. See Fed.R.Civ.P. 45(c)(3)(A). It allows enforcement of a subpoena following objections only “pursuant to an order of the court by which the subpoena was issued.” Fed.R.Civ.P. 45(c)(2)(B). It provides that failure to obey a subpoena may be deemed contempt “of the court from which the subpoena issued.” Fed.R.Civ.P. 45(e). All of this language suggests that only the issuing court has the power to act on its subpoenas. See, e.g., Kearney v. Jandernoa, 172 F.R.D. 381, 383 n. 4 (N.D.Ill.1997); Byrnes v. Jetnet Corp., Ill F.R.D. 68, 69 (M.D.N.C.1986). Subpoenas are process of the issuing court, see In re Certain Complaints Under Investigation, 783 F.2d 1488, 1494-95 (11th Cir.1986), and nothing in the Rules even hints that any other court may be given the power to quash or enforce them. See Productos Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 227-29 (D.P.R.1992) (quoting Advisory Committee Notes on 1991 amendments). There are other textual difficulties with transfer of motions to quash. Rule 45(c)(3)(A)(ii) directs the issuing court to quash or modify a subpoena that requires a nonparty to travel more than 100 miles from the place where the nonparty “resides, is employed or regularly transacts business in person.” This restriction is obviously hard to square with a principle that allows the issuing court to transfer the motion to quash to another district—in this case, the parties tell us, a district 892 miles away. Perhaps more significant, not only would a transferee court lack statutory authority to quash or enforce another court’s subpoena, it would often lack personal jurisdiction over the non-party. The principle that courts lacking jurisdietion over litigants cannot adjudicate their rights is elementary, and cases have noted the problem this creates for the prospect of transferring nonparty discovery disputes." }, { "docid": "1433778", "title": "", "text": "the opposing party should not have “to endure the expense and inconvenience” that would result from relitigating the case when the outcome would not produce a different result). Transferring a motion to the jurisdiction where the underlying litigation is pending that will require few, if any, modifications of the written submissions, does not rise to the level of unfair prejudice. Therefore, the cost that may be incurred to prosecute its motion in the Southern District of New York rather than in the District of Columbia is de minimis. C. The District of Columbia Circuit’s Rule 45 Analysis Israel asserts that the intervenors’ motion to transfer fails because “the [District of Columbia] Circuit has held that motions to quash cannot be transferred under any circumstances.” Israel’s Opp’n at 15 (citing In re Sealed Case, 141 F.3d 337 (D.C.Cir.1998)). However, applying the analysis mandated by In re Sealed Case to Rule 45 in its amended state yields an outcome opposite to what was permissible in 1998. This is because In re Sealed Case was predicated on a textual reading of Rule 45 as drafted at that time, resulting in a finding that the rule “offer[ed] no authorization to transfer a motion to quash [a subpoena] and seems at least implicitly to forbid it” because “nothing in the Rules even hints that any other court may be given the power to quash or enforce [another court’s subpoenas].” 141 F.3d at 341. In reaching this conclusion, the Circuit instructed district judges that when determining the legality of transferring subpoena-related motions, “the place to start ... is the text of Rule 45.” Id. at 340-41. Applying that directive, the pertinent provisions of Rule 45 must be construed to now read: When the court where compliance is required [is not the court where the underlying action is pending, the court where compliance is sought] ... may transfer a [subpoena-related] motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances____ [Both t]he court for the district where compliance is required—and also, after a motion" }, { "docid": "1433779", "title": "", "text": "textual reading of Rule 45 as drafted at that time, resulting in a finding that the rule “offer[ed] no authorization to transfer a motion to quash [a subpoena] and seems at least implicitly to forbid it” because “nothing in the Rules even hints that any other court may be given the power to quash or enforce [another court’s subpoenas].” 141 F.3d at 341. In reaching this conclusion, the Circuit instructed district judges that when determining the legality of transferring subpoena-related motions, “the place to start ... is the text of Rule 45.” Id. at 340-41. Applying that directive, the pertinent provisions of Rule 45 must be construed to now read: When the court where compliance is required [is not the court where the underlying action is pending, the court where compliance is sought] ... may transfer a [subpoena-related] motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances____ [Both t]he court for the district where compliance is required—and also, after a motion is transferred, the [court where the underlying action is pending]—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. Fed. R. Civ. P. 45(f), (g). Based on the analysis required by In re Sealed Case, the text of Rule 45 not only “hints that [another] court may be given the power to quash or enforce [a subpoena],” In re Sealed Case, 141 F.3d at 341, it explicitly permits it in circumstances where “the person subject to the subpoena consents or if the court finds exceptional circumstances,” see Fed. R. Civ. P. 45(f); see also In re Sealed Case, 141 F.3d at 343 (Henderson, J. concurring) (“I stop short, however, of deciding, as does the majority, that a district court lacks authority to order a transfer. Assuming such authority exists, it should be reserved for the extraordinary, complex case in which the transferee court is plainly better situated to resolve the discovery dispute.”). Because the text of amended Rule 45 specifically allows" }, { "docid": "23589634", "title": "", "text": "Wright & Miller, § 2449, at p. 46. Whether a subpoena imposes upon a witness an “undue burden” depends upon “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” IBM, 83 F.R.D. at 104. In addition, the status of a witness as a non-party to the underlying litigation “entitles [the witness] to consideration regarding expense and inconvenience.” Fed.R.Civ.P. 45(c)(2)(B) (“an order to compel production shall protect any person who is not a party from significant expense.... ”); Semtek, 1996 WL 238538, at *2. The determination of issues of burden and reasonableness is committed to the sound discretion of the trial court. Id. at *3; 9A Wright & Miller, Federal Practice and Procedure, § 2463. Of the three issues raised in the parties’ submissions to this Court, the timeliness of Merrill Lynch’s motion to quash is a threshold issue that this Court must resolve before considering movant’s substantive objections to the Brunswick Subpoena. In order for this Court to determine whether the instant case presents the “unusual circumstances” that would excuse Merrill’s alleged failure to timely file their objections, however, this Court must first evaluate the reasonableness of the Brunswick Subpoena. See Semtek, 1996 WL 238538, at *2; Krewson, 120 F.R.D. at 7. Accordingly, this Court will determine the reasonableness of the subpoena before considering the other issues raised by the instant motion. II. Reasonableness of the Brunswick Subpoena Merrill Lynch claims that the Brunswick Subpoena is unreasonable and should be quashed pursuant to Rule 45(e)(3)(A)(iv). (Merrill’s Memo at 9.) Merrill maintains that the Brunswick Subpoena “is clearly overbroad on its face.” Id. It asserts that “[m]any of the requests bear no relation to the antitrust litigation, because they call for production of documents with no direct relationship to the marine aspect of Brunswick’s business.” Id. In support of this assertion, Merrill explains the nature of both Brunswick’s business and its relationship with Merrill. Brunswick is a multinational corporation with offices and facilities on" }, { "docid": "17282817", "title": "", "text": "quash or modify a subpoena if the subpoena “subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3)(A)(iv). The burden of persuasion in a motion to quash a subpoena is borne by the movant. United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979); see 9 Wright & Miller, Federal Practice and Procedure § 2449 at p. 46 (1995). An evaluation of undue burden requires the court to weigh the burden to the subpoenaed party against the value of the information to the serving party. Whether a subpoena imposes an “undue burden” depends upon “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” IBM, 83 F.R.D. at 104. However, courts also give special weight to the burden on non-parties of producing documents to parties involved in litigation. See Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir.1998) (“concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.”); Heidelberg Ams., Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41-42 (1st Cir.2003); see also Fed.R.Civ.P. 45(c)(2)(B) (“an order to compel production shall protect any person who is not a party from significant expense.... ”). The determination of issues of burden and reasonableness is committed to the sound discretion of the trial court. Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y.1996); 9A Wright & Miller, § 2463. On February 22, 2000, The Babcock & Wilcox Company (“B & W”) and certain of its subsidiaries (“Debtors”), including Control, filed petitions for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Louisiana (“Bankruptcy Court”). (Pl.’s Mem. Supp. Mot. at 6-11). This bankruptcy is currently pending. (Id.). Pursuant to that filing, the Debtors’ insurance assets became assets of the bankruptcy estate, including any policies issued by Travelers to the Debtors under which Control may or may not be an insured. 11 U.S.C." }, { "docid": "20890207", "title": "", "text": "January and May Subpoenas. See Resp’ts’/Cross-Pet’rs’ Resp. to Order to Show Cause at 5, ECF No. 26 (“The May and August subpoenas are identical in all respects”); Resp’ts’/Cross-Pet’rs’ Opp’n to Pet’r’s/Cross-Resp’t’s Mot. to Quash and/or for Protective Order (“Resp’ts’ Opp’n to Pet’r’s Mot. to Quash August Subpoena”), at II, ECF No. 28 (“the August Subpoena is substantively identical to the January Subpoena, as modified in the meet and confer process”); id. at 6 (“The August Subpoena is essentially identical to the May Subpoena and January Subpoena, except this time Plaintiffs included the reasonable accommodation language in the text of the August Subpoena itself’); Pet’r’s Mot. to Quash Aug. Subpoena, ¶ 2 (noting that August Subpoena is “identical to the prior subpoena duces te-cum served on Judicial Watch in January 2014”). In light of the withdrawal of the May Subpoena, which had been the principal focus of the prior motion practice, and the issuance of the virtually identical August Subpoena, which superseded the prior subpoenas, the Court issued an Order to Show Cause directing the parties to explain, among other things, inter alia, (1) ‘Why both Respondents-Cross Petitioners’ Motion to Compel Compliance with Subpoena Duces Tecum (Doc. No. 7) and Motion to Transfer its Motion (Doc. No. 8), and Petitioner-Cross Respondent’s Motion to Stay Respondents-Cross Petitioners’ Motion (Doc. No. 13), should not all be denied as moot” and (2) “Why Petitioner-Cross Respondent’s Motion to Quash and/or for Protective Order (Doc. No. 24), which is directed at the August 4, 2014 Subpoena Duces Tecum, should not be transferred to the District of Arizona, pursuant to Federal Rule of Civil Procedure 45(f).” The parties’ responses to the Order to Show Cause have informed the Court’s consideration of the pending motions. In sum, pending before the Court are the following four motions: (1) the Respondents’ Motion to Compel the Petitioner’s compliance with the January Subpoena, ECF No. 7; (2) the Respondents’ Motion to Transfer, ECF No. 8, which seeks to transfer only the Petitioner’s Motion to Quash the May Subpoena, ECF No. 1, and the Respondents’ Motion to Compel compliance with the January Subpoena," }, { "docid": "22567345", "title": "", "text": "621 (1964). . Section 1291 provides: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts * * * except where a direct review may be had in the Supreme Court.” Cf. Groover, Christie & Merritt v. Lo Bianco, 119 U.S.App.D.C. 50, 336 F.2d 969 (1964). . The subpoenas in that ease were issued at the request of the accused, and were directed to various Government officials. They were quashed. If the motion of a non-party to quash a subpoena is denied, the order must be regarded as final if effective appellate relief would otherwise be unavailable. See Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th Cir. 1965). . Appellees note decisions in other circuits in which Courts of Appeals have dismissed Section 1291 appeals from District Court orders releasing transcripts of grand jury minutes. City of Philadelphia v. Westinghouse Elec. Corp., 210 F.Supp. 486 (E.D.Pa.1962), appeal dismissed, Nos. 14296 and 14319, 3d Cir. Feb. 21, 1963; Atlantic City Electric Co. v. A. B. Chance Co., appeal dismissed March 21, 1963; see also 313 F.2d 431 (2d Cir. 1963). We think those decisions are distinguishable. They are analogous to an order refusing to quash a subpoena, not to an order quashing a subpoena. The difference is important. If a subpoena is not quashed, the subpoenaed party has a remedy in the jurisdiction where the action is pending (a motion to exclude). But if a subpoena is quashed, the party seeking the subpoena has no way to raise the issue in the jurisdiction where the action is pending. . In Wirtz v. Baldor Electric Co., 119 U.S.App.D.C. 122, 133, 337 F.2d 518, 529 (1963), we stated that “the traditional function of the courts in such a situation [is] to see that the fullest possible evidence, consistent with any privilege which the Government could properly claim, was made available for the proper decision of the controversy.” . Indeed, the hearing on the motion to quash was held on January 27, 1964, before the two affidavits contained in the record were filed. At" }, { "docid": "473824", "title": "", "text": "problems; a nonparty that moves for a protective order in the court of the underlying action thereby submits to that court’s jurisdiction. Such a reading might seem to raise a new question; does it allow the nonparty witness territorial convenience with respect to motions to quash but not with respect to motions for a protective order? They are not obviously so different; in fact there is broad overlap in the grounds for granting the two motions. Compare Fed.R.Civ.P. 26(c)(l)-(4) with Fed.R.Civ.P. 45(c)(3)(A). As it turns out, the differential treatment is only apparent. The operation of the subpoena rules in fact grants nonparty witnesses the privilege of choosing to litigate in their home districts regardless of how relief is sought. In the end what affords the nonparty deponent this territorial protection is that the rules vest power to compel discovery from a nonparty, and to impose contempt sanctions for non-compliance, in the subpoena-issuing court. Fed.R.Civ.P. 37(a)(1); Fed.R.Civ.P. 45(e). Rule 26(c) permits that court to stay its proceedings on a nonparty deponent’s motion for a protective order pending action by the trial court, and to defer to the trial court’s resolution of that motion. The rules may well allow similar abstention on a motion to quash, followed by deference to the trial court’s decision on a motion for a protective order; this was the technique used in Kearney. But if the nonparty deponent fails to take the bait and move for a protective order in the trial court, the issuing court must make the decision whether discovery may be had, and its scope, since it is the only court with the power to order enforcement. Other courts have recently adopted this reading of the Advisory Committee Note. See, e.g., Orthopedic Bone Screw Prods., 79 F.3d at 48 (reading the Note’s use of “remit” as referring simply to power in court that issued subpoena to stay motion by nonparty witness for protective order and defer to decision of the district court where discovery proceedings in the underlying action were pending under 28 U.S.C. § 1407); Cent. States, Southeast & Southwest Areas Pension Fund" }, { "docid": "1158332", "title": "", "text": "seek a ruling on the issue of privilege. See Joint Appendix at 20. Gould made no effort to acquire the relevant documents directly from Mitsui or Mi-yakoshi. Brief of WMW at 10. Nor did Gould undertake to narrow the scope of its subpoena. Id. Approximately nine weeks after the WMW deposition was closed, Gould moved before Judge Stanton pursuant to Fed.R.Civ.P. 45(d)(1) to enforce the deposition subpoena. On August 12, 1986, Gould’s motion came on to be heard before Judge Stanton, who had before him (1) the subpoena; (2) WMW’s objections thereto; (3) the transcript of the deposition of WMW’s designated witness together with the exhibits thereto; and (4) affidavits and memoranda of law submitted by both sides. Oral arguments were heard. The district court denied enforcement of the subpoena and ordered it quashed in a memorandum endorsement which stated: “Enforcement denied. Subpoena quashed. Question of sanctions deferred to trial court at conclusion of trial.” Gould appeals, and we vacate and remand. DISCUSSION We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1982). See Glendale Fed. Savings and Loan Ass’n v. Republic Ins. Co. (In Re Sur. Ass’n of Am.), 388 F.2d 412, 414 (2d Cir.1967); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 554 (2d Cir.1967); see also 8 C. Wright & A. Miller, Federal Practice and Procedure § 2287 (1970) (party seeking discovery may appeal quashal of subpoena directed to nonparty in action pending in district outside that in which compliance with subpoena is sought); 9 id. § 2463 (same). At the outset, we note the contention by WMW in footnote 4 at page 10 of its brief that Gould made no motion to compel production “before or during the taking of the deposition” of WMW, in the language of Fed.R.Civ.P. 45(d)(1). Since that deposition was “closed” on May 6, 1986, and Gould’s motion was not served or filed until more than two months later, WMW argues that the motion is barred by Rule 45(d)(1). Kendrick v. Heckler, 778 F.2d 253 (5th Cir.1985), and Zinser v. Palmby (In Re Wheat Farmers Antitrust Class Action)," }, { "docid": "23589652", "title": "", "text": "of the Board); United States v. International Bus. Mach. Corp., 62 F.R.D. 507, 509-10 (S.D.N.Y.1974) (denying motion to quash brought by members of computer industry which would necessarily be affected by final judgment in litigation). In the instant case, movant Merrill Lynch neither is a party to the underlying antitrust litigation, nor will be affected by the final judgment rendered in that litigation. Consequently, this Court rejects plaintiffs’ claims regarding this issue. Accordingly, this Court finds that compliance with the Brunswick Subpoena would subject non-party Merrill Lynch to an undue burden in contravention of the terms of Rule 45(c)(2)(B) and (c)(3)(A)(iv). As a result, this Court finds that the Brunswick Subpoena must be quashed or modified, pursuant to Rule 45(c)(3)(A). 9A Wright & Miller, § 2463, at p. 70. In the instant case, this Court finds that quashing the Brunswick Subpoena is the appropriate relief for Merrill Lynch. Although Rule 45 empowers a district court to “modify” a subpoena, Fed.R.Civ.P. 45(c)(3)(A); 9A Wright & Miller, § 2459, at p. 52 & § 2463, at p. 74, this Court declines to do so in the instant case. As previously stated, virtually half of the twenty-two re quests for documents in the Brunswick Subpoena are vague, inexplicit, and overbroad. It is beyond the capabilities of this Court to divine precisely which of the voluminous documents received, created, or maintained by Merrill in the course of its relationship with Brunswick might assist plaintiffs’ preparation of their underlying antitrust suit. Furthermore, even if this Court could forecast a plaintiffs’ discovery needs, it would hesitate to do so in the instant case where the underlying litigation is pending in a distant jurisdiction, subject to other discovery orders of which this Court is unaware, and based on facts about which this Court knows little. If plaintiffs wish to obtain information from Merrill Lynch regarding Brunswick’s recreational watercraft business, it is for plaintiffs — not this Court — to redraft the subpoena so that all of its provisions state precisely and specifically the documents plaintiffs seek. CONCLUSION IT IS HEREBY ORDERED THAT movant Merrill Lynch’s motion to" }, { "docid": "17282816", "title": "", "text": "disclaimers of coverage, and all other documents relating to any insurance policy issued or underwritten by Travelers which may provide coverage to any party named in the Complaint for the claims at issue. (Groark Aff., 9/15/04, Ex. 2 & 3). Travelers seeks to quash these subpoenas on the grounds that 1) MetLife may obtain the insurance policies in question from the public record or from Control directly, rather than placing an undue burden on a non-party, and 2) the non-public documents sought by the subpoenas are irrelevant, voluminous, and largely subject to privilege. (Pl.’s Mem. Supp. Mot. at 6-11). A. While the court interprets liberally the discovery provisions of the Federal Rules of Civil Procedure to encourage the free flow of information among litigants, limits do exist. For instance, Rule 26(c) provides that, upon a showing of good cause, the presiding court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c). More pertinently, Rule 45(c)(3) commands that a court “shall” quash or modify a subpoena if the subpoena “subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3)(A)(iv). The burden of persuasion in a motion to quash a subpoena is borne by the movant. United States v. Int’l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.1979); see 9 Wright & Miller, Federal Practice and Procedure § 2449 at p. 46 (1995). An evaluation of undue burden requires the court to weigh the burden to the subpoenaed party against the value of the information to the serving party. Whether a subpoena imposes an “undue burden” depends upon “such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” IBM, 83 F.R.D. at 104. However, courts also give special weight to the burden on non-parties of producing documents to parties involved in litigation. See Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir.1998) (“concern for the unwanted burden thrust upon non-parties is a" } ]

[ { "docid": "11930167", "title": "", "text": "suffering as of October 5, 1959 from ■“Anxiety Reaction (Conversion Features),” the alleged criminal offense “was not a product of this mental disease.” Since the appellant’s discharge from ■St. Elizabeths he had had six court-appointed attorneys. Appellant’s own motions, his disagreements or dissatisfaction with counsel and problems involving the succession of attorneys had occasioned the largest share of whatever delay occurred. I think the speedy trial issue should be resolved against him in light of Smith v. United States. As to his contention that he improperly was brought to trial without an adjudication of his restored competency following examination at St. Elizabeths, it may be noted first that no objection was raised on that ground. Moreover, this court has held that “an unchallenged certificate of the hospital superintendent * * * obviates the necessity for further proceedings on the question of sanity.” As to his claim of double jeopardy, the proceedings which had resulted in the first conviction on his plea of guilty to the charge of assault with intent to commit rape were reopened and that conviction was set aside on the appellant’s own motion. He thus is in no position to complain. The record before us discloses no error affecting substantial rights. I would affirm. . D.C.Code, § 24^301 (1961). . Actually at one time or other no less than twelve attorneys had been appointed to represent him. His own attacks upon, his attorneys or his motions that a different attorney be named precipitated much delay. . 118 U.S.App.D.C. -, 331 F.2d 784 (1964). . Hunter v. United States, 116 U.S.App.D.C. 323, 325, 323 F.2d 625, 627 (1963); and see D.C.Code, § 24-301 (1961). . Cf. Flynn v. United States, 217 F.2d 29 (9 Cir. 1954) cert. denied, 348 U.S. 930, 75 S.Ct. 344, 99 L.Ed. 729 (1955). . Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). “Mistrial because the jury was unable to agree is the classic example” of an occasion “where a second trial may be had.” (dissenting opinion) 367 U.S. at 370, 81 S.Ct. at 1527; “The classic example" } ]

[ { "docid": "7701980", "title": "", "text": "to supervise the administration of justice in federal courts and establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence. No persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.” In the Costello case the Court was dealing with a precise question upon which courts in this country and text authorities had theretofore differed. It recited the ancient English rule and unmistakably adopted it. It settled the problem in so far as we are concerned. I am of opinion that the judgment of the District Court should be affirmed. I am authorized to state that Circuit Judges Wilbur K. Miller, Danaher and Bastían agree with the foregoing opinion. . Now the District of Columbia Court of General Sessions. . Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100 (1948). . 281 F.2d 340 (1960). . Coppola v. United States, 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961). . For similar cases holding confessions given during a period of state detention admissible, see Hollingsworth v. United States, 321 F.2d 342 (10th Cir. 1963); United States v. Sailer, 309 F.2d 541 (6th Cir. 1962), cert. denied, 374 U.S. 835, 83 S.Ct. 1884, 10 L.Ed.2d 1057 (1963); Morgan v. United States, 111 U.S.App.D.C. 127, 294 F.2d 911 (D.C.Cir. 1961), cert. denied, 368 U.S. 978, 82 S.Ct. 482, 7 L.Ed.2d 439 (1962); Tillman v. United States, 268 F.2d 422 (5th Cir. 1959); Carpenter v. United States, 264 F.2d 565 (4th Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548" }, { "docid": "7041758", "title": "", "text": "it does not relate to the” subject matter of a witness’ testimony. Sells v. United States (10 Cir. 1958) 262 F.2d 815, 823, cert. den. 360 U.S. 913, 79 S.Ct. 1298, 3 L.Ed. 2d 1262; Papworth v. United States, (5 Cir. 1958) 256 F.2d 125, cert. den. 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88, reh. den. 358 U.S. 914, 79 S.Ct. 239, 3 L.Ed. 2d 235. GRAND JURY TRANSCRIPT During the in camera examination above mentioned, counsel for defendants, without establishing any “particular need” therefor, made a simple request that witness Roth’s “testimony given to the Grand Jury be made available to us.” Such request was denied by the court below. Defendants’ counsel then requested the trial judge to examine the grand jury testimony of the witness in camera to “determine whether or not any statement has been made by Mr. Roth at the Grand Jury hearing that would be inconsistent with or at odds with the testimony he has given here today.” The District Court refused to make such examination. This Court has recently ruled, in Berry v. United States, (8 Cir. 1961) 295 F.2d 192; and Brilliant v. United States (8 Cir. 1962) 297 F.2d 385 No. 16806, that under circumstances similar to those appearing in the instant case a trial judge does not abuse his discretion in refusing to examine the grand jury testimony of a witness for possible inconsistencies when no particular need is shown for such examination. What is there said on that subject need not be repeated here. It is sufficient to say that “we do not believe that the defendant(s) met the burden of showing a ‘particularized need’ for the grand jury testimony (of Agent Roth) or that (they) suffered any prejudice as a result of such testimony not being made availáble to them.” (Cf. United States v. Giampa, (2 Cir. 1961) 290 F.2d 83.) Grand jury transcripts, of course, do not come within the purview of Section 3500, Title 18 U.S.C.A. Pittsburgh Plate Glass Company v. United States, (1959) 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323, reh. den." }, { "docid": "7702013", "title": "", "text": "discussion, Point VI, opinion of Judge Prettyman.) If we are prepared to say that an un-counseled accused is not to be taken before a Grand Jury without first being afforded court appointed counsel (if indigent), we ought to declare this as a requirement; the supervisory powers of this court and the District Court over the administration of justice are broad enough to do so. Moreover, our objective should be fundamental fairness to an accused rather than added negative techniques which frustrate the administration of justice and produce multiple retrials until at last the court dismisses the indictment for denial of a speedy trial. See, e. g., Marshall v. United States, 119 U.S.App.D.C. -, 337 F.2d 119. . The foregoing references are to Federal Rules of Criminal Procedure. Because of the waiver, 18 U.S.C. § 3041 (1958) is not here involved (and see Reviser’s Note), . 318 U.S. 350, 356, 63 S.Ct. 599, 602, 87 L.Ed. 829 (1943). . 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961); and see Papworth v. United States, 256 F.2d 125, 127 (5 Cir.), cert. denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed. 2d 88 (1958). . Cf. Morgan v. United States, 111 U.S.App.D.C. 127, 294 F.2d 911 (1961). . Johnson, who had participated with Short and others herein named in the July 28 robbery and the August 3, 1962 robbery attempt, entered a pretrial plea of guilty and testified for the Government. One indictment naming Johnson was then dismissed. . He certainly had received Rule 5 advice from the committing magistrate, and, no doubt, similar caution from the attorney who appeared with him at the preliminary hearing. . 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); and see Lawn v. United States, 355 U.S. 339, 349, 350, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Holt v. United States, 218 U.S. 245, 247, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). . Italics mine. . See note 5, supra, as to the disposition of Johnson. . Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, p. 1493, 12" }, { "docid": "9510401", "title": "", "text": "WOODBURY, Chief Judge. In the autumn of 1952 the appellant Theodore Green was convicted in the court below on a three-count indictment charging him with entering a bank with intent to commit a felony, robbing the bank, and assaulting or putting in jeopardy the lives of persons by use of a dangerous weapon while committing the robbery in violation of Title 18 U.S.C. §§ 2113(a) and 2113(d). We allowed Green to appeal in forma pauperis but later dismissed his appeal “for want of diligent prosecution.” Ever since he has tried repeatedly by motions, some under Criminal Rule 35 and others under § 2255 Title 28 U.S.C., to have his sentence corrected, reduced or set aside. So far his efforts have not been crowned with conspicuous success. He is still in Alcatraz. See Green v. United States, 158 F.Supp. 804 (D.C.Mass.1958); affirmed 256 F.2d 483 (C.A.l, 1958); cert. denied 358 U.S. 854, 79 S.Ct. 83, 3 L.Ed.2d 87 (1958); 24 F.R.D. 130 (D.C.Mass.1959); affirmed 273 F.2d 216 (C.A.l, 1959); affirmed with 274 F.2d 59 (C.A.l, 1960), 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). Undaunted, Green has tried again, this time by two motions under § 2255, supra. In the motion filed first in point of time Green seeks to have his conviction and sentence vacated and set aside on the ground that the Assistant United States Attorney who prosecuted the case against him “remained silent when he well knew that the government witness, Bistany, was committing perjury when he testified that he had no expectations of leniency by either state or federal courts because of his testimony in the instant case.” In his subsequent motion Green seeks to have his sentence vacated for failure of the sentencing judge to afford him the right of allocution before imposition of sentence as required by Criminal Rule 32(a). The court below, without ordering Green produced to testify or hearing any evidence, denied both motions and Green has appealed. We shall consider Green’s motions in the order stated herein above. This is not the first time that Green has asserted that the" }, { "docid": "7702014", "title": "", "text": "F.2d 125, 127 (5 Cir.), cert. denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed. 2d 88 (1958). . Cf. Morgan v. United States, 111 U.S.App.D.C. 127, 294 F.2d 911 (1961). . Johnson, who had participated with Short and others herein named in the July 28 robbery and the August 3, 1962 robbery attempt, entered a pretrial plea of guilty and testified for the Government. One indictment naming Johnson was then dismissed. . He certainly had received Rule 5 advice from the committing magistrate, and, no doubt, similar caution from the attorney who appeared with him at the preliminary hearing. . 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); and see Lawn v. United States, 355 U.S. 339, 349, 350, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Holt v. United States, 218 U.S. 245, 247, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). . Italics mine. . See note 5, supra, as to the disposition of Johnson. . Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, p. 1493, 12 L.Ed.2d 653 (1964). . 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765 (1964). . 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). . 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). . Price v. Johnston, 144 F.2d 260, 262 (9 Cir.), cert. denied, 323 U.S. 789, 65 S.Ct. 312, 89 L.Ed. 629 (1944), rehearing denied, 323 U.S. 819, 65 S.Ct. 558, 89 L.Ed. 650 (1945); we have so interpreted the Powell dictum. Edwards v. United States, 78 U.S.App.D.C. 226, 228, 139 F.2d 365, 367 (1943), cert. denied, 321 U.S. 769, 64 S.Ct. 523, 88 L.Ed. 1064 (1944). . Wood v. United States, 75 U.S.App.D.C. 274, 287, 128 F.2d 265, 278, 141 A.L.R. 1318 (1942); there Mr. Justice Rutledge reviewed many facets of the counsel problem in a elassie opinion which underlies in substantial part the language now appearing in Fed.R.Crim.P. 5. . 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949). . 322 F.2d 770, 777 and 778 (5 Cir." }, { "docid": "6199722", "title": "", "text": "was done. Appellant’s remarks subsequently indicating he. did not desire the court to appoint counsel do not cure the error and cannot be considered as a waiver of counsel in connection with the entry of the plea. See Williams v. Alabama, 341 F.2d 777, 780-781 (5th Cir. 1965). That this was a Rule 20 proceeding did not alter appellant’s right to counsel. Cf. Owensby v. United States, 353 F.2d 412, 417 (10th Cir. 1965), cert. denied, 383 U.S. 962, 86 S.Ct. 1234, 16 L.Ed.2d 305 (1966). We hold that the judgment of conviction upon appellant’s plea of guilty may not stand. The district court’s denial of the Sec. 2255 motion is reversed, and the conviction is set aside. Appellant must be given an opportunity to enter another plea, and he must be prop erly advised of his right to the effective assistance of counsel in formulating that plea. Whether appellant will waive counsel, or will accept appointed counsel and be advised to plead guilty, or will be found guilty, we of course do not now determine. Due to this disposition of the cause, most of appellant’s numerous other grounds urged for reversal need not be discussed. Several, however, may arise again on remand and for that reason we now dispose of them. First, appellant complains of the use of presentence data concerning his former conviction on the ground that it was hearsay. The use of this information, which appellant admits is correct, is authorized by Rule 32(c) (2), F.R.Crim.P. Second, Rule 5(a), F.R.Crim.P., did not apply because appellant was arrested by and was in the custody of state, not federal, authorities. See Papworth v. United States, 256 F.2d 125, 129 (5th Cir.), cert, denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88 (1958). We do not find any evidence of collaboration between state and federal officers; appellant himself asked to be taken to the federal district court. Third, appellant argues that prior to the Sec. 2255 hearing in the district court, he should have been permitted to take the FBI agent’s deposition at the government’s expense. Assuming, without deciding," }, { "docid": "7701984", "title": "", "text": "(8th Cir. 1960), cert. denied, 365 U.S. 838, 81 S.Ct. 750, 5 L.Ed.2d 747 (1961). . In the eyes of North Carolina, the District of Columbia is federal. . United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944) ; Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572 (D.C.Cir. 1962). . Judge Rice, in Kirkes v. Askew, 32 F. Supp. 802 (E.D.Okl.1940), collects a number of cases on the point. Even assuming that the warrant, like one issued under Fed.R.Crim.P. 4, was valid outside the District of Columbia, O’Bryant had no authority to execute it. See D.C.Code § 4-138 (1961 ed.). . See D.C.Code § 4-136 (1961 ed.), which bestows upon members of the police force “all the common-law powers of constables,” with certain enumerated exceptions. At common law the acts of an officer beyond his jurisdiction were void. See 47 Am.Jur. Sheriffs, Police, and Constables § 29 (1943), and cases cited therein. . 114 U.S.App.D.C. 189, 190, 313 F.2d 580, 581, cert. denied, 374 U.S. 837, 83 S.Ct. 1889, 10 L.Ed.2d 1059 (1963). . 115 U.S.App.D.C. 50, 317 F.2d 114 (1963). . Anderson v. United States, 318 U.S. 350, 356-357, 63 S.Ct. 599, 87 L.Ed. 829 (1943). . Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). . Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). . 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1956). . And see Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (D.C.Cir. 1962), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963). . Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). . Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). . 265 F.2d 459, cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). . See generally Orfield, The Federal Grand Jury, 22 F.R.D. 343, 431-432 (1959); 45 Iowa L.Rev. 564 (1960); 67 Vale L.J. 1271 (1958); 38 A.L.R.2d 237, 238 (1954). . Supra note" }, { "docid": "7701935", "title": "", "text": "Jones v. United States, 113 U.S.App.D.C. 256, 307 F.2d 397 (1962); Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618 (1962), (in banc), or by questioning him about related crimes, Coleman v. United States, 115 U.S.App.D.C. 191, 317 F.2d 891 (1963). This court held that the oral confessions were admissible but the evidence afterwards acquired should haye been excluded because of unnecessary delay. . Wigmore, Evidence, 3d ed., §§ 1076, 1079, cites cases dating from 1668. . Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). Justices Frankfurter, Black, Douglas and Brennan dissented. Cf. Kramer v. United States, 115 U.S.App.D.C. 50, 317 F.2d 114 (1963). . This is said to be “universally held.” 8 Wigmobe, Evidence, McNaughton rev. 1961, § 2268, p. 406. . See 38 A.L.R.2d 237, 238 (1954); United States v. Cleary, 265 F.2d 459 (2d Cir. 1959), cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). . 8 Wigmore, Evidence, 3d ed., § 2363, p. 727. . Little other evidence was available. In one case but not in the other, the police had Short’s fingerprints. David Jones had surrendered, but he had made no confession. Even at the trials, the government relied heavily on Short’s confessions. The principal corroboration was provided by a co-defendant, Johnson, who confessed before the trials but after the indictments and was rewarded for his testimony by dismissal of the robbery indictment against him and acceptance of a guilty plea to the indictment for attempted robbery. . Detective O’Bryant testified that on September 16, on the way from North Carolina to the District of Columbia, he asked Short whether he wanted to testify before the grand jury and Short said he did. Short denied this. We accept O’Bryant’s testimony. But if, as Short claimed, he did not know what a grand jury was, he may Well have thought O’Bryant meant a trial jury. Probably many laymen think all juries are trial juries. In any case, willingness on September 16 is not willingness on October 2. There is nothing to show that anyone even" }, { "docid": "7701929", "title": "", "text": "whether the indictments of Short should be dismissed. Irrespective of any constitutional question, they think that on this record the taking of the un-counseled defendant before the grand jury should not be countenanced by us in the exercise of our supervisory power over the administration of criminal justice in the District of Columbia. So that there may be a majority, Judges Bazelon, Fahy and Wright and I join Judges Washington and McGowan in thus disposing of the dismissal matter for the present, although we think, as we have shown in parts III, IV and V of this opinion, the indictments should now be dismissed, not merely because of our supervisory power but because Short’s compelled appearance before the grand jury violated his right against self- incrimination and because his right to counsel was violated by failure to notify his lawyer that he was to appear. All the appealed convictions are reversed and the cases are remanded to the District Court for further proceedings consistent with parts I, II, and VI of this opinion. Less than a majority of the court think our ruling in part VI should have retroactive as well as prospective application. That ruling is therefore limited to the present case and cases in which indictments are hereafter found or sought. Compare Durham v. United States, 94 U.S.App.D.C. 228, 240, 214 F.2d 862, 874, 45 A.L.R.2d 1430 (1954). Reversed and remanded. . This is practically identical with the provisions of Rule 5(a), F.R.Cbim.P., regarding persons arrested on a domestic warrant. . Officers testified they were willing to let Short go because the District of Columbia charges were more serious than the state charge. United States v. Coppola, 281 F.2d 340 (2d Cir. 1960), aff’d per curiam, 365 U. S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1960), upheld admission of confessions obtained by the FBI while the defendant was a state prisoner, but “the apprehension and detention were exclusively for state crimes” and there is no suggestion that the FBI had or asserted any control over the prisoner. Moreover, the Court of Appeals said that if the arrest" }, { "docid": "5267300", "title": "", "text": "City and that none of such independent evidence was in anywise tainted by the search of the automobile and the seizure of the particular firearm found therein. Hence, such independent evidence was properly admitted at the trial. The steady increase in the number of serious crimes throughout the United States is a matter of grave concern. Of course, the constitutional rights of the individual should be protected. But in our zeal to safeguard those rights, we must not be unmindful of the public interest involved and we should not erect any unnecessary barriers that will thwart the law enforcement officers in the performance of their duties to investigate, detect and secure evidence of crime. IV Proof of Nonregistration of Firearm The contention that the document offered in proof of the failure of Hollingsworth to file a written declaration of an intention to make a firearm was improperly admitted, because not authenticated by a proper certificate, is without merit. The document, which is a part of the original record in this court, shows that it in all respects complied with the requirements of Rule 44 of the Federal Rules of Civil Procedure, made applicable in criminal cases by Criminal Rule 27. We find no grounds for reversal and the judgment is accordingly affirmed. . See: United States v. Mitchell, 322 U.S. 65, 69-71, 64 S.Ct. 896, 88 L.Ed. 1140; Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100; Trilling v. United States, 104 U.S.App.D.C. 159, 260 F.2d 677; Perry v. United States, 102 U.S.App.D.C. 315, 253 F.2d 337, c.d. 356 U.S. 941, 78 S.Ct. 785, 2 L.Ed.2d 816; Feguer v. United States, 8 Cir., 302 F.2d 214, 250-252, c.d. 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110. . Papworth v. United States, 5 Cir., 256 F.2d 125, 128, c.d. 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88, rehearing denied, 358 U.S. 914, 79 S.Ct. 239, 3 L.Ed.2d 235; United States v. Coppola, 2 Cir., 281 F.2d 340, 342-345, aff. 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79. Cf. Anderson v. United States, 318" }, { "docid": "7041757", "title": "", "text": "843. If it might be considered that any error was committed by the District Court in this case, surely it could not be anything more than harmless error under the circumstances here revealed. Such is not sufficient to upset the jury’s verdict in this ease. Rosenberg v. United States, supra; Killian v. United States, supra. As we view the record here, what Judge Smith did by withholding Reports “A”, “C”, “D”, “E”, and “F”, supra, from defendants’ counsel, was to “excise” from the “statements” that Roth held in his hands while testifying, that portion of the totality thereof “which (did) not relate to the subject matter of (Roth’s) testimony (as a) witness”, after making an in camera examination of such reports as he was authorized and required to do under Section 3500(c), supra. (Cf. Travis v. United States, (10 Cir. 1959) 269 F.2d 928, (reversed on venue question) 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed. 2d 340.) Surely, if a “portion” of a statement may be excised “an entire statement can be refused when it does not relate to the” subject matter of a witness’ testimony. Sells v. United States (10 Cir. 1958) 262 F.2d 815, 823, cert. den. 360 U.S. 913, 79 S.Ct. 1298, 3 L.Ed. 2d 1262; Papworth v. United States, (5 Cir. 1958) 256 F.2d 125, cert. den. 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88, reh. den. 358 U.S. 914, 79 S.Ct. 239, 3 L.Ed. 2d 235. GRAND JURY TRANSCRIPT During the in camera examination above mentioned, counsel for defendants, without establishing any “particular need” therefor, made a simple request that witness Roth’s “testimony given to the Grand Jury be made available to us.” Such request was denied by the court below. Defendants’ counsel then requested the trial judge to examine the grand jury testimony of the witness in camera to “determine whether or not any statement has been made by Mr. Roth at the Grand Jury hearing that would be inconsistent with or at odds with the testimony he has given here today.” The District Court refused to make such examination. This Court" }, { "docid": "7702012", "title": "", "text": "several points separately because of seeming internal conflicts in what is the operative holding of the majority under Part VI. I do not read Judge Edgerton’s opinion as holding that an indictment cannot rest on a confession simply because that confession would be inadmissible at trial under Eule 5(a) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). As I read it, the remand should be construed as meaning that the District Court is now to determine what evidence the Grand Jury had other than Short’s own testimony. In sum, the written statements of Short could afford an adequate basis for an indictment without reference to their admissibility at trial; the majority has not decided otherwise. It is Short’s uncounseled testimony to the Grand Jury, rather than his written confession, to which the majority objects. However, I agree with Judge Prettyman that a remand to accomplish the stated objectives is pointless and that any basis for such remand was waived by appellant Short’s counsel in the District Court. (See discussion, Point VI, opinion of Judge Prettyman.) If we are prepared to say that an un-counseled accused is not to be taken before a Grand Jury without first being afforded court appointed counsel (if indigent), we ought to declare this as a requirement; the supervisory powers of this court and the District Court over the administration of justice are broad enough to do so. Moreover, our objective should be fundamental fairness to an accused rather than added negative techniques which frustrate the administration of justice and produce multiple retrials until at last the court dismisses the indictment for denial of a speedy trial. See, e. g., Marshall v. United States, 119 U.S.App.D.C. -, 337 F.2d 119. . The foregoing references are to Federal Rules of Criminal Procedure. Because of the waiver, 18 U.S.C. § 3041 (1958) is not here involved (and see Reviser’s Note), . 318 U.S. 350, 356, 63 S.Ct. 599, 602, 87 L.Ed. 829 (1943). . 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961); and see Papworth v. United States, 256" }, { "docid": "1699270", "title": "", "text": "States Postal Inspectors his custody should have been considered as federal at all times. The McNabb-Mallory Rule thus applied, he says, to exclude all the fruits of the federal interrogation conducted after the reasonable period following arrest. Similar arguments have been frequently made in this Circuit but with almost uniform lack of success. Barnes v. United States, 5 Cir., 1967, 374 F.2d 126; Lovelace v. United States, 5 Cir., 1966, 357 F.2d 306; Papworth v. United States, 5 Cir., 1958, 256 F.2d 125, cert. denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88 (1958); Brown v. United States, 5 Cir., 1955, 228 F.2d 286, cert. denied, 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500; White v. United States, 5 Cir., 1952, 200 F.2d 509, cert. denied, 345 U.S. 999, 73 S.Ct. 1142, 97 L.Ed. 1405. Those attempts all sought to exercise the vitality of Anderson v. United States, supra, decided the same day as McNabb v. United States, supra. Anderson placed within the prohibition of the McNabb-Mallory Rule those proven situations of collusion between state and federal authorities for the purpose of circumventing Rule 5(a) and .the Mc-Nabb-Mallory Rule. The burden of proving a working arrangement as condemned by the Anderson case rested on the appellant. In United States v. Coppola, 2 Cir., 1960, 281 F.2d 340, 344, 345, affirmed 365 U. S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961), the Second Circuit spelled out the burden of proof a defendant (appellant) must meet to establish an unlawful collaboration between state and federal authorities so as to exclude resulting confessions under the Anderson rule: “However, to bring a ease within this rule there must be facts as there were in Anderson, not mere suspicion or conjecture. Here, as in United States v. Abel, 2 Cir., 1958, 258 F.2d 485, 494, affirmed, 1960, 362 U.S. 217, 226-230, 80 S.Ct. 683, 4 L.Ed.2d 668, rehearing denied, 1960, (362 U.S. 984), 80 S.Ct. 1056, (4 L.Ed.2d 1019), there is no basis on which this court can properly reverse the conclusion of the district judge. The Supreme Court’s decision in that" }, { "docid": "14386523", "title": "", "text": "(1957). . Statements so obtained may be subject to attack for involuntariness, or on grounds of invalid cooperation between state and federal officers (discussed in part 3, infra), in which case the defect is failure to take the accused before a federal commissioner, not failure to comply with state requirements. . Footnote 11, supra. . E. g., Barnes v. United States, 374 F.2d 126 (5th Cir. 1967); Lovelace v. United States, 357 F.2d 306 (5th Cir. 1966); Papworth v. United States, 256 F.2d 125 (5th Cir.), cert. denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88 (1958); Brown v. United States, 228 F.2d 286 (5th Cir. 1955), cert. denied, 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956); White v. United States, 200 F.2d 509 (5th Cir. 1952); Tucker v. United States, 375 F.2d 363 (8th Cir. 1967) ; Young v. United States, 344 F.2d 1006 (8th Cir.), cert. denied, 382 U.S. 867, 86 S.Ct. 138, 15 L.Ed.2d 105 (1965); United States v. Gorman, 355 F.2d 151 (2d Cir. 1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966); United States v. Coppola, 281 F.2d 340 (2d Cir. 1960), aff’d per curiam, 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961); Easley v. United States, 333 F.2d 75 (10th Cir. 1964); Cram v. United States, 316 F.2d 542 (10th Cir. 1963); United States v. Close, 349 F.2d 841 (4th Cir. 1965), cert. denied, 382 U.S. 992, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966); Cote v. United States, 357 F.2d 789 (9th Cir.), cert. denied, 385 U.S. 883, 87 S.Ct. 173, 17 L.Ed.2d 110 (1966); Burke v. United States, 328 F.2d 399 (1st Cir.), cert. denied, 379 U.S. 849, 85 S.Ct. 91, 13 L.Ed.2d 52 (1964); Westover v. United States, 342 F.2d 684 (9th Cir. 1965), rev’d on other grounds, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Sailer, 309 F.2d 541 (6th Cir. 1962), cert. denied, 374 U.S. 835, 83 S.Ct. 1884, 10 L.Ed.2d 1057 (1963). Compare f1958), where statements made to federal officers by subjects in state custody" }, { "docid": "1664394", "title": "", "text": "5 Cir., 1952, 200 F.2d 509; also Carpenter v. United States, 4 Cir., 1959, 264 F.2d 565, certiorari denied, 1959, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548; Stephenson v. United States, 6 Cir., 1958, 257 F.2d 175; Papworth v. United States, 5 Cir., 1958, 256 F.2d 125, certiorari denied, 358 U.S. 854, 79 S.Ct. 85, 3 F.Ed.2d 88. WATERMAN, Circuit Judge. I dissent. There are two separate appeals before the court sitting in banc. The first appeal is from Coppola’s conviction upon the indictment arising out of the robbery of the Manufacturers and Traders Trust Company on February' 15, 1956. The second is from his conviction on three counts of aiding, abetting, and counseling four defendants who robbed the Liberty Bank of Buffalo, Linwood Branch, on October 2, 1956. The indictments in both cases were filed on February 4, 1957. The Manufacturers and Traders Trust Company case in which Coppola was charged with physically participating in the actual robbery was tried in July 1957, before Judge Brennan of the Northern District of New York, sitting in the Western District by designation, and a jury. Coppola was sentenced to 20 years. The second case in which Coppola was charged with having aided, abetted and counseled those who entered the bank though he did not actually participate physically in the holdup was tried in November 1957 before Judge Morgan and a jury. Coppola was sentenced to another 20 years to be served consecutively to the 20 years imposed upon him by Judge Brennan. Coppola did not testify before the jury in either case. The indictments were filed after Coppola had been apprehended by Buffalo police officers in the forenoon of January 10, 1957 and after he had been interrogated that evening and in the early hours of January 11, 1957 by agents of the Federal Bureau of Investigation. Incriminating admissions concerning his implication in the two bank robberies were made by Coppola to the agents at that time. The Government at trial sought to introduce these admissions into evidence, and the attorney for Coppola requested and received a hearing outside" }, { "docid": "7701985", "title": "", "text": "1889, 10 L.Ed.2d 1059 (1963). . 115 U.S.App.D.C. 50, 317 F.2d 114 (1963). . Anderson v. United States, 318 U.S. 350, 356-357, 63 S.Ct. 599, 87 L.Ed. 829 (1943). . Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). . Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). . 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1956). . And see Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (D.C.Cir. 1962), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963). . Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). . Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). . 265 F.2d 459, cert. denied, 360 U.S. 936, 79 S.Ct. 1458, 3 L.Ed.2d 1548 (1959). . See generally Orfield, The Federal Grand Jury, 22 F.R.D. 343, 431-432 (1959); 45 Iowa L.Rev. 564 (1960); 67 Vale L.J. 1271 (1958); 38 A.L.R.2d 237, 238 (1954). . Supra note 24, 350 U.S. at 363, 76 S.Ct. 406. . Supra note 21, 355 U.S. at 349, 78 S.Ct. 311. . Arguments that such a rule exists were rejected in Gilmore v. United States, 129 F.2d 199, 203 (10th Cir.), cert. denied, 317 U.S. 631, 63 S.Ct. 55, 87 L.Ed. 509 (1942). See also United States v. Scully, 2 Cir., 225 F.2d 113, cert. denied, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788 (1955); Orfield, The Federal Grand Jury, 22 F.R.D. 343, 425 (1959); cf. Escute v. Delgado, 282 F.2d 335 (1st Cir. 1960), cert. denied, 365 U.S. 883, 81 S.Ct. 1033, 6 L.Ed.2d 193 (1961); Fed.R.Crim.P. 44, and Advisory Committee’s Notes thereto. . In re Groban, 352 U.S. 330, 333, 77 S. Ct. 510, 1 L.Ed.2d 376 (1957). Fed.R. Crim.P. 6(d) clearly forbids the presence of counsel by limiting those present while the grand jury is in session to “[ajttor-neys for the government, the witness under examination, interpreters when needed, and * * * a stenographer”. . 339 U.S. 282, 70 S.Ct. 629, 94" }, { "docid": "5267301", "title": "", "text": "all respects complied with the requirements of Rule 44 of the Federal Rules of Civil Procedure, made applicable in criminal cases by Criminal Rule 27. We find no grounds for reversal and the judgment is accordingly affirmed. . See: United States v. Mitchell, 322 U.S. 65, 69-71, 64 S.Ct. 896, 88 L.Ed. 1140; Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100; Trilling v. United States, 104 U.S.App.D.C. 159, 260 F.2d 677; Perry v. United States, 102 U.S.App.D.C. 315, 253 F.2d 337, c.d. 356 U.S. 941, 78 S.Ct. 785, 2 L.Ed.2d 816; Feguer v. United States, 8 Cir., 302 F.2d 214, 250-252, c.d. 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110. . Papworth v. United States, 5 Cir., 256 F.2d 125, 128, c.d. 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88, rehearing denied, 358 U.S. 914, 79 S.Ct. 239, 3 L.Ed.2d 235; United States v. Coppola, 2 Cir., 281 F.2d 340, 342-345, aff. 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79. Cf. Anderson v. United States, 318 U.S. 350, 356, 63 S.Ct. 599, 87 L.Ed. 829; Brown v. United States, 5 Cir., 228 F.2d 286, 289, c.d. 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500, rehearing den. 352 U.S. 861, 77 S.Ct. 27, 1 L.Ed.2d 71; Carpenter v. United States, 4 Cir., 264 F.2d 565, 571, c.d. 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548. . See: O’Dell v. United States, 10 Cir., 251 F.2d 704, 707-708; Wood v. United States, 10 Cir., 317 F.2d 736. . Dunn v. United States, 10 Cir., 98 F.2d 119, 120; Garhart v. United States, 10 Cir., 157 F.2d 777, 779; Segurola v. United States, 275 U.S. 106, 111, 48 S.Ct. 77, 72 L.Ed. 186; Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307. . See: Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751, 758, c.d. 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552; United States v. Walker, 2 Cir., 197 F.2d 287, 289, c.d. 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679. . Carroll" }, { "docid": "7701981", "title": "", "text": "the judgment of the District Court should be affirmed. I am authorized to state that Circuit Judges Wilbur K. Miller, Danaher and Bastían agree with the foregoing opinion. . Now the District of Columbia Court of General Sessions. . Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100 (1948). . 281 F.2d 340 (1960). . Coppola v. United States, 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961). . For similar cases holding confessions given during a period of state detention admissible, see Hollingsworth v. United States, 321 F.2d 342 (10th Cir. 1963); United States v. Sailer, 309 F.2d 541 (6th Cir. 1962), cert. denied, 374 U.S. 835, 83 S.Ct. 1884, 10 L.Ed.2d 1057 (1963); Morgan v. United States, 111 U.S.App.D.C. 127, 294 F.2d 911 (D.C.Cir. 1961), cert. denied, 368 U.S. 978, 82 S.Ct. 482, 7 L.Ed.2d 439 (1962); Tillman v. United States, 268 F.2d 422 (5th Cir. 1959); Carpenter v. United States, 264 F.2d 565 (4th Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959); Stephenson v. United States, 257 F.2d 175 (6th Cir. 1958); Papworth v. United States, 256 F.2d 125 (5th Cir.), cert. denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88 (1958); Horne v. United States, 246 F.2d 83 (5th Cir.), cert. denied, 355 U.S. 878, 78 S.Ct. 143, 2 L.Ed.2d 109 (1957); Brown v. United States, 228 F.2d 286 (5th Cir. 1955), cert. denied, 351 U.S. 986, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). . Metoyer v. United States, 102 U.S.App. D.C. 62, 250 F.2d 30 (1957). . Heideman v. United States, 104 U.S.App. D.C. 128, 259 F.2d 943 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed. 2d 767 (1959). . Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685 (1958), cert. denied, 360 U.S. 906, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959). . Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572 (1962). . Muschette v. United States, 116 U.S.App.D.C. 239, 322 F.2d 989 (1963), vacated and remanded on other grounds, 378 U.S. 569, 84 S.Ct. 1927 (1964)." }, { "docid": "1664393", "title": "", "text": "detention under New York law. See People v. Lovello, 1956, 1 N.Y.2d 436, 154 N.Y.S.2d 8, 136 N.E.2d 483. In our view, however, whether a detention is illegal under state law has no bearing upon the propriety of receiving admissions in evidence in a federal criminal proceeding. Had tbe arrest and subsequent delay in arraignment been occasioned by federal officers, it is most probable that Coppola’s detention would have been in violation of Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. See McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. . Both, counsel agreed to this fact upon the oral argument on December 15, 1959. . Recent decisions of other circuits in cases involving facts similar to those here have rejected attacks upon the admissibility of evidence obtained by federal agents during a state detention on the ground that the relationship between the local and federal authorities was not comparable to the “working arrangement” described in Anderson v. United States, supra. See White v. United States, 5 Cir., 1952, 200 F.2d 509; also Carpenter v. United States, 4 Cir., 1959, 264 F.2d 565, certiorari denied, 1959, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548; Stephenson v. United States, 6 Cir., 1958, 257 F.2d 175; Papworth v. United States, 5 Cir., 1958, 256 F.2d 125, certiorari denied, 358 U.S. 854, 79 S.Ct. 85, 3 F.Ed.2d 88. WATERMAN, Circuit Judge. I dissent. There are two separate appeals before the court sitting in banc. The first appeal is from Coppola’s conviction upon the indictment arising out of the robbery of the Manufacturers and Traders Trust Company on February' 15, 1956. The second is from his conviction on three counts of aiding, abetting, and counseling four defendants who robbed the Liberty Bank of Buffalo, Linwood Branch, on October 2, 1956. The indictments in both cases were filed on February 4, 1957. The Manufacturers and Traders Trust Company case in which Coppola was charged with physically participating in the actual robbery was tried in July 1957, before Judge Brennan of the Northern District of New" }, { "docid": "14386525", "title": "", "text": "were suppressed in reliance on Anderson. . Thus a statement taken before “unreasonable delay” is not excluded, even if the custody is deemed to be within the Anderson rule. See United States v. Thompson, 356 F.2d 216, 224-245 (2d Cir. 1965). . In Coppola, the statement of facts by the Second Circuit shows that federal officers told the state agency that the suspects (who were under investigation by the F.B.I. concerning several bank robberies) had committed a robbery of a small butcher-shop and were contemplating another similar crime; information as to where to apprehend the subjects was also given to the state officers. The Second Circuit emphasized the absence of any collaboration to achieve an unlawful end, but implied that it considered the state detention on that “Federal officials did not induce and were powerless to prevent.” 281 F.2d at 345. The Supreme Court granted certiorari “believing that [the case] presented a question under Anderson v. United States.” But after oral argument and examination of the transcripts, the Court affirmed per curiam with the terse comment that “the particular facts of the case are not ruled by Anderson.” 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79, 80 (1961). Compare the emphasis in Papworth v. United States, supra, on whether the state arrests were made upon inducement by federal officers. . The record is silent on disposition of the state charges, except for an implication that ultimately the aggrieved Tennessee creditors were paid and the state charges dropped. . Cf. United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48 (1951), in federal custody on one charge, interrogated on a second federal charge: Morgan v. United States, 111 U.S.App.D.C. 127, 294 F.2d 911 (1961); Edmonds v. United States, 106 U.S.App.D.C. 373, 273 F.2d 108 (1959); Birnbaum v. United States. 356 F.2d 856 (8th Cir. 1966). . United States v. Jones, 340 F.2d 913 (7th Cir. 1965); Adams v. United States, 118 U.S.App.D.C. 364, 336 F.2d 752 (D.C.Cir.1964); Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976 (1966); Welch v. United States, 361 F.2d 214 (10th Cir." } ]

[ { "docid": "22080619", "title": "", "text": "conviction may be reversed under the plain error standard only to avoid a manifest miscarriage of justice. Id. “Such a miscarriage would exist only if the record is devoid of evidence pointing to guilt, or ... because the evidence on a key element of the offense was so tenuous that a conviction would be shocking.” United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.1992) (en banc). After a thorough review of the record, we find that the record is not so devoid of evidence pointing to guilt or so tenuous on a key element of the offense that her conviction would be shocking and, accordingly, we decline to reverse her conviction. F Finally, Mrs. Parker alleges various errors in her sentencing and the court’s adoption of the Presentence Report (“PSR”). We review the trial court’s legal interpretation and application of sentencing guidelines de novo and its factual findings in connection with sentencing for clear error. See United States v. Ismoila, 100 F.3d 380, 394 (5th Cir.1996). Facts contained in a PSR are considered reliable and may be adopted without further inquiiy if the defendant fails to present competent rebuttal evidence. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). Such rebuttal evidence must demonstrate that the PSR information is .“materially untrue, inaccurate or unreliable,” see United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991). Mere objections do not suffice as competent rebuttal evidence. See Puig-Infante, 19 F.3d at 943. Mrs. Parker first argues that the court erred in considering the confession she made to Agent Jenkins in deciding her sentence. We reject this argument because the statement was admissible and was introduced at trial. See United States v. Collins, 40 F.3d 95, 98 (5th Cir.1994). Moreover, at sentencing, “the court may,consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3 (Nov. 1995). Mrs. Parker next alleges that the district court erred in crediting the part of the PSR that stated that Mrs. Parker" } ]

[ { "docid": "3522844", "title": "", "text": "OF REVIEW Issues related to a defendant’s sentence are reviewed for reasonableness. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). This reasonableness determination takes the form of abuse of discretion review. Id. There is a two-step process for this review: “first[,] ensure that the district court committed no significant procedural error”; and second, “considerf ] the substantive reasonableness of the sentence imposed.” Id. (internal quotation marks omitted). In going through this two-step process, “a district court’s interpretation or application of the Sentencing Guidelines is reviewed de novo, and its factual findings are reviewed for clear error.” Id. (internal quotation marks omitted). “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” United States v. Villanueva, 408 F.3d 193, 203 (5th Cir.2005). III. DISCUSSION A. Non-Application of the Minor Role Reduction A district court may decrease a defendant’s offense level by two levels if it finds that the defendant was a minor participant in the offense. U.S.S.G. § 3B1.2(b). The minor role reduction applies to a defendant “who is less culpable than most other participants, but whose role could not be described as minimal.” Id. at § 3B1.2, cmt. n.5. This reduction applies only “when a defendant is substantially less culpable than the average participant.” Villanueva, 408 F.3d at 204 (citation and internal quotation marks omitted). “It is not enough that a defendant does less than other participants; in order to qualify as a minor participant, a defendant must have been peripheral to the advancement of the illicit activity.” Id. (internal quotation marks). “A defendant has the burden of showing that he is entitled to the downward adjustment.” United States v. Garcia, 242 F.3d 593, 597 (5th Cir.2001). Claiborne argues that he acted as a minor participant because (1) the Cl implicated only Weldon, (2) Weldon was driving the Impala on the day of their arrest and the ear belonged to him, and (3) the cocaine was found near the driver’s rear tire, leading to the conclusion that Weldon—not Claiborne—possessed the drugs prior to putting them under the tire." }, { "docid": "9893359", "title": "", "text": "is correct. A defendant’s possession of sadistic child pornography is clearly “relevant conduct” to that defendant’s simultaneous transmission of child pornography. Because the majority erroneously concludes to the contrary, I dissent. . By contrast, § 2G2.2(b)(1) requires an enhancement \"[i]f the material involved a prepubescent minor or a minor under the age of twelve years.” USSG § 2G2.2(b).(l). This enhancement's requirement that \"the material” involve a prepubescent minor indicates a broader scope for § 2G2.2(b)(3), which applies when \"the offense involved” sadistic material. Id. § 2G2.2(b)(3). . Fowler argues in passing that the government failed to show that the two images depicted minors. He did not object to the enhancement on this grounds below, and thus we review this argument for plain error. See United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.1994). A sentencing court may rely on evidence so long as it has sufficient indicia of reliability, which includes being stated in the PSR. See United States v. Vital, 68 F.3d 114, 120 (5th Cir.1995) (\"A presentence report is considered reliable and may be considered as evidence by the trial judge in making sentencing determinations.”). The PSR stated that the images were sadistic and that two of the images involved minors. Additionally, the government submitted copies of the two images. Because Fowler did nothing (and, indeed, still has done nothing) to rebut the PSR's statement that the images involved minors, the court properly treated them as involving minors. See United States v. Lowder, 148 F.3d 548, 552 (5th Cir.1998) (\"Mere objections [to the PSR] do not suffice as competent rebuttal evidence.”); Vital, 68 F.3d at 120 (“Vital failed to present any evidence to support his objection to the court’s reliance on the information set forward in the PSR pertaining to August’s testimony. Consequently, the district court’s reliance on the PSR was not clearly erroneous.”). . Although we have not addressed the question presented here, we have uniformly upheld application of the § 2G2.2(b)(3) enhancement. See, e.g., United States v. Canada, 110 F.3d 260 (5th Cir.1997); United States v. Kimbrough, 69 F.3d 723 (5th Cir.1995). . The First" }, { "docid": "11431819", "title": "", "text": "that penetration of a prepubescent child by an adult male constitutes inherently sadistic conduct that justifies the application of § 2G2.2(b)(3). Because the image 10breakingin.jpg depicted vaginal intercourse between a prepubescent girl and an adult male, we find that the enhancement for sadistic conduct was properly applied. D. Groenendal argues that the district court improperly denied his request for a downward adjustment pursuant to U.S.S.G. § 3B1.2. Section 3B1.2 allows for adjustment of a defendant’s sentence by four levels if he can show by a preponderance of the evidence that he was a “minimal” participant and by two levels if he can show that he was a “minor” participant in the criminal activity. See United States v. Bailey, 488 F.3d 363, 369 (6th Cir.2007). The threshold issue is whether § 3B 1.2 can apply to a conviction involving only one participant charged with criminal conduct. Section 3B1.2 states that it “is not applicable unless more than one participant was involved in the offense.” § 3B1.2, cmt. n. 2. However, § 3B1.2 does not require that the other “participants” be charged with the crime. United States v. Allen, — Fed.Appx. -, 2007 WL 2446013, at *7 (6th Cir.2007); see United States v. Sanchez, 85 Fed.Appx. 463, 467 (6th Cir.2003) (“[A] defendant’s eligibility for a reduction under this section is not determined solely on the basic elements and acts cited in the count of the conviction.”) (internal quotation marks and citation omitted). The district court must look beyond the defendant’s conviction to all relevant conduct in making its determination. Allen, at-, 2007 WL 2446013, at *7. Even a sole defendant charged with criminal conduct is entitled to a reduction under § 3B1.2 if his conduct is less culpable than others involved in relevant conduct. Id. (holding that “the district court did not err in determining that the [§ 3B1.2] guideline was applicable ... even though the defendant was the sole participant of the offense” when it also found another individual more culpable in the offense than the defendant); United States v. Snoddy, 139 F.3d 1224, 1233 (8th Cir.1998) (“[T]he sentencing judge’s conclusion" }, { "docid": "22949052", "title": "", "text": "in a “definite and firm conviction that a mistake has been committed.” Id. (internal quotation marks and citation omitted). A. Zuniga claims that the government failed to show by a preponderance of the evidence that he had a management role in the robbery, which is necessary to support the § 3Bl.l(e) enhancement. In support of his position, Zuniga relies on the government’s agreement at sentencing that he was an average participant in the robbery. Zuniga further argues that in applying the § 3B 1.1(c) enhancement, the district court “relied on third and fourth hand summary statements repeated in the PSR without corroboration.” The government counters that in the absence of rebuttal evidence, the district court was free to adopt the findings of the PSR. It further argues that facts in the PSR regarding Zuniga’s management role bore sufficient indicia of reliability because they were based on consistent and detailed statements of two co-conspirators about the robbery. When making factual findings for sentencing purposes, a district court “may consider any information which bears sufficient indicia of reliability to support its probable accuracy.” United States v. Har ris, 702 F.3d 226, 230 (5th Cir.2012) (internal quotation marks and citation omitted). “Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.” Id. (internal quotation marks and citation omitted). However, “[b]ald, conclusionary statements” in a PSR are not sufficiently reliable. See id. at 230 n. 2 (quoting United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir.1993)). “If the factual recitation [in the PSR] lacks sufficient indicia of reliability, then it is error for the district court to consider it at sentencing — regardless of whether the defendant objects or offers rebuttal evidence.” See id. at 231. But if the factual recitation in the PSR bears sufficient indi-cia of reliability, then the “defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ollison, 555 F.3d 152, 164 (5th Cir.2009) (citation and" }, { "docid": "3155320", "title": "", "text": "inaccurate or false. Rather, he would apparently have this Court rule that the investigators notes do not provide adequate evidentiary basis for that portion of the PSR relied on by the district court, regardless of whether they are accurate or not. However, this Court has stated that: A presentence report generally bears sufficient indicia of reliability to be considered as evidence by the district court in resolving disputed facts, [citations omitted] A district court may adopt facts contained in the PSR without further inquiry if the facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence, [citations omitted] The defendant hears the burden of showing that the information in the PSR relied on by the district court is materially untrue. United States v. Valencia, 44 F.3d 269, 274 (5th Cir.1995) (emphasis added). Lugman was aware of the probation officer’s reliance on the investigator’s notes before he was sentenced, yet Lugman did not present any evidence which would cast doubt on the truthfulness or accuracy of the investigator’s notes. Lugman has presented no evidence that the investigator’s account of his interview with Lugman on February 20, 1996, is somehow defective. Therefore, the investigator’s notes, in point of fact, do provide adequate evidentiary basis for the PSR’s conclusion that it was Lugman’s idea that Parson attempt to evade the sheriffs depu ties, and therefore, any reckless conduct committed by Parson may be attributed to Lugman for purposes of enhancement under § 3C1.2. Hence, the district court was correct in its adoption of the PSR’s findings which rely on the investigator’s notes of his February 20, 1996, interview with Lugman. C. § 3B1.2 Decrease for Minimal Participants This Court reviews a district court decision not to reduce the defendant’s base offense level because of his minimal role in the offense for clear error. United States v. Giraldi 86 F.3d 1368, 1378 (5th Cir.1996), citing United States v. Watson, 988 F.2d 544, 550 (5th Cir.1993). Section 3B1.2 allows a four-point reduction in the defendant’s base offense level, if he was a minimal participant in the criminal activity. The government in" }, { "docid": "23387388", "title": "", "text": "followed by a three-year term of supervised release. Ramirez timely appealed. II. STANDARD OF REVIEW We review the district court’s interpretation and application of the Sentencing Guidelines de novo. United States v. Charles, 301 F.3d 309, 312 (5th Cir.2002). III. EVIDENCE PROVING A PRIOR CONVICTION Ramirez first contends that the Government did not present evidence sufficient to support the 16-level enhancement based upon a prior conviction. The Government concedes that it failed to introduce the documents proving the existence of a Texas state court conviction for aggravated assault with a deadly weapon, even though the record indicates that the documents were present in the courtroom at Ramirez’s sentencing. In making its sentencing decision, the district court may consider any relevant evidence without regard to its admissibility under the rules of evidence applicable at trial, provided the information has sufficient indicia of reliability to support its probable accuracy. United States v. Davis, 76 F.3d 82, 84 (5th Cir.1996). The PSR is considered reliable and may be considered as evidence by the district court when making sentencing determinations. United States v. Vital, 68 F.3d 114, 120 (5th Cir.1995). The defendant bears the burden of demonstrating that the information relied upon by the district court in sentencing is materially untrue. Davis, 76 F.3d at 84. If the defendant fails to offer rebuttal evidence to refute information in the PSR, the sentencing court is free to adopt the information without further inquiry. Vital, 68 F.3d at 120. Ramirez’s argument that the Government failed to sufficiently prove the existence of his Texas state court conviction is unpersuasive. Ramirez did not challenge the existence of the conviction in regards to the calculation of his criminal history category. Nor does he deny the existence of the conviction in arguing that the district court incorrectly characterized the conviction as a crime of violence. Thus, Ramirez has not shown that it was error for the district court to accept the existence of the aggravated assault conviction based upon information provided in the PSR. Id. IV. FINAL CONVICTION Ramirez next argues that the sentence of deferred adjudication probation that he" }, { "docid": "22111032", "title": "", "text": "do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Rodriguez contends: the district court’s calculations for the base offense level and the aggravating-role and obstruction-of-justice enhancements were not supported by a preponderance of the evidence; and, therefore, each claimed error constitutes reversible plain error for which we should grant relief. Rodriguez asserts that the district court’s claimed error for each of these calculations lies in its relying on the PSR. “[A] district court may adopt the facts contained in a PSR without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable”. United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir.2002). For the following reasons, the PSR contained sufficient facts to provide an adequate evidentiary basis for calculating the three belatedly challenged sentencing elements: the base offense level and the aggravating-role and obstruction-of-justice enhancements to it. For the base offense level, the PSR contains numerous details regarding Rodriguez’s firearms dealings. (Moreover, in addition to considering the PSR, the second judge considered the ATF reports and, on the record, identified each of the weapons for which he deemed Rodriguez responsible.) For the aggravating-role enhancement, the PSR shows Rodriguez was in charge of the daily operations of this private security company (BCPD) and possessed final decision-making authority. Finally, for the obstruction-of-justice enhancement, the PSR shows that, during the raid, federal agents learned that BCPD guards had received advance warnings from their supervisors that law enforcement agents were arresting the guards and had been told to vacate their job sites if their work documents were not in order. Rodriguez, however, insists he provided rebuttal evidence that prevented the district court’s being entitled to rely on the PSR. “If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d" }, { "docid": "22949053", "title": "", "text": "reliability to support its probable accuracy.” United States v. Har ris, 702 F.3d 226, 230 (5th Cir.2012) (internal quotation marks and citation omitted). “Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.” Id. (internal quotation marks and citation omitted). However, “[b]ald, conclusionary statements” in a PSR are not sufficiently reliable. See id. at 230 n. 2 (quoting United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir.1993)). “If the factual recitation [in the PSR] lacks sufficient indicia of reliability, then it is error for the district court to consider it at sentencing — regardless of whether the defendant objects or offers rebuttal evidence.” See id. at 231. But if the factual recitation in the PSR bears sufficient indi-cia of reliability, then the “defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ollison, 555 F.3d 152, 164 (5th Cir.2009) (citation and internal quotation marks omitted); see also United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995) (confirming that “in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it”). United States v. Vital, 68 F.3d 114, 120 (5th Cir.1995). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Harris, 702 F.3d at 230. Although this case involves an unusual circumstance in that the government agreed with Zuniga’s objection to the role enhancement, Zuniga cites no authority to support his argument that it was error, simply because the government agreed with his objection, for the district court to impose the § 3Bl.l(c) enhancement. Zu-niga objected to the accuracy of the facts in the PSR involving his management role in the robbery, but he did not introduce any rebuttal evidence to show that those facts were “materially untrue, inaccurate or unreliable.” Id. The district court explicitly reasoned that the co-conspirators’ detailed accounts in the PSR of" }, { "docid": "23552888", "title": "", "text": "L.Ed.2d 445 (1993), Lowder’s right to present witnesses in his own defense does not encompass a right to suborn perjury. We therefore find no clear error in the district court’s two-level adjustment for obstruction of justice. B Lowder also challenges the district court’s assessment of his base offense level, calculated based on the PSR’s recommendation that Lowder be held responsible for 6,622 kilograms of marijuana. So long as the sentencing court’s adoption of a particular drug quantity is plausible in light of the record as a whole, it is not clearly erroneous. United States v. Sparks, 2 F.3d 574, 586 (5th Cir.1993). Lowder presents no competent rebuttal evidence to refute the PSR’s factual determinations regarding the scope of the conspiracy, and we therefore find no clear error. See United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991) (“If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.”); Parker, 133 F.3d at 329 (“Mere objections do not suffice as competent rebuttal evidence.”). Moreover, the basé offense level assigned by the PSR covers offenses involving 3,000 to 10,000 kilograms of marijuana, an amount amply supported by the testimony presented at trial. C Lowder’s final contention is that the district court erred in following the PSR’s recommendation that Lowder receive a four-level adjustment for a leader/organizer role pursuant to U.S.S.G. § 3Bl.l(c). Lowder claims that he was at most a supplier for his sons, but did not organize or direct any of their distribution activities. We review the district court’s determination regarding the defendant’s leadership status only for clear error. See United States v. Powell, 124 F.3d 655, 667 (5th Cir.1997). In support of its recommendation for the four-level adjustment, the PSR made no factual findings, but merely stated that a federal agent would be available at sentencing to justify the leader/organizer conclusion. No agent appeared at sentencing, but the district court found “based upon the trial testimony, the jury’s verdict and inferences from the" }, { "docid": "22835249", "title": "", "text": "Jose and De Jesus-Batres were sentenced at the low end of their guideline range (97 to 121 months) to 97 months imprisonment on Counts One and Three to run concurrently, followed by five years supervised release. The PSR documents that Walberto had a higher criminal history category. Walberto was also sentenced at the low end of his guideline range (121 to 151 months) to- 121 months imprisonment- on Counts One and Three to run concurrently, followed by five years supervised release: A. First, Jose argues that the district court erred in denying him a two-level mitigating role reduction in his offense level. The PSR prepared for Jose, like those prepared for the other defendants, did not recommend a mitigating role reduction. Jose requested a two-level reduction under U.S.S.G. § 3B1.2(b) for being a minor participant in the offense. U.S.S.G. § 3B1.2 allows several levels of reductions based on a defendant’s role in the offense: 4 levels for a minimal participant, 2 levels for a minor participant and 3 levels if his role falls between minimal and minor. A minor participant is “less culpable than most other participants, but whose- role could not be described as minimal.” U.S.S.G. § 3B1.2, cmt. n.4. The defendant has the burden of proving that his role in the offense was minimal or minor. United States v. Atanda, 60 F.3d 196, 198 (5th Cir.1995). To qualify as a minor participant, a defendant “must have been peripheral to the advancement of the illicit activity.” United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir.2001). The PSR addendum responded to Jose’s objection by pointing out that Jose served as an armed guard and chased Diaz-Aboytes when he escaped. Therefore, the PSR characterized Jose and his codefen-dants as average participants whose actions were not substantially less culpable than most other participants as would be required to qualify for the requested reduction. Antonio and Gabino were classified as leaders in the conspiracy. The district court adopted the PSR and the addenda’s factual findings and denied Jose’s request. This court reviews for clear error a district court’s findings on whether a" }, { "docid": "22078656", "title": "", "text": "that account received $245,995 in cross-border wire transfers from Becerra, Garza-Rodriguez, and Martinez-Garcia in Mexico. Altogether, this evidence implicated every Note 5(A) indicium of “sophisticated laundering.” We therefore conclude that the district court did not err when it adopted the § 2Sl.l(b)(3) sentencing enhancement. • Magana Here, as with Galaviz, the same evidence set forth in Part VI.C.2.b supra, concerning Magana’s challenge to the district court holding her liable for the entire $1,913,937 laundered, applies equally to the Note 5(A) indicia of “sophisticated laundering.” Together with the fact that Magana acted as a strawman for Galaviz in the Becerra wire transfer to Mexico, and that Magana used a CD to launder Galaviz’s transferred funds, this evidence implicated almost all of the Note 5(A) indicia. We therefore conclude that the district court did not err when it adopted the sentencing enhancement. iii. The District Court’s Denial of a “Minor Participant” Reduction to Lopez and Magana ? § 3B1.2 prescribes a 2-level reduction if a “defendant was a minor participant in [the] criminal activity.” U.S.S.G. § 3B1.2(b) (2010). A “minor participant” is a defendant who is “substantially less culpable than the average participant,” but “whose role could not be described as minimal.” Id. § 3B1.2, cmt. nn. 3(A), 5. “When a defendant timely objects to a district court’s failure to make a downward adjustment based on section 3B1.2, this court reviews [her] sentence for clear error.” United States v. Martinez-Larraga, 517 F.3d 258, 273 n. 12 (5th Cir.2008). The defendant’s participation level in the offense is not evaluated “in reference to the entire criminal enterprise of which [she was] a part.” United States v. Garcia, 242 F.3d 593, 598 (5th Cir.2001) (citation omitted). Rather, it is evaluated in reference to “that of an average participant.” Id. (citation and internal quotation marks omitted). The defendant’s role was not minor if it was “actually coextensive with the conduct for which [she] was held accountable.” Id. at 598-99 (citations omitted). The defendant “bears the burden of proving, by a preponderance of the evidence, her minor role in the offense.” United States v. Zuniga, 18 F.3d" }, { "docid": "22135100", "title": "", "text": "guilty admits all the elements of a formal criminal charge and waives all non-jurisdictional defects in the proceedings leading to conviction.” The plea waives claims of governmental misconduct during the investigation and improper motives for prosecution. United States v. Owens, 996 F.2d 59, 60 (5th Cir.1993). A guilty plea also eliminates objections to searches and seizures that violate the Fourth Amendment. We therefore refuse to consider Cothran’s arguments about the impropriety of the investigation and search of his business. IV. Cothran argues that the district court incorrectly calculated his criminal history category, the amount of loss, and restitution. He also avers that the district court erred by failing to grant him a downward departure based on family circumstances and by attaching certain conditions to his supervised release. We review de novo the application of the sentencing guidelines, but we review factual findings only for clear error. United States v. Haas, 171 F.3d 259, 268 (5th Cir.1999). Cothran bears the burden of showing the information contained in the PSR “cannot be relied on because it is materially untrue, inaccurate, or unreliable.” United States v. Londono, 285 F.3d 348, 354 (5th Cir.2002) (internal quotation and citation omitted). “In general the PSR bears sufficient indicia of reliability to be considered as evidence by the district court, especially when there is no evidence in rebuttal.” Id. “Mere objections do not suffice as competent rebuttal evidence.” United States v. Lowder, 148 F.3d 548, 552 (5th Cir.1998) (citation omitted). A. Cothran challenges the inclusion of two prior offenses in the criminal history calculation. The PSR recommended a single guideline point for Cothran’s 1987 conviction in a Texas court of unlawfully carrying a weapon. Although the sentencing guidelines do not augment a criminal defendant’s right to collateral attack of past convictions, Cothran now claims innocence. Cothran states that he possessed a firearm dealer’s license from the Bureau of Alcohol Tobacco and Firearms. He claims that no local or federal law makes it a crime to possess a firearm with the proper authority in plain view. He reasons that this makes the conviction unconstitutional and permits him to" }, { "docid": "22857643", "title": "", "text": "(5th Cir.2007); Robert Jones, 444 F.3d at 434 (“[I]t was error to take the mere fact of prior arrests into account.”); cf. U.S.S.G. § 4A1.3(a). The question then becomes whether the district court here ran afoul of our precedent. We note that the PSR is required to include the defendant’s arrest history for the court’s benefit. See Fed. R.Crim.P. 32(d)(2). While the arrest history may contain merely the fact of arrest, it may also include a specific description of the defendant’s conduct leading to the arrest. In Johnson, we noted that our precedent “left room for a court to consider arrests if sufficient evidence corroborates their reliability.” 648 F.3d at 277. This rule is consistent with the constitutional due process requirement that “sentencing facts must be established by a preponderance of the evidence.” Id. When making factual findings for sentencing purposes, district courts “may consider any information which bears sufficient indicia of reliability to support its probable accuracy.” United States v. Solis, 299 F.3d 420, 455 (5th Cir.2002) (internal quotation marks and citation omitted). Generally, a PSR “bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.” United States v. Nava, 624 F.3d 226, 231 (5th Cir.2010) (quoting United States v. Trujillo, 502 F.3d 353, 357 (5th Cir.2007)). A district court, therefore, “may adopt the facts contained in a [PSR] without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable.” Trujillo, 502 F.3d at 357 (citation omitted). When faced with facts contained in the PSR that are supported by an .adequate evidentiary basis with sufficient indicia of reliability, a defendant must offer rebuttal evidence demonstrating that those facts are “materially untrue, inaccurate or unreliable.” United States v. Huerta, 182 F.3d 361, 364-65 (5th Cir.1999) (internal quotation marks and citation omitted). Mere objections to such supported facts are generally insufficient. United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (“Because no testimony or other evi dence" }, { "docid": "23315734", "title": "", "text": "“If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991). Malmstrom failed to rebut the presentence report with any evidence other than an argument that all the loans listed were not fraudulent. Objections in the form of un-sworn assertions do not bear sufficient in-dicia of reliability to be considered. See United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992). Because any information may be considered, so long as it has “sufficient indicia of reliability to support its probable accuracy,” and because Malm-strom was given the opportunity at the sentencing hearing to present evidence to the contrary, we find that Malmstrom’s confrontation rights were not abridged. United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir.1990). 5 Pat Malmstrom worked at the Waco A-l for three months as a salesman while he was in college. Gene Trout worked at the Bryan A-l for three months as a salesman. They argue that the district court erred by refusing to grant them a two level reduction pursuant to U.S.S.G. § 3B1.2(b) for being minor participants. Samantha Davis, who worked only 4 weeks at the Bryan A-l and was acquitted of the conspiracy charge, argues that she deserved a four level reduction as a minimal participant. The Government argues that the district court did not err in evaluating each of these defendants’ fraudulent activity as “average” and determining that these defendants were not less culpable than most of the others. Section 3B1.2 of the Sentencing Guidelines is designed to reduce a sentence when the defendant is substantially less culpable than the average participant in the offense. See United States v. Edwards, 65 F.3d 430, 434 (5th Cir.1995). Section 3B1.2 provides: Based on the defendant’s role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a" }, { "docid": "23446400", "title": "", "text": "the district court erred in not granting him a two level sentence reduction, under United States Sentencing Guidelines § 3B1.2, for being a “minor participant” in the offenses for which he was convicted. The issue raised is whether the district court’s finding that Thomas was not entitled to a sentence reduction due to his role in the offense is sufficiently supported by the evidence. The question of participation status is a factual question reviewable under the clearly erroneous standard. See United States v. Valencia, 44 F.3d 269, 272 (5th Cir.1995); United States v. Brown, 29 F.3d 953, 960 (5th Cir.1994). Section 3B1.2(b) states that “If the defendant was a minor participant in any criminal activity, decrease by two levels.” Thomas bears the burden of showing, by a preponderance of the evidence, that his role in the offenses was minor. United States v. Brown, 54 F.3d 234, 241 (5th Cir.1995). The Guidelines define a minor participant as “any participant who is less culpable than most other participants, but whose role could not be described as minimal.” USSG § 3B1.2, Application Note 3. “A downward adjustment under 3B1.2 is generally appropriate only where a defendant was substantially less culpable than the average participant.” Brown, 54 F.3d at 241. Additionally, “The defendant’s participation must be enough less so that he at best was peripheral to the advancement of the illicit activity.” United States v. Tremelling, 43 F.3d 148, 153 (5th Cir. 1995). In this case, Thomas, who lived at co-defendant Burton’s house and was his cousin, carried drugs for Burton on several occasions. Based on these facts showing more than peripheral involvement in criminal activity, the district court could reasonably conclude that Thomas was not a minor participant. Additionally, co-defendant Cooks testified at trial that Thomas participated in his purchase of more than an ounce of crack cocaine from Burton and a police tape recording had Thomas referring to someone as being “two ounces short.” Thomas admits that “there were arguably four incidents where Thomas was alleged to have been involved with crack cocaine.” Thus, there is sufficient evidence from which the district" }, { "docid": "22131038", "title": "", "text": "findings clearly erroneous only if, based on the entire evidence, [the court is] left with the definite and firm conviction that a mistake has been committed.” Cabrera, 288 F.3d at 168 (internal citations and quotations omitted). “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” Villanueva, 408 F.3d at 203 n. 9. A district court “may adopt the facts contained in a [presentence report (‘PSR’)] without further inquiry if those facts have an adequate evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information in the PSR is unreliable.” Cabrera, 288 F.3d at 173-74. “The defendant bears the burden of showing that the information in the PSR relied on by the district court is materially untrue.” United States v. Valencia, 44 F.3d 269, 274 (5th Cir.1995). A. Hector and Cesar argue that the evidence does not support the four-level adjustment for their alleged leadership roles in the organization. Section 3Bl.l(a) of the United States Sentencing Guidelines authorizes this adjustment if the “defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” In making the leadership determination, the court should consider such factors as the “exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n.4 (2003). “The district court may find that a defendant exercised a leader/organizer role by inference from the available facts.” Cabrera, 288 F.3d at 174. The district court, after reviewing the trial transcripts, adopted the factual findings in the PSR, which indicated that Hector received a greater amount of the profits, made technical decisions about concealing the drugs, and planned the route to be taken by the drivers. Although Hector" }, { "docid": "4219080", "title": "", "text": "596 F.3d 236, 243 (5th Cir.2010). The district court did not clearly err in attributing 15 kilograms to Chapman. VII. Denying Davis’s Minor Role Adjustment Whether a defendant “was a minor participant is a factual determination reviewed for clear error.” United States v. McElwee, 646 F.3d 328, 346 (5th Cir.2011). Section 3B1.2 “provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 cmt. n. 3(A). The Sentencing Guidelines commentary defines a minor participant as one “who is less culpable than most other participants, but whose role could not be described as minimal.” § 3B1.2 cmt. n. 5. “It is not enough that a defendant does less than other participants; in order to qualify as a minor par ticipant, a defendant must have been peripheral to the advancement of the illicit activity.” McElwee, 646 F.3d at 346 (quotation marks and citation omitted). Davis argues that his role was merely to serve as a mule, that his voice was not on any of the audiotapes, his fingerprints were not on the money, the' cocaine or any of the packaging, and that he was not the owner of the drugs: Based on the evidence presented, Davis argues that he is substantially less culpable than other participants and the district court erred in denying his request for a two-level reduction as a minor participant. A person “merely transporting drugs, a mere ‘mule,’ is not necessarily a minor participant in the illicit activity.” United States v. Martinez-Larraga, 517 F.3d 258, 272 (5th Cir.2008). Here, Davis spoke with Jimenez in the restaurant, directed him to the van in which he was instructed to place the cocaine, was present when Jimenez placed the cocaine in the van, and later drove the van from the truck stop. The district court did not clearly err in determining Davis’s conduct was not “peripheral to the advancement of the illicit activity.” McElwee, 646 F.3d at 346 (quotation marks and citation omitted). CONCLUSION We AFFIRM the judgment of conviction and sentences of Thomas," }, { "docid": "22835250", "title": "", "text": "and minor. A minor participant is “less culpable than most other participants, but whose- role could not be described as minimal.” U.S.S.G. § 3B1.2, cmt. n.4. The defendant has the burden of proving that his role in the offense was minimal or minor. United States v. Atanda, 60 F.3d 196, 198 (5th Cir.1995). To qualify as a minor participant, a defendant “must have been peripheral to the advancement of the illicit activity.” United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir.2001). The PSR addendum responded to Jose’s objection by pointing out that Jose served as an armed guard and chased Diaz-Aboytes when he escaped. Therefore, the PSR characterized Jose and his codefen-dants as average participants whose actions were not substantially less culpable than most other participants as would be required to qualify for the requested reduction. Antonio and Gabino were classified as leaders in the conspiracy. The district court adopted the PSR and the addenda’s factual findings and denied Jose’s request. This court reviews for clear error a district court’s findings on whether a defendant is entitled to a mitigating role reduction. United States v. Virgen-Moreno, 265 F.3d 276, 296 (5th Cir.2001). Given the facts set forth about Jose’s participation in the charged crimes, the district court did not clearly err in concluding that Jose was not entitled to a reduction for a minor role in the offense. The PSR indicated that Jose was armed and guarded, detained and threatened the illegal aliens. Although Jose made the objection, he did not present rebuttal evidence and the district court was entitled to rely on the facts stated in the PSR. United States v. Peters, 283 F.3d 300, 314 (5th Cir.), cert. denied, 536 U.S. 934, 122 S.Ct. 2612, 153 L.Ed.2d 797 (2002). B. Appellants argue next that the sentence on Count One is limited to five years, because it was charged on an aiding and abetting theory. The punishment for aiding and abetting is limited to five years, without regard to whether the offense was committed for financial gain. Nolasco-Rosas, 286 F.3d at 766-67. The government concedes that if this" }, { "docid": "22078657", "title": "", "text": "(2010). A “minor participant” is a defendant who is “substantially less culpable than the average participant,” but “whose role could not be described as minimal.” Id. § 3B1.2, cmt. nn. 3(A), 5. “When a defendant timely objects to a district court’s failure to make a downward adjustment based on section 3B1.2, this court reviews [her] sentence for clear error.” United States v. Martinez-Larraga, 517 F.3d 258, 273 n. 12 (5th Cir.2008). The defendant’s participation level in the offense is not evaluated “in reference to the entire criminal enterprise of which [she was] a part.” United States v. Garcia, 242 F.3d 593, 598 (5th Cir.2001) (citation omitted). Rather, it is evaluated in reference to “that of an average participant.” Id. (citation and internal quotation marks omitted). The defendant’s role was not minor if it was “actually coextensive with the conduct for which [she] was held accountable.” Id. at 598-99 (citations omitted). The defendant “bears the burden of proving, by a preponderance of the evidence, her minor role in the offense.” United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir.1994) (citation omitted). “The sentencing court is free to consider all relevant evidence, even inadmissible evidence, in determining whether an adjustment is warranted so long as the evidence has ... sufficient indicia of reliability to support its probable accuracy.” United States v. Miranda, 248 F.3d 434, 446 (5th Cir.2001) (citation and internal quotation marks omitted). • Lopez Here, Lopez argues that because she played a lesser role in the money laundering scheme than did Salas, her role was “minor” within the meaning of § 3B1.2(b) even if not “minimal” within the meaning of § 3B1.2(a). This reasoning is flawed. After all, it only shows that Lopez was an average participant, rather than the organizer or leader. The district court found that, at a minimum, Lopez personally opened ten Wells Fargo bank accounts and laundered $361,934 in drug trafficking proceeds. Thus, her role was not “substantially less” than the other participants. We therefore conclude that the district court did not err by denying § 3B1.2(b)’s 2-level reduction. • Magana ? even though Magana’s" }, { "docid": "22949054", "title": "", "text": "internal quotation marks omitted); see also United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995) (confirming that “in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it”). United States v. Vital, 68 F.3d 114, 120 (5th Cir.1995). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Harris, 702 F.3d at 230. Although this case involves an unusual circumstance in that the government agreed with Zuniga’s objection to the role enhancement, Zuniga cites no authority to support his argument that it was error, simply because the government agreed with his objection, for the district court to impose the § 3Bl.l(c) enhancement. Zu-niga objected to the accuracy of the facts in the PSR involving his management role in the robbery, but he did not introduce any rebuttal evidence to show that those facts were “materially untrue, inaccurate or unreliable.” Id. The district court explicitly reasoned that the co-conspirators’ detailed accounts in the PSR of the offense and Zuniga’s management role were reliable because they were consistent with one another. Specifically, the district court stated at Zuniga’s sentencing hearing: “So, we’ve got two people saying that ... Zuniga was the leader of the crew.” In his brief, Zuniga asserts in passing that facts in the PSR of his management role were unreliable simply because they were based on statements of his co-conspirators. We have previously rejected this argument. See United States v. Cantu-Ramirez, 669 F.3d 619, 629 (5th Cir.2012) (affirming that a co-conspirator’s testimony that supported a PSR calculation was not categorically unreliable for sentencing purposes). Zuniga’s reliance on United States v. Ceballos-Amaya also cuts against his position on this issue. 470 Fed.Appx. 254 (5th Cir.2012) (unpublished). In Ceballos-Amaya, the PSR stated that a drug runner affirmed that the defendant had assisted in recruiting him to transport drugs. Id. at 262. We upheld the district court’s application of the § 3Bl.l(c) enhancement. Id. at 263. We reasoned that the district court was permitted to rely on facts in the PSR" } ]

[ { "docid": "22099612", "title": "", "text": "upon the facts, which may be hither general or special, shall .have the same effect as the verdict of a jury.” But the verdict of a'jury settles all questions of- fact. As said by Mr. Justice Blatchford, in Lan easter v. Collins, 115 U. S. 222, 225: “ This court cannot review the weight of the- evidence, and can look into it only to see whether there was error. in not directing a verdict for the plaintiff on the question of variance, or because there was no evidence to sustain the verdict rendered.”- The finding of the court,- to have the same effect, must be equally conclusive and equally remove from examination, in this court the testimony given on the trial. Insurance Co. v. Folsom, 18 Wall. 237; Cooper v. Omohundro, 19 Wall. 65. Further, section 700 provides that “ when an issue of fact in any civil cause in a Circuit Court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal; and when the finding is special, the review may extend to the sufficiency of thie facts found.to support the judgment.” Under that, the rulings of the court in the trial, if properly preserved, can be reviewed here, and we may also determine whether the facts as specially found support the judgment; but if there be no special findings, there can be no inquiry as to whether the judgment is thus supported. We must accept the general finding as conclusive upon all matters of fact, precisely as the verdict of a jury. Martinton v. Fairbanks, 112 U. S. 670. It is true, if there be an agreed statement of.facts submitted to the trial court and upon which its judgment is founded, such agreed statement will be taken as the equivalent of a special finding of" } ]

[ { "docid": "22560960", "title": "", "text": "third party has contracted in good faith. That is the situation in the present case. The jury found, and we have affirmed, that Heller was authorized by IBP to act on its behalf in the transactions here in question. Once that finding is established, there can be no basis for estoppel. Heller acted as the jury found he was authorized to act. He contracted with the feedlots for the purchase of the cattle. It is those contracts upon which IBP’s liability is predicated. It is IBP which chose to utilize Heller as the agency through which the purchases would be made, and as the conduit through which the price would be delivered to the sellers. And it is IBP which must answer for Heller’s failure to fulfill those duties. The feedlots’ accommodation of Heller in not requesting prompt payment was specifically found by the jury to have been neither negligent nor a proximate cause of the subsequent losses. We find no inconsistency in those findings. The jury recognized the extension of time as a deviation from the normal practice in the industry, but found that it did not constitute a failure to use ordinary care, and that it was not reasonably foreseeable that nonpayment would thereby result. Further, we find substantial evidence in the record which, when taken in context and in the light most favorable to the feedlots, would allow reasonable and fair-minded persons in the exercise of impartial judgment to reach the conclusions that were in fact reached. Nor did that accommodation constitute an extension of credit by the feedlots to Heller sufficient to demonstrate an intention to bind only Heller, and not IBP, on the transactions in question. This precise issue was not presented among special interrogatories to the jury; since its omission was not objected to, and because a contrary finding would be manifestly inconsistent with the verdict below, the district court must be deemed to have found that no such credit extension occurred. Fed.R.Civ.P. 49(a). That deemed finding is amply supported in the record, and we affirm it. Finally, regardless of the extent to which" }, { "docid": "17747952", "title": "", "text": "sell motor fuel on a duty-free basis for use outside the United States...., is due a refund of... excise taxes it paid [its suppliers] on the motor fuel that it purchased solely for export [which was] sold at Ammex’s duty-free facility.” PI. Cross-Motion at 2. The gravamen of plaintiff’s question is rooted in genuine issues of material fact which by law require this court to deny plaintiffs cross-motion. Foremost of which is — whether Ammex in fact sold the motor fuel duty-free; that is, the efficacy of plaintiffs claim, whether Ammex actually passed on the cost of the excise tax to its retail customers, is in dispute. Also in issue is whether Ammex was in fact authorized by the U.S. Customs Service to sell motor fuel duty-free during the operative periods. Given these genuine issues of material fact, said motion, this court is constrained to hold, was improvidently filed. Cost vs. Sales Price of Fuel Whether Ammex passed on the cost of the excise tax in its sales prices to its customers is a critical fact issue because under no circumstances can plaintiff recover on its refund claim if it has actually passed on the excise taxes in its fuel prices. If plaintiff has passed on the tax, its claim for a refund must end. Principles of equity and fairness prevent this court from granting plaintiffs prayed for relief under any theory if the plaintiff already has been made whole by passing on the tax in the sales prices of the fuel. Defendant both acknowledges, then attempts to undermine, the relevance of this issue. In its reply brief, defendant clearly states that it “disputes plaintiffs contention that it did not pass on the economic burden of the federal excise taxes.” Def. Reply Br. at 7. Then, in response to plaintiffs proposed finding 44 alleging that it “did not collect, or pass on the cost of, federal excise taxes in the price of motor fuel sold during the period at issue,” defendant averred that “plaintiffs proposed finding 44 is not relevant to any issue herein and the proposed finding should not" }, { "docid": "11966467", "title": "", "text": "possible to ascertain the price per pound charged on the “boxed weight” method and the price per pound charged on the “stripped weight” basis. Respond ■ent’s brief contains the following statement : “In reaching such a conclusion (that sales by the two methods were at the same per pound prices) the Secretary was without the aid of any direct testimony that the prices were the same for the various purchasers. In order to establish this finding he was compelled to rely on inferences drawn from the testimony.” We must assume that respondent uses the word “compelled” merely to indicate that the Secretary relied on inferences only because there was no direct evidence presented by the record. Respondent cannot mean that evidence on that question was not available. No reason is apparent why witnesses could not have been asked the price per pound which they paid, and officers and sales records of petitioner were available for the use of respondent. In our opinion the evidence on which respondent relies for his “inferences” does not support the inferences. Respondent calls attention to the testimony of ten buyers who customarily stripped all meats of containers and weighed them, and who testified that they paid for the actual weight of the meat as thus stripped. There was no showing as to the price per pound paid by eight of the buyers; the showing was merely that they had purchased on a stripped weight basis. As to the remaining two buyers the evidence shows that they paid a higher price per pound, although respondent contends that the higher price was based upon special service alone. We shall discuss this contention later. Four purchasers testified that they had tested the weight of certain boxes of meat and found that the weight of the meat stripped corresponded with the weight marked on the box. This testimony indicates that the buyers paid for actual weight received but does not indicate the price per pound. Three purchasers, all retail butchers, testified that they had obtained adjustments because of differences in marked weight and actual net weight at the time" }, { "docid": "8123659", "title": "", "text": "no knowledge of discrepancies in the weights of these 22 cargoes until the trial, so that circumstance was not one to be considered by the jury in deciding as to his knowledge and mental processes when the fraudulent weighing was going on. We find no harmful error in the explusion of this exhibit. Some other assignments of error to the admission of testimony which are presented in the briefs of counsel for one or other of the plaintiffs in error do not require specific' discussion. It is sufficient to say that we have examined them all and considered the arguments advanced in their support, but are not persuaded that the judgment should be reversed because of the admission of such testimony. The trial judge charged the jury as follows: “The word entry, gentlemen, as used in the statute, means the entire transaction of putting the goods through the custom house, and this transaction is not completed until the duties are finally liquidated and paid, including the refunding by the government to the importer of any part of the amount paid as provisional duty.” This is assigned as error, and the same proposition, viz., that the word “entry” has- a more restricted meaning, is advanced in other assignments of error. Thus it is contended that the prosecution must fail because “the entries were true.” That means that the' entries made upon arrival oh the weights given in the invoices, before reweighing had reduced the figures, were substantially accurate. The offense charged, however, was the fraudulent tampering. with the scales so as to trick the government weighers into returning weights less than the true ones; a liquidation of the original entries on basis of the false weights and a refund of the consequent difference in duties. This court, in U. S. v. Legg, 105 Fed. 930, 45 C. C. A. 134, pointed out that: “The term ‘entry’ in the acts of Congress is used in two senses. In many of the acts it refers to the bill of entry, the paper, or declaration which the merchant or importer in the first instance" }, { "docid": "22632710", "title": "", "text": "the tax, for under the taxing act the tax was to be computed on the price for which the articles actually were sold and not on some prior and discarded price. But the court’s further conclusion that, as the price theretofore in vogue was reduced by the amount of the tax, the plaintiff in effect returned to the purchasers the tax it collected from them — because they got the articles for a price which was that much less than it would have been had the prior sales price been still in vogue — is shown by its mere statement to be not a finding of fact but unsatisfactory reasoning having little tendency to establish its objective. That conclusion must therefore be disregarded. It results that the finding, while showing that the plaintiff collected thq tax from the purchasers, does not show whether it returned the tax to them. Thus the finding does not adequately respond to the issue arising on the plaintiff’s allegation that it absorbed the tax — for, having collected it from them, the plaintiff could absorb it only by returning it to them. With that matter left in this situation the finding plainly does not support the judgments which rest on it. As the judgments of the District Court in the three suits must be reversed because of insufficiencies in the special findings, and as the reversal by the Circuit Court of Appeals was put on an untenable ground, we deem it the better course to enter here a judgment reversing the judgments of both courts and remanding the suits to the District Court with a direction ,to vacate its findings and' grant a new trial in each suit. No. 329. This case comprises five separate suits which were tried together and, after judgments for the plaintiff, were consolidated for purposes of appeal. The trial was to the court under a written stipulation waiving a jury. The court made special findings and based its judgments on them. At the outset the plaintiff’s right to recover on the facts stated in the petitions was challenged by the" }, { "docid": "13400334", "title": "", "text": "circumstances of the case in making its determination as to whether post-acquisition expenses of Daewoo could be recovered over a reasonable period of time at the observed prices, (c) Difference-in-merchandise Adjustment for Import Duties on Parts of CTRs. In comparing foreign market value to the U.S. price of the subject merchandise, which contained various imported parts, the ITA made adjustments for physical difference between domestically sold and exported merchandise on a duty-excluded basis. Pursuant to the Korean duty drawback law, exportation of the merchandise to the United States entitled plaintiffs to a refund of import duties which were incurred upon importation of those parts into Korea. The ITA considered these duty refunds in determining the FMV of the merchandise and attempted to deduct from FMV the amounts of import duties which were incurred, but not refunded, on imported parts of domestically sold merchandise. Since it proved impossible to trace the amounts of import duties paid by various Korean suppliers of the imported parts, the ITA estimated the amount of such import duties at 30 percent of the actual costs of the component parts. Plaintiffs allege that the ITA’s calculation of the adjustment for physical differences on a duty-excluded basis is inconsistent with the prevailing administrative practice and is grossly distorted. In addition, plaintiffs assert that the estimation of import duties at 30 percent of the parts’ costs is not supported by the evidence on the record. The ITA admits that it committed an error by calculating an adjustment for physical differences in merchandise on a duty-excluded basis and requests a remand to correct this conceded error. Zenith and Unions allege, however, that the ITA determination of this adjustment should be affirmed, because neither the statute, nor the regulations require this adjustment to be made on either duty-excluded, or duty-included basis. The Court cannot find that the ITA has properly exercised its discretion when the agency itself concedes its error with regard to this issue admitting that this decision represents a departure from administrative practice: This attempt to exclude import duties from the cost of materials in calculating adjustments for physical" }, { "docid": "12247768", "title": "", "text": "taxpayers. Ruth and Paul also filed a refund claim for taxes on the payments received during 1958, which had also been reported as ordinary income in their joint return for that year. Again, the I.R.S. originally allowed the refund in part, but later reversed itself and assessed a deficiency. The taxpayers paid this assessment and subsequently filed a second refund claim for the 1958 taxes, which was disallowed. On their joint returns for 1959, 1960 and 1961, Ruth and Paul reported the payments received during those years as long-term capital gains; thereafter, deficiencies were assessed against them. After paying the assessments, the taxpayers filed another claim for refund, which was also disallowed. Ruth and Paul then instituted two suits, which were consolidated in the present action, claiming to be due refunds totaling approximately $114,000 plus interest, for the years 1958 through 1961. On trial of the first case the taxpayers argued that the substance of the 1953 transactions was the sale of Ruth’s insurance agency to Forrest; that the $50,000 to be paid under the amended agreement of sale was merely a down payment; and, that the five per cent payments were actually installment payments on the total purchase price. The government, on the other hand, contended that Ruth had merely sold her stock in the incorporated agency pursuant to the agreement of sale for a total purchase price of $50,000, and that the five per cent agreement constituted a separate agreement between Ruth and Continental for consulting services. The issue submitted to the jury was whether the amounts received by Ruth from Continental in 1956 and 1957, pursuant to the terms of the five per cent agreement, were part of the sale price of the insurance agency, hence capital gains, or compensation for services rendered, hence ordinary income. After judgment in the first case, the government made its summary judgment motion on grounds of collateral estoppel in the present case. As we have seen, the trial court denied the motion and submitted the case for trial to a jury. The taxpayers’ contentions in the present action were the same" }, { "docid": "22090525", "title": "", "text": "this provision of the uniform law, “fair equivalent” does not mean exact equivalent in terms of nominal value. John Ownbey Co. v. Commissioner, 645 F.2d 540, 545 (6th Cir.1981). Instead, courts look “at all the surrounding circumstances to determine whether the transaction was fair.” Id. In this case, the district court found that fair consideration was paid, and thus, the transaction was not a fraudulent conveyance. In the words of the district court, there is “voluminous” evidence of record supporting the conclusion that fair consideration was paid. J.A. 167. Plaintiff valued the assets at no more than $1 million at the time it actually entered into the Agreement. In exchange for these assets, plaintiff agreed to pay $720,-000 over fifteen years and fully assume all liability for hazardous waste contamination cleanup on the Calahan Property. Plaintiff did not know exactly what that liability would be, but it estimated the liability at $1 million to $5 million based on preliminary findings from its environmental consultants. Furthermore, there is no indication that USC’s remaining assets are less than what the company was worth at the time of the sale. Based on this evidence and the surrounding circumstances, we agree with the district court’s conclusion that plaintiff gave fair consideration. The Metamora Settling Defendants also assert that the district court improperly decided genuine issues of material fact, including the reason for the lower purchase price, in considering the summary judgment motions. The role of the judge at the summary judgment stage is not to weigh the evidence, but to determine whether there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). “[TJhere is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. at 2511 (citations omitted). The Metamora Settling Defendants point to the fact that plaintiff initially valued USC’s assets at over" }, { "docid": "14747868", "title": "", "text": "became bound, he had been released by the subsequent conduct of the creditor. Kortlander v. Elston, 6 U. S. App. 283, 2 C. C. A. 657, and 52 Fed. 180. Where the question for review is, as here, whether the facts found are sufficient to support the judgment, it is of the highest importance to him upon whom the burden rested that such special finding of facts shall include every fact es sential to support the judgment. Sneed v. Milling Co., 20 C. C. A. 230, 78 Fed. 925; Wesson v. Saline Co., 20 C. C. A. 227, 73 Fed. 917. In jury trials, it is the rule that, if ihere be special findings and a general verdict, and the former be irreconcilable with the latter, the special findings must control. Larkin v. Upton, 144 U. S. 19, 12 Sup. Ct. 614. The same rule must prevail where a jury has been waived, and a judgment rendered upon a special finding of facts. If the facts so found do not support the judgment, it should, upon writ of error, be reversed, with direction to enter the judgment which the facts demanded. The ground upon which the plaintiff was denied a judgment was the negligence of the electric company in protecting the Lille to the machinery against subsequent purchasers and creditors by recording this note according to the provisions of section 2496 of the Kentucky Statutes, by Barbour & Carroll. That section is in these words: “In any written contract oí or for the sale of railroad equipment or rolling stock, deliverable Immediately or subsequently, at stipulated periods, by the terms of which the purchase money, in whole or in part, is to be paid in the future, it may be agreed that the title to the property so sold, or contracted to be sold, shall not pass to or vest in the vendee until the purchase money shall have been fully paid, or that the vendor shall have and retain a lien thereon for the unpaid purchase money, notwithstanding delivery thereof to the vendee; but the terms of credit for" }, { "docid": "23521735", "title": "", "text": "employment contract may not be used to defraud; for example, to make continuing shareholders bear part of the stock purchase price. But plaintiffs were not continuing shareholders, and they requested no instructions directed to the reasonableness of Brown’s salary, term of employment, or services required. An employment contract is certainly permissible if the salary paid is reasonable in regard to the services performed. A $65,-000 annual salary and a term of nine or ten years is not unreasonable on its face for services as president and chief executive officer of a newspaper which sold for $42,-000,000. The contract did not guarantee employment; it was terminable for mental or physical illness, for failure to perform assigned duties properly, or for action adverse to the newspaper’s best interests. It required Brown to devote “full productive time, energy and ability” to the corporation’s business. Further, the record contains substantial evidence that neither Brown nor Kitch made Brown’s continued employment a condition precedent for the stock sale. Ridder’s representative in the negotiations with Kitch and Brown testified that the employment contract was not a precondition to the sale. Ridder did not negotiate the employment contract with Brown until after it had agreed on the stock sale’s principal terms, and Brown accepted the term and salary first offered by Ridder. Reasonable minds might differ on whether the employment contract was a breach of fiduciary duty. In view of the evidence presented and plaintiffs’ failure to object to the instruction or to request instructions relating to the reasonableness of the particular contract, the court did not err in denying the motion for judgment n. o. v. Bloom and First National Bank both urge that the trial court should have granted judgment n. o. v. on the issue of the newspaper’s sale price. The jury found that the conduct of Brown and Kitch had not reduced the price Ridder would have paid. Substantial evidence supports the jury’s verdict. Several newspaper representatives testified that the Wichita newspaper had brought a high cash price. The evidence does not clearly establish that the employment contract depressed the sales price. According" }, { "docid": "16608723", "title": "", "text": "lower than those due on the purchase price of the goods, which in fact included indirect payments. Understated prices in customs entry documents are material because they alter the appraisement and liability for duty of entered merchandise. Thus, the statements, or omissions, by Menard were material because they resulted in a loss of revenue to the United States. The Court must next determine whether the material act or acts which caused the loss of revenue resulted from Menard’s negligence. Menard admits that it failed to declare the indirect payments, or credit taken for previously imported defective merchandise. It justifies that action by claiming that its “System of accounting for defective merchandise” consists of negotiating credits on later shipments from the vendor rather than filing protests to receive duty refunds. The government claims that Menard failed to exercise any care to ensure that this was the proper method of declaration under the circumstances. A cursory review of applicable customs regulations would have apprised Menard that it should have declared the indirect payments, and left the determination of their propriety to Customs. Menard’s failure to declare the actual prices of the merchandise prior to subtraction of credit due was incorrect. Only a modicum of care would have been needed to ascertain the proper method for obtaining allowances for duties paid on damaged or defective merchandise. Menard’s failure to request and receive the allowance was due to its negligent disregard of the applicable regulations. The government asserts that “[c]ertainly, importers are not permitted to keep a ‘running tally’ on the amount of duties to be paid by crediting overpayment upon the next shipment and entry of merchandise.” Plaintiff’s Cross-Motion for Partial Summary Judgment at 17. Despite Menard’s claims, this Court finds that the obligation to make a proper inquiry into the regulations is not unrealistic or burdensome. If the importer is not able to make such a determination on its own, the question could be resolved without excessive effort by obtaining professional advice. The importer has the duty to ascertain the correctness of its private methods of altering declared value. Determination of the" }, { "docid": "22160231", "title": "", "text": "in support of any essential fact. These things, obtained at the common law; they do not trespass upon the prerogative of the jury to determine all questions of fact, and no one to-day doubts that such is the legitimate /duty and function of the court, notwithstanding the terms of the Constitutional guarantee of right of trial by jury. Beyond this, it was not infrequent to ask from. the jury á special rather than a general verdict, that is, instead of. a verdict for or against the plaintiff or'defendant embodying-in a single declaration the whole conclusion of the trial, one which found specially upon the various facts ip issue, leaving to; the.court the subsequent duty of determining upon such facts the relief which the law awarded to the respective parties. It was also a common practice when no special verdict was demanded and when only a general verdict was returned to interrogate the jury upon special matters of fact. Whether or no a jury was compelled to answer- such interrogations, or whether, if it refused or failed to answer, the general verdict would stand or not, may be questioned. Mayor &c. v. Clark, 3 Ad. & Ell. 506. But the right to propound such interrogatories was undoubted and often recognized. Walker v. Bailey, 65 Maine, 354; Spurr v. Shelburne, 131 Mass. 429. In the latter case the court said (page 430): It is within the discretion of the presiding justice to put inquiries to the jury as to the grounds upon which they found their verdict, and the answers of the foreman, assented to by his fellows, may be made a part of the record, and will have the effect of special findings of the facts stated by him. And no exception lies to the exercise of this discretion. Dorr v. Fenno, 12 Pick. 521; Spoor v. Spooner, 12 Met. 281; Mair v. Bassett, 117 Mass. 356 ; Lawler v. Earle, 5 Allen, 22.” So that the putting of special interrogatories to a jury and asking for specific responses thereto in addition to a general verdict is not a thing unknown" }, { "docid": "23521736", "title": "", "text": "employment contract was not a precondition to the sale. Ridder did not negotiate the employment contract with Brown until after it had agreed on the stock sale’s principal terms, and Brown accepted the term and salary first offered by Ridder. Reasonable minds might differ on whether the employment contract was a breach of fiduciary duty. In view of the evidence presented and plaintiffs’ failure to object to the instruction or to request instructions relating to the reasonableness of the particular contract, the court did not err in denying the motion for judgment n. o. v. Bloom and First National Bank both urge that the trial court should have granted judgment n. o. v. on the issue of the newspaper’s sale price. The jury found that the conduct of Brown and Kitch had not reduced the price Ridder would have paid. Substantial evidence supports the jury’s verdict. Several newspaper representatives testified that the Wichita newspaper had brought a high cash price. The evidence does not clearly establish that the employment contract depressed the sales price. According to the testimony, the selling shareholders might have obtained a higher dollar value in a stock-for-stock exchange than in a cash sale. However, there was substantial evidence of .serious disadvantages to accepting stock for payment. Because reasonable minds could differ on this issue, the jury’s verdict must stand. With respect to assessment of costs and prejudgment interest, the judgment and orders of the trial court are reversed and remanded with directions to assess costs against Kitch for all proceedings prior to the instant appeal and to require him to pay prejudgment interest on the award in favor of plaintiffs at the legal rate. In all other respects the judgment is affirmed. All parties shall bear their own costs for this appeal except appellee Brown, whose costs shall be paid by cross-appellant Bloom. . Ridder offered $40,500,000 with an additional $1,500,000 if earnings reached a certain level by the end of the newspaper’s fiscal year. The newspaper met the earnings requirement. . Kitch’s commission was to be 3% based on a purchase price of $40,500,000. See" }, { "docid": "22160230", "title": "", "text": "in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury or to itself such prerogative. So long as this substance of right is preserved the procedure by which this result shall be reached is wholly within the discretion of the legislature, and the courts may not set aside' any legislative, provision in this respect because the form of action — the mere manner in which questions are submitted — is different from that which obtained at the common law. Now a general verdict embodies both the law and the facts. The jury, taking the law as given by, the. court, apply that law to the facts as they find them to be and express their conclusions in the verdict. The power of the ■coui’t to 'grant a new trial if in its judgment the jury have misinterpreted the .instructions as to the rules of law or misapplied them is unquestioned, as also when it appears that there was no-real evidence in support of any essential fact. These things, obtained at the common law; they do not trespass upon the prerogative of the jury to determine all questions of fact, and no one to-day doubts that such is the legitimate /duty and function of the court, notwithstanding the terms of the Constitutional guarantee of right of trial by jury. Beyond this, it was not infrequent to ask from. the jury á special rather than a general verdict, that is, instead of. a verdict for or against the plaintiff or'defendant embodying-in a single declaration the whole conclusion of the trial, one which found specially upon the various facts ip issue, leaving to; the.court the subsequent duty of determining upon such facts the relief which the law awarded to the respective parties. It was also a common practice when no special verdict was demanded and when only a general verdict was returned to interrogate the jury upon special matters of fact. Whether or no a jury was compelled to answer- such interrogations, or whether, if it refused or" }, { "docid": "14837612", "title": "", "text": "no bar to a recovery; 2, that, if the defendants were to be regarded as sureties, after the transfer of the title to the property in bond, instead of principals, they stood in no better position ; 8, that the laches of the customhouse officers, in delivering the goods without collecting the whole of the duties, could not affect the. plain tiffs, as the United States were never bound by the laches of their agents, nor could the defendants set up such laches as a discharge of their obligation; 4, that the plaintiffs were entitled to judgment. The defendants excepted to each of said conclusions of law, a judgment was rendered for the plaintiffs for $8,096.11, and the defendants brought this writ of error. The court below also found, as facts, “that it was the established and uniform usage of trade in New York, at the times of said sales and deliveries, and long before, for importers to make sales of imported goods which were in warehouse, in bond, the purchaser on such sales assuming the payment of the duties thereon, and being allowed and credited by the seller with the amount of the duties so assumed, as so much paid on account of or deducted from what would otherwise have been the purchase price, and for the seller to make delivery of said goods in bond, by signing a written consent to the withdrawal of said goods by the purchaser, and it was also in accordance with such usage and custom for successive sales and-deliveries of goods in bond to be made, on similar terms and in the same manner, so long as any of such goods remained in warehouse, the last purchaser withdrawing the goods under the written consent so received by him upon and as the delivery thereof, and paying the duties thereon on such withdrawal; that the said custom and usage were, at the times aforesaid, well known and understood, and the established and settled practice at the customhouse in New York was to treat the party holding such consent for withdrawal, and him only, as" }, { "docid": "23400495", "title": "", "text": "pursuant to a plan of reorganization of that company, approved in a Chapter X proceeding by a federal district court in Florida. There is evidence that the gyroplane to be produced could land and take off without a runway, and could carry a passenger in addition to the pilot. It was hoped that it could be produced at a price which would make it feasible for various types of business and personal transportation uses. ASU stock was sold to investors in Indiana from August 14, 1963 until July, 1965 when the SEC obtained an injunction. The prices paid by investors during this period aggregated $2.1 million. 15 gyroplanes were produced and sold. It appears, virtually beyond dispute, that during this period the effort to promote sales of ASU stock included general releases and individual communications which contained untrue statements of material facts, omitted material facts necessary to make the statements made not misleading, and included devices to defraud and practices which would operate as a fraud upon the purchaser. The areas of misrepresentation included the price at which the plane could be sold, progress toward production, orders on hand, and the financial history and con dition of ASU. The details will not be stated except as required in discussion of particular counts. There was abundant evidence of pattern of conduct, plan, and design from which a jury could find that the false and misleading assertions, to the investing public by way of the media, including the Indiana Investor in particular, and to prospective purchasers by sales iiterature and individual sales efforts, constituted a scheme to defraud, changing in content from time to time. The ultimate question is whether the appellants were properly found criminally responsible for wilfully having employed such scheme or wilfully having obtained money by means of such misrepresentations. Appellants challenge the indictment on several grounds, and make other attacks on procedure. Those who stood trial argue that the evidence was insufficient to support the respective guilty verdicts. 1. The challenge to the array of the grand jury. All appellants contend that the grand jury which indicted them" }, { "docid": "6831349", "title": "", "text": "costly than they actually were. (Id. at 1121.) Schneider further testified that he then decided to cancel the policy, and had great difficulty in obtaining a refund of his initial premium payment. (Id. at 1121-22.) As a result of this incident, Schneider came to the conclusion that Bularz was unethical in his sales practices. (Id. at 1122.) At the close of trial, Bularz’s counsel proposed that the jury be given a written question asking it to determine whether any employee of Prudential had stated that Bularz was a “flimflam man.” The district judge rejected this formulation of the question on two separate grounds. The judge first determined that if the proposed question were accepted, the court would be required to instruct the jury that it must reach unanimous agreement concerning which Prudential employee had made the alleged statement, and that this would complicate the jury instructions unnecessarily. Second, the judge concluded that there had been no evidence introduced at trial to support a finding that anyone other than Cathy MacDonald had made a defamatory statement about Bu-larz, and that the written question should therefore be limited to asking whether MacDonald had said that the plaintiff was a “flimflam man.” (Trial Tr. Vol. 8 at 1199-1200.) For this reason also, the district court rejected Bularz’s alternative formulation of the special verdict, in which Bularz proposed that the court ask the jury whether Harry Axford had made the alleged statement. (Id. at 1192,1200.) At the close of its deliberations, the jury returned a special verdict indicating that Cathy MacDonald did not say that Bularz was a “flimflam man,” and that Bularz did not breach his employment duties to Prudential. The district court entered judgment accordingly, and rejected Bu-larz’s subsequent motion for a new trial. Bu-larz now appeals. II. DISCUSSION Bularz’s first challenge is to the special verdict form. He contends that the district court abused its discretion in refusing to allow the jury to consider whether Harry Axford had defamed Bularz. As Bularz has averred, we review a district court’s refusal to submit a proposed special verdict question under Federal Rule of" }, { "docid": "23521721", "title": "", "text": "whatever profit he has received, the jury concluded that Kitch must disgorge his commission. The jury also found against plaintiffs on their claims that the newspaper could have been sold for more than it was. Kitch contends that for the jury to be consistent with its verdict returning plaintiffs’ portions of the finder’s fee, it should have found that the newspaper could have been sold for an additional amount equal to the fee. A court will find jury verdicts inconsistent when it cannot fairly harmonize the answers. Gallick v. Baltimore & O.R.R., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963). We can, however, harmonize the jury’s verdicts. Kitch cannot deny that he realized a profit from the sale. Kitch’s realization of a profit does not mean that Ridder would necessarily have paid more if there was no finder’s fee — evidence was introduced that Ridder regarded the finder’s fee as a cost unrelated to the purchase price. Alternatively, the jury could have discounted the effect of the finder’s fee upon the sales price because it had decided that Kitch must give up his finder’s fee on plaintiffs’ stock, in effect adding the fee to the price realized by plaintiffs. The jury’s findings were not necessarily inconsistent. Kitch next focuses upon allegedly erroneous instructions. He claims the court’s instruction that the transaction was “a sale of the entire corporation” is inconsistent with placing the burden of proof on Kitch to show that he had complied with his fiduciary duties. Kitch maintains that if the sale were of the entire corporation, a majority of the stockholders could ratify the entire transaction, including his fee, and the burden would fall upon the objecting stockholders to show the transaction was inconsistent with sound business judgment. As we note above, however, this case concerns a fiduciary’s duty of loyalty, akin to the duty of an agent not to serve conflicting interests of a third party and not to accept compensation from a third party with whom he contracts on behalf of his principal unless the principal expressly approves. The trial court" }, { "docid": "17747928", "title": "", "text": "summary judgment should be denied. The court finds that trial is warranted on at least two material fact issues upon which the parties do not agree, to wit — (1) Whether Ammex was authorized to sell gasoline and diesel fuel duty-free during the periods in suit; and (2) Whether the fuel was in fact sold free of tax or duty. Hence, the required course, given the record, is to proceed to trial. Thus, for the reasons set forth below, defendant’s motion for summary judgment is granted in part and denied in part, and plaintiffs cross-motion for summary judgment is denied. DEFENDANT’S MOTION Defendant essentially set forth the following six issues as to both gasoline and diesel fuel, which the court will address seriatim: As to both the gasoline and diesel fuel: (1) Does Plaintiff have standing under the general rules applicable to tax refund actions to claim a refund of excise taxes allegedly paid to its suppliers when it purchased fuel? (2) Does Plaintiff have standing under the Export Clause of the United States Constitution to claim a refund of federal excises taxes that it allegedly paid when it purchased gasoline and diesel fuel from its suppliers? (3) Does Plaintiff have standing to seek a refund under 26 U.S.C. § 6416(c)? As to the diesel fuel only: (4) Does Plaintiff have standing to seek refund payment under 26 U.S.C. § 6427(0? As to the gasoline only: (5) Does Plaintiff have standing to seek a refund of gasoline excise taxes pursuant to the special provisions of 26 U.S.C. § 6416(a)(4)? And (6) Was the gasoline sold by Plaintiff for export, and, if so, was the gasoline exported before any other use within the meaning of 26 U.S.C. § 4221(a)(2)? Def. Motion at 4. Standing The case-or-controversy doctrines provide fundamental limits on federal judicial power in our system of government. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Perhaps the most important of these doctrines is the Article III doctrine that requires a litigant to have “standing” to invoke the power of a federal court. Id." }, { "docid": "17747951", "title": "", "text": "standing, can be said to be fairly traceable to the defendant (under this special statutory provision) where there is record evidence that defendant taxed, or caused to be taxed, Ammex’s suppliers in accordance with the operative statute which states that “[tjhere is hereby imposed a tax ... on- ... (ii) the removal of a taxable fuel from any terminal.” 26 U.S.C. 4081(a)(1)(A). Where there is an injury in fact, as here, and causation is fairly traceable to the defendant (by statute), there is the likelihood of redress. Consequently, Ammex satisfies all of the elements of standing under the statute discussed hereunder with respect to its purchases of gasoline, thereby compelling this court to deny defendant the right to summary judgment as a matter of law on this standing issue. PLAINTIFF’S CROSS-MOTION Plaintiff sets forth a single question on cross-motion that raises factual issues that preclude this court from granting summary judgment in its favor. The question is: ‘Whether Ammex, an operator of a duty-free store that is authorized by the United States Customs Service to sell motor fuel on a duty-free basis for use outside the United States...., is due a refund of... excise taxes it paid [its suppliers] on the motor fuel that it purchased solely for export [which was] sold at Ammex’s duty-free facility.” PI. Cross-Motion at 2. The gravamen of plaintiff’s question is rooted in genuine issues of material fact which by law require this court to deny plaintiffs cross-motion. Foremost of which is — whether Ammex in fact sold the motor fuel duty-free; that is, the efficacy of plaintiffs claim, whether Ammex actually passed on the cost of the excise tax to its retail customers, is in dispute. Also in issue is whether Ammex was in fact authorized by the U.S. Customs Service to sell motor fuel duty-free during the operative periods. Given these genuine issues of material fact, said motion, this court is constrained to hold, was improvidently filed. Cost vs. Sales Price of Fuel Whether Ammex passed on the cost of the excise tax in its sales prices to its customers is a critical" } ]

[ { "docid": "17332803", "title": "", "text": "562; and see National Labor Relations Board v. General Shoe Corp., 6 Cir., 1951, 192 F.2d 504, certiorari denied 1952, 343 U.S. 904, 72 S.Ct. 635, 96 L.Ed. 1323. The Wagner Act expressly declared as national policy that workers were to possess full freedom of association, self-organization, and designation of representatives of their own choosing. As to such basic essentials, the Taft-Hartley Act made no substantial change. Thus, the employees here had the right to “self-organization,” to join or not to join a labor organization, and “to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * V/hat was done here precisely conforms to what the Act says are the rights of the employees. They formed a liaison committee including five stewards with employee representation from different departments and from day and night shifts. The committee met regularly, at least once a week, with Gray, receiving contract proposals for negotiation, complaints for grievance processing, and production suggestions. In turn, and as to such subjects, the committee with Gray met for conferences and discussions with management representatives. The stewards committee and Gray regularly, on the first Wednesday of each month, met with management to canvass mutual problems. The employees also elected four Trustees for fiscal supervision of Gray’s representation operations. These Trustees with the stewards constituted a joint administrative board with the chief steward as board chairman. One Trustee was elected Treasurer and another, Secretary. The employees met to select a contract negotiation committee, and again, to consider and ratify the contract as negotiated with the company. At a general meeting, the membership voted to adopt the stewards’ recommendation that dues of $2 per month be collected and that Gray be authorized to execute a bargaining agreement as of September 23, 1957, which he did. That the employees exercised their section 7 rights to self-organization and engaged in furthering a plan for their mutual aid and protection is beyond doubt on this record. They must have been fully aware of the possibility" } ]

[ { "docid": "22763426", "title": "", "text": "Mr. Justice Stone delivered the opinion of the Court. The main question for decision is whether, upon a finding that an employer has created and fostered a labor organization of employees and dominated its administration in violation of § 8 (1), (2) of the National Labor Relations Act of July 5, 1935 (c. 372, 49 Stat. 449, 29 U. S. C., § 151, et seq.), the National Labor Relations Board, in addition to ordering the employer to cease these practices, can require him to withdraw all recognition of the organization as the representative of his employees and to post notices informing them of such withdrawal. Respondent Pennsylvania Greyhound Lines, Inc., is a corporation operating a passenger motor bus system between the Atlantic Coast and Chicago and St. Louis. Respondent Greyhound Management Company, an affiliate of the Pennsylvania Company, performs various services relating to employee personnel of the latter and its affiliated corporations. Together, respondents act as employers of those employees working at the Pittsburgh Garage of the Pennsylvania Company and together actively deal with labor relations of those employees. Upon charges filed by Local Division No. 1063, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, a labor organization, the Board issued its complaint, as permitted by § 10 (b) of the Act, charging that respondents had engaged in specified unfair labor practices affecting interstate commerce, in violation of § 8. After notice to respondents, and hearing, the Board found that they had engaged in unfair labor practices by interfering with, restraining, and coercing employees in the exercise of their rights, guaranteed by § 7, in that they had dominated and interfered with the formation and administration of a labor organization of their employees, Employees Association of the Pennsylvania Greyhound Lines, Inc., and had contributed financial and other support to it in violation of § 8 (1), (2). The Board ordered that respondents cease each of the specified unfair labor practices. It further ordered that they withdraw recognition from the Employees Association as employee representative authorized to deal with respondents concerning grievances, terms of employment, and labor" }, { "docid": "4510058", "title": "", "text": "Union, offered a closed-shop provision which the Union was unable or unwilling to accept. The Board also argues that the contract itself is evidence that the Association was dominated by respondent. It is pointed out in particular that many requests made by the Association were not granted and that the contract makes no provision fixing wages, hours or seniority. The contract, however, did not purport to be final — in fact, it expressly provided that it would bargain with the Association with reference to such matters. We are not concerned with whether respondent bargained with the Association in good faith, except as it may throw light upon the charge of respondent’s domination of the Independent and for this purpose its conduct carries little, if any, weight. The financial support relied upon by the Board is almost too trivial to mention — that is, “by furnishing the refreshments at the Association social gathering on November 4, 1939.” The facts are that at the request of a committee of the Association, a meeting was had with Perry, and in the course of a conference concerning other matters, it was hinted that they would like to have some refreshments for a picnic. The refreshments were furnished and paid for by Perry upon the condition that every employee in the plant be invited, and this was done. The record does not disclose the quantity, quality, character or costs of the refreshments supplied. It requires more imagination than we possess to believe that proof of this circumstance has any bearing on domination of the Association. We now return to events which occurred subsequent to the “strike vote” of June 15, 1939, discussed heretofore. On June 17, 1939, the Union filed charges with the Board alleging that respondent had engaged in certain unfair labor practices. On June 28, a conference was had participated in by Perry, Bassett (attorney for respondent), a representative of the Union and a field examiner of the Board. Respondent again took the position that it was willing to bargain with any group which had a majority of its employees, but expressly challenged" }, { "docid": "17126898", "title": "", "text": "on a third, it discharged 7 employees, members of the negotiating committee of the Allied Chemical Workers’ Association, for the reason that these 7 had protested the discharge of the A. F. of L. men; and on a fourth occasion it discharged 3 more members of the Union for union activity. (3) That the respondent had dominated, interfered with and given support to the Allied Chemical Workers’ Association, an organization of its employees. (4) That all these actions on the part of respondent tended to lead to a labor dispute interfering with and burdening interstate commerce. From these findings the Board concluded that respondent was guilty of unfair labor practices within section 8(1), (2) and (3) of the Act, 29 U.S.C.A. § 158(1-3). It ordered the respondent to cease and desist: 1. From interfering with, restraining or coercing its employees in the exercise of their rights to self organization for the purpose of collective bargaining. 2. From discouraging membership in Borax and Potash Workers’ local by dis charging, refusing to reinstate, or demoting any of its employees. 3. From dominating or interfering with the Allied. Chemical Workers’ Association -and from contributing support thereto. The following affirmative action was ordered: 1. Offer full reinstatement to the 17 employees who were discharged and to the 1 who was demoted by reason of union activity. 2. Make whole the said employees for any losses of pay between the time of discharge or demotion to the date of offer of reinstatement, less what each might have earned in the meantime. 3. Withdraw all recognition from the Allied Chemical Workers’ Association as representative of any of its employees for collective bargaining purposes and “disestablish the Allied Chemical Workers’ Association as such representative”. 4. Post conspicuous notices indicating compliance with the foregoing orders. The case is before us on the Board’s petition for enforcement, the respondent resisting such petition on the ground that the evidence fails to support the findings of a burdening or obstruction of interstate commerce, a domination of the alleged company union, the Allied Chemical Workers’ Association, and (in part) the alleged discriminatory" }, { "docid": "22763435", "title": "", "text": "challenged provisions of the present order are of a kind contemplated by Congress in the enactment of § 10 (c) and are within its terms. There remains the question whether the findings adequately support them. The Board’s subsidiary findings of fact fully sustain its conclusion that respondents had engaged in unfair labor practices, by active participation in the organization and administration of the Employees Association, which they dominated throughout its history, and to whose financial support they had contributed; and that they had interfered with, restrained and coerced their employees in the exercise of the rights confirmed by § 7 to form for themselves a labor organization and to bargain collectively through representatives of their own choosing. It is unnecessary to repeat in full detail the facts disclosed by the findings.- They show that before the enactment of the National Labor Relations Act, respondents, whose employees were unorganized, initiated a project for their organization under company domination. In the course of its execution officers or other representatives of respondent were active in promoting the plan, in urging employees to join, in the preparation of the details of organization, including the by-laws, in presiding over organization meetings, and in selecting employee representatives of the organization. The by-laws and regulations provided that all motorbus operators, maintenance men and clerical employees, after three months service, automatically became members of the Association, and that only employees were eligible to act as employee representatives. No provisions were made for meetings of members, nor was a procedure established whereby employees might instruct their representatives, or whereby those representatives might disseminate information or reports. Grievances were to be taken up with regional committees with final review by a Joint Reviewing Committee made up of an equal number of regional chairmen and of management representatives, but review in those cases could not be secured unless there was a joint submission of the controversy by employee and management representatives. Change of the by-laws without employer consent was precluded by a provision that amendment should be only on a two-thirds vote of the Joint Reviewing Committee, composed of equal numbers" }, { "docid": "8599624", "title": "", "text": "announced to the assembly of employees that President Patton thought that employees of respondent at the different plants should form one association. lie said petitions for the formation of such association would be made available for signatures. Thereafter, Assistant Superintendent Beard, Shipping Clerk Green and Foreman Stenger drafted a petition which was circulated. Assistant Superintendent Byl secured most of tht signatures at the Santa Clara plant and Assistant Superintendent Beard was active in soliciting the members to sign at the San Jose plant. Other supervisory officials and foremen were also active on behalf of the Association. The Association was organized with the assistance of the respondent’s attorney. Beard, Byl and Purdy, all employed by respondent in a supervisory capacity, were elected president, vice-president and secretary-treasurer respectively. Three of the four men appointed on the committee to formulate by-laws and four of the five men appointed as an arbitration board to handle grievances likewise held supervisory positions with respondent. These facts are substantiated principally by the testimony of witnesses Murphy and Burkhardt. They were contradicted by Miller and other officers of respondent. The Board believed Murphy and Burkhardt. Foreman McCormick testified that Byl solicited him for his signature, saying that the Association was being organized “so we won’t have to go into a union.” Supervisory employees completely dominated this company Association. They prepared the by-laws and submitted them to Patton, Ballantyne and Secretary Dodson, and reported to the Association that “representatives of the company expressed the attitude as being extremely favorable to the employee’s association and the laws [i.e. by-laws].” The Association met mostly on respondent’s property and paid no rent. Through its Arbitration Board the Association negotiated with respondent from time to time but did not succeed in obtaining a signed agreement in any matter relating to wages, hours or seniority or other working condition although respondent did issue a statement or write a letter setting forth its policies in respect to various demands. The Board found that the plan of the Association originated with respondent’s officers and that by means of the Association respondent intended to prevent the organization" }, { "docid": "22763427", "title": "", "text": "relations of those employees. Upon charges filed by Local Division No. 1063, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, a labor organization, the Board issued its complaint, as permitted by § 10 (b) of the Act, charging that respondents had engaged in specified unfair labor practices affecting interstate commerce, in violation of § 8. After notice to respondents, and hearing, the Board found that they had engaged in unfair labor practices by interfering with, restraining, and coercing employees in the exercise of their rights, guaranteed by § 7, in that they had dominated and interfered with the formation and administration of a labor organization of their employees, Employees Association of the Pennsylvania Greyhound Lines, Inc., and had contributed financial and other support to it in violation of § 8 (1), (2). The Board ordered that respondents cease each of the specified unfair labor practices. It further ordered that they withdraw recognition from the Employees Association as employee representative authorized to deal with respondents concerning grievances, terms of employment, and labor disputes, and that they post conspicuous notices in all the places of business where such employees are en gaged, stating that the “Association is so disestablished and that respondents will refrain from any such recognition thereof.” 1 N. L. R. B. 1. Upon the Board’s petition under § 10 (e) to- enforce the order, heard April 1, 1936, the Court of Appeals for the Third Circuit gave judgment after a delay of one year and two months, during which there were three postponements and two rearguments. It struck from the order all provisions requiring the withdrawal by respondents of recognition of the Employees Association and publication of notice of withdrawal, and directed that in other respects the Board’s order be enforced. 91 F. (2d) 178. The court thought, that the Board was without authority to order the employers to withhold recognition from the Association, without notice to it and opportunity for a hearing, and without an election by the employees to choose a labor organization to represent them. We granted certiorari, 302 U. S. 676," }, { "docid": "15651214", "title": "", "text": "Mr. Justice Stone delivered, the opinion of the Court. This case, which comes here on certiorari to the Court of Appeals for the Ninth Circuit, presents the same issues discussed in No. 413, National Labor Relations Board v. Pennsylvania Greyhound Lines, ante, p. 261, but on a somewhat different state of facts. The only question requiring separate consideration is whether, in the case in which the National Labor Relations Board has ordered. respondent to cease certain unfair labor practices, including the domination and financial support of a company union, the facts justify its further order that respondent withdraw all recognition of the union and give appropriate notice of the withdrawal to employees. The Court of Appeals for the Ninth Circuit sustained the Board’s findings and all of its order except the affirmative parts relating to withdrawal of recognition of the company union, which it set aside. 91 F. (2d) 458. The authority conferred on the Board by § 10 (c) of the National Labor Relations Act to direct withdrawal of employer recognition when such an order will carry out the policies of the National Labor Relations Act was considered and sustained in the Pennsylvania Greyhound Lines case, supra. The question calling for attention here is whether the facts found by the Board afford a basis for its conclusion that the policies of the Act will be effectuated by the present order. The findings show that respondent, an interstate carrier by motor bus, took an active and leading part in the organization in 1933 of the Drivers’ Association, a labor organization of its employees; that respondent had since continuously interfered with and dominated the internal administration of the Association, and contributed to its support; that through such domination it had obtained a “working agreement” with the Association in which it was stipulated that grievances of any employee should be presented first to his superior officer and then to respondent’s president, whose decision should be final. Before the enactment of the National Labor Relations Act, respondent twice made successful use of the Association as a means to forestall attempts to organize its" }, { "docid": "22763394", "title": "", "text": "bargaining. There was no collective request for reinstatement of all 'the strikers. The position of practically all the strikers who did not go .back, and who were named in the complaint filed with the Board, was “that they were determined to stay out until the Union reached a settlement with the respondent.” Early in April a labor organization known as. Rare Metal Workers of America, Local No. 1, was organized among respondent’s employees. There was a meeting in one of respondent’s buildings on April 15th, which was attended by about 200 employees, and the balloting resulted in a vote of 185 to 15 in favor of the formation of an “independent” organization. Another meeting was held soon after for the election of officers. Respondent accorded these efforts various forms of support. The Board concluded that the Rare Metal Workers of America, Local No. 1, was the result of the respondent’s “anti-union campaign” and that respondent had dominated and interfered with its formation and administration. Upon the basis of these findings and its conclusions of law, the Board made its order directing respondent to desist from interfering with its employees in the exercise of their right to self-organization and to bargain collectively through representatives of their own choosing as guaranteed in § 7 of the Act; from dominating or interfering with the formation or administration of the Rare Metal Workers of America, Local No. 1, or any other labor organization of its employees or contributing support thereto; and from refusing to bargain collectively with the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 66, as the exclusive representative of the employees described. The Board also ordered the following affirmative action which it was found would “effectuate the policies” of the Act; — that is, upon request, to bargain collectively with the Arqal- gamated Association as stated above; to offer, upon application, to the employees who went on strike on February 17, 1937, and thereafter, “immediate and full reinstatement to their former positions,” with back pay, dismissing, if necessary, all persons hired since that date; to withdraw all" }, { "docid": "14715133", "title": "", "text": "of employment; and agreements were reached as to a number of these, including a wage increase of five cents per hour and provision for a five day week of forty hours with time and a half for over time. In the following mouth, due to a falling off in business, respondent notified the association that it would be necessary to reduce wages, hours of work or the number of employees, and an agreement was reached that the work available be divided or staggered among the employees by allowing four days a week to each employee. The wage scale fixed by the prior agreement was retained. The record shows that the association has had regular monthly meetings of its council and has functioned in a number of matters relating to rights and grievances of the employees. No supervisory employee is a member of the association; and (here is no evidence that the respondent has any control over it or any voice in its deliberations, or that respondent contributes in any way to its support or maintenance. The Board’s finding of domination and interference was based upon activities of four foremen of minor supervisory capacity, viz., Terry, Maiden, Holmes and Brown, in advocating the association or soliciting members for it; upon the fact that another foreman, Taylor, was found to have spied upon a union meeting; upon the fact that an assistant superintendent of one of the departments handed to a member of the association’s organizing committee an envelope containing a copy of the constitution and by laws of an association in another of respondent’s plants; upon the fact that respondent made no attempt to curb solicitation for membership in the association on company property during working hours and permitted an election of association officers to be held on the premises; upon the fact that the records of the association were kept in respondent’s vault; and upon the finding that the association had failed to secure any real or lasting benefits for the employees. These matters must be considered in the light of attendant circumstances as disclosed by the record; and, when" }, { "docid": "4510057", "title": "", "text": "the Association, is without substantial support. The record is persuasive and we think conclusive to the contrary. Early in August, 1939, the Association requested a conference with respondent to discuss recognition. A conference was had on August 7 at which was produced 116 signed application cards. Respondent checked these with its payroll, accepted them as sufficient proof of a majority to warrant recognition and gave the Association a written statement acknowledging it as sole bargaining agent. On August 21 a notice was posted in the plant, signed by Perry, officially recognizing the Association as the exclusive representative of the employees. On September 8 an agreement was made between respondent and the Association which required membership in the Association as a condition for all old employees hired after January 1, 1939, and for all new employees. This “partial closed-shop” provision is another circumstance relied upon by the Board to show discrimination in favor of the Association. We think this circumstance is without significance, especially in view of the fact that respondent, in its bargaining with the Union, offered a closed-shop provision which the Union was unable or unwilling to accept. The Board also argues that the contract itself is evidence that the Association was dominated by respondent. It is pointed out in particular that many requests made by the Association were not granted and that the contract makes no provision fixing wages, hours or seniority. The contract, however, did not purport to be final — in fact, it expressly provided that it would bargain with the Association with reference to such matters. We are not concerned with whether respondent bargained with the Association in good faith, except as it may throw light upon the charge of respondent’s domination of the Independent and for this purpose its conduct carries little, if any, weight. The financial support relied upon by the Board is almost too trivial to mention — that is, “by furnishing the refreshments at the Association social gathering on November 4, 1939.” The facts are that at the request of a committee of the Association, a meeting was had with Perry," }, { "docid": "15651215", "title": "", "text": "order will carry out the policies of the National Labor Relations Act was considered and sustained in the Pennsylvania Greyhound Lines case, supra. The question calling for attention here is whether the facts found by the Board afford a basis for its conclusion that the policies of the Act will be effectuated by the present order. The findings show that respondent, an interstate carrier by motor bus, took an active and leading part in the organization in 1933 of the Drivers’ Association, a labor organization of its employees; that respondent had since continuously interfered with and dominated the internal administration of the Association, and contributed to its support; that through such domination it had obtained a “working agreement” with the Association in which it was stipulated that grievances of any employee should be presented first to his superior officer and then to respondent’s president, whose decision should be final. Before the enactment of the National Labor Relations Act, respondent twice made successful use of the Association as a means to forestall attempts to organize its employees, one in 1933 by the Brotherhood of Locomotive Engineers and Firemen, and another in 1934 by the employees themselves who sought to establish a Brotherhood of Motor Coach Operators. Respondent’s officers were active in persuading, threatening and coercing employees to join or remain members of the Drivers’ Association, and not to join the rival unions. In 1935, following the passage of the National Labor Relations Act, there was a renewed but unsuccessful attempt by respondent’s employees to establish an organization affiliated with the Brotherhood of Locomotive Engineers and Firemen. The attempt was met by persuasions and warnings of respondent’s employees, by its officers, not to join the new union, and by threats of discharge if they should join. The Board found that the respondent had engaged in unfair labor practices in violation of § 8 (1), (2), and ordered the cessation of these practices and withdrawal of respondent’s recognition of the Drivers’ Association. While the formal provisions, in constitution and bylaws, for insuring employer control of the company union in the Pennsylvania case are" }, { "docid": "12818838", "title": "", "text": "percent of its supplies and equipment are purchased outside of Kentucky, amounting annually to some $300,000. It is clearly subject to the jurisdiction of the Board. Cf. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. N. L. R. B., 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014. The Association was established under the direction of Respondent’s president, in September, 1918. It was originally governed by a joint council of seven, three of whom were appointed by the management, while the remaining four were selected by the employees at elections held on the company time and property. Employees generally understood that membership in the Association was compulsory, and practically every employee joined. Respondent’s president and general superintendent, as well as other executive and supervisory officials, were members, regularly attended meetings and participated in the discussions. Terms and conditions of employment were established annually by contract between respondent and the employee members of the joint council. Proposed contracts were not discussed at Association meetings, approval of the employees being inferred from' the fact of membership alone. Membership dues were deducted by respondent from employees’ earnings and paid to the Association, respondent contributing an equal amount and receiving therefor certificates of membership entitling it to a voting power on amendments to the articles of association equal to that of all employees combined. A three-fourths vote was required to amend the articles. This was the situation until the latter part of 1933, when the Association’s articles were amended to provide that the council should consist of four members only, elected by employees. Management membership continued, however, until February of 1937. The provision for direct financial support was eliminated from the articles in 1934, but respondent actually contributed until September, 1935. Through its attorneys, it also participated in such changes in the articles as were made. The practice of holding elections on company time and property has not been" }, { "docid": "22763434", "title": "", "text": "to take affirmative action which would carry out the policy of the Act. In recommending the adoption of this latter provision the Senate Committee called attention to the decree which, in the Railway Clerks case, had compelled the employer to “disestablish its company union as representative of its employees.” Report of the Senate Committee on Education and Labor, supra. The report of the House Committee on Labor on this feature of the Act, after pointing out that collective bargaining is “a sham when the employer sits on both sides of the table by supporting a particular organization with which he deals,” declared: “The orders will of course be adapted to the need of the individual case; they may include such matters as refraining from collective bargaining with a minority group, recognition of the agency chosen by the majority for the purposes of collective bargaining, posting of appropriate bulletins, refraining from bargaining with an organization corrupted by unfair labor practices.” Report of the House Committee on Labor, supra, pp. 18, 24. It is plain that the challenged provisions of the present order are of a kind contemplated by Congress in the enactment of § 10 (c) and are within its terms. There remains the question whether the findings adequately support them. The Board’s subsidiary findings of fact fully sustain its conclusion that respondents had engaged in unfair labor practices, by active participation in the organization and administration of the Employees Association, which they dominated throughout its history, and to whose financial support they had contributed; and that they had interfered with, restrained and coerced their employees in the exercise of the rights confirmed by § 7 to form for themselves a labor organization and to bargain collectively through representatives of their own choosing. It is unnecessary to repeat in full detail the facts disclosed by the findings.- They show that before the enactment of the National Labor Relations Act, respondents, whose employees were unorganized, initiated a project for their organization under company domination. In the course of its execution officers or other representatives of respondent were active in promoting the plan," }, { "docid": "23711443", "title": "", "text": "29 U.S.C.A. § 158: “Unfair labor practices by employer defined “It shall be an unfair labor practice for an employer— “(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title. “(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” . “Order — Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relation Board hereby orders that the Brown Paper Mill Company, Inc., Monroe, Louisiana, and its officers, agents, successors, and assigns, shall: “1. Cease and desist from: “(a) In any manner dominating or interfering with the administration of Brown Paper Mill Employees Association, or with the formation or administration of any other labor organization of its employees, and from contributing support thereto; “(b) In any manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the Act. “2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: “(a) Withdraw all recognition from Brown Paper Mill Employees Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish Brown Paper Mill Employees Association as such representative; “(b) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days, stating (1) that the respondent will cease and desist as aforesaid, and (2) that the respondent will withdraw all recognition from Brown Paper Mill Employees Association as the representative of any of its employees for the purpose of dealing with" }, { "docid": "18142273", "title": "", "text": "Mr. Justice Reed delivered the opinion of the Court. On this certiorari the question is whether the order of the Board herein is supported by substantial evidence. Upon charges filed by the International Brotherhood of Electrical Workers, A. F. of L., the Board issued a complaint on February 17, 1941, against respondent Southern Bell Telephone and Telegraph Company, charging inter alia that respondent company was dominating and supporting respondent Southern Association of Bell Telephone Employees, hereafter referred to as the Association, as a labor organization of its employees in violation of § 8 (2) of the act, and that in other ways respondent company had interfered with the rights of its employees in the exercise of rights guaranteed them by § 7 in violation of § 8 (1) of the act. After hearing, the Board made find ings and conclusions in support of the stated charges and ordered that respondent cease and desist from dominating or interfering with the Association, from contributing financial and other support, recognizing it as the collective bargaining agency of its employees and giving effect to or entering into any collective bargaining contract with the Association and further that it cease and desist from interfering with its employees in the exercise of their rights, including the right to organize and bargain collectively, as guaranteed by § 7 of the act. Affirmative action ordered was that respondent withdraw all recognition from the Association and post appropriate notices to its employees. Separate petitions were filed in the court below by respondent and the Association to review this order and the Board answered, requesting enforcement. The court below held that the Board’s findings were without support in the evidence and that the Board’s order requiring the respondent to withdraw recognition from and to disestablish the Association as the collective bargaining agency of its employees was an abuse of discretion and contrary to the policy of the act. It accordingly vacated the order of the Board and denied the Board’s petition for enforcement. We turn immediately to the facts of the ease and the Board’s findings. Respondent does a general" }, { "docid": "19037157", "title": "", "text": "sociation as the unit’s bargaining representative. On the afternoon of the 24th, Association representatives met with representatives of respondent and a bargaining agreement was consummated. The next day a meeting of the Association was held at which the membership ratified the new contract, which was then executed. On July 25 respondent notified the Guild, by letter, that the latter was no longer recognized as bargaining agent for the circulation department unit. Thereupon the Guild filed the charges from which these proceedings emanated. The trial examiner found as a fact that the Association, from and after July 24, 1951, represented a majority of the affected employees and that respondent had been guilty of no unfair labor practice and recommended that the complaint be dismissed. The Board, though expressly adopting the trial examiner’s findings, held that respondent’s action in recognizing the Association constituted assistance to that organization in a conflict with a rival union in violation of Section 8(a) (2) of the Act and interference with the employees’ right to choose their own bargaining agent in violation of Section 8(a) (1) and that respondent had not maintained that degree of neutrality required of an employer faced with conflicting claims of rival unions. In accord with this conclusion, respondent was ordered to cease and desist from recognizing the Association as bargaining agent for the circulation unit and from giving effect to any contractual relations with that organization until an election could be held and a bargaining agent certified by the Board. It is this order which the Board now seeks to enforce. The facts are undisputed. The only issue with which we are concerned is whether as a matter of law they substantially support the Board’s conclusion that respondent’s actions constituted an unfair labor practice. Respondent insists that it was required by law to recognize the Association and that the petitions signed by more than 60% of the affected employees resolved all doubt that the Association enjoyed majority support. On the other hand, the Board contends that the petitions merely posed rather than disposed of the question as to which of the unions" }, { "docid": "12818839", "title": "", "text": "were established annually by contract between respondent and the employee members of the joint council. Proposed contracts were not discussed at Association meetings, approval of the employees being inferred from' the fact of membership alone. Membership dues were deducted by respondent from employees’ earnings and paid to the Association, respondent contributing an equal amount and receiving therefor certificates of membership entitling it to a voting power on amendments to the articles of association equal to that of all employees combined. A three-fourths vote was required to amend the articles. This was the situation until the latter part of 1933, when the Association’s articles were amended to provide that the council should consist of four members only, elected by employees. Management membership continued, however, until February of 1937. The provision for direct financial support was eliminated from the articles in 1934, but respondent actually contributed until September, 1935. Through its attorneys, it also participated in such changes in the articles as were made. The practice of holding elections on company time and property has not been discontinued. Membership in the Association is still con sidered a condition of employment, virtually every employee belonging, and respondent continues to deduct Association dues from wages. Terms of proposed contracts are not discussed at meetings, and members of the Association generally are still unaware that any substantial change has been made in the Association since its inception. The Association’s assets consist largely of buildings used for Association purposes, acquired through transactions with respondents. It would unduly lengthen this opinion to discuss the evidence in detail, but there was substantial evidence that in April of 1937, when the Union began a drive to organize respondent’s mines, respondent engaged in an active campaign to coerce employees to support the Association and abstain from joining the Union. Employees were followed by guards, their homes were entered under flimsy pretexts while Union representatives were visiting them, and those suspected of Union sympathy were told that the company stood by those who stood by it. There was substantial evidence that respondent violated § 8(1) and (2) as found by the" }, { "docid": "14715134", "title": "", "text": "The Board’s finding of domination and interference was based upon activities of four foremen of minor supervisory capacity, viz., Terry, Maiden, Holmes and Brown, in advocating the association or soliciting members for it; upon the fact that another foreman, Taylor, was found to have spied upon a union meeting; upon the fact that an assistant superintendent of one of the departments handed to a member of the association’s organizing committee an envelope containing a copy of the constitution and by laws of an association in another of respondent’s plants; upon the fact that respondent made no attempt to curb solicitation for membership in the association on company property during working hours and permitted an election of association officers to be held on the premises; upon the fact that the records of the association were kept in respondent’s vault; and upon the finding that the association had failed to secure any real or lasting benefits for the employees. These matters must be considered in the light of attendant circumstances as disclosed by the record; and, when so considered, they fall far short of showing domination or interference with the association on the part of respondent. The most serious of the facts to which the Board points is the activities of the foremen. We agree that the mere fact that respondent may have forbidden its supervisory employees to take part in the organizational activities of its employees is not sufficient to purge the association of employer domination, if such domination in fact existed; and we think, also, such domination may be inferred from activities of minor supervisory employees, such as foremen, if their activities were sufficiently wide spread or were of such a character as to form a reasonable basis for the conclusion that they proceeded from the anti-union policy of the employer and interfered with the right of self organization on the part of the employees. Consumers Power Co. v. N. L. R. B., 6 Cir., 113 F.2d 38, 44. Sporadic activities on the part of foremen, however, not authorized by the employer and not resulting in interference with or domination" }, { "docid": "4510056", "title": "", "text": "accordance with the Board’s decision, Cmeyla alone had anything to do with the affairs of the Association. On the other hand, the record discloses that 9 persons classified as foremen were members of the Union. The fact that 9 foremen participated in the affairs of the Union, and one in those of the Association, completely refutes any suggestion that the latter was acting in behalf of respondent, and any thought that the employees could have been impressed with respondent’s interest in the Association. Furthermore, if the activities and affiliations of respondent’s foremen produced any effect on the employees, which we doubt, it must have been that respondent was favorable to the Union rather than the Association. The fact that a majority of respondent’s foremen were members (one the Recording Secretary) of the Union, also refutes the Board’s theory of hostility toward the Union and that respondent commenced “a systematic campaign of unfair labor practices directed at the Union.” The Board’s conclusion, therefore, that respondent was guilty of an unfair labor practice in the formation of the Association, is without substantial support. The record is persuasive and we think conclusive to the contrary. Early in August, 1939, the Association requested a conference with respondent to discuss recognition. A conference was had on August 7 at which was produced 116 signed application cards. Respondent checked these with its payroll, accepted them as sufficient proof of a majority to warrant recognition and gave the Association a written statement acknowledging it as sole bargaining agent. On August 21 a notice was posted in the plant, signed by Perry, officially recognizing the Association as the exclusive representative of the employees. On September 8 an agreement was made between respondent and the Association which required membership in the Association as a condition for all old employees hired after January 1, 1939, and for all new employees. This “partial closed-shop” provision is another circumstance relied upon by the Board to show discrimination in favor of the Association. We think this circumstance is without significance, especially in view of the fact that respondent, in its bargaining with the" }, { "docid": "17126912", "title": "", "text": "There is clearly sufficient proof here to warrant the Board’s finding that the demotion was motivated by Ivers’ Union activity. We uphold, therefore, the Board’s finding that respondent intérfered with and restrained the employees in the exercise of their collective bargaining rights and that it discouraged membership in the Borax and Potash Workers’ Union by discrimination in regard to hire or tenure of employment, in flagrant disregard and violation of section 8 (Í) and (3) of the Act, 29 U.S.C.A. § 158(1, 3). . 2. The finding of domination and support of the Allied Chemical Workers’ Association. Both the respondent and the intervening Allied Chemical Workers’ Association vigorously contest in this court the Board’s finding of company domination of the Association and the order of disestablishment based thereon. The finding is supported by the evidence. It is conceded that the Association was originated by respondent’s general manager in 1934. Petitions were circulated among the employees by the respondent and about 200 employees signed up. The constitution permitted membership of <any employee except staff employees. Supervisory non-staff men were elected to the governing positions. Every member was required to take an oath to refrain from affiliation with any organization which might interfere with the Association activities. Membership applications were obtainable from the timekeeper. Plant facilities were freely accorded the Association for all its functions. It is with this background that we must evaluate the contention that, regardless of the conceded original domination by the company, at all times since the enactment of the National Labor Relations Act, the Allied Chemical Workers’ Association has been a bona fide labor organization free from domination, interference, or support by the respondent. That the Association did make some attempts to free itself, there is no doubt. Thus early in 1936, the constitution was amended to permit affiliation with other labor organizations by majority vote instead of two-thirds as before. A second amendment excluded employees receiving over $200 per month from participation in Association voting. The finding that the Allied Chemical Workers’ Association did not succeed in freeing itself from employer domination is supported by the" } ]

[ { "docid": "22651216", "title": "", "text": "Chicago in an automobile bearing a license plate issued to him. At 5:15 a. m. on March 7, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were awaiting them, searched the trunk of the Mercury, and uncovered approximately 350 pounds of marihuana. A search of the Gateses’ home revealed marihuana, weapons, and other contraband. The Illinois Circuit Court ordered suppression of all these items, on the ground that the affidavit submitted to the Circuit Judge failed to support the necessary determination of probable cause to believe that the Gateses’ automobile and home contained the contraband in question. This decision was affirmed in turn by the Illinois Appellate Court, 82 Ill. App. 3d 749, 403 N. E. 2d 77 (1980), and by a divided vote of the Supreme Court of Illinois. 85 Ill. 2d 376, 423 N. E. 2d 887 (1981). The Illinois Supreme Court concluded — and we are inclined to agree — that, standing alone, the anonymous letter sent to the Bloomingdale Police Department would not provide the basis for a magistrate’s determination that there was probable cause to believe contraband would be found in the Gateses’ car and home. The letter provides virtually nothing from which one might conclude that its author is either honest or his information reliable; likewise, the letter gives absolutely no indication of the basis for the writer’s predictions regarding the Gateses’ criminal activities. Something more was required, then, before a magistrate could conclude that there was probable cause to believe that contraband would be found in the Gateses’ home and car. See Aguilar v. Texas, 378 U. S., at 109, n. 1; Nathanson v. United States, 290 U. S. 41 (1933). The Illinois Supreme Court also properly recognized that Detective Mader’s affidavit might be capable of supplement ing the anonymous letter with information sufficient to permit a determination of probable cause. See Whiteley v. Warden, 401 U. S. 560, 567 (1971). In" } ]

[ { "docid": "2786410", "title": "", "text": "Lake, Oklahoma), and he explained that his father was in the process of buying the car. The vehicle bore Illinois license plates. A radio check indicated the vehicle was not stolen. However, a registration check showed that the Illinois license plate on Rutherford’s vehicle had been issued to a Ford automobile, whereas Rutherford was driving an AMC Matador. When asked by the police, Rutherford refused to consent to a search of his vehicle and declined to give a local Tulsa address where he would be staying. Rutherford was arrested at the scene for driving a vehicle with improper license plates, a violation of a local municipal ordinance, and he, and his automobile, were taken to the police station. At the station Rutherford was booked, bond was set, which Rutherford posted, and he left the station. At or about the time Rutherford left the station, the police obtained a search warrant and immediately searched Rutherford’s vehicle. The search revealed three pounds of marijuana in a tan bag with a strap, and in a separate container five kilos of hashish wrapped in red cellophane, all in the trunk of the vehicle. After leaving the police station upon posting bond on the traffic charge, Rutherford had gone directly to his attorney’s office, and he was arrested there on the present charges. On appeal, Rutherford urges three grounds for reversal: (1) the lawful investigatory detention of Rutherford ripened into a de facto arrest without probable cause; (2) the search warrant was not based on “probable cause”; and (3) counts two and three charged only one offense, not two, i.e., there was “one possession” of both the marijuana and hashish, not a separate possession of each. I. Appellant concedes that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police did not violate Rutherford’s fourth amendment rights when they stopped Rutherford’s automobile and made preliminary inquiry of Rutherford. We agree. Certainly, at a minimum, the police had “reasonable suspicion” that there was marijuana in the bag which Rutherford carried out of Spatafora’s residence and then placed in the trunk" }, { "docid": "15358898", "title": "", "text": "to validate the search warrant. First, the Court pointed to Mr. Gates’ brief stay in Florida, a known source of illegal drugs. Id. at 243, 103 S.Ct. at 2334. Second, the Court held that the anonymous informant’s accurate prediction of the Gateses’ method of operation sufficiently established the veracity and reliability of the informant. Id. at 244, 103 S.Ct. at 2335. Finally, the Court held that the anonymous informant's disclosure of the Gateses’ future actions established a basis upon which a magistrate “could properly conclude that it was not unlikely that he also had access to reliable information of the Gateses’ alleged illegal activities.” Id. at 245, 103 S.Ct. at 2336. The amount of corroborating evidence presented to the magistrate in Gates in conjunction with the anonymous tip there was greater than that presented in this case because the informant here did not predict any future activity of defendant. Moreover, unlike the anonymous letter at issue in Gates, the substance of the anonymous tip in this case demonstrated no special knowledge of the crime. Finally, the informant in this case, as in Gates, had not previously proven himself reliable. See Gates, 462 U.S. at 242 n. 12, 103 S.Ct. at 2334 n. 12 (discussing the significance of an informant’s proven reliability in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)). An examination of the Tenth Circuit’s application of Gates makes clear that when this court upheld search warrants in the past, it has typically been presented with a greater showing of probable cause than that which satisfied the district court below. In United States v. Rutherford, 824 F.2d 831 (10th Cir.1987), this court held that there was probable cause for a warrant to search the car of a defendant based upon allegations that he had visited a house that was under surveillance for narcotics sales, emerged with a bag, and then sped away when approached by a police car. Id. at 835. In Rutherford, the basis of the surveillance of the house was an anonymous tip by an informant who claimed his daughter had" }, { "docid": "16625775", "title": "", "text": "shotgun and handed it to Forrester, who shot Ged-dling twice. After feeling Geddling’s wrist, Beardslee returned to the car, reloaded the gun, and shot Geddling twice. Beardslee initially admitted shooting Ged-dling to put her out of her misery. He later claimed he thought she was already dead and had merely pretended to shoot her in order to demonstrate his involvement and impress Rutherford. Forensic evidence strongly suggested that Beard-slee’s shots had been to Geddling’s head and had actually killed her. Beardslee and Soria dropped Forrester off and went to Rutherford’s place, where Benjamin was still being held. They told Benjamin that Geddling had been taken to a hospital. Shortly thereafter, Beardslee drove the four of them north to Marin County. They stopped on a deserted road. Beardslee and Soria wandered a short distance off after Rutherford had coaxed Benjamin from the car. Beardslee returned to find Rutherford strangling Benjamin with a wire. He thought he noticed a “pleading look” on her face and unsuccessfully tried to knock her out with a punch. He briefly took one end of the wire from Rutherford. After helping Rutherford drag Benjamin’s body though the brush, Beardslee asked for Rutherford’s knife, which he used to slit Benjamin’s throat. Beardslee initially claimed he wanted to end her suffering. He later claimed he thought she was already dead when he cut her throat and was only acting out of fear of Rutherford. Forensic evidence strongly suggested that Benjamin died from the knife wound. Geddling’s body was discovered the next day, and police found Beardslee’s phone number in Geddling’s pocket. Beardslee initially denied any connection to Geddling. However, the next day he provided a detailed account and led the police to all the relevant evidence, including Benjamin’s body. B Beardslee made a formal statement to police on April 26, 1981, and he was charged with both homicides on May 3. He had already told police he was on parole from a prior homicide in Missouri, and he was also charged with the special circumstance of a previous murder conviction. Douglas Gray, Beardslee’s appointed counsel, felt Beardslee’s prior homicide" }, { "docid": "2786408", "title": "", "text": "automobile. After an extended evidentiary hearing, at which six police officers and both Rutherford and Spatafora testified, the district court made detailed findings and denied Rutherford’s motions. In the ensuing trial to the court, the case, by agreement of counsel, was submitted to the district court on the basis of the findings made at the hearing on the pretrial motions. As indicated, the district court found Rutherford guilty on all three counts. A brief review of these stipulated facts will place the controversy in focus. On November 7,1985, at about 8:00 a.m., an anonymous informant called the Tulsa, Oklahoma, police department and informed the police that his daughter had been at a party on the preceding evening at Spata-fora’s residence in Tulsa at which time she had seen a quantity of marijuana in suitcases. Prior to this anonymous telephone call, the Tulsa police department had already developed information that Spatafora was trafficking in drugs out of his residence. As a result of this anonymous tip, Tulsa police, at about 10:00 a.m. on November 7, 1985, set up a surveillance of Spatafora’s residence. At about 11:40 a.m. on that same morning Rutherford was observed by the officers when he stopped his car at the Spatafora residence. Rutherford was observed entering the Spatafora residence empty-handed and then seen leaving the residence about ten minutes later carrying a tan bag by its strap, which he placed in the trunk of his car. The officers followed Rutherford as he left the scene in his automobile. At one point, Rutherford pulled his car to the side of the street and an officer pulled in behind Rutherford. The latter, however, sped off as the officer was getting out of his car. After a chase, Rutherford was thereafter stopped by other officers at a ramp leading on to Interstate 44. At the scene where Rutherford had been stopped, he was questioned briefly by the officers. Rutherford produced a valid Colorado driver’s license which bore a Colorado home address. Rutherford stated that the vehicle he was driving belonged to his father, who lived in Grand Lake (presumably, Grand" }, { "docid": "2786412", "title": "", "text": "of his vehicle. However, appellant does argue that what happened thereafter ripened into a de facto arrest which was not based on probable cause. We do not agree. As indicated, at the scene of the stopping, Rutherford exhibited a valid Colorado driver’s license. Concerning ownership of the vehicle, Rutherford stated that the vehicle belonged to his father, who, according to Rutherford, was in the “process” of buying the vehicle from an Illinois rental car company. There apparently was some discussion indicating' that there was a car rental agreement and temporary registration paper in the glove compartment of the automobile. In any event, the police made a computer check and determined that the car was not a stolen car. However, a registration check showed that the Illinois license plate on Rutherford’s AMC Matador had been issued to a Ford automobile. Because of a computer problem, the check took longer than usual, requiring some 25 to 30 minutes. Altogether, the detention at the scene where Rutherford had been stopped lasted about one hour, at which time Rutherford was arrested for having an improper license tag on his vehicle, and Rutherford and his vehicle were taken to the police station. In United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), the Supreme Court declined to set any rigid time limitation on Terry-type stops, concluding instead that it must consider the law enforcement purposes to be served by the stop and the time reasonably needed to effectuate those purposes. In our case, there was not a prolonged “stop” before an arrest was made for a violation of a municipal ordinance. Certainly, in our view, the computer problem causing a delay of 25 minutes does not transform this admittedly legal initial detention into an unlawful defacto arrest occurring at some point prior to Rutherford’s actual arrest for violation of a municipal ordinance. We do not believe that either United States v. Gonzalez, 763 F.2d 1127 (10th Cir.1985) or United States v. Recalde, 761 F.2d 1448 (10th Cir.1985) dictate a contrary holding. In our case, Rutherford, after a relatively short detention," }, { "docid": "19364981", "title": "", "text": "OPINION OF THE COURT SCIRICA, Circuit Judge. The Commonwealth of Pennsylvania appeals the district court’s grant of a writ of habeas corpus. The question presented is whether the introduction of “other crimes” testimony deprived petitioner John Lesko of his Fourteenth Amendment right to a fair trial. We will reverse the judgment of the district court and remand for determination of other claims raised by petitioner. I. In the early hours of January 3, 1980, John Lesko, Michael Travaglia and Richard Rutherford were cruising the outskirts of the city of Pittsburgh in a stolen sports car. The trio drove past police officer Leonard Miller, sitting in his patrol car parked at the side of the road outside the Stop-and-Go convenience store. Travaglia, the driver of the car, stated that he “wanted to have some fun with this cop.” Tra-vaglia raced past the officer’s car beeping his horn, but no pursuit followed. Travag-lia turned the car around, again sped past the patrol car, and again failed to elicit a response. The third time Travaglia sped past, Officer Miller turned on his lights and gave chase. Lesko turned to Rutherford in the back seat and cautioned him to “lay down in the back, because it might turn into a shooting gallery.” A moment later, Officer Miller managed to force the sports car off the side of the road. The officer approached the car on foot. Travaglia rolled down his window, extended his .38 caliber hand gun, and shot Officer Miller twice from close range. Officer Miller returned fire, shattering the passenger side of the window. The three companions sped away. The gunshot wounds Officer Miller received proved fatal. The trio had begun their escapade together a few hours earlier, in the late evening of January 2, 1980, at a hot dog shop in Pittsburgh. At Travaglia’s instruction, Lesko and Rutherford went to the alleyway behind the Edison Hotel, and waited. About ten minutes later a sports car appeared. Travaglia sat in the front seat beside the driver and owner of the car, William Nicholls, a stranger. While Lesko and Rutherford were climbing into" }, { "docid": "15358899", "title": "", "text": "the informant in this case, as in Gates, had not previously proven himself reliable. See Gates, 462 U.S. at 242 n. 12, 103 S.Ct. at 2334 n. 12 (discussing the significance of an informant’s proven reliability in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)). An examination of the Tenth Circuit’s application of Gates makes clear that when this court upheld search warrants in the past, it has typically been presented with a greater showing of probable cause than that which satisfied the district court below. In United States v. Rutherford, 824 F.2d 831 (10th Cir.1987), this court held that there was probable cause for a warrant to search the car of a defendant based upon allegations that he had visited a house that was under surveillance for narcotics sales, emerged with a bag, and then sped away when approached by a police car. Id. at 835. In Rutherford, the basis of the surveillance of the house was an anonymous tip by an informant who claimed his daughter had visited the house and viewed large quantities of illegal drugs. Id. This court held that the anonymous tip (which demonstrated sufficient factual knowledge of the contents of the house), combined with the defendant’s actions after leaving the house, added up to probable cause validating the warrant to search the defendant’s automobile for drugs. Id. Similarly, in United States v. Martinez, 764 F.2d 744 (10th Cir.1985), this court affirmed the validity of a search warrant where an anonymous phone caller demonstrated great familiarity with the defendant’s drug smuggling activity. In Martinez, the informant predicted precisely when Martinez would be arriving in Oklahoma City with a kilo of cocaine concealed in a brown or blue suitcase on a flight from Miami, Florida, having begun his travel in Venezuela. Id. at 745. The informant thus knew the details of defendant’s travel plans from Venezuela to Oklahoma City through Miami, as well as his age, physical description, residence, automobile make and luggage type. Id. at 746. These “innocent facts” and the predicted travel were corroborated by the agents’ investigation" }, { "docid": "2786407", "title": "", "text": "McWILLIAMS, Circuit Judge. James Richard Rutherford, the appellant, and one Nicholas L. Spatafora, who is not an appellant, were jointly charged in the first count of a three-count indictment with conspiring to commit offenses against the United States in violation of 21 U.S.C. § 846. In count two, Rutherford and Spa-tafora were jointly charged with the possession on November 7, 1985, of three pounds of marijuana with an intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In count three, Rutherford, but not Spatafora, was charged with the possession on November 7,1985, of five kilos of hashish, a derivative of marijuana, in violation of 21 U.S.C. § 841(a)(1). Spata-fora later pled guilty to count one and was sentenced thereon, and he makes no appeal therefrom. Rutherford in a trial to the court was convicted on all three counts, and he now appeals the sentence imposed thereon. Prior to trial, Rutherford filed a motion to quash his arrest and a motion to suppress evidence seized in a search of his automobile. After an extended evidentiary hearing, at which six police officers and both Rutherford and Spatafora testified, the district court made detailed findings and denied Rutherford’s motions. In the ensuing trial to the court, the case, by agreement of counsel, was submitted to the district court on the basis of the findings made at the hearing on the pretrial motions. As indicated, the district court found Rutherford guilty on all three counts. A brief review of these stipulated facts will place the controversy in focus. On November 7,1985, at about 8:00 a.m., an anonymous informant called the Tulsa, Oklahoma, police department and informed the police that his daughter had been at a party on the preceding evening at Spata-fora’s residence in Tulsa at which time she had seen a quantity of marijuana in suitcases. Prior to this anonymous telephone call, the Tulsa police department had already developed information that Spatafora was trafficking in drugs out of his residence. As a result of this anonymous tip, Tulsa police, at about 10:00 a.m. on November 7, 1985," }, { "docid": "19364984", "title": "", "text": "entered the house. Travaglia returned with a .38 caliber handgun, which he handed to Les-ko. Upon inspection, Lesko discovered that it contained only bird shot. Travaglia, who had begun driving away, turned the car around and returned to his father’s house. Travaglia instructed Rutherford to retrieve the box of bullets lying in the trunk of the car parked inside the garage. Lesko stood guard outside. Armed with the gun that had wounded Nicholls, Lesko warned Rutherford that if anything went wrong, Rutherford “had six shots to get out.” Rutherford returned with the box of bullets, and the trio drove off. It was these bullets that killed Officer Miller. After the Miller shooting, Lesko and Tra-vaglia returned to Pittsburgh. At the hot dog shop they met a friend, Keith Montgomery, whom they took to a room in the Edison Hotel and told about the Miller shooting. Travaglia told Montgomery, “I shot a cop.” Lesko added, “I wanted to.” Travaglia then gave Montgomery the .38 caliber gun used to shoot Officer Miller. When the Pittsburgh police found Montgomery with that same gun later that evening, Montgomery told the police how he had gotten the gun, and that it had been used to shoot a policeman. Lesko and Tra-vaglia were arrested that night. Before surrendering, Lesko pointed a gun at the police. After receiving Miranda warnings, Les-ko and Travaglia each gave statements admitting involvement in the killing of Officer Miller. Lesko told the police that he and Travaglia had instigated the car chase with Officer Miller, “So he’d be chasing us ... and the car was fast and that — we’d lose him and could go and knock off the Stop-N-Go.” In contrast, Travaglia told the police that he was “playing around with [Officer Miller], trying to aggravate him, and I figured he couldn’t chase me across county lines; and since he did, I figured if I pointed the gun at him and told him to throw his gun away, he couldn’t stop me and I could keep on going. In the process of pulling the gun on him, the hammer slipped and" }, { "docid": "19364983", "title": "", "text": "the back seat, Travaglia pulled out a .22 caliber hand gun and shot Nicholls in the arm. After Travaglia took the driver’s seat, Lesko told Rutherford to handcuff Nicholls behind the back. As Travaglia drove, Les-ko repeatedly punched Nicholls in the face and chest, calling him a queer. Lesko asked Nicholls if he wanted to perform oral sex on him, and taunted him with a knife. Meanwhile, Lesko took Nicholls’s belongings, a wallet and an extra set of keys, and told Rutherford to place them in the glove compartment. After Nicholls lost consciousness, Rutherford and Lesko gagged him with a scarf. Travaglia stopped the car near a lake in a wooded area. Lesko propped Nicholls against a nearby tree, his hands cuffed, his mouth gagged, and his feet bound with a belt. Travaglia and Les-ko dragged Nicholls down to the lake and rolled him into the water, where he disappeared. The three men drove to Travaglia’s father’s house, where Travaglia knew his father kept a gun. Lesko and Rutherford waited in the car while Travaglia entered the house. Travaglia returned with a .38 caliber handgun, which he handed to Les-ko. Upon inspection, Lesko discovered that it contained only bird shot. Travaglia, who had begun driving away, turned the car around and returned to his father’s house. Travaglia instructed Rutherford to retrieve the box of bullets lying in the trunk of the car parked inside the garage. Lesko stood guard outside. Armed with the gun that had wounded Nicholls, Lesko warned Rutherford that if anything went wrong, Rutherford “had six shots to get out.” Rutherford returned with the box of bullets, and the trio drove off. It was these bullets that killed Officer Miller. After the Miller shooting, Lesko and Tra-vaglia returned to Pittsburgh. At the hot dog shop they met a friend, Keith Montgomery, whom they took to a room in the Edison Hotel and told about the Miller shooting. Travaglia told Montgomery, “I shot a cop.” Lesko added, “I wanted to.” Travaglia then gave Montgomery the .38 caliber gun used to shoot Officer Miller. When the Pittsburgh police found" }, { "docid": "2786417", "title": "", "text": "the state court that there was probable cause to believe that Rutherford was in possession of marijuana. Such determination by an issuing magistrate or judge should be given some deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) and United States v. Martinez, 764 F.2d 744, 746 (10th Cir.1985). A reviewing court need only ensure that the issuing authority had a substantial basis for concluding that probable cause existed. Certainly in the instant case the totality of the facts and circumstances set forth in the affidavit indicated a fair probability that contraband was located in the trunk of Rutherford’s vehicle. See Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. III. Rutherford’s final ground for reversal concerns counts 2 and 3 of the indictment. Counsel claims that instead of setting forth two alleged offenses, in reality, only one offense is alleged. In thus arguing, counsel states that hashish is only a higher grade of marijuana, and that inasmuch as the three pounds of marijuana and the five kilos of hashish were both found in the trunk in the same search, there was only one offense. We disagree with this analysis. The evidence clearly shows that the three pounds of marijuana found in the suitcase, or bag, came from Spatafora’s residence. And the same evidence definitely indicates that the five kilos of hashish did not come from Spatafora’s residence on the morning of November 7, 1985, i.e., it was already in the trunk of Rutherford’s vehicle. Hence, Rutherford’s possession of the marijuana was separate and apart from his prior acquisition, but continued possession, of the five kilos of hashish. Each transaction forms the basis for a separate prosecution. Accordingly, we need not get involved in a discussion over the chemistry of marijuana vis-a-vis hashish. Judgment affirmed. . Both Gonzales and Recalde were concerned with whether the defendant had given a valid consent to search his car, and in neither case was the defendant arrested at the scene of the stopping for a traffic violation. . Defendant contends that the registration papers in" }, { "docid": "2786409", "title": "", "text": "set up a surveillance of Spatafora’s residence. At about 11:40 a.m. on that same morning Rutherford was observed by the officers when he stopped his car at the Spatafora residence. Rutherford was observed entering the Spatafora residence empty-handed and then seen leaving the residence about ten minutes later carrying a tan bag by its strap, which he placed in the trunk of his car. The officers followed Rutherford as he left the scene in his automobile. At one point, Rutherford pulled his car to the side of the street and an officer pulled in behind Rutherford. The latter, however, sped off as the officer was getting out of his car. After a chase, Rutherford was thereafter stopped by other officers at a ramp leading on to Interstate 44. At the scene where Rutherford had been stopped, he was questioned briefly by the officers. Rutherford produced a valid Colorado driver’s license which bore a Colorado home address. Rutherford stated that the vehicle he was driving belonged to his father, who lived in Grand Lake (presumably, Grand Lake, Oklahoma), and he explained that his father was in the process of buying the car. The vehicle bore Illinois license plates. A radio check indicated the vehicle was not stolen. However, a registration check showed that the Illinois license plate on Rutherford’s vehicle had been issued to a Ford automobile, whereas Rutherford was driving an AMC Matador. When asked by the police, Rutherford refused to consent to a search of his vehicle and declined to give a local Tulsa address where he would be staying. Rutherford was arrested at the scene for driving a vehicle with improper license plates, a violation of a local municipal ordinance, and he, and his automobile, were taken to the police station. At the station Rutherford was booked, bond was set, which Rutherford posted, and he left the station. At or about the time Rutherford left the station, the police obtained a search warrant and immediately searched Rutherford’s vehicle. The search revealed three pounds of marijuana in a tan bag with a strap, and in a separate container five" }, { "docid": "2786413", "title": "", "text": "was arrested for having an improper license tag on his vehicle, and Rutherford and his vehicle were taken to the police station. In United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), the Supreme Court declined to set any rigid time limitation on Terry-type stops, concluding instead that it must consider the law enforcement purposes to be served by the stop and the time reasonably needed to effectuate those purposes. In our case, there was not a prolonged “stop” before an arrest was made for a violation of a municipal ordinance. Certainly, in our view, the computer problem causing a delay of 25 minutes does not transform this admittedly legal initial detention into an unlawful defacto arrest occurring at some point prior to Rutherford’s actual arrest for violation of a municipal ordinance. We do not believe that either United States v. Gonzalez, 763 F.2d 1127 (10th Cir.1985) or United States v. Recalde, 761 F.2d 1448 (10th Cir.1985) dictate a contrary holding. In our case, Rutherford, after a relatively short detention, was placed under arrest at the scene of the stop for violation of a local ordinance. True, the police did suspect that Rutherford had marijuana in the trunk of his vehicle, but such does not somehow vitiate the fact that Rutherford was under a lawful arrest for improper vehicular tagging. As a part of his argument on this point, Rutherford also contends that under applicable municipal ordinances the police had no right to take Rutherford to the police station, but, under the circumstances, could only issue Rutherford a traffic citation and, presumably, place him back on the open road. That is not our understanding of the matter. The local ordinances provide that where an officer is not by ordinance required to take a person before a local magistrate, he has discretion to either take the person before the magistrate or issue a traffic citation, depending on whether the person furnishes satisfactory identification and whether the officer has reasonable grounds to believe that the person will disregard a written promise to appear in court. Tulsa City" }, { "docid": "2786414", "title": "", "text": "was placed under arrest at the scene of the stop for violation of a local ordinance. True, the police did suspect that Rutherford had marijuana in the trunk of his vehicle, but such does not somehow vitiate the fact that Rutherford was under a lawful arrest for improper vehicular tagging. As a part of his argument on this point, Rutherford also contends that under applicable municipal ordinances the police had no right to take Rutherford to the police station, but, under the circumstances, could only issue Rutherford a traffic citation and, presumably, place him back on the open road. That is not our understanding of the matter. The local ordinances provide that where an officer is not by ordinance required to take a person before a local magistrate, he has discretion to either take the person before the magistrate or issue a traffic citation, depending on whether the person furnishes satisfactory identification and whether the officer has reasonable grounds to believe that the person will disregard a written promise to appear in court. Tulsa City Ordinance, Tit. 37, § 133(A). In the instant case, the arresting officer testified that because Rutherford had an out-of-state driver’s license bearing an out-of-state address and was driving an automobile bearing an out-of-state license that apparently had been is sued for a different vehicle and because Rutherford was unable to give an exact local Tulsa address where he could be reached, it was decided to take Rutherford to the police station and require bond, rather than issue a traffic citation. We think, under the circumstances, the police acted in accord with applicable municipal ordinances and in so doing violated none of Rutherford’s constitutional rights. II. Rutherford’s next argument is that the search warrant was not based on probable cause and that the ensuing search of his automobile was unlawful. We do not agree. The affidavit in support of the application for a search warrant was that of Officer Fultz of the Tulsa police department. Officer Fultz stated therein that for some time prior to November 7, 1985, the Tulsa police department was in receipt of" }, { "docid": "2786411", "title": "", "text": "kilos of hashish wrapped in red cellophane, all in the trunk of the vehicle. After leaving the police station upon posting bond on the traffic charge, Rutherford had gone directly to his attorney’s office, and he was arrested there on the present charges. On appeal, Rutherford urges three grounds for reversal: (1) the lawful investigatory detention of Rutherford ripened into a de facto arrest without probable cause; (2) the search warrant was not based on “probable cause”; and (3) counts two and three charged only one offense, not two, i.e., there was “one possession” of both the marijuana and hashish, not a separate possession of each. I. Appellant concedes that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police did not violate Rutherford’s fourth amendment rights when they stopped Rutherford’s automobile and made preliminary inquiry of Rutherford. We agree. Certainly, at a minimum, the police had “reasonable suspicion” that there was marijuana in the bag which Rutherford carried out of Spatafora’s residence and then placed in the trunk of his vehicle. However, appellant does argue that what happened thereafter ripened into a de facto arrest which was not based on probable cause. We do not agree. As indicated, at the scene of the stopping, Rutherford exhibited a valid Colorado driver’s license. Concerning ownership of the vehicle, Rutherford stated that the vehicle belonged to his father, who, according to Rutherford, was in the “process” of buying the vehicle from an Illinois rental car company. There apparently was some discussion indicating' that there was a car rental agreement and temporary registration paper in the glove compartment of the automobile. In any event, the police made a computer check and determined that the car was not a stolen car. However, a registration check showed that the Illinois license plate on Rutherford’s AMC Matador had been issued to a Ford automobile. Because of a computer problem, the check took longer than usual, requiring some 25 to 30 minutes. Altogether, the detention at the scene where Rutherford had been stopped lasted about one hour, at which time Rutherford" }, { "docid": "19364982", "title": "", "text": "Miller turned on his lights and gave chase. Lesko turned to Rutherford in the back seat and cautioned him to “lay down in the back, because it might turn into a shooting gallery.” A moment later, Officer Miller managed to force the sports car off the side of the road. The officer approached the car on foot. Travaglia rolled down his window, extended his .38 caliber hand gun, and shot Officer Miller twice from close range. Officer Miller returned fire, shattering the passenger side of the window. The three companions sped away. The gunshot wounds Officer Miller received proved fatal. The trio had begun their escapade together a few hours earlier, in the late evening of January 2, 1980, at a hot dog shop in Pittsburgh. At Travaglia’s instruction, Lesko and Rutherford went to the alleyway behind the Edison Hotel, and waited. About ten minutes later a sports car appeared. Travaglia sat in the front seat beside the driver and owner of the car, William Nicholls, a stranger. While Lesko and Rutherford were climbing into the back seat, Travaglia pulled out a .22 caliber hand gun and shot Nicholls in the arm. After Travaglia took the driver’s seat, Lesko told Rutherford to handcuff Nicholls behind the back. As Travaglia drove, Les-ko repeatedly punched Nicholls in the face and chest, calling him a queer. Lesko asked Nicholls if he wanted to perform oral sex on him, and taunted him with a knife. Meanwhile, Lesko took Nicholls’s belongings, a wallet and an extra set of keys, and told Rutherford to place them in the glove compartment. After Nicholls lost consciousness, Rutherford and Lesko gagged him with a scarf. Travaglia stopped the car near a lake in a wooded area. Lesko propped Nicholls against a nearby tree, his hands cuffed, his mouth gagged, and his feet bound with a belt. Travaglia and Les-ko dragged Nicholls down to the lake and rolled him into the water, where he disappeared. The three men drove to Travaglia’s father’s house, where Travaglia knew his father kept a gun. Lesko and Rutherford waited in the car while Travaglia" }, { "docid": "23383340", "title": "", "text": "the motion. The court held that affiant Rande Matte-son, a special D.E.A. agent, had sufficiently observed and verified the acts performed by the confidential informant to establish reliability, and had alleged sufficient facts in the affidavit to establish a fair probability that contraband or evidence of a crime would be found in Peveto’s apartment, in accordance with Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). I R. 29. In Gates, the Supreme Court held that a magistrate should consider the totality of the circumstances when determining whether probable cause exists to issue a search warrant: The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. 462 U.S. at 238, 103 S.Ct. at 2332. We have noted that a magistrate’s determination of probable cause should be paid “great deference.” United States v. Orr, 864 F.2d 1505, 1508 (10th Cir.1988). Our duty is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. United States v. Martinez, 764 F.2d 744, 746 (10th Cir.1985) (quoting Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332). Here, the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. As the trial court found, agent Matteson testified in his affidavit: (1) that Peveto was a disbarred lawyer without an identifiable occupation; (2) that Peveto was an associate of Hines, the primary suspect in the D.E. A.’s investigation; (3) that Hines and Peve-to lived in the same apartment complex in Sherman, Texas before they both moved to the Irving, Texas complex; (4) that Peveto had driven a van owned by Hines’ son; (5) that informant Glasgow was told by Hines that “the lawyer” could conceal the ownership of dope houses and that Glasgow believed Hines was referring to Peveto; (6)" }, { "docid": "2786415", "title": "", "text": "Ordinance, Tit. 37, § 133(A). In the instant case, the arresting officer testified that because Rutherford had an out-of-state driver’s license bearing an out-of-state address and was driving an automobile bearing an out-of-state license that apparently had been is sued for a different vehicle and because Rutherford was unable to give an exact local Tulsa address where he could be reached, it was decided to take Rutherford to the police station and require bond, rather than issue a traffic citation. We think, under the circumstances, the police acted in accord with applicable municipal ordinances and in so doing violated none of Rutherford’s constitutional rights. II. Rutherford’s next argument is that the search warrant was not based on probable cause and that the ensuing search of his automobile was unlawful. We do not agree. The affidavit in support of the application for a search warrant was that of Officer Fultz of the Tulsa police department. Officer Fultz stated therein that for some time prior to November 7, 1985, the Tulsa police department was in receipt of information indicating that Spatafora kept quantities of marijuana in his residence. Then, on November 7, 1985, according to Officer Fultz, an anonymous caller reported that his daughter had been in Spatafora’s residence on the preceding evening and had seen three suitcases of marijuana, one suitcase filled with cocaine and several automatic weapons. As indicated, on the same morning the anonymous tip was received, the police set up a surveillance of Spata-fora’s residence. At around eleven o’clock that morning, Rutherford appeared at Spa-tafora’s residence and entered the premises empty-handed and reappeared ten minutes later carrying a bag which he placed in the trunk. Further, according to the affidavit, when Rutherford drove away from Spata-fora’s residence the police followed. A short distance away, Rutherford pulled over to the side of the roadway, and when a police car drove up behind the Rutherford vehicle and stopped, Rutherford sped away as the officer was getting out of his car. After a short chase, Rutherford was stopped moments later by the police. We think the affidavit supported the determination by" }, { "docid": "2786418", "title": "", "text": "five kilos of hashish were both found in the trunk in the same search, there was only one offense. We disagree with this analysis. The evidence clearly shows that the three pounds of marijuana found in the suitcase, or bag, came from Spatafora’s residence. And the same evidence definitely indicates that the five kilos of hashish did not come from Spatafora’s residence on the morning of November 7, 1985, i.e., it was already in the trunk of Rutherford’s vehicle. Hence, Rutherford’s possession of the marijuana was separate and apart from his prior acquisition, but continued possession, of the five kilos of hashish. Each transaction forms the basis for a separate prosecution. Accordingly, we need not get involved in a discussion over the chemistry of marijuana vis-a-vis hashish. Judgment affirmed. . Both Gonzales and Recalde were concerned with whether the defendant had given a valid consent to search his car, and in neither case was the defendant arrested at the scene of the stopping for a traffic violation. . Defendant contends that the registration papers in the glove compartment showed there was a valid Illinois temporary registration which indicated application had been made in Illinois to transfer the license tag to the AMC Matador. Whether any of the officers knew of, or saw these papers, is disputed by the parties. However, defense counsel admitted at the hearing that an improper tag violation is a strict liability offense in Tulsa, and a violation occurs regardless of the status of the vehicle or who is driving it." }, { "docid": "2786416", "title": "", "text": "information indicating that Spatafora kept quantities of marijuana in his residence. Then, on November 7, 1985, according to Officer Fultz, an anonymous caller reported that his daughter had been in Spatafora’s residence on the preceding evening and had seen three suitcases of marijuana, one suitcase filled with cocaine and several automatic weapons. As indicated, on the same morning the anonymous tip was received, the police set up a surveillance of Spata-fora’s residence. At around eleven o’clock that morning, Rutherford appeared at Spa-tafora’s residence and entered the premises empty-handed and reappeared ten minutes later carrying a bag which he placed in the trunk. Further, according to the affidavit, when Rutherford drove away from Spata-fora’s residence the police followed. A short distance away, Rutherford pulled over to the side of the roadway, and when a police car drove up behind the Rutherford vehicle and stopped, Rutherford sped away as the officer was getting out of his car. After a short chase, Rutherford was stopped moments later by the police. We think the affidavit supported the determination by the state court that there was probable cause to believe that Rutherford was in possession of marijuana. Such determination by an issuing magistrate or judge should be given some deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) and United States v. Martinez, 764 F.2d 744, 746 (10th Cir.1985). A reviewing court need only ensure that the issuing authority had a substantial basis for concluding that probable cause existed. Certainly in the instant case the totality of the facts and circumstances set forth in the affidavit indicated a fair probability that contraband was located in the trunk of Rutherford’s vehicle. See Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. III. Rutherford’s final ground for reversal concerns counts 2 and 3 of the indictment. Counsel claims that instead of setting forth two alleged offenses, in reality, only one offense is alleged. In thus arguing, counsel states that hashish is only a higher grade of marijuana, and that inasmuch as the three pounds of marijuana and the" } ]

[ { "docid": "20669566", "title": "", "text": "billed as “incredible.” Defendants’ Memorandum of Law in Opposition to Plaintiffs Application for an Award of Attorneys’ Fees, dated May 25, 2001, at 3. 1. Attorney’s Fees At the outset, this Court notes that this case was vigorously contested by City Defendants from start to finish. In the approximately one and one-half-year period covered by the Gonzalez’s attorneys’ fee application, this matter was the subject of a motion for summary judgment, a three-week trial that was scheduled to last two weeks, and numerous post-trial motions and applications. At every stage of the proceeding, the City Defendants’ lawyers, as was their right and professional duty, aggressively challenged Gonzalez’s claims. In so doing, they displayed a fierceness matched in its intensity only by the double shock they now profess at the number of hours Gonzalez’s attorneys assert they devoted to this case. Given that a substantial portion of these working hours are a direct function of the forcefulness and chosen strategies of the defense, this Court does not share City Defendants’ general dismay about the size of Gonzalez’s application for fees and costs. The first step for determining a reasonable fee is to calculate the “the number of hours reasonably expended on the litigation by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The Second Circuit has held consistently that this amount (the “lodestar” amount) is strongly presumed to be reasonable. See, e.g., Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir.1999). The lodestar amount so determined may then be adjusted by a number of relevant factors, including the size of the firm and the adequacy of the documentation provided to support the particulars of the application. In determining the range of reasonable rates appropriate for the circumstances, the court may consider attorney’s fees approved in comparable cases and apply its own knowledge of rates prevailing in the market for lawyers of reasonably comparable skills, experience and reputation. See Blum v. Stenson, 465 U.S. 886, n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Luciano v. Olsten Corp., 109 F.3d 111," } ]

[ { "docid": "10536522", "title": "", "text": "amount of time researching fundamental issues. As support, they cite to a number of Slate’s billing entries. “If the court determines that certain claimed hours are ‘excessive, redundant, or otherwise unnecessary ... ’ the court should exclude those hours in its calculation of the lodestar.” Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998) (citations omitted). Importantly, “in making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.” Id. (citations omitted). After reviewing a number of Slate’s entries, it is apparent that he devoted an unreasonable amount of time researching various issues. In an attempt to moot this issue, Slate states in his affidavit that he has voluntarily reduced by five percent the time accounted for in his time records for research, because he has “a tendency to strive for clarity, understanding, analysis and supportable legal precedent.” While these attributes are certainly to be expected, they are not necessarily conterminous with reasonableness. Here, Slate’s time entries indicate that he devoted an excessive amount of time researching straightforward areas of the law. As Slate is billing at the rate of $150 per hour for experienced attorneys, defendants will not be required to absorb the costs of Slate’s learning curve. Having reviewed all of Slate’s entries for research, and taking into consideration the voluntary five percent reduction he has already made in the fee application, I find that it is proper to exclude 15 hours from the fee application due to excessive research. Second, defendants contend that the roughly 110 hours Slate spent simply preparing questions for five depositions and reviewing the deposition transcripts is excessive. Upon reviewing the entries, I agree; thus, an additional 10 hours will be excluded from the lodestar calculation. Third, and in similar vein, defendants assert that the 150 hours Slate spent on trial preparation is excessive. Again, I agree; thus, an additional 15 hours will be excluded from the lodestar calculation. See Marshall, 1998 WL" }, { "docid": "1714873", "title": "", "text": "that the failure of the firm to itemize hours eliminated by billing judgment makes it impossible to calculate accurately the lodestar since different hourly rates must be applied to work performed in different years. Finally, it disputes the affidavits of the several public interest lawyers involved which state that they exercised billing judgment in preparing their time entries. The Bradford Declaration indicates that Hogan & Hartson reduced the hours claimed by 9.6 percent in the exercise of billing judgment. The affidavit indicates the hours subtracted from the claims of the 12 attorneys, one law clerk, and one paralegal who worked on the case, but does not specify which of the recorded hours have been dropped. It is still possible to determine how many hours were subtracted per year for each attorney by comparing the total number of hours recorded, summarized in Exhibit E of the Bradford Declaration, with the number of hours claimed, shown in paragraph 9. Therefore, contrary to the government’s assertion, calculation of the lodestar is not impeded by any lack of specificity in the report of billing judgment. The magnitude of the percentage reduction is not as impressive as plaintiff claims, however, because nearly 40 percent of the hours subtracted were hours recorded by the firm's paralegal. When those hours are withdrawn from the calculation, the percentage reduction for the firm as a whole, falls to just over 6 percent. Nonetheless, with one exception explained below, the Court finds that the number of hours eliminated through billing judgment was reasonable. As might be expected, a higher percentage of hours was eliminated from the entries of less experienced attorneys than from the claims of senior attorneys. Furthermore, a lower percentage of hours was deducted from entries by attorneys who worked on the case in its early stages than from those of lawyers who came on board in later years and needed to spend time reviewing the files and familiarizing themselves with prior proceedings. The lead counsel for the plaintiffs from inception of the litigation to the present has been Douglas Parker. He was at first an associate at" }, { "docid": "5279283", "title": "", "text": "from 657 hours to 329 hours for deposition-related tasks. Plaintiff rejoins that Defendant is “wrong” about the number of deposition hours billed by his attorneys: Mr. Lee recorded 327.2 hours in deposition-related tasks. Ms. Herrington’s tally was 126.6 hours. The total is 453.8 hours, far less than the number quoted by Defendant. (Doc. 451 at 16:26-27.) The deposition transcripts reveal that both counsel were combative and aggressive. Both parties are at fault for the breakdown of communication and uncivil decorum, which exposed a number of witnesses to disputatious and offensive commentary and conduct by counsel in this case. It was also unnecessarily imposed on the Court. The need for judicial oversight was unfortunate and a waste of resources. (See Doc. 207, “Order on Letter Request Regarding Discovery Dispute,” at 7:9-7:10) (“It should not be necessary for any court to have to regulate the type of conduct which has been exhibited in Ms. Smith’s deposition.”) Plaintiffs figure of 453.8 hours is accepted as a starting point to determine the number of hours billed for deposition-related tasks. The substance of the County’s arguments are that two counsel were not necessary to defend depositions. Plaintiff fails to acknowledge that any duplication of efforts existed in this case, arguing that Defendant “failed to rebut Ms. Herring-ton’s evidence that, throughout this litigation, including at the depositions, she undertook different, complementary tasks.” Such a position is not supported by Plaintiffs briefing. Excluding the deposition of Regina Levison, it is unclear why Ms. Herrington’s presence was She did not separately pose questions or lodge she did not conduct the deposition or defend the witness, Mr. Lee did. Ms. Herrington’s declaration is similarly vague, listing only her attendance at certain depositions, not her participatory role or most notably what preparation she did. Ms. Herrington did not question, lead, defend or object during depositions, she does not describe her “complementary” role. To account for such unjustified duplication of efforts, among other reductions, the total number of deposition hours are reduced by 30%. See Wheeler v. Coss, No. 3:06-CV-00717-RAM, 2010 WL 2628667, at *6 (D.Nev. June 22, 2010) (reducing the" }, { "docid": "13399976", "title": "", "text": "the petition for attorneys fees, the Court has reviewed every billing entry on every billing record submitted by plaintiffs. In many instances, the entries identify the specific issue the attorney was working on at the time. At other times, the billing entries are more general. For example, billing entries often state, “prepared responses to interrogatories,” or “compiled documents,” while at other times they state, “drafted race brief,” or “prepared interrogatory answers re: race claims.” Because the entries are at times specific and at other times general, I think it fair to assume that at least some of the general entries refer to work relevant to the entire case, while the more specific entries reflect instances where attorneys spent substantial amounts of time working on a discrete claim. While the billing entries are not always as detailed as one would prefer, I am satisfied that they were contemporaneously compiled, and that they accurately reflect the number of hours each attorney spent working on this case. I find that plaintiffs’ counsel have adequately documented their request for fees, and I will deny defendants’ request to eliminate virtually every hour claimed by counsel for lack of proper documentation. The plaintiffs’ position, however, is also unreasonable. They simply were not successful in obtaining the relief sought on a large percentage of their race-related claims. Hopefully, the Court’s ruling on the racial slur issue will enhance the lives of the plaintiff class and will convince prison officials here and elsewhere to aggressively discipline staff for such conduct. Perhaps at some point in the future, the Court’s findings regarding plaintiffs’ statistical evidence will be helpful in another race discrimination suit. But the fact remains that plaintiffs were unsuccessful in the attempt to convince the Court that the defendants segregated cafeteria serving lines, or that they discriminated on the basis of race in job assignments or in assignments to administrative segregation or protective custody. Under Hensley and its progeny, their fee award must be reduced by some amount to account for this partial success. The question of how much to reduce the fee award is one of" }, { "docid": "10536523", "title": "", "text": "expected, they are not necessarily conterminous with reasonableness. Here, Slate’s time entries indicate that he devoted an excessive amount of time researching straightforward areas of the law. As Slate is billing at the rate of $150 per hour for experienced attorneys, defendants will not be required to absorb the costs of Slate’s learning curve. Having reviewed all of Slate’s entries for research, and taking into consideration the voluntary five percent reduction he has already made in the fee application, I find that it is proper to exclude 15 hours from the fee application due to excessive research. Second, defendants contend that the roughly 110 hours Slate spent simply preparing questions for five depositions and reviewing the deposition transcripts is excessive. Upon reviewing the entries, I agree; thus, an additional 10 hours will be excluded from the lodestar calculation. Third, and in similar vein, defendants assert that the 150 hours Slate spent on trial preparation is excessive. Again, I agree; thus, an additional 15 hours will be excluded from the lodestar calculation. See Marshall, 1998 WL 886967, at *4. Fourth, defendants aver that Slate improperly billed a lawyer’s rate for a number of essentially clerical tasks. It is axiomatic that an attorney may not bill a lawyer’s rate for clerical tasks. O’Grady v. Mohawk Finishing Products, Inc., 1999 WL 30988, *6 (N.D.N.Y. Jan.15, 1999); Bridges v. Eastman Kodak Co., 1996 WL 47304, *7 (S.D.N.Y. Feb.6, 1996); Loper v. New York City Policy Dep’t, 853 F.Supp. 716, 720 (S.D.N.Y.1994); McKever v. Vondollen, 681 F.Supp. 999, 1004 (N.D.N.Y.1988); Fiacco, 663 F.Supp. at 746. Here, Slate spent approximately 10 hours faxing documents, filing the Complaint, collating exhibits, making telephone calls to schedule deposition dates and other events, and preparing subpoenas. As these tasks are routinely clerical in nature, Slate will be compensated for them at the prevailing rate of $50 per hour for paralegals and law clerks. See, e.g., Serbalik, 1999 WL 10971, at *3. Lastly, defendants assert that an additional 15 percent across-the-board reduction is appropriate because plaintiffs’ counsels’ time records do not distinguish between plaintiffs’ federal and state claims. This is significant," }, { "docid": "5611624", "title": "", "text": "and reasonable ness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits. Blum v. Stenson, 465 U.S. 886, 892 n. 5, 104 S.Ct. 1541, 1545 n. 5, 79 L.Ed.2d 891 (1984); Toussaint v. McCarthy, 826 F.2d 901, 904 (9th Cir.1987). In accordance with the principles set forth in Hensley, the lodestar figure in plaintiffs’ fee application reflected discrete billing judgment reductions in the amount of $108,495.80 and proposed a ten percent across-the-board reduction in the lodestar. The discrete billing judgment reductions, which were made before and during the district court’s review of plaintiffs’ fee application, included reductions in hours billed as well as in rates charged. As proposed by plaintiffs, the ten percent reduction was intended to account for any overlap or duplication in work that had not already been accounted for through the discrete billing judgment reductions. Defendants submitted evidence to rebut plaintiffs’ claimed reductions, asserting that the reductions were insufficient to account for five particular areas in which plaintiffs allegedly overbilled. Specifically, defendants argued and presented the district court with evidence that plaintiffs’ calculation of the reasonable hours billed was incorrect in the following five respects: (1) it did not consider the fact that the case was “grossly overstaffed;” (2) a “huge percentage” of the time billed by McCutchen and Brobeck was “lumped,” with a large number of hours reportedly billed to activities such as “meetings” or “pleadings and research\" without allocating time to a particular task; (3) all the time spent by “inexperienced attorneys and, especially, summer students” was billed; (4) numerous specific duplicative court and deposition appearances were billed; and, (5) “enormous amounts of time” were billed for time co-counsel spent conferring with one another. The district court has a great deal of discretion in determining the reasonableness of the fee and, as a general rule, we defer to its determination, including its decision regarding the reasonableness of the hours claimed by the prevailing party. Hensley, 461 U.S. at 437, 103 S.Ct. at 1941; Chalmers v. City of Los Angeles, 796 F.2d 1205, 1213 (1986), amended, 808 F.2d 1373" }, { "docid": "8931116", "title": "", "text": "a petition for fees and expenses, in which it seeks $65,000 in fees and $17,000 in expenses. S & J arrives at a fee award in the sum of $65,000 by reducing the number of hours S & J lawyers and paralegals spent on the case from 2,500 to 2,100, billing those hours at the rates S & J attorneys would have billed paying clients at the time the services were rendered, and reducing that sum over 70 percent to account for the limited degree of success plaintiff achieved. I. Attorneys’ Fees In many ways, Steptoe & Johnson’s petition for attorneys’ fees is simple. Defendant does not dispute that plaintiff was a prevailing party, and plaintiff accepts the reality that-she prevailed only to a limited degree. Moreover, defendant does not question S & J’s representations concerning the number of hours it spent on the case or the billing rate that S & J has employed in calculating its fees. The sole bone of contention is over the proper methodology for reducing the lodestar fee so as to account for plaintiff's limited degree of success. There is “no precise formula” for adjusting a lodestar fee downward to account for a prevailing party’s limited success; the Court must exercise its “equitable judgment” in making this discretionary determination. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). In general, the Court’s method for making this adjustment will depend upon whether plaintiff’s successful and unsuccessful claims involve “a common core of facts” or “related legal theories.” Id. at 434-35, 103 S.Ct. at 1939-40. Where the facts and legal theories underlying various claims are interrelated, “[mjuch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.” Id. at 435, 103 S.Ct. at 1940. As such, in those kinds of cases, the Court “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. Cases involving claims with unrelated facts and legal" }, { "docid": "20113144", "title": "", "text": "$90 per hour. It is the opinion of the Court, based on the billing statements submitted, the Court’s own assessment of the manner in which both sides conducted the litigation, and the end results, that the number of hours set forth by the plaintiff is essentially reasonable. As the Supreme Court noted in Hensley, “[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally, this will encompass all hours reasonably expended on the litigation ...” Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. Still, defendant raises several specific objections to the number of hours billed which deserve consideration. Defendant’s challenges to plaintiff’s computation of the number of hours spent fall into three basic categories. First, defendant objects to the number of hours spent on legal research as excessive. Second, he argues that hours expended on the race discrimination claim should be excluded from the lodestar calculation. Finally, he attacks certain items as duplicative or otherwise facially improper. Reasonableness of research time. Plaintiff’s billing statements report roughly 177 hours spent on research over the course of the representation. In his supplemental opposition, the defendant maintains that this is an “excessive” figure, and arbitrarily suggests that it be reduced to 50 hours. After considering the appropriate Johnson factors, the Court concludes that such a reduction would be inappropriate in this case. VBH is a large firm, with a large labor and employment law practice. VBH asserts, and the Court finds, that the firm was able to draw on experience and prior research from its extensive background to minimize unnecessary and inefficient research time. However it is impossible, in a case as complex as this, for an attorney to adequately represent a client without conducting substantial research. Court-appointed attorneys in civil rights cases are expected to prepare their legal theories as carefully and creatively as those retained by private clients. Where the movant has satisfied the Court that experienced, skilled counsel have conducted relevant legal research in good faith, the number of allowable hours in the lodestar computation will not be reduced absent a showing of" }, { "docid": "20113145", "title": "", "text": "spent on research over the course of the representation. In his supplemental opposition, the defendant maintains that this is an “excessive” figure, and arbitrarily suggests that it be reduced to 50 hours. After considering the appropriate Johnson factors, the Court concludes that such a reduction would be inappropriate in this case. VBH is a large firm, with a large labor and employment law practice. VBH asserts, and the Court finds, that the firm was able to draw on experience and prior research from its extensive background to minimize unnecessary and inefficient research time. However it is impossible, in a case as complex as this, for an attorney to adequately represent a client without conducting substantial research. Court-appointed attorneys in civil rights cases are expected to prepare their legal theories as carefully and creatively as those retained by private clients. Where the movant has satisfied the Court that experienced, skilled counsel have conducted relevant legal research in good faith, the number of allowable hours in the lodestar computation will not be reduced absent a showing of specific grounds, which do not exist here. The race discrimination claim. Defendant interprets the plaintiff’s billing statements as reporting 110 hours spent on preparation of the pretrial memorandum. He argues that this figure should also be reduced to 50 hours, “to account for effort expended on the race claim and excessive time generally.” The basis for this suggestion appears to be simply that approximately one half of the pretrial memorandum was devoted to the race discrimination issue, on which the defendant prevailed. The defendant further argues for an overall reduction of 35% of the total hours expended in the case in order to account for time spent on the race discrimination claim. Because the Court did find for the defendant on the race discrimination issue, the question arises to what extent the plaintiff, as a prevailing party, is entitled to compensation for fees expended in pursuing this unsuccessful component of her case. The Fourth Circuit has recently provided guidance on this issue in Plyler v. Evatt, 902 F.2d 273 (4th Cir.1990). In general, where two" }, { "docid": "13399984", "title": "", "text": "plaintiffs’ hours be reasonably spent. There is no requirement that plaintiffs’ counsel staff their cases or delegate responsibilities in the same way that defense counsel would. In reviewing plaintiffs’ billing records in light of this objection, I found very few instances of the excessive or duplicative work defense counsel claimed existed. While a small reduction is appropriate for certain hours, I will decline defendants’ invitation to reduce counsels’ hours by twenty (20%) percent. The billing records do not substantiate such a large reduction. Defendants particularly object to the hours claimed by Taifa-Caldwell as excessive or duplicative, given her general inexperience. Ms. Taifa-Caldwell’s inexperience is reflected in the lower hourly rate requested for her services. In analyzing each of the hours defendants objected to because they were “excessive, duplica-tive or compensable at a lower rate,” I discovered that defendants object to virtually every hour she spent responding to prisoner correspondence, summarizing depositions and analyzing them for admissions, scheduling trips and depositions, researching, compiling documents for exhibits and attachments to briefs and proof reading plaintiffs’ submissions. I find that these activities are appropriately delegated to an inexperienced attorney and that the hours claimed for these services are compensable. Obviously, plaintiffs’ counsel had an ethical duty to communicate with their clients, and time spent on that task is compensable. The time spent proof reading was time well spent, and the Court sincerely wishes counsel for the defense had been as conscientious in that regard during the course of this litigation. In short, after reviewing Ms. Taifa-Caldwell’s billing records, I do not find a substantial number of “excessive” hours spent on “routine” tasks as easily delegated to support staff. I will therefore decline to reduce her claimed hours on that basis. In reviewing the hours claimed by Ms. Aiyetoro, I also do not find evidence of excessive duplication or hours spent on routine tasks. Many of the defendants’ objections relate to hours Ms. Aiyetoro spent compiling documents and exhibits, and hours she spent coordinating witness appearances. I do not find those hours to be excessive. Although most document identification can be handled by support" }, { "docid": "5279282", "title": "", "text": "were without a legal basis, and all were denied. This warrants a reduction in the amount of fees recovered for these motions. See Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Star Mark Management, No. 04-CV-2293-SMG, 2009 WL 5185808, at *7 (E.D.N.Y. Dec. 23, 2009) (“plaintiff did not prevail on its motion for reconsideration, and this warrants a reduction in the amount of fees recovered.”). To account for Plaintiffs lack of success, the confusion over the relevant legal standards, the frivolity of the May 5, 2008 motion and the excessive time spent preparing the motions, the total number of hours are reduced by 50%, from 59 hours to 29.5 hours. f. Depositions Defendant next contests the number of hours spent noticing, conducting and defending the more than forty depositions in this case, including Plaintiffs deposition. Defendant contends that many of the depositions were not needed and Mr. Lee wasted countless hours on “useless questioning about subjects that were not in issue and arguing with witnesses.” (Doc. 450 at 11:20.) Defendant requests a reduction from 657 hours to 329 hours for deposition-related tasks. Plaintiff rejoins that Defendant is “wrong” about the number of deposition hours billed by his attorneys: Mr. Lee recorded 327.2 hours in deposition-related tasks. Ms. Herrington’s tally was 126.6 hours. The total is 453.8 hours, far less than the number quoted by Defendant. (Doc. 451 at 16:26-27.) The deposition transcripts reveal that both counsel were combative and aggressive. Both parties are at fault for the breakdown of communication and uncivil decorum, which exposed a number of witnesses to disputatious and offensive commentary and conduct by counsel in this case. It was also unnecessarily imposed on the Court. The need for judicial oversight was unfortunate and a waste of resources. (See Doc. 207, “Order on Letter Request Regarding Discovery Dispute,” at 7:9-7:10) (“It should not be necessary for any court to have to regulate the type of conduct which has been exhibited in Ms. Smith’s deposition.”) Plaintiffs figure of 453.8 hours is accepted as a starting point to determine the number of hours billed for deposition-related tasks." }, { "docid": "5279293", "title": "", "text": "or task totals of the hours spent on each task in the first instance. Even when confronted with Defendant’s figure, Plaintiff does not provide a “rebuttal” number of hours—his fourth attempt to do so. An accurate lodestar figure for “whistleblower” tasks cannot be determined given the current state of the briefing. The whistleblower claims and a number of other claims advanced by Plaintiff shared common issues of fact, however, it was Plaintiffs burden to: (1) produce accurate/adequate billing records to support its fee motion, i.e., remove any ambiguity that impedes the calculation of an accurate lodestar; and (2) to “establish that the fees sought are ‘associated’ with a successful claim.” Signature Flight Support Corp. v. Landow Aviation Ltd. Partnership, 730 F.Supp.2d 513, 528 (E.D.Va.2010). Plaintiff did neither in this case. For these reasons, among others, it is impossible to deduce a lodestar figure for these tasks with any accuracy. j. Motions to Compel According to Defendant, Plaintiff spent an “incredible” 319 hours preparing ten motions to compel or for protective orders. Defendant claims that the Court should reduce this amount because: three of the motions were withdrawn; several of the motions concerned Plaintiffs “frivolous” whistleblowing claims; and Plaintiff chose not to reconvene the deposition of Patricia Perez. Plaintiff contends that all of the hours are reasonable. He represents that two of the motions were withdrawn, not three, and “none of the motions were focused on whistleblowing claims, as Defendant contends, or any other claim, for that matter [... ] they focused on adverse employment actions and/or rebuttal of Defendant’s Fifth Affirmative Defense.” (Doc. 451 at 25:17-25:19.) For the most part, these topics have been addressed. Most of the time spent preparing the motions to compel were required by the deterioration of Mr. Lee’s and Mr. Wasser’s professional relationship. Plaintiffs counsel, however, was unduly contentious and combative during discovery, which resulted in unnecessary discovery motions and court involvement. To account for this conduct, the withdrawn motions, the lack of documentation (and vagueness) to support the whistleblowing claims and the excessive number of hours spent drafting the motions to compel, among other" }, { "docid": "22114172", "title": "", "text": "accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits. Blum v. Stenson, 465 U.S. 886, 892 n. 5, 104 S.Ct. 1541, 1545, 79 L.Ed.2d 891 (1984); Toussaint v. McCarthy, 826 F.2d 901, 904 (9th Cir.1987). In accordance with the principles set forth in Hensley, the lodestar figure in plaintiffs’ fee application reflected discrete billing judgment reductions in the amount of $108,495.80 and proposed a ten percent across-the-board reduction in the lodestar. The discrete billing judgment reductions, which were made before and during the district court’s review of plaintiffs’ fee application, included reductions in hours billed as well as in rates charged. As proposed by plaintiffs, the ten percent reduction was intended to account for any overlap or duplication in work that had not already been accounted for through the discrete billing judgment reductions. Defendants submitted evidence to rebut plaintiffs’ claimed reductions, asserting that the reductions were insufficient to account for five particular areas in which plaintiffs allegedly overbilled. Specifically, defendants argued and presented the district court with evidence that plaintiffs’ calculation of the reasonable hours billed was incorrect in the following five respects: (1) it did not consider the fact that the case was “grossly overstaffed;” (2) a “huge percentage” of the time billed by McCutchen and Brobeck was “lumped,” with a large number of hours reportedly billed to activities such as “meetings” or “pleadings and research” without allocating time to a particular task; (3) all the time spent by “inexperienced attorneys and, especially, summer students” was billed; (4) numerous specific duplicative court and deposition appearances were billed; and, (5) “enormous amounts of time” were billed for time co-counsel spent conferring with one another. The district court has a great deal of discretion in determining the reasonableness of the fee and, as a general rule, we defer to its determination, including its decision regarding the reasonableness of the hours claimed by the prevailing party. Hensley, 461 U.S. at 437, 103 S.Ct. at 1941; Chalmers v. City of Los Angeles, 796 F.2d 1205, 1213 (9th Cir.1986), amended, 808 F.2d 1373 (9th" }, { "docid": "9728923", "title": "", "text": "requested, as advocated by Plaintiffs. Rather, finding the bulk of Defendant’s specific objections and arguments to the amounts claimed to be convincing, the court adopts Defendant’s calculations of reasonable hours as modified below. Consequently, the court’s calculations, which arrive at 942 “reasonable hours” of work, should provide a more generous return for Plaintiffs efforts. i) Unsuccessful Claims Following the trial, the court concluded that Plaintiffs own testimony contradicted objective evidence concerning many of his injuries; the court also voiced reservations about the credibility of Plaintiffs treating psychologist and expert on post traumatic stress disorder. Thus, the compensatory damages of $500 awarded to Plaintiff were based largely upon the injury, pain and suffering from Officer Patrick’s kick to Plaintiffs groin. Consequently, the court agrees that hours spent on other aspects of Plaintiffs damage claims should be deducted from the lodestar where possible. Because Plaintiff did not prevail on the malicious prosecution issue, the time that Mr. Howe included for researching and preparing for summary judgment on this issue should be excluded. Similarly, the entries that include activities in pursuit of Plaintiffs First Amendment claims must also be deducted. The court estimates that 6.25 hours claimed by Mr. Howe were dedicated to these unsuccessful First Amendment claims. In regard to claims based upon DeKalb County’s failure to train its officers, the court estimates that counsel has improperly included 33.8 hours, nine of which were attributable to Mr. Howe. ii) Redundant and Unnecessary Billing: Defendant has highlighted 86.90 hours claimed that reveal redundant billing for overlapping efforts in deposing witnesses and parties by the two attorneys. Of these hours, 19.7 hours have already been struck because counsel had spent the time on unsuccessful damages claims. Plaintiff has asserted that only one attorney prepared and conducted depositions of parties and witnesses, while both attorneys attended all of the depositions. Because a comparison of the two sets of time entries largely attests to this explanation, the court has subtracted half of each attorney’s hours spent for mere attendance of depositions. This amounts to a reduction of 16.25 hours for Mr. Howe, and 12 hours for" }, { "docid": "14324172", "title": "", "text": "in vestigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. King v. Greenblatt, supra, at 1027. (citation omitted) While such an evaluation ideally proceeds on the basis of a detailed analysis of each item of recorded time, such is usually not practicable, or even possible, and an across-the-board reduction of hours claimed has to suffice. See, Bradford v. Blum, supra, at 534; Northcross v. Board of Education, supra, at 636-37, 640-41. See also, Copeland, supra, at 903 (the District Court, recognizing that some duplication or waste of effort had occurred, “did not err in simply reducing the proposed ‘lodestar’ fee by a reasonable amount without performing an item-by-item accounting”). With these considerations in mind, I address the difficult task of assigning a reasonable number of hours to plaintiff’s fee request. As I am required to do, I have examined the time records in great detail. A number of entries refer to matters which are unrelated to either of the two consolidated discrimination cases. Matters pertaining to trusts, wills, blue sky, divorce, and legislative matters have been billed erroneously to the Gillette cases and I eliminate them and the respective dollar amount requested for them. I also eliminate hours devoted to workman’s compensation as having been unrelated to the two Gillette cases. Similarly, under King, I eliminate any hours which contain no reference to the specific tasks performed. 1.25 hours coded “complaint” a full year after the complaint was filed, have been incorrectly billed and I subtract those hours. I therefore reduce the time claimed by: 42.5 hours ($3,235.00) unrelated to the Gillette cases; 194.5 hours ($13,000.50) unsupported by specifics as to work performed. That leaves a total of 9,637.25 hours with a total value of $540,226.75. In exercising billing judgment as I review the time charges, I find that an excessive number of hours have been spent. Without doubt this case was difficult to manage. In addition to the legal work involved, a tremendous amount of time was" }, { "docid": "15751349", "title": "", "text": "sufficiently detailed. For example, several entries merely state “research.” The Court has identified several similar instances of insufficient detail. To account for the insuf.ficient entries, the Court will reduce the total amount of hours attributable to Sin-zheimer by 10%. Defendants next claim that the billing entries are contradictory and contain “padding” of the hours expended on this case. In support of this contention, the defendants cite to instances where, for example, attorney “A” billed for a telephone call with attorney “B,” but attorney “B” did not have a similar billing entry. Much of defendants complaints in this regard are aimed at the Debevoise Firm. The Debe-voise Firm responds contending that “[g]iven the volume of telephone calls, it is not in any way surprising or suspicious that certain lawyers recorded a few telephone calls that other lawyers did not.” The Court accepts the Debevois Firm’s explanation. However, after reviewing the Debevois Firm’s billing records, the Court has found excessive entries relating to tasks such as “Review, docket and diary documents; draft instructions to files.” The Court cannot fathom why such a large amount of time needed to be expended upon such tasks and, therefore, the number of hours attributable to the Debevoise Firm will be reduced by 10%. Finally, the defendants contend that the hours billed by the Strook Firm are duplicative of the efforts expended by the Sinzheimer Firm. Indeed, a review of the billing records demonstrates that both the Strook and Sinzheimer Firms billed for settlement negotiations. The Strook Firm was primarily involved in settlement negotiations. In order to eliminate any possible “double billing,” the Court will reduce Sinzheimer’s total hours by forty-one hours. c. Travel Time Defendants correctly note that travel time is generally reimbursed at one-half the prevailing hourly rate. Funk, 1999 WL 137855, at *21. Review of the billing records demonstrates that the plaintiffs did not adjust their fee application to reflect this. Instead, the attorneys grouped all their hours together, travel time and all, and charged the full hourly rate. The burden is on the plaintiffs to demonstrate the reasonableness of the attorneys’ fees sought." }, { "docid": "4971650", "title": "", "text": "has carefully analyzed the submitted time sheets and finds duplication of efforts on two occasions. First, the plaintiffs have triple-billed for appearances by three Redwood lawyers at the June 9, 1980 deposition of defendant Clyde Lee. While the court is willing to accept the explanation proffered by the plaintiffs that this deposition was essential to the case and that all lawyers in the office desired to observe the testimony, assessing charges against the defendants for this duplication is unreasonable. Accordingly, the petitions of attorneys Golden and Hendry are reduced by 3.75 hours respectively. Second, three lawyers for the plaintiffs appeared at the April 30, 1980 hearing on the motion for a preliminary injunction. While the appearances of two Redwood lawyers are arguably justified because of the magnitude of the proceeding, the presence of Mr. Feller from the San Francisco Legal Assistance Foundation was unnecessary. Plaintiffs’ decision to utilize local attorneys for court appearances to save on travel costs from Eureka is admirable. However, such a device loses its utility when the Redwood group is represented by not one but two lawyers of its own. Therefore, the petition of the San Francisco group is reduced by 1.5 hours. Finally, the time sheets submitted in this case reveal that plaintiffs’ attorneys expended an excessive number of hours preparing their fee applications. By the court’s most conservative estimate, the lawyers claim 76.1 hours for preparation of their records and memorandum of points and authorities, an obviously inflated figure which comprises more than twenty percent of hours spent on the entire case. As such, this request represents a clear case of overreaching by the petitioning lawyers. Clearly, the court has an obligation to scrutinize the hours spent preparing fee petitions to insure that the total is reasonable and that it does not represent a windfall for the attorneys. In fact, several courts flatly reject the concept of billing hours for time spent preparing fee applications at all, soundly reasoning that resolution of fees issues “inures only to the benefit of counsel, as distinguished from the plaintiff class.” As such, services rendered solely for the" }, { "docid": "18808185", "title": "", "text": "Plaintiff’s counsel, H.N. Cunningham and Robert H. Bezueha, billed a total of 119.9 hours. They spent 34.4 hours preparing the first motion to remand (Cunningham: 5.0 hrs; Bezueha: 29.4 hrs) and 85.5 hours (Cunningham: 32 hrs; Bezueha: 53.5 hrs) preparing their second motion to remand. While Plaintiff provides the Court with a list of the activities performed by counsel, such as conducting “[v]arious telecoms with opposing counsel and client; reviewing Defendants’] response to remand motion; researching] various aspects of removal jurisdiction; [and] preparation] of Motion for Leave to Reply to Defendants’ Response,” see Supplemental Affidavit of Robert H. Bezucha ¶¶ 5 & 6, it has failed to document in sufficient detail the number of hours devoted to each of these activities. The Court did receive Plaintiff counsel’s time sheets, albeit as an. exhibit to Defendant’s Supplemental Response to Plaintiff’s Request for Attorney Fees. However, these time sheets provide little insight. Prior to turning the sheets over to Defendants, Plaintiffs counsel redacted many of the captions describing the work performed. The remaining captions are vague, consisting entirely of phrases such as “work on motion to remand,” “research on issue of removability,” and “prepare brief in support of motion to remand.” In some eases, the caption refers to several activities but includes only one time entry, thus making it impossible to determine how much time was spent on each activity. Without adequate documentation for the hours billed by Plaintiffs counsel, the Court is hardpressed to believe Plaintiffs claim that the motions to remand and related briefing required 119.9 hours of work. It involved the limited issue of whether the release agreement between ASEMEX and Summit released Ribbens International from liability for damage to Summit’s machinery. The Court finds that the time spent by Defense counsel, approximately 70 hours, to be more in line with professional norms. The Court does note, though, as Defendants’ concede, that Plaintiffs counsel was reasonable in billing 10 more hours than Defendants’ counsel for the Ribbens deposition in San Diego, California. This additional time was apparently due to the fact that Plaintiffs counsel had to fly from Dallas," }, { "docid": "13399980", "title": "", "text": "reasons, I adopted the following methodology in determining the appropriate reduction of plaintiffs’ fee request. I reviewed each billing entry and attempted to identify those hours spent working on the unsuccessful claims. In the course of this review, I also considered the hours defendants identified as having been spent on unsuccessful claims. I then determined the percentage of each attorneys’ time attributable to work on the race claims. Because many of the billing entries are general, rather than specific, this process probably understates the amount of time each attorney spent on the race claims in general. However, since the plaintiffs succeeded on one of their race claims, and since a portion of the hours attributable to the unsuccessful claims are reasonably related to that successful claim, I find that it is equitable to reduce each attorney’s claimed hours by this percentage. This method compensates the plaintiffs for hours spent on tasks related to their successful claims, while reducing the overall award to account for their partial success. 2. Excessive or Duplicative Hours Defendants’ next major objection is that the attorneys’ fees request should be substantially reduced to account for duplication of effort, excessive time spent on routine tasks and inefficient use of attorney time. A moderate reduction in claims hours is appropriate where counsels’ billing records indicate substantial duplication of effort or inefficiency. Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40 (“Cases may be overstaffed and the skill and experience of lawyers vary widely. Counsel ... should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary”); Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir.1983). The bulk of the hours claimed are attributed to four attorneys who had primary responsibility for this litigation: Elizabeth Alexander, Adjoa Aiyetoro, Patricia Streeter, and Nkechi Taifa-Caldwell. Four other attorneys, one paralegal and a number of law clerks and law student interns also expended hours attributable to this case. Many hours claimed were spent in conferences between attorneys and law clerks. It is within the Court’s discretion to grant attorneys fees for time spent conferring" }, { "docid": "22959405", "title": "", "text": "plaintiffs complain that: 1) the total number of hours billed by the defendants-1900-was not reasonable considering the claims were dismissed before any discovery took place; 2) some of the defendants’ billing records are redacted, vague and do not specify exactly what work the attorney was performing; and 3) the defendants failed to provide hourly rates for a significant portion of the time billed, instead submitting a chart of their average hourly rates. “[T]he starting point in any determination for an objective estimate of the value of a lawyer’s services is to multiply hours reasonably expended by a reasonable hourly rate.” Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988). Our precedent places the burden of documenting the appropriate hours and hourly rates on the fee applicant. Id. Oxford does not challenge the reasonableness of the hourly rates submitted by the defendants. As to the number of hours submitted, “fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity. A well prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or the stage of the case.” Id. at 1303 (citation omitted). Under this standard, both of the fee applications presented to the district court were likely inadequate. Both contain several time entries that are so redacted that it is impossible to tell (beyond “research”) what the attorney was doing. Most of the entries contain some description of the work performed, but there is very little information as to which claim the work pertained to. Thus, the district court could not have determined how many hours were spent defending each claim or accomplishing any particular task. Therefore, it could not have assessed whether any hours should be excluded (as redundant or unnecessary) or the hourly rate reduced (because the number of hours submitted for a particular activity was excessive). Id. at 1301," } ]

[ { "docid": "2228929", "title": "", "text": "Mr. Sperry do when he got to Langley, Oklahoma? The only evidence we have is that which was produced here because Mr. Sperry didn’t take the witness stand and deny it, nor has anyone else denied it, * * * ” The trial judge overruled an objection, commenting that he didn’t understand the argument to include a reference to the failure of Sperry to testify. The trial court later instructed the jury as follows: “A defendant has the absolute right not to testify, and the jury must not draw a presumption of guilt or any inference against a defendant because he did not testify.” Relying upon Knowles v. United States, 10 Cir., 224 F.2d 168, it is argued that the instruction was effective to cure any prejudice which may have resulted from the foregoing statement. In the Knowles case the court said that comment on the failure of a defendant to testify in his own behalf was improper and reversible error if the language used “was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” The challenged comment in that case made no direct reference to the failure of the defendant to testify, and was directed primarily to the failure of the defense to furnish an explanation of certain evidence introduced by the prosecution. The court held that if the comment did have the effect of focusing attention on the failure of the accused to testify, the error, if any, was cured by an instruction similar to that given in this case. The comment here, in unmistakable language, stated that Sperry did not take the witness stand and deny certain pivotal evidence. We think this comment was improper and tended to negative the right of silence secured to Sperry by the United States Constitution and requires a reversal. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84; Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765," } ]

[ { "docid": "2649873", "title": "", "text": "who is the purchasing agent.” It is the general rule that Government counsel may direct the jury’s attention to the fact that the evidence against the defendant is uncontradicted, especially when the facts in issue could be controverted by persons other than the defendant. Ruiz v. United States, 10th Cir. 1966, 365 F.2d 103. If this rule were controlling here, then the Government’s contention that its attorney’s remarks constitute fair comment might have some validity. That the attorney’s remarks go beyond a permissive comment that the evidence is uncontradicted, however, is shown by the more general rule as thus stated: “It is concededly improper and reversible error to comment on the failure of a defendant to testify in his own behalf, and the test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.\" Knowles v. United States, 10th Cir. 1955, 224 F.2d 168. The prosecutor conceded that the Government’s evidence was contradicted as to two defendants whom he named. These defendants had taken the stand. The prosecutor asserted and reasserted that the evidence was uncontradicted as to the others. The innuendo is plain. It is clear that the prosecutor intended that the jury should infer that the evidence was uncontradicted by those defendants who did not take the stand. When the prosecutor named the two who had testified and conceded that the evidence as to them was contradicted, can it be doubted that he commented upon the failure of the others to testify when he emphatically demanded the conviction of those who had not testified on the ground that: “The evidence is uncontradicted.” The prosecutor’s statement that the evidence “has not been contradicted by the defendants” was little, if any, different in meaning, in the context of his argument, from a statement that the defendants had not testified. We conclude that the prosecutor’s comments were improper and prejudicial as to all of the appellants, except Gilbert and Epps, and that the convictions of these six" }, { "docid": "18003666", "title": "", "text": "experiments, and at the trial expressed his expert opinion that the device would ignite certain types of combustible materials that were in contact or immediately adjacent to the device. The prosecution was required to establish as an essential element of the case that the firearm in question had not been registered and to-establish this fact introduced a certificate of the custodian of the National Firearms Register and Transfer Record stating in effect that he had made a diligent search and had found no record of any firearms being registered to Robbins. The instruction of the trial court explained to the jury that the certificate was competent evidence to show that the item introduced in evidence was not registered to the appellant but that it was up to the jury to determine what evidence to accept and what weight they might give to any evidence presented in the case. The certificate was sufficient evidence from which the jury could find and determine, as it did, that the firearm in question had not been registered as required by the statute. Proof was established by the method authorized in F.R. Cr.P., Rule 27, adopting the provisions of F.R.Civ.P., Rule 44. The evidence was sufficient to sustain the jury’s finding. United States v. Cowley, 452 F.2d 243 (10 Cir. 1971), and see Vol. 1, Devitt & Blackmar, Federal Jury Practice & Instructions, § 34.05, p. 472. The instruction given was a correct statement. There was substantia] evidence to prove that the destructive device found in appellant’s possession was of an incendiary nature and the jury were correctly instructed on the issue of whether it was in fact an incendiary bomb. The question was properly submitted to the jury by the trial court. It is charged by appellant that m his closing argument to the jury the United States Attorney made an improper comment upon appellant’s failure to take the stand and testify in his own defense. This Court has upheld the privilege of a defendant to excereise his constitutional privilege not to testify where the prosecution’s statement in that regard was direct and prejudicial." }, { "docid": "23191399", "title": "", "text": "to establish guilt, not on the defendants to prove innocence, and that the defendants had no burden to prove anything. Later the court instructed the jury that the prosecutor’s comments were improper and they should not be considered. Metcalf contends that the prosecutor’s comments infringed his Fifth Amendment privilege and violated the doctrine of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and that neither the court’s admonition nor the later instruction rendered the error harmless. The comments in this case are quite different from a specific comment on the defendant’s failure to take the stand. “[W]here the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in this a veiled comment on the defendant’s failure to testify even if in practical fact, although not in theory, no one else could controvert them.” United States ex rel. Leak v. Follette, 418 F.2d 1266, 1270 (2nd Cir. 1969), cert. denied 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); accord, United States v. Lepiscopo, 458 F.2d 977 (10th Cir. 1972). Here the disputed comments were specifically directed to the lack of contradictory witnesses and contained no explicit reference to the failure of the appellants to testify. We do not think that it focused attention on their failure to testify. The trial judge understood the comment to be directed at the weight of the evidence because in his correction he instructed the jury as to the burden of proof, not the Fifth Amendment rights of the appellants. Even if we found the comment impermissible, it was harmless error. The comment by the prosecutor was brief, composed of only three sentences. The silence of the appellants was not mentioned to the jury. The trial judge immediately interrupted and properly instructed the jury as to the burden of proof. Any impropriety was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174," }, { "docid": "18003667", "title": "", "text": "by the statute. Proof was established by the method authorized in F.R. Cr.P., Rule 27, adopting the provisions of F.R.Civ.P., Rule 44. The evidence was sufficient to sustain the jury’s finding. United States v. Cowley, 452 F.2d 243 (10 Cir. 1971), and see Vol. 1, Devitt & Blackmar, Federal Jury Practice & Instructions, § 34.05, p. 472. The instruction given was a correct statement. There was substantia] evidence to prove that the destructive device found in appellant’s possession was of an incendiary nature and the jury were correctly instructed on the issue of whether it was in fact an incendiary bomb. The question was properly submitted to the jury by the trial court. It is charged by appellant that m his closing argument to the jury the United States Attorney made an improper comment upon appellant’s failure to take the stand and testify in his own defense. This Court has upheld the privilege of a defendant to excereise his constitutional privilege not to testify where the prosecution’s statement in that regard was direct and prejudicial. Collins v. United States, 383 F.2d 296, 302 (10 Cir. 1967), but the statement of the prosecuting attorney in this case falls far short of being prejudicial. A prosecutor may properly call to the jury’s attention that evidence before it is uncontradicted without impairing the rights of a defendant who elects not to take the stand and testify. United States v. Lepiscopo, 458 F.2d 977 (10 Cir. 1972), particularly when it is not made to appear that no other testimony was available to contradict the evidence. Here, the comment of the prosecuting attorney came in response to defense counsel's argument in which he in effect asserted that the only evidence in the case was the testimony of one Barbour, an unbelievable associate of the appellant, who had testified for the Government (Tr. 418). It appears that the evidence referred to by the prosecutor was a tape recording of a conversation to which police officers were listening. In such a circumstance, any of the officers could have been called to dispute the correctness of the recording." }, { "docid": "14232006", "title": "", "text": "and noted that his use of the terms “I think” was merely a “habit” or “pattern of speech” not intended to be an expression of his personal opinion. Moreover, we have made it very clear in this regard that it is hypercritical to view the use of the words, “I know, etc.” by a government attorney in his closing argument as testifying on behalf of the prosecution when the prosecutor begins his argument by focusing the jury’s attention upon an analysis of the evidence in the case. United States v. Klein, 187 F.2d 873, 876 (7th Cir. 1951). This is precisely the situation we have before us in the case at bar. We hold, therefore, that in the present case where the court extended repeated admonitions to the prosecutor, and especially where the court gave prompt, cautionary instructions to the jury regarding the prosecutor’s choice of language, appellants were not prejudiced or deprived of a fair trial. See United States v. Handman, 447 F.2d 853, 855 (7th Cir. 1971). Likewise, we find that the government’s reference to certain evidence as being “uncontradicted and uncontested” could not have naturally and necessarily been taken by the jury as a comment upon Appellant Brennan’s right not to testify. United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968). This opinion is supported where Brennan was not the only person who could have challenged or contradicted such evidence. Indeed, any of the other participants could have rebutted such evidence. Handman, supra, 447 F.2d at 855. Additionally, the government’s argument was not unfair or prejudicial since it dealt solely with evidence in the record and not with Brennan’s failure to testify. United States v. Aldridge, 484 F.2d 655, 659-660 (7th Cir. 1973). Finally, we conclude that the government’s comment on Appellant Bartemio’s denial of his being at O’Hare on August 27 is not reversible error since it was intended to be a comment on his credibility based on the facts of the case. A prosecutor is allowed to comment on the credibility of a defendant who takes the witness stand. United States v. Jansen," }, { "docid": "2355959", "title": "", "text": "SWYGERT, Circuit Judge. Defendant-appellant Thiery M. Buege was found guilty in a jury trial of violating 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 by unlawfully possessing with intent to distribute ten ounces of cocaine for which she received an eighteen-month sentence. Defendant appeals from both the judgment of conviction and the sentence. I During his closing argument the assistant United States attorney characterized portions of the testimony given by Drug Enforcement Agent Charles F. Lee as uncontradicted. Defense counsel objected and moved for a mistrial. The trial judge denied the motion ruling that the prosecutor’s comments were not error or, at most, harmless. On appeal the defendant asserts that the prosecutor’s repeated use of the phrase “uncontradicted testimony” during closing argument constituted prejudicial error because it infringed upon her Fifth Amendment right against self-incrimination. Direct reference by a prosecutor to a defendant’s election not to testify at trial is clearly proscribed. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Indirect comments such as the prosecutor’s references in this case to “uncontradicted testimony” constitute error when the statements are “manifestly intended to be or [are] of such a character that the jury [will] naturally and necessarily take [them] to be comment on the defendant’s failure to testify.” United States v. Lyon, 397 F.2d 505, 509 (7th Cir.), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968). This court has previously held that when a prosecutor refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony, such reference necessarily focuses the jury’s attention on the defendant’s failure to testify and constitutes error. United States v. Handman, 447 F.2d 853, 855 (7th Cir. 1971). See United States v. Poole, 379 F.2d 645, 649 (7th Cir. 1967). The Government maintains that the description of agent Lee’s testimony as uncon-tradicted was not error because persons other than the defendant could have disputed the testimony and were available as witnesses. One portion of such testimony referred to a telephone conversation between" }, { "docid": "6224665", "title": "", "text": "Rather, it is required that the records must be available (ordinarily in court, unless too bulky and cumbersome) for the defendant’s inspection. Bruce v. United States, supra; McDaniel v. United States, 5 Cir. 1965, 343 F.2d 785, cert. denied 382 U.S. 826, 86 S.Ct. 59, 15 L.Ed.2d 71; 4 Wigmore on Evidence, 3rd Ed., Section 1230. IX. PREJUDICIAL CLOSING ARGUMENT Appellants Criswell and Hunt contend that it was error for the prosecutor to allude in his rebuttal closing argument to the failure of the appellants to call any investors to the stand. One of the defenses relied on by the appellants was that they had a good faith belief in the success of the company and tried to protect investors’ funds, but the appellants presented no investor witnesses to testify that they had been dealt with fairly by the appellants. The prosecutor called this failure to the attention of the jury. Smith v. United States, 5 Cir. 1956, 234 F.2d 385, states: “* * * the rule against commenting on the failure of a defendant to testify in his own behalf ‘does not go to the extent of forbidding argument by counsel for the prosecution to the effect that the evidence against a defendant is uncontradicted’. The same is true with respect to a failure to produce testimony on any phase of the defense upon which the accused seeks to rely”. The prosecutor’s comment was well within established limits of propriety. X. INSTRUCTIONS AS TO GOOD FAITH DEFENSE The appellants Cahn and Kroll urge that the trial judge erred in refusing to give their proposed instructions on good faith. The appellee concedes that the defendants were entitled to have their defense of good faith squarely presented to the jury, but contends that the jury was fairly informed by the general instruction of the reliance on good faith as a defense. The appellee further asserts that the appellants failed to object to the charge given by the court, and that therefore here reversal can only be predicated on “plain error” which they argue was not committed. See Rules 30 and 52(b)," }, { "docid": "13111083", "title": "", "text": "defeat his federal income taxes. It is further -charged that government attorneys prejudicially commented on the failure of defendant to take the witness stand in his own defense. No direct charge of that kind was made by government counsel. What occurred in substance was that in argument to the jury and in analyzing the government’s evidence they pointed out that the government’s evidence was undisputed. No objections were made nor exceptions taken to these references at the time they occurred. Such references did not directly call the attention of the jury to. the fact that defendant did not testify and no comment was made on his failure to testify further than to point out that the government’s testimony was undisputed. In this situation there is no question to review. Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704. Further, “The statement of counsel that certain evidence is not denied is not a violation of the safeguard vouched an accused by the law.” Baker v. United States, 8 Cir., 115 F.Zd 533, 544, certiorari denied, 312 U.S. 692, 61 S.Ct. 711, 85 L.Ed. 1128. In the cited case the court quotes with approval the statement of the court in Lefkowitz v. United States, 2 Cir., 273 F. 664, 668, that “It is only objectionable to comment upon the failure of the defendant personally to testify; and if at the close of the whole case any given point stands uncontradicted, such lack of contradiction is a fact, an obvious truth, upon which counsel are entirely a; liberty to dwell.” Here there was no direct reference to the failure of Banks to testify. The law was not, therefore, violated. In Morrison v. United States, 8 Cir., 6 F.2d 809, 811, Judge Booth speaking for this court said: “Comment by court and counsel that certain testimony is uncontradicted is common, oftentimes helpful, and very generally held to be without error.” Citing authorities. Counsel for defendant requested 14 numbered instructions to be given to the jury. His careless criticism of the court is illustrated by his assigned error for alleged failure" }, { "docid": "22561662", "title": "", "text": "any errors. The Government also asserts that comments on excluded evidence were addressed to appellants’ own comments on it, that appellants, not the Government, misstated evidence, that the prosecutor did not express personal beliefs, and that the prosecutor did not attack appellants or their counsel. This court has developed a considerable body of law governing comments by the prosecutor on defendant’s failure to testify. The history of that development is recounted in United States v. Flannery, 451 F.2d 880, 881-82 (1st Cir. 1971), which supplies us with the still-controlling rule: [W]hen it is apparent on the record that there was no one other than himself whom the defendant could have called to contradict the testimony, we shall not endeavor to weigh prejudice, but shall rule [descriptions of evidence as “uncontradicted”] prejudicial as [a] matter of law, with a single exception. If the court interrupts the argument, instructs the jury fully on the defendant’s right not to testify and the jury’s obligation not to draw unfavorable inferences and; in addition, states to the jury that the U.S. Attorney was guilty of misconduct, we may find no prejudice’; otherwise we will reverse. Id. at 882. This rule is more narrow than appellants would like. In Flannery and its precursors, such as Rodrigiiez-Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969), cert. denied, 414 U.S. 869, 94 S.Ct. 180, 38 L.Ed.2d 115 (1973), and Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965), we were faced with situations where the prosecutor had referred explicitly to certain evidence as uncontradicted when the only source of contradiction was the defendant, who has a fifth amendment right not to take the stand. Such comments on defendant’s failure to testify, absent the curative instruction outlined in Flannery, were, we held, reversible error. Our subsequent decisions have turned on a careful examination of the prosecutor’s language and the evidence in the case. Where we have found the prosecutor’s argument not improper, we have found that the comment was “sufficiently circumscribed and did not necessarily implicate appellant’s assertion of his fifth amendment right.” United States" }, { "docid": "18586720", "title": "", "text": "during which the prosecutor was admonished not to comment on petitioner’s failure to testify. The trial judge certified that the prosecutor stated he would not make any further remarks. Notwithstanding this statement, the prosecutor proceeded to make four additional references to the uncontradicted, unrebutted, and undisputed nature of Diane’s testimony (Tr. 231, 233, 235, 236-237). The defense attorney made no objection to these last four statements. The petitioner filed a motion for a new trial in which he alleged that the assistant state’s attorneys made improper references during closing argument to his failure to testify. The trial court denied the motion on the ground that the jury had been properly instructed on the petitioner’s right not to testify, the'presumption of innocence, and the prosecution’s burden of proof, and furthermore counseled that they should reach their verdict based on the evidence presented and not the arguments of counsel (Tr. 271). The Illinois Appellate Court affirmed petitioner’s rape conviction. Although the major portion of petitioner’s brief on direct appeal was devoted to the argument that the prosecutors committed reversible error by making nine separate references during closing argument to the uncontradicted nature of their case, all of which were calculated to draw the jury’s attention to petitioner’s failure to testify, the Appellate Court’s unpublished opinion made no mention of it. Petitioner therefore filed a petition for rehearing with the court which focused primarily on the prosecutors’ improper comments. Five months later the Appellate Court issued a supplemental order, also unpublished. The court incorrectly found that there had been five improper comments, when the record clearly revealed nine such comments, and noted only one objection, when again the record clearly revealed two objections. Despite suggesting that “from the nature and number of the comments ... they could have been calculated to direct the attention of the jury to the fact that defendant did not testify,” the court held that petitioner had waived any error by failing to object and that the comments did not deprive petitioner of a fair trial (Resp.App.B). The court did not evaluate the two statements to which the defense" }, { "docid": "23454891", "title": "", "text": "was uncontradicted. Garcia interprets this to be a comment upon his failure to take the stand which is proscribed by Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893). The rule relied upon by Garcia does not go to the extent of forbidding argument by counsel for the prosecution to the effect that the evidence against a defendant is uncontradicted or to the effect that defendant has failed to produce testimony on any phase of the defense upon which he relies. Smith v. United States, 5 Cir., 1956, 234 F.2d 385. This is especially true when the evidence against a defendant could be contradicted by someone other than himself. In this case, the testimony as to whether Garcia was holding a marihuana cigarette in his mouth or possessed the packages found under the seat could have been contradicted by the taxicab driver, who did not testify at the trial. The statement by the prosecuting attorney did not make any direct or indirect comment upon Garcia’s failure to take the stand. The remarks complained about fall short of such a comment. Garcia finally complains that certain of the trial court’s charge should not have been given; and that a charge requested by him should not have been refused. There was no objection to that phase of the court’s charge, or refusal to charge, which forms the basis of the error specified here. Under Rule 30 F.R.Crim.P. a failure to object to the giving, or a refusal to give a charge, results in a waiver of any objection on appeal. In all fairness to trial counsel, we have examined the charge given to the jury and find it to be adequate. The errors relied upon in this regard do not amount to plain error. Rule 52(b) F.R.Crim.P. The record shows that Appellant Garcia was given a fair trial free of prejudicial error, and that he was ably represented by capable attorneys, both at the trial and on this appeal. The judgment is Affirmed. “At the outset, it must be conceded that trial counsel failed to submit requested" }, { "docid": "3598320", "title": "", "text": "ever heard, and for that reason I would swear by my testimony that it was his (Biondo’s) voice.” Furthermore, identity may be proved by circumstantial evidence, Cwach v. United States, 212 F.2d 520 (8th Cir. 1954). Biondo’s May 20th presence at the meeting place and at the time arranged by the caller would certainly constitute circumstantial evidence as to the identity of the caller. Despite Wozniak’s admission that he had a hearing defect and that one of the phone calls was long distance, the evidence in this case clearly authorized the trial court’s submitting this issue to the jury. 7) Appellants also contend that the court erred in refusing to declare a mistrial when the prosecuting attorney commented in closing argument on failure of the appellants to testify. We disagree and find there was no prejudicial error resulting to the appellants in the court’s denying their motion for mistrial. The prosecuting attorney in his closing statement argued as follows: • “Now, let’s go to May 25th, which is four days after Orlando and Biondo were arrested. The FBI has an interview with Joe Boy Scalise. Now, Joe Boy was very quick to say that he left the conversation with Willie Orlando and Joe Wozniak on May 18th and went shopping. This is four days after they were arrested for extortion. Very quick to inject that. Now, unless he were involved in the extortionate scheme why would he try to disassociate himself with a conversation that occurred on May 18th ? “Now, it’s up to you folks to determine whether Mr. Wozniak, his testimony from that witness stand, is the truth. He’s the only participant in that May 18th meeting that’s testified here. Now, you wonder why . . . ” At this point the defense objected on the grounds that the only other participants at the meeting were Scalise and Orlando and this was an improper comment on their failure to testify. After a short recess the trial court denied a motion for a mistrial and instructed the jury that if they were able to recall the last two statements" }, { "docid": "18586719", "title": "", "text": "(Tr. 228). Referring to the petitioner’s use of force, the prosecutor said: And remember her testimony, the uncontradicted, unrebutted testimony of Diane Williams? (Tr. 229). He continued: Nowhere in the instructions ... does it say that she has to resist. By force and against her will, and we proved that beyond a reasonable doubt. She told it to you and nobody else told you anything different. (Tr. 229-230). The trial judge certified that the prosecutor punctuated his remark by pointing at the witness stand. (Certification by Trial Court dated Nov. 21, 1983). At this point, the defense attorney objected. The court took note of the objection but allowed the prosecutor to proceed with his argument. The prosecutor then again pointed to the witness stand and asked: Where is the evidence that this was a date? Where is the evidence? Who got up on the witness stand and told you that these two were dating? (Tr. 230). This statement prompted another objection by the defense. This time the court held a side-bar conference off the record during which the prosecutor was admonished not to comment on petitioner’s failure to testify. The trial judge certified that the prosecutor stated he would not make any further remarks. Notwithstanding this statement, the prosecutor proceeded to make four additional references to the uncontradicted, unrebutted, and undisputed nature of Diane’s testimony (Tr. 231, 233, 235, 236-237). The defense attorney made no objection to these last four statements. The petitioner filed a motion for a new trial in which he alleged that the assistant state’s attorneys made improper references during closing argument to his failure to testify. The trial court denied the motion on the ground that the jury had been properly instructed on the petitioner’s right not to testify, the'presumption of innocence, and the prosecution’s burden of proof, and furthermore counseled that they should reach their verdict based on the evidence presented and not the arguments of counsel (Tr. 271). The Illinois Appellate Court affirmed petitioner’s rape conviction. Although the major portion of petitioner’s brief on direct appeal was devoted to the argument that the prosecutors" }, { "docid": "23454890", "title": "", "text": "ounce. Thereafter, the Government attempted to prove that other amounts taken from Garcia were not so small. In these circumstances, we conclude that no prejudicial error warranting a reversal of the conviction was committed. Garcia further contends that his motion for acquittal should have been granted. The essential elements of the offense charged are possession of the marihuana and failure to pay the tax thereon. Symons v. United States, 9 Cir., 1950, 178 F.2d 615. Possession of the marihuana cigarette was proved by direct, positive testimony of Agent Lati-mer which was corroborated. The fact that marihuana sweepings were found in Garcia’s pocket was uncontradieted. There was abundant evidence from which the jury could have found that the newspaper wrapped packages were placed under the taxicab seat by Garcia. The fact that no transfer tax was paid thereon was also admitted. These elements having been established, we hold that the motion for acquittal was properly overruled. Government counsel in his closing argument to the jury commented on the fact that certain of the evidence against Garcia was uncontradicted. Garcia interprets this to be a comment upon his failure to take the stand which is proscribed by Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893). The rule relied upon by Garcia does not go to the extent of forbidding argument by counsel for the prosecution to the effect that the evidence against a defendant is uncontradicted or to the effect that defendant has failed to produce testimony on any phase of the defense upon which he relies. Smith v. United States, 5 Cir., 1956, 234 F.2d 385. This is especially true when the evidence against a defendant could be contradicted by someone other than himself. In this case, the testimony as to whether Garcia was holding a marihuana cigarette in his mouth or possessed the packages found under the seat could have been contradicted by the taxicab driver, who did not testify at the trial. The statement by the prosecuting attorney did not make any direct or indirect comment upon Garcia’s failure to take the stand." }, { "docid": "18003668", "title": "", "text": "Collins v. United States, 383 F.2d 296, 302 (10 Cir. 1967), but the statement of the prosecuting attorney in this case falls far short of being prejudicial. A prosecutor may properly call to the jury’s attention that evidence before it is uncontradicted without impairing the rights of a defendant who elects not to take the stand and testify. United States v. Lepiscopo, 458 F.2d 977 (10 Cir. 1972), particularly when it is not made to appear that no other testimony was available to contradict the evidence. Here, the comment of the prosecuting attorney came in response to defense counsel's argument in which he in effect asserted that the only evidence in the case was the testimony of one Barbour, an unbelievable associate of the appellant, who had testified for the Government (Tr. 418). It appears that the evidence referred to by the prosecutor was a tape recording of a conversation to which police officers were listening. In such a circumstance, any of the officers could have been called to dispute the correctness of the recording. We have examined the indictment, Count I of which appellant contends is defective. This count charges in language of the statute, 26 U.S.C. § 5861(d), with the citation of the penalty provision found in 26 U.S.C. § 5871 added, that appellant did “knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Title II, Gun Control Act of 1968.” Appellant complains that the failure to include any reference to the section of the statute which defines a firearm or says that a destructive device is a firearm and the absence of any statement that a homemade incendiary bomb has to be registered, fails to sufficiently apprise the accused of what he must be prepared to meet. This contention is without merit. Count I of the indictment- charged possession by appellant of a destructive device, a homemade incendiary bomb, a firearm, which had not been registered to him, and in" }, { "docid": "2649874", "title": "", "text": "was contradicted as to two defendants whom he named. These defendants had taken the stand. The prosecutor asserted and reasserted that the evidence was uncontradicted as to the others. The innuendo is plain. It is clear that the prosecutor intended that the jury should infer that the evidence was uncontradicted by those defendants who did not take the stand. When the prosecutor named the two who had testified and conceded that the evidence as to them was contradicted, can it be doubted that he commented upon the failure of the others to testify when he emphatically demanded the conviction of those who had not testified on the ground that: “The evidence is uncontradicted.” The prosecutor’s statement that the evidence “has not been contradicted by the defendants” was little, if any, different in meaning, in the context of his argument, from a statement that the defendants had not testified. We conclude that the prosecutor’s comments were improper and prejudicial as to all of the appellants, except Gilbert and Epps, and that the convictions of these six appellants must be reversed on this ground. The Government urges that, even if the prosecutor’s comments were prejudicial, appellants have waived the error by failure to timely object. It is established that: “Counsel for the defense cannot as a rule remain silent, interpose no objections, and after a verdict has been returned seize for the first time on the point that the comments to the jury were improper and prejudicial.” United States v. Socony-Vacuum Oil Co., 310 U.S 150, 238-239, 60 S.Ct. 811, 851, 84 L.Ed. 1129. In this connection, however, consideration must be given to Rule 52(b), Fed. R.Crim.Proc., 18 U.S.C.A., which provides : “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” We believe this rule to be controlling here. It seems sufficient to say that the prosecutor’s comments to the jury operated to diminish the scope of a clearly delineated constitutional guarantee. “For comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice,’ Murphy" }, { "docid": "23494739", "title": "", "text": "at most statements of Robinson and Buarque, not statements “made by a Government witness.” Both FBI agents testified to their present recollection of the interviews. It was for the jury to consider the reliability and weight of their testimony, as compared to the testimony given by Robinson and Buarque. B. Alleged Comment on Edlin’s Failure to Testify. Edlin claims that the prosecutor improperly commented on his failure to take the stand. The incident referred to occurred at the end of the Government’s closing summary to the jury. After pointing out asserted inconsistencies in the appellant’s positions, the prosecutor spoke these words: “Members of the Jury, the defendant Edlin has presented no defense in this case. He has presented no evidence to contradict the charges against him. He has produced no evidence to deny numerous statements made by many, many government witnesses. He has produced no evidence to deny the testimony of numerous witnesses of his various activities which clearly indicate beyond any doubt, Members of the Jury, his guilt of the charges in this indictment.” In Davis v. United States, 279 F.2d 127 (4th Cir. 1960), a similar argument was presented. The answer we gave applies with equal force here: “The United States Attorney’s argument cannot be said to have constituted a forbidden comment on the failure of the defendants to testify. He merely reviewed certain testimony and added, truthfully, that there was no evidence in contradiction.” The prosecutor did not draw improper attention to Edlin’s refusal to testify. He merely pointed out that the defense did not introduce evidence to contradict certain of the prosecution’s witnesses. Edlin was not the only person who could have refuted the Government’s witnesses. Leathers v. United States, 250 F.2d 159, 165 (9th Cir. 1957). The prosecutor addressed himself to the absence of any thing in the record to contradict the Government’s version of the case. Under these circumstances his comment was not improper. Davis v. United States, supra; Garcia v. United States, 315 F.2d 133, 137 (5th Cir. 1963). C. Alleged “Totality of Prejudice” Edlin launches a more general attack on the trial," }, { "docid": "9911866", "title": "", "text": "the defendant’s name when he intended to call on the defendant’s counsel to explain in his closing argument this uncontradicted evidence. This was, in fact, the explanation given by the prosecutor immediately after the remark was made. This appropriate motivation seems at least as likely as a manifest intention to comment. B. Effect on the Jury. We further find that the appellant has not shown that the jury necessarily construed the remark as a comment on his failure to testify. A review of this court’s cases involving this issue reveals our reluctance to find the necessary improper understanding on the part of the jury. In United States v. Toler, 440 F.2d 1242 (5th Cir. 1971), we considered a government attorney’s statement in a prosecution for filing a false medical claim for Social Security benefits. The prosecutor said “at no time has he [the defendant] denied filing it,” and we found it not a comment on the defendant’s failure to take the stand, but rather on the uncontradicted state of the evidence. Again in Samuels v. United States, 398 F.2d 964 (5th Cir. 1968), we found that the jury did not necessarily construe improperly the remark “G.L. Samuels does not want to talk about the facts,” stating that it was “very possible” that the prosecutor’s inadvertent use of the defendant’s name instead of the defense counsel’s name could have been interpreted by the jury as directed to the argument of counsel and not to the defendant’s failure to testify. In United States v. Rochan, 563 F.2d 1246 (5th Cir. 1977), we found that the prosecutor’s rhetorical question posed midway through his closing argument — “what did we hear from the defense in this case?” — was not necessarily interpreted by the jury as a comment on the defendant’s failure to testify, but could have been understood as a transitional device. In this case, we feel that the jury could have quite reasonably construed the prosecutor’s remark as we have — that is, as an inadvertent reference to the defendant when he intended to call on the defense counsel to explain in" }, { "docid": "11732953", "title": "", "text": "testimony. It is conceded that as a general rule a reference to the testimony for the prosecution as uncontradicted is not an indirect comment on the defendant’s failure to testify, but the appellant contends that an exception exists where the only persons who could contradict the testimony ¿re the defendants themselves. Assuming arguendo that such an exception should be recognized, we do not think that the appellant’s case falls within it. The prosecutor’s comments were general and made without express reference to Moskowitz. It is possible to explain them as covering occurrences as to which contradiction could have come from others than this appellant. For example,'the comment to which objection was first interposed was the following: “The truth of the testimony offered here by Miss Bentley, Gold and others is conclusively established by the failure of the defense to produce one solitary word contradicting any of this testimony.” In overruling t-he objection the court stated, “I will deal with that later properly myself.” And in his charge the judge instructed the jury that they may not “infer guilt nor even draw a single unfavorable inference against the defendants because they did not take the stand.” We think this was all that was required. We turn now to Brothman’s appeal. The court’s charge limited the substantive crime to endeavoring to influence Gold to give false testimony, and the jury was told that the Government did not have to prove the success of the endeavor. Concededly all of Brothman’s “endeavors” to influence Gold’s testimony took place in the eastern district of New York, although Gold’s testimony was given in the southern district. The contention on appeal -is failure of proof of venue. At the close of the prosecutor’s case, Brothman moved for a directed verdict on count 2 on the ground that the evidence was insufficient. This motion was renewed at the end of the entire case. The Government’s only answer to the appellant’s argument is that Broth-man waived, his constitutional privilege to be tried where the crime was committed by goi-ng to trial in the southern district without objection. Where the" }, { "docid": "893161", "title": "", "text": "to rebut the testimony of Reed. Walker was questioned under oath, outside the presence of the jury, by the court and counsel. He stated that he had been present from about 12:05 p. m. until the noon recess at about 12:20 p. m.; Reed was testifying at the time, but Walker could recall nothing specific about the testimony. Walker was then allowed to testify. In closing argument, the government attorney stated, “Mr. Walker was in the courtroom for a short portion of Mr. Reed’s testimony, though . . . Mr. Walker in the afternoon doesn’t come back in the courtroom any more.” Appellants’ contention that this constituted a comment on a matter not in evidence is unfounded. Before the jury, on direct examination of Walker, defense counsel elicited the fact that Walker had been present in the courtroom for ten or fifteen minutes, that he had seen Reed, and that he had not returned after the noon recess. Moreover, when the prosecutor’s remarks are considered in their entirety, it is clear that they were not designed to imply that Walker had listened to Reed and then concocted a contrary story. Rather, they were merely an attempt to suggest that Walker had been called to testify as part of a desperate, last-min-. ute maneuver by the defense. The court did not err in overruling the objection. In his summation, government counsel noted that Reed’s description of the interior of Jennings’s house had not been contradicted. Appellants assert that this observation constituted a comment upon the defendants’- failure to testify, because aside from Reed, only Jennings, Curtis, and Younger were present in Jennings’s house when the heroin was divided. While it is improper to comment upon the failure of a defendant to take the stand, it is well established that one may point out that the testimony of witnesses is uncontradicted, Davis v. United States, 357 F.2d 438, 441 (5th Cir.), cert. denied, 385 U.S. 927, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966), particularly where someone other than the defendant could have offered contrary evidence, Garcia v. United States, 315 F.2d 133," } ]

[ { "docid": "15791656", "title": "", "text": "made permanent those portions enacted as temporary provisions. See EAJA Amendments, 99 Stat. 183. The only change pertinent to our analysis, however, is the addition of a definition of the term “position of the United States”: “[Pjosition of the United States” means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based____ Id. § 2(c)(2)(B), 99 Stat. 185 (codified at 28 U.S.C. § 2412(d)(2)(D) (Supp. III 1985)). In Spencer (which, of course, arose under the original EAJA), we undertook a careful analysis of the statute and construed “position of the United States” to mean the Government’s position in the litigation. 712 F.2d at 557. By virtue of the 1985 Amendments, the Government must now show that both its position in the litigation and its conduct that led to the litigation were substantially justified. In Spencer, we set forth a comprehensive framework for determining whether the Government’s position in the litigation is substantially justified. 712 F.2d at 557-65. We have not, on the other hand, had occasion heretofore to address in detail how a court determines whether the Government’s underlying action is substantially justified. Of course, our evaluation of the underlying action, like that of the litigation position, must begin with the fact that the EAJA itself supplies a legal standard — “substantially justified” — that is separate and distinct from whatever legal standards governed the merits phase of the case. Thus, at the EAJA stage, the court is not wedded to the underlying judgment on the merits in assessing either the Government’s litigation position or its underlying conduct. To the contrary, Congress’ inclusion of the discrete legal standard makes clear that an independent evaluation through an EAJA perspective is required. Cf. Martin v. Lauer, 740 F.2d 86, 43 (D.C.Cir.1984) (court at EAJA stage not bound to find that Government’s position was substantially justified merely because at trial on merits, Government prevailed) (citing Cinciarelli v. Reagan, 729 F.2d 801, 806 (D.C.Cir.1984)). The court assessing an EAJA application must deny costs and" } ]

[ { "docid": "23660135", "title": "", "text": "OF AWARDING FEES: “SUBSTANTIAL JUSTIFICATION” Under § 2412(d)(1)(A) of the EAJA, a district court is required to award attorney’s fees to a successful plaintiff in an action brought against the United States unless the government’s position was substantially justified. “The test of whether or not a Government action is substantially justified is essentially one of reasonableness.” H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4989; see also Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983). A position is substantially justified if it has a reasonable basis in both law and fact. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad.News at 4989. See also League of Women Voters of California v. FCC, 798 F.2d 1255 (9th Cir.1986); Underwood v. Pierce, 761 F.2d 1342, 1346 (9th Cir.1985), modified, 802 F.2d 1107 (9th Cir.1986), cert. granted, — U.S. -, 107 S.Ct. 2177, 95 L.Ed.2d 834 (1987). The burden is on the government to prove substantial justification. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News at 4989; Timms v. United States, 742 F.2d 489, 492 (9th Cir.1984). We review for abuse of discretion the district court’s determination of lack of substantial justification. Underwood, 761 F.2d at 1346; United States v. First National Bank of Circle, 732 F.2d 1444, 1446 (9th Cir.1984). In evaluating the government’s position to determine whether it was substantially justified, we look to the record of both the underlying government conduct at issue and the totality of circumstances present before and during litigation. See 28 U.S.C. § 2412(d)(1)(B) (as amended by Pub.L. No. 99-80, § 2(b) (1985)); League of Women Voters, 798 F.2d at 1258; Underwood, 761 F.2d at 1345; Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984). We turn first to the underlying government action in targeting the decisions of certain AUs. As the district court held, Bellmon Review placed pressure first on AUs to deny benefits and then, if the applicant was nevertheless successful, insinuated that the Appeals Council should reverse. See Barry, 620 F.Supp." }, { "docid": "13822941", "title": "", "text": "* *. There is no question that Foley was the “prevailing party” in this litigation. The only dispute in this appeal is whether the position of the United States- was substantially justified. The legislative history is helpful in interpreting the substantially justified standard. The House committee report on the EAJA states: The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and in fact, no award will be made.... The standard, however, should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. H.R.Rep. No. 1418, supra, at 10-11, U.S. Code Cong. & Admin.News 1980, pp. 4989-4990. Although the committee report is strong evidence that a reasonableness standard should be applied, we must also consider that the Senate Judiciary Committee rejected an amendment to the EAJA that would have changed the language of the bill from “substantially justified” to “reasonably justified.” S.Rep. No. 253, 96th Cong., 1st Sess. 8 (1979). The courts of appeals have generally been in agreement that substantial justification is essentially a test of reasonableness. Dougherty v. Lehman, 711 F.2d 555 (3d Cir.1983) (available August 12, 1983, on Westlaw); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983); Broad Avenue Laundry and Tailoring, 693 F.2d 1387, 1391 (Fed.Cir.1982); Wyandotte Savings Bank v. NLRB, 682 F.2d 119, 120 (6th Cir.1982); S & H Riggers & Erectors, Inc. v. OSHRC, 672 F.2d 426, 430 (5th Cir.1982). The District of Columbia Circuit has stated that a standard based on the bounds of reasonableness is appropriate in most cases. For “borderline cases,” however, it has developed more particularized criteria, including the clarity of the governing law, the foreseeable length and complexity of the litigation, and the consistency of the government’s position. Spencer v. NLRB, 712 F.2d 539 at 557-561 (D.C.Cir.1983). This court appeared to" }, { "docid": "13822940", "title": "", "text": "held that although Foley was the “prevailing party,” the government’s position was substantially justified. II. EQUAL ACCESS TO JUSTICE ACT The Equal Access to Justice Act, 28 U.S.C. § 2412, enacted by Congress in 1980, provides for attorneys’ fees in suits by or against the United States under certain limited circumstances. The purpose of the EAJA is to diminish the deterrent effect of the expense involved in seeking review of, or defending against, unreasonable government action. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 5-6 (1980), U.S.Code Cong. & Admin.News 1980, p. 4953. In this case, Foley claims attorneys’ fees under 28 U.S.C. § 2412(d)(1)(A): [A] court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified * * *. There is no question that Foley was the “prevailing party” in this litigation. The only dispute in this appeal is whether the position of the United States- was substantially justified. The legislative history is helpful in interpreting the substantially justified standard. The House committee report on the EAJA states: The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and in fact, no award will be made.... The standard, however, should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. H.R.Rep. No. 1418, supra, at 10-11, U.S. Code Cong. & Admin.News 1980, pp. 4989-4990. Although the committee report is strong evidence that a reasonableness standard should be applied, we must also consider that the Senate" }, { "docid": "22127228", "title": "", "text": "verdict, or where a prior suit on the same claim had been dismissed. Such cases clearly raise the possibility that the Government was unreasonable in pursuing the litigation. The standard, however, should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. House Report, supra, at 11, U.S.Code Cong. & Admin.News 1980, pp. 4989-4990. (emphasis added). Second, the House Report instructs that fee awards in judicial proceedings pursuant to section 2412(d)(1)(A) should be treated “analogous to the awards authorized in adversary adjudications” at the agency level under section 203 of the EAJA, 5 U.S.C. § 504(a)(1) (Supp. V 1981). House Report, supra, at 17. Section 203 authorizes the award of fees against the United States in administrative adjudications where the United States is in an adversarial role, unless the “position of the United States is substantially justified.” The legislative history of the substantial justification standard in section 203 states that “[i]ts effect is to place the burden on the government to make a positive showing that its position and actions during the course of the proceedings were substantially justified.... ” House Report, supra, at 13, U.S.Code Cong. & Admin.News 1980, p. 4992 (emphasis added). Such language clearly addresses the government’s post-complaint conduct rather than the government’s pre-complaint conduct. Therefore in examining a petition for counsel fees pursuant to section 2412(d)(1)(A), I would look at the litigation position of the government in determining whether its position was substantially justified. Rather than demonstrating “hostility” to the legislative intent as Judge Gibbons suggests, 703 F.2d at 707, that approach best comports with the legislative history and with the compromise intended by Congress in enacting the EAJA. Finally, I turn to the meaning of the term “substantially justified.” The House and Senate Reports define the test as follows: The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can" }, { "docid": "23509581", "title": "", "text": "that the government should bear the expense of litigation in a long-shot “test case.” In this case, however, the novelty of the government’s position cannot compensate for the paucity of support in favor of that position. A prevailing party’s entitlement to fees under the EAJA should not depend on the creativity of the government in fashioning novel, but meritless, arguments. OPM also reminds this court that the justification for the government’s litigating position must be measured against the law as it existed at the time of the appeal, and not against the new law enunciated by the court in its opinion. Kay Manufacturing Co. v. United States, 699 F.2d 1376, 1379 (Fed.Cir.1983); Broad Avenue, 693 F.2d at 1392. As the opinion made clear, the court’s rejection of OPM’s arguments was not made on the basis of “new law,” but on the basis of the law extant at the time of the appeal. What “new law” that may have been established by the opinion did not relate to the merits of OPM’s appeal. Finally, OPM asserts that there are no “special circumstances” warranting an award of attorney fees to NTEU. The legislative history of the EAJA elaborates on the purpose of the provision that an award of fees to a prevailing party should be made unless the court finds “that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). This “safety valve” helps to insure that the Government is not deterred from advancing in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts. It also gives the court discretion to deny awards where equitable considerations dictate an award should not be made. H.R.REP. NO. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.CODE CONG. & AD.NEWS 4984, 4990. First, OPM turns the above standard on its head when it argues that NTEU must show “special circumstances” warranting an award of fees. The statutory language clearly sets out the “special circumstances” test as an exception to an award of fees, as is the “substantial justification” test where the government has the" }, { "docid": "23506859", "title": "", "text": "phrase “position of the United States” have a different meaning in section 2412(d)(3) than in the provision relevant to this case, section 2412(d)(1)(A). But since Congress did not indicate otherwise, the use of the identical phrase — “the position of the United States” — in sections 2412(d)(3) and 2412(d)(1)(A), suggests that the phrases should be interpreted similarly. Thus, on balance, the language of the Act provides more support for the litigation position theory than the underlying action theory. We note, however, that the language of the statute is far from decisive. Next we will consider the legislative history of the Act. Unfortunately, it does not provide a conclusive answer. Spencer v. NLRB, 712 F.2d at 548-49. Contra NRDC v. USEPA, 703 F.2d at 707-12 (legislative history establishes beyond a question that Congress intended underlying action theory to apply). On the one hand, language in both committee reports suggests that Congress was concerned with irresponsible governmental positions in litigation: A court should look closely at cases, for example, where there has been a judgment on the pleadings or where there is a directed verdict or where a prior suit on the same claim had been dismissed. Such cases clearly raise the possibility that the Government was unreasonable in pursuing the litigation. The standard, however, should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the government to establish that its decision to litigate was based on a substantial probability of prevailing. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980), U.S.Code Cong. & Admin.News 1980, 4989; S.Rep. No. 253, 96th Cong., 1st Sess. 6-7 (1979) (emphasis added). Both reports conclude that the EAJA will allow a decision whether to contest governmental behavior “to be based on the merits of the case rather than the cost of litigating,” thus emphasizing that it is the litigation costs that will be reimbursed, not the agency costs. On the other hand, the legislative history contains statements that support the underlying action theory. In discussing the burden" }, { "docid": "18752233", "title": "", "text": "only objective medical evidence stating a medical opinion to conclude that Jackson did not meet the disability requirements. Cf. Campbell, 800 F.2d at 1250 (treating physician’s and consulting physician’s conflicting opinions made on the basis of same data, but Secretary can reasonably reject treating physician’s opinion in deference to conflict). See Donovan v. DialAmerica Marketing, Inc., 757 F.2d 1376, 1389 (3d Cir.) (closeness of case is evidence of substantial justification), cert. denied, — U.S. -, 106 S.Ct. 246, 88 L.Ed.2d 255 (1985). Furthermore, this is not a case in which the Secretary rejected undisputed evidence which showed a per se entitlement to benefits, see Herron, 788 F.2d at 1132 (Secretary’s position therefore without substantial justification); denied Jackson’s claim without researching the issue, see Granville House, Inc. v. Department of Health, Educ. & Welfare, 796 F.2d 1046, 1049 (8th Cir.1986); substituted its judgment for that of the physicians, see Dennis v. Heckler, 756 F.2d 971, 976 (3d Cir.1985) (Secretary’s position therefore without substantial justification); or erred in applying the guidelines to Jackson’s disability, see Washington v. Heckler, 756 F.2d 959, 966-68 (3d Cir.1985) (Secretary’s position therefore without substantial justification). III. CONCLUSION Because at least one permissible view of the evidence leads to the conclusion that the government has shown a reasonable basis in fact and law for its position, we hold that the trial court did not abuse its discretion in not awarding attorney’s fees under the EAJA. Accordingly, the district court’s order is affirmed. . The Honorable Garnett Thomas Eisele, Chief Judge for the United States District Court, Eastern District of Arkansas. . Additionally, the motion for summary judgment had contained a prayer for attorney’s fees and cited the EAJA. . The special circumstances exception helps to ensure that the government can advance in good faith novel but credible interpretations of law. Keasler v. United States, 766 F.2d 1227, 1231 n. 8 (8th Cir.1985) (citing H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4990). The Secretary has not argued this ground on appeal. . The court has discretionary authority to award fees" }, { "docid": "22966138", "title": "", "text": "Defense Fund, et al. v. Watt, et al., 554 F.Supp. 36, 41 (E.D.N.Y.1982). We are left, therefore, with the question of justification for the government’s litigation position. We note at the outset that the government’s ultimate acquiescence in a settlement is merely the beginning, not the termination, of our inquiry. The legislative history of the EAJA establishes that a party need not prevail after a full trial on the merits in order to obtain a fee award. Under the statute’s more expansive definition, “[a] party may be deemed prevailing if he obtains a favorable settlement of his case.” H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4990. If, however, by settling a case the government could automatically make its position “substantially justified” and thereby avoid any fee liability, the statute would withdraw with one hand what it proffered with the other. The test for determining whether the government’s position is substantially justified is “essentially one of reasonableness.” House Report at 10, reprinted in 1980 U.S.Code Cong. & Ad.News 4989. The government bears the burden of demonstrating the justification for its position, id.; S & H Riggers & Erectors, Inc. v. OSHRC, 672 F.2d 426, 430 (5th Cir. Unit B 1982), and a “strong showing” must be made to meet that burden. House Report at 18, reprinted in 1980 U.S.Code Cong. & Ad.News 4997; Natural Resources Defense Council v. EPA, 703 F.2d 700, 712 (3d Cir.1983). In assessing the reasonableness of the government’s position, we must examine the full course of the litigation. In our view, the district court erred on this point. First, as a factual matter, the characterization of the case as one in which “the government settled the case shortly after it was initiated,” Environmental Defense Fund, et al. v. Watt, et al., supra, 554 F.Supp. at 40, was clearly erroneous. Seven months between hearing and settlement is not a short period considering the scope of the issues involved, the brevity of the resulting stipulation, and the government’s acquiescence to appellees’ claims as expressed therein. More importantly, we" }, { "docid": "18752234", "title": "", "text": "Heckler, 756 F.2d 959, 966-68 (3d Cir.1985) (Secretary’s position therefore without substantial justification). III. CONCLUSION Because at least one permissible view of the evidence leads to the conclusion that the government has shown a reasonable basis in fact and law for its position, we hold that the trial court did not abuse its discretion in not awarding attorney’s fees under the EAJA. Accordingly, the district court’s order is affirmed. . The Honorable Garnett Thomas Eisele, Chief Judge for the United States District Court, Eastern District of Arkansas. . Additionally, the motion for summary judgment had contained a prayer for attorney’s fees and cited the EAJA. . The special circumstances exception helps to ensure that the government can advance in good faith novel but credible interpretations of law. Keasler v. United States, 766 F.2d 1227, 1231 n. 8 (8th Cir.1985) (citing H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4990). The Secretary has not argued this ground on appeal. . The court has discretionary authority to award fees to a prevailing party under 28 U.S. C.A. § 2412(b) (West Supp.1986). This section does not require the showing of substantial justification. See Id. . Congressman Kindness also referred to a specific sentence in the committee’s report which states: \"Agency action found to be arbitrary and capricious or unsupported by substantial evidence is virtually certain not to have been substantially justified under the [EAJA].” H.R.Rep. No. 120, 99th Cong., 1st Sess. 9-10, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 138. He stated that this sentence was not meant to confuse the distinction between the substantial evidence rule and the substantial justification standard which is novel to the EAJA. 131 Cong. Rec. H4763 (daily ed. June 2d, 1985) (statement of Congressman Kindness)." }, { "docid": "22127227", "title": "", "text": "encourage the government to avoid litigation, and correct its actions, a clear intent of the EAJA, House Report, supra, at 10, if it cannot raise reasonable legal arguments. Such action will reduce “the expense of correcting error on the part of the Government.” Senate Report, supra, at 6. However, if the government does waste the resources of the prevailing party by raising defenses that have no substantial justification, the EAJA will mandate an award of fees from the government to compensate the party for the expenses incurred. See S & H Riggers, 672 F.2d at 429 (a “fee award is not a sanction to deter or penalize litigation but is a proper allocation of the costs of the litigation”). In addition to the language addressing the purpose of the EAJA, other language in the legislative history also supports my position. First, in explaining the substantial justification standard, the House Report directs the courts to look closely at cases, for example, where there has been a judgment on the pleadings or where there is a directed verdict, or where a prior suit on the same claim had been dismissed. Such cases clearly raise the possibility that the Government was unreasonable in pursuing the litigation. The standard, however, should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. House Report, supra, at 11, U.S.Code Cong. & Admin.News 1980, pp. 4989-4990. (emphasis added). Second, the House Report instructs that fee awards in judicial proceedings pursuant to section 2412(d)(1)(A) should be treated “analogous to the awards authorized in adversary adjudications” at the agency level under section 203 of the EAJA, 5 U.S.C. § 504(a)(1) (Supp. V 1981). House Report, supra, at 17. Section 203 authorizes the award of fees against the United States in administrative adjudications where the United States is in an adversarial role, unless the “position of the United States is substantially justified.” The legislative history" }, { "docid": "12134338", "title": "", "text": "States was substantially justified. 28 U.S.C. § 2412(d)(1)(A). The district court determined that the Secretary’s position was not substantially justified and awarded fees. We review the district court’s determination of lack of substantial justification for an abuse of discretion. Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir.1987). We review its interpretation of the EAJA de novo. Id. at 1331. In determining whether the government’s position was substantially justified, “we look to the record of both the underlying government conduct at issue and the totality of circumstances present before and during the litigation.” Id. at 1330. “That the Government lost does not raise a presumption that its position was not substantially justified.” Petition of Hill, 775 F.2d 1037, 1042 (9th Cir.1985). The government bears the burden of showing substantial justification. Barry, 825 F.2d at 1330. At the outset, plaintiffs and the Secretary contest the meaning of “substantial justification.” We have long held that “ ‘[wjhere the Government can show that its case had a reasonable basis both in law and fact, no award will be made.’ ” League of Women Voters of California v. F.C.C., 798 F.2d 1255, 1257 (9th Cir.1986) (quoting H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4989). The district court, however, stated that the test was more than mere reasonableness. The cause of the disagreement is the legislative history accompanying the reenacted EAJA. The original EAJA contained a “sunset” provision and expired on Sept. 30, 1984. In 1985 Congress reenacted the EAJA. See generally Allen v. Bowen, 821 F.2d 963, 964-65 (3d Cir.1987). The House Report accompanying the EAJA states that substantial justification means more than mere reasonableness: Another problem which has developed in the implementation of the Act has been the fact that courts have been divided on the meaning of “substantial justification.” Several courts have held correctly that “substantial justification” means more than merely reasonable. Because in 1980 Congress rejected a standard of “reasonably justified” in favor of “substantially justified,” the test must be more than mere reasonableness. H.R.Rep. No. 120, 99th Cong., 1st Sess." }, { "docid": "4424627", "title": "", "text": "in fact, ho award will be made____ The standard, however, should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. H.R.Rep. No. 1418, [96th Cong., 2d Sess.] 10-11, [1980] U.S.Code Cong. & Ad.News 4989-90. Although the committee report is strong evidence that a reasonableness standard should be applied, we must also consider that the Senate Judiciary Committee rejected an amendment to the EAJA that would have changed the language of the bill from “substantially justified” to “reasonably justified.” S.Rep. No. 253, 96th Cong., 1st Sess. 8 (1979). ... We now hold that the test of whether the position of the United States is substantially justified is essentially one of reasonableness in law and in fact. The government bears the burden of proving the substantial justification of its position. See also Spencer v. NLRB, 712 F.2d at 557 n. 66 (listing cases applying similar analysis of “substantially justified”). The courts have been unable to reach a consensus about the meaning of the term “the position of the United States.” As noted in Spencer v. NLRB, [t]he government’s “position” ... might mean one of two things. First, the term could refer to the governmental action that precipitated the lawsuit. Second, it could refer to the posture assumed by the government in litigation. These two interpretations have come to be known, respectively, as the “underlying action” and the “litigation position” theories. ... [I]n the large majority of contexts, it makes no functional difference how one conceives of the government’s “position.” In actions brought by the United States, the governmental action that precipitates the controversy almost invariably is its litigation position. Most suits brought against the United States entail a similar correspondence. In the usual case, the government acts in a particular fashion and then defends its conduct before an administrative agency [or] a court [or both]. Under such circumstances, the litigation position of the United States will" }, { "docid": "22462350", "title": "", "text": "4953, 4984). Under the EAJA a prevailing party may obtain attorneys’ fees only where the position of the United States was not “substantially justified.” The test of whether the position of the government is substantially justified is essentially one of reasonableness in law and in fact and the United States has the burden of showing the substantial justification of its position. H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad. News 4989; Foley, 716 F.2d at 1204; Dougherty v. Lehman, 711 F.2d 555, 563 (3d Cir.1983); Gava v. United States, 699 F.2d 1367, 1370 (Fed.Cir.1983). This standard represents a middle ground between an automatic award of fees and an award only where the government’s position was frivolous. H.R.Rep., supra, at 14, reprinted in 1980 U.S.Code Cong. & Ad.News 4993. Where the government forces a party into “lengthy administrative proceedings before final vindication of his or her rights ... the government should have to make a strong showing ... that its action was reasonable.” Id. at 18, reprinted in 1980 U.S.Code Cong. & Ad.News 4997; Natural Resources Defense Council, 703 F.2d at 712; Tyler Business Services, Inc. v. N.L.R.B., 695 F.2d 73, 75 (4th Cir.1982). The fact that the government lost the case, however, does not raise a presumption that its position was not substantially justified. H.R.Rep., supra, at 11, reprinted in 1980 U.S.Code Cong. & Ad.News 4990. There has been much discussion in the opinions construing the EAJA about which government position must be substantially justified, the government’s litigation position or the agency action which made it necessary for a party to file suit. The legislative history of the EAJA is inconclusive on which position is to be examined. Spencer, 712 F.2d at 549. We have reviewed the opinions on the subject and find that there are persuasive arguments supporting both the “underlying action” and the “litigation position” theories. See id. at 546. In Spencer the District of Columbia Circuit examined this precise question extensively and reasoned that the issue is academic in most circumstances. Id. at 551-52. Even though we examined the" }, { "docid": "22306881", "title": "", "text": "149. . The parties agree that the Board’s litigation position — that its decisions concerning representational disputes are not subject to judicial review — was substantially justified. . The House Report accompanying the original EAJA cautions, however, that [t]he [reasonableness] standard ... should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. H.R.Rep. No. 1418 at 11, 1980 U.S.Code Cong. & Ad.News at 4990. . For the facts in this case, see Russell v. National Mediation Board, 714 F.2d 1332, 1334-36 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984). . Fed.R.Civ.P. 37, from which the EAJA’s \"substantially justified” language is taken, see H.R.Rep. No. 1418 at 13, 1980 U.S.Code Cong. & Ad.News at 4992, contains a provision apportioning expenses incurred in urging or defending a motion to compel discovery: \"If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.\" Fed.R.Civ.P. 37(a)(4). Congress’ decision not to include a similar provision in either the original EAJA or the new Act suggests that it did not intend for attorney fees to be apportioned. But cf. Goldhaber v. Foley, 698 F.2d 193, 197 n. 5 (3d Cir.1983) (stating that “just as the Equal Access to Justice Act has borrowed the term ‘substantial justification’ from Rule 37(a)(4), so too has it implicitly borrowed the principle of apportionment”). . Cf. Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984). In Rawlings, the Ninth Circuit found that the government’s position on the merits was not substantially justified, but that its appeal of the district court’s order awarding fees under the EAJA was substantially justified. We agree with the Ninth Circuit that for purposes of apportioning attorney fees, the EAJA fee application may be severed from the proceedings on the merits. Although we" }, { "docid": "7579676", "title": "", "text": "position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). In determining whether the government’s position was substantially justified “we look to the record of both the underlying government conduct at issue and the totality of circumstances present before and during litigation.” Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir.1987); see also OEC v. Kunzman, 817 F.2d at 498. EAJA defines the government’s “position” as both the posi tion of the government taken in the litigation and “the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D) (Supp. III 1985); see also League of Women Voters v. FCC, 798 F.2d 1255, 1258 (9th Cir.1986). By providing that courts “shall” award attorneys’ fees to prevailing parties, EAJA creates a presumption that fees will be awarded unless the government’s position was substantially justified. US. v. First National Bank of Circle, 732 F.2d 1444, 1447 (9th Cir.1984). “ ‘The test of whether or not a Government action is substantially justified is essentially one of reasonableness.’ ” Barry v. Bowen,. 825 F.2d at 1330 (quoting H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4989). Although the failure of the government to prevail does not raise a presumption that its position was not substantially justified, the government has the burden of showing that its case had a reasonable basis in law and in fact. Petition of Hill, 775 F.2d at 1042. It may sustain its burden by showing that its position was a novel but credible extension or interpretation of the law. Id. The district court denied appellants’ request for attorneys’ fees under EAJA on two grounds. First, it found that the government had a strong argument that its violation of ESA was technical and de min-imis. Second, it found that there was substantial merit in the government’s argument that no EIS was required under NEPA because the road was not part and parcel of a timber harvest plan. It concluded: “[T]he government was substantially justified" }, { "docid": "23508298", "title": "", "text": "638, section 2414 is sufficient to support the result here. We hold that the order dismissing the government’s appeal is a final judgment under section 2412(d)(1)(B). II. The second issue is whether the district court erred in awarding fees against the government for proceedings at the trial level. First, the government bears the burden of showing that its “position” was substantially justified. Foley Construction Co. v. United States Army Corps of Engineers, 716 F.2d 1202, 1204 (8th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984). In this circuit, the “position of the United States” includes the government’s position at both the prelitigation and litigation stages. Iowa Express Distribution v. NLRB, 739 F.2d 1305, 1309 (8th Cir.), cert. denied, — U.S. -, 105 S.Ct. 595, 83 L.Ed.2d 704 (1984). In determining the justification of this position, the question is “essentially one of reasonableness in law and in fact.” Foley, 716 F.2d at 1204; see H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad. News 4984, 4989. A district court’s award under section 2412(d) will not be overturned absent an abuse of discretion. National Treasury Employees Union v. IRS, 735 F.2d 1277,1278 (11th Cir.1984); United States v. First National Bank, 732 F.2d 1444, 1446-47 (9th Cir.1984). In determining the reasonableness of the government’s position, the legislative history of section 2412(d) is helpful. The House Judiciary Committee stated that the “reasonableness” standard “should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing.” H.R.Rep. No. 1418 at 11, reprinted in 1980 U.S.Code Cong. & Ad.News at 4990. More specifically, however, the Committee noted that “[cjertain types of case dispositions may indicate that the government action was not substantially justified. A court should look closely at cases, for example, where there has been a judgment on the pleadings or where there is a directed verdict * * *. Such" }, { "docid": "23508299", "title": "", "text": "A district court’s award under section 2412(d) will not be overturned absent an abuse of discretion. National Treasury Employees Union v. IRS, 735 F.2d 1277,1278 (11th Cir.1984); United States v. First National Bank, 732 F.2d 1444, 1446-47 (9th Cir.1984). In determining the reasonableness of the government’s position, the legislative history of section 2412(d) is helpful. The House Judiciary Committee stated that the “reasonableness” standard “should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing.” H.R.Rep. No. 1418 at 11, reprinted in 1980 U.S.Code Cong. & Ad.News at 4990. More specifically, however, the Committee noted that “[cjertain types of case dispositions may indicate that the government action was not substantially justified. A court should look closely at cases, for example, where there has been a judgment on the pleadings or where there is a directed verdict * * *. Such cases clearly raise the possibility that the Government was unreasonable in pursuing the litigation.” Id., 1980 U.S.Code Cong. & Ad.News at 4889-90. The district court, granted summary judgment for Keasler on the substantive issues in this suit, and this judgment is quite similar to a directed verdict or judgment on the pleadings. See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2713, at 593-95, § 2713.1, at 614-16 (1983). Thus, this case is plainly one that Congress envisioned may justify fees. A. We now explore the substantive justification offered by the government. During the tax periods in question, section 4061(a)(1) imposed an excise tax on manufacturers of truck bodies and chassis. The accompanying Treasury regulation defined “manufacturer” as “any person who produces a taxable article * * * from new or raw material, by processing, manipulating, or changing the form of an article, or by combining or assembling two or more articles.” Treas.Reg. § 346.4(a) (1954). In 1969, the IRS determined that combining a hoist with a truck body or" }, { "docid": "23128700", "title": "", "text": "common law. The common law allows attorney’s fees when one party “has acted in bad faith, vexatiously, wantonly or for oppressive reasons.” F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703, 713-14 (1974). The substantial justification standard was intended to make it easier for the prevailing party to recover attorney’s fees than the common law standard under which that party must demonstrate bad faith. See H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4989-90. Therefore, by affirming the finding that the Government demonstrated substantial justification for its position, we necessarily affirm the finding that Foster failed to demonstrate bad faith. III. The “Substantially Justified” Standard The legislative history assists us in construing the statutory phrase, “substantially justified.” The House Committee on the Judiciary’s report on the EAJA states: The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and in fact, no award will be made.... The standard, however, should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Id. Other Circuits have adopted the reasonableness test. For instance, S & H Riggers & Erectors, Inc. v. OSHRC, 672 F.2d 426 (5th Cir.1982), applied this standard to deny an application for attorney’s fees where one of the Government’s three contentions advanced “a novel but credible extension or interpretation of the law,” even though it was inconsistent with existing precedent in the circuit. Id. at 431 (quoting H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4990). United States for Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir.1982), affirmed a district court’s denial of attorney's fees in a case where a taxpayer successfully narrowed an IRS summons because “[t]he district court found that the summons had been issued in good faith and for a proper purpose.” Id. at 448. In Donovan" }, { "docid": "22306880", "title": "", "text": "is vacated. The case is remanded to the district court for computation of the amount of attorney fees due Russell. VACATED AND REMANDED. . In our earlier opinion we held that Russell’s fee application was timely filed under the old EAJA. Russell, 764 F.2d at 346-49. The parties agree that the application was timely filed under the new Act. . One of the exceptions applies to cases “commenced on or after October 1, 1984, and finally disposed of before the date of the enactment of this Act.” Pub.L. No. 99-80, § 7(b), 99 Stat. at 186. The other exception applies to prior Board of Contracts Appeals cases. Id. § 7(c), 99 Stat. at 187. . Another passage from the House Report is to similar effect: \"To the extent that amendments made by this Act merely clarify the original Congressional intent in EAJA these amendments will have the effect of informing judicial construction of pre-1985 provisions of EAJA with respect to pending cases.” H.R.Rep. No. 120 (pt. 1) at 21, 1985 U.S.Code Cong. & Ad.News at 149. . The parties agree that the Board’s litigation position — that its decisions concerning representational disputes are not subject to judicial review — was substantially justified. . The House Report accompanying the original EAJA cautions, however, that [t]he [reasonableness] standard ... should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. H.R.Rep. No. 1418 at 11, 1980 U.S.Code Cong. & Ad.News at 4990. . For the facts in this case, see Russell v. National Mediation Board, 714 F.2d 1332, 1334-36 (5th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984). . Fed.R.Civ.P. 37, from which the EAJA’s \"substantially justified” language is taken, see H.R.Rep. No. 1418 at 13, 1980 U.S.Code Cong. & Ad.News at 4992, contains a provision apportioning expenses incurred in urging or defending a motion to compel discovery: \"If the motion is" }, { "docid": "4424626", "title": "", "text": "the government was substantially justified. Under 28 U.S.C. § 2412(d)(1)(A), prevailing parties shall be awarded attorney’s fees or other expenses unless the position of the government was substantially justified or special circumstances make an award unjust. In the present case we are concerned with the substantial justification clause. The meaning of the terms “the position of the United States” and “substantially justified” is not clearly defined in the EAJA. However, the courts have developed a working definition for “substantially justified.” See Spencer v. NLRB, 712 F.2d at 546-61 (excellent comprehensive discussion). As stated in Foley Construction Co. v. United States Army Corps of Engineers, 716 F.2d 1202, 1203-04 (8th Cir. 1983), cert. denied, — U.S. —, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984): The legislative history is helpful in interpreting the substantially justified standard. The House committee report on the EAJA states: The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and in fact, ho award will be made____ The standard, however, should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing. H.R.Rep. No. 1418, [96th Cong., 2d Sess.] 10-11, [1980] U.S.Code Cong. & Ad.News 4989-90. Although the committee report is strong evidence that a reasonableness standard should be applied, we must also consider that the Senate Judiciary Committee rejected an amendment to the EAJA that would have changed the language of the bill from “substantially justified” to “reasonably justified.” S.Rep. No. 253, 96th Cong., 1st Sess. 8 (1979). ... We now hold that the test of whether the position of the United States is substantially justified is essentially one of reasonableness in law and in fact. The government bears the burden of proving the substantial justification of its position. See also Spencer v. NLRB, 712 F.2d at 557 n. 66" } ]

[ { "docid": "7747430", "title": "", "text": "1385 (1976). . Lamont v. Haig, No. 75-271 (D.D.C.1975) (unpublished order). See note 5 infra. . 28 U.S.C. § 1391 (1970), as amended by Act of Oct. 21, 1976, Pub.L. No. 94-574, § 2, 90 Stat. 2721-2722, and Act of Oct. 21, 1976, Pub.L. No. 94-583, § 5, 90 Stat. 2897-2898. The only two provisions at all relevant to this litigation are quoted in text infra at notes 9, 53. . The District Court’s order provided in full: This cause having come before the Court on defendánts’ motion to dismiss the complaint, and the Court having considered the pleadings, briefs, and affidavits filed herein, and it appearing to the Court that, aside from difficult questions of personal and subject matter jurisdiction and the possible failure to state a claim upon which relief may be granted, venue in this Court under 18 [28] U.S.C. § 1391 is improper, and that the defendants’ motion to dismiss the complaint should be granted, it is, therefore, by the Court this 31st day of July, 1975, ORDERED, that the defendants’ motion to dismiss be, and the same hereby is, granted and that the action be, and the same hereby is, dismissed without prejudice. Lamont v. Haig, supra note 3, J.App. 26. Appellants protest that the District Court erred in dismissing their suit instead of transferring it under 28 U.S.C. § 1406(a) (1976) (providing for a transfer “to any district or division in which [the action] could have been brought” “if it be in the interest of justice”) to the District of South Dakota, the jurisdiction other than the District of Columbia wherein substantial acts giving rise to the litigation occurred. Suit could have been brought in South Dakota when the complaint was filed, but the two-year period set by what appellants deem the applicable South Dakota statute of limitations had expired at the time of dismissal. See S.D. Compiled Laws Ann. § 15-2-15 (1967). Although appellants’ point has merit, see Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-467, 82 S.Ct. 913, 915-916, 8 L.Ed.2d 39, 42 (1962); Briggs v. Goodwin, 186 U.S.App.D.C. 170, 172 n." } ]

[ { "docid": "2619768", "title": "", "text": "federal question case). Edmond and Lyles have the burden of proving personal jurisdiction, and can satisfy that burden with a prima facie showing, see, e.g., First Chicago, 836 F.2d at 1378, unless the trial court holds an evidentiary hearing, see Reuber v. United States, 750 F.2d 1039, 1052 (D.C.Cir.1984). Appellants point to their temporary incarceration in the District of Columbia as the tortious event necessary to satisfy the requirements of section 13-423(a)(3). There is no evidence that Spitz, Popkin, Wolf and Arnell directly participated in this event. Rather, Edmond and Lyles argue that these four appellees participated through the agency of their co-conspirators Green and Krautheim, who were arresting officers, and that this indirect participation satisfies the proviso of section 13-423(a) allowing “personal jurisdiction over a person, who acts ... by an agent.” We do not decide whether Edmond and Lyles have indeed made a prima facie showing of personal jurisdiction under section 13-423(a)(3), but instead remand for discovery on that question. As a general matter, discovery under the Federal Rules of Civil Procedure should be freely permitted, and this is no less true when discovery is directed to personal jurisdiction. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C.Cir.1983), cert. denied sub nom. Naartex Consulting Corp. v. Clark, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); see generally Wyatt v. Kaplan, 686 F.2d 276, 283-84 (5th Cir.1982) (Wisdom, J.). At the same time, a district court has broad discretion in structuring discovery, and we should not overturn the District Court’s decision to stay discovery against Popkin, Wolf, Arnell and Spitz unless this discretion has been abused. See Naartex, 722 F.2d at 788. In Naartex, where jurisdiction over nonresident defendants hinged on an alleged conspiracy, and where the allegations of conspiracy were conclusory, we upheld the denial of discovery. The allegations here, however, are far from conclusory, and the District Court’s protective orders are appropriately reversed. See Crane v. Carr, 814 F.2d 758 (D.C.Cir.1987) (remanding for jurisdictional discovery, where district court had dismissed for lack of personal jurisdiction); Collins v. New York Cent. Sys., 327 F.2d" }, { "docid": "881961", "title": "", "text": "§ 13-423(a)(3) or (a)(4), which extends the reach of the long-arm statute to defendants who “caus[e] tortious injury in the District of Columbia by an act or omission” either within or outside the District. Application of the “tortious injury” provision for an act committed outside the District of Columbia is strictly limited to persons who “regularly do[ ] or solicit[ ] business, [or] engage[] in any other persistent course of conduct ... in the District,” D.C.Code § 13-423(a)(4), an allegation that Plaintiff does not even suggest. Moreover, as Plaintiff’s Amended Complaint sounds in contract, not in tort, neither of the last two clauses of D.C.Code § 1423(a) provides a basis for jurisdiction. Plaintiff simply has failed to allege any facts that would bring Defendants under the Court’s jurisdiction. Finally, Plaintiff argues that the proper action to take if the Court determines it does not have personal jurisdiction over Defendants is to transfer the case to the United States District Court for the Southern District of Florida. Pl.Opp. at p. 5-6. Counsel for Defendants’ represented in open court that Defendants do not object to such a transfer. A court may transfer a case to another jurisdiction even though it lacks personal jurisdiction over the defendants. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984), citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 915-16, 8 L.Ed.2d 39 (1962); Blair v. Norwegian Caribbean Lines, AJS, 622 F.Supp. 21, 24 (D.D.C.1985). The decision whether a transfer or a dismissal is in the interest of justice rests within the sound discretion of the court. Hayes v. RCA Service Co., 546 F.Supp. 661, 665 (D.D.C.1982). While the amended complaint does not allege that any activity in connection with Plaintiff’s claims took place in Florida, at least Defendants do own a residence in Florida and have some contacts with the state, which is more than can be said of the relationship of the Defendants to the District of Columbia. In addition, both parties agree that transfer to Florida is appropriate." }, { "docid": "22054031", "title": "", "text": "defendant is a two-part, conjunctive inquiry. See, e.g., Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102-03, 108 S.Ct. 404, 408-09, 98 L.Ed.2d 415 (1987). Because we hold that the Maryland long-arm statute does not authorize the Maryland courts to assert personal jurisdiction over Akzo, we need not consider whether Akzo has sufficient “minimum contacts,” see, e.g., International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), with Maryland to justify service of process on Akzo under the Due Process Clause of the Fourteenth Amendment. III Mylan also contends that the district court abused its discretion in refusing to allow Mylan to take discovery on the personal jurisdiction question. Discovery under the Federal Rules of Civil Procedure is, of course, broad in scope and freely permitted. See Fed.R.Civ.P. 26(b)(1) advisory committee’s note. Yet we agree with the Court of Appeals for the District of Columbia Circuit that district courts “have broad discretion in [their] resolution of discovery problems that arise in cases pending before [them].” In re Multi-Piece Rim Prods. Liab. Litig., 653 F.2d 671, 679 (D.C.Cir.1981). Although limited discovery may be warranted to explore jurisdictional facts in some cases, see McLaughlin v. McPhail, 707 F.2d 800, 806-07 (4th Cir.1983) (per curiam), we cannot say that this was such a case. The district court did not abuse its discretion in denying further discovery when, as here, Mylan had ample opportunity to take discovery and the pleadings contained no specific facts that could establish the requisite contacts with Maryland. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C.Cir.1983), cert. denied sub. nom. Naartex Consulting Corp. v. Clark, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); McLaughlin, 707 F.2d at 807. Accordingly, we uphold the district court’s denial of further discovery. IV For the foregoing reasons, the district court’s dismissal of Akzo for want of personal jurisdiction is AFFIRMED. . The District of Columbia district court transferred the case to the District of Maryland because none of the overt acts Mylan alleged in support of its RICO" }, { "docid": "22054018", "title": "", "text": "F.Supp. 1053, 1077 n. 41 (D.Md.1991). Shortly after the Maryland district court’s action, Akzo renewed its motion to dismiss for lack of personal jurisdiction. After hearing oral argument on Akzo’s motion, the district court read into the record a memorandum order holding that because it could not assert personal jurisdiction over Akzo, it was required to dismiss Mylan’s complaint as to the Dutch corporation. See Mylan Labs., Inc. v. Akzo, N.V., No. R-90-1069, at 15 (D.Md. June 19, 1992) (oral opinion). In so ruling, the court relied upon the following findings of fact: (1) Akzo and PBI have no ownership interest in each other; (2) PBI is a third-tier subsidiary corporation of Akzo, being owned by Akzo Pharma, Inc. (“Akzo Pharma”), which in turn is owned by Akzo; (3) PBI and Akzo have no officers and directors in common; (4) Akzo is not authorized to conduct business in Maryland or anywhere else in the United States; (5) Akzo is not actually present in Maryland; and (6) the corporate functions of Akzo and PBI are rigidly separated. Id. at 1-15 (oral ruling). Based upon these findings, the court reasoned that the Maryland long-arm statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992), which Mylan had asserted as supporting jurisdiction, did not authorize it to exercise personal jurisdiction over Akzo. Id. at 15. The court therefore dismissed Akzo from the action, and Mylan took this appeal. Mylan presents two questions for decision: (1) whether the district court erred as a matter of law in determining that it could not assert personal jurisdiction over Akzo; and (2) whether the district court abused its discretion in denying Mylan’s motion to take discovery on the personal jurisdiction issue. We consider these issues in turn. II When a court’s personal jurisdiction is properly challenged by motion under Federal Rule of Civil Procedure 12(b)(2), the jurisdictional question thereby raised is one for the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989); Dowless v. Warren-Rupp Houdailles, Inc.," }, { "docid": "22054032", "title": "", "text": "[them].” In re Multi-Piece Rim Prods. Liab. Litig., 653 F.2d 671, 679 (D.C.Cir.1981). Although limited discovery may be warranted to explore jurisdictional facts in some cases, see McLaughlin v. McPhail, 707 F.2d 800, 806-07 (4th Cir.1983) (per curiam), we cannot say that this was such a case. The district court did not abuse its discretion in denying further discovery when, as here, Mylan had ample opportunity to take discovery and the pleadings contained no specific facts that could establish the requisite contacts with Maryland. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C.Cir.1983), cert. denied sub. nom. Naartex Consulting Corp. v. Clark, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); McLaughlin, 707 F.2d at 807. Accordingly, we uphold the district court’s denial of further discovery. IV For the foregoing reasons, the district court’s dismissal of Akzo for want of personal jurisdiction is AFFIRMED. . The District of Columbia district court transferred the case to the District of Maryland because none of the overt acts Mylan alleged in support of its RICO claims occurred in the District of Columbia, and because all of the other significant events involved in the litigation took place in Maryland. In so ruling, the court relied on Lamont v. Haig, 590 F.2d 1124 (D.C.Cir.1978), in which the Court of Appeals for the District of Columbia Circuit held that venue is conferred on a district under the general venue statute, 28 U.S.C. § 1391(b), \"where a substantial portion of the acts or omissions giving rise to the actions occurred....” Id. at 1134-35. See Mylan Labs. v. Akzo, N.V., No. 89-1671, slip op. at 13, 1990 WL 58466 (D.D.C. Mar. 26, 1990) (mem.). . In its brief, Mylan argues that two statutes authorize the district court to assert personal jurisdiction over Akzo: (1) the Maryland long-arm statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992), and (2) the RICO service-of-process statute, 18 U.S.C. § 1965(a). We observe that the RICO statute was not argued as a basis for jurisdiction below, and was not cited or discussed in the district court’s memorandum order dismissing" }, { "docid": "22054036", "title": "", "text": "to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing. Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992). . Although decisions of the United States District Court for the District of Maryland do not bind our deliberations, we note that over the past two decades that bench has handed down several thorough, scholarly examinations of corporate veil-piercing for jurisdictional purposes under the Maryland long-arm statute. See, e.g., Birrane v. Master Collectors, Inc., 738 F.Supp. 167, 169—70 (D.Md.1990); Translation Sys., Inc. v. Applied Technology Ventures, 559 F.Supp. 566, 567-68 (D.Md.1983); Finance Co. of Am. v. BankAmerica Corp., 493 F.Supp. 895, 903-08 (D.Md.1980); Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 786 (D.Md.1978); Call Carl, Inc. v. BP Oil Corp., 391 F.Supp. 367, 370-78 (D.Md.1975), aff'd in part, rev'd in part on other grounds, 554 F.2d 623 (4th Cir.), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977); Holfield v. Power Chemical Co., 382 F.Supp. 388, 393 (D.Md.1974). In light of the Maryland courts' recent silence on this issue (we having been unable to uncover state-court caselaw on point since 1969), and because we believe that the district court decisions accurately reflect the Maryland courts’ own interpretations of the long-arm statute, we cite to them as persuasive authority. . Mylan urged the district court to consider several other \"critical” facts about Akzo, including (1) Akzo's use of the United States District Court for the Eastern District of Virginia to protect its United States patent; (2) Akzo’s alleged \"ownership” of Bionetics Research, Inc., a medical research company with facilities in Rockville, Frederick, and Kensington, Maryland which, like some of its other American subsidiaries, uses the Akzo name and logo in advertising; (3) statements in Akzo’s annual report for 1989 concerning Akzo’s gross sales and the number of employees Akzo has in North America; and (4) the fact that Akzo's American Depository Receipts, or \"ADRs,” trade on the National Association" }, { "docid": "16464072", "title": "", "text": "the “transacts business” language of the first clause of Section 12, the analysis largely parallels the analysis of the similar jurisdictional grant found in the District of Columbia long-arm statute with one exception; jurisdiction under Section 12 does not require that the transactions on which jurisdiction is based be related to the cause of action underlying the suit. See Diamond Chemical Co., Inc. v. Atofina Chemicals, Inc., 268 F.Supp.2d 1, 10 (D.D.C.2003) (citing Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1195 (D.D.C.1984)). In determining whether jurisdiction over defendants exists pursuant to the Clayton Act, the Court must assess only “whether the corporation is doing business in the district of any substantial character, even if its business is entirely interstate in character and is transacted by agents who do not reside in the District.” Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. 711, 716 (D.D.C.1979); see also Armco Steel Co., L.P. v. CSX Corp., 790 F.Supp. 311, 319-20 (D.D.C.1991); Mylan Laboratories, Inc. v. Akzo, N.V., Civil Action No. 89-1671, 1990 WL 58466 at *6 (D.D.C. Mar. 27, 1990)1990 U.S. Dist. LEXIS 3521, at *21; Chrysler Corp. v. General Motors Corp., 589 F.Supp. at 1195. The Court should look for “tangible manifestations of doing business” in the District, such as the presence of officers, employees, agents, offices, ownership of property, maintenance of corporate records or bank accounts. Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. at 716. Incorporating the Court’s discussion and conclusion that the plaintiff has not alleged facts demonstrating that the defendants transacted business sufficient to establish jurisdiction under the District of Columbia long-arm statute, see supra at 43-48, the Court necessarily also concludes that plaintiff has not alleged any facts that demonstrate any “tangible manifestations of doing business” in the District of Columbia, or any other basis on which the Court could find that any of the defendants transacted business of a “substantial character.” In addition, plaintiff does not argue that it has alleged any additional contacts unrelated to the claims in the amended complaint on which the Court" }, { "docid": "10927911", "title": "", "text": "of the long-arm statute. Under that exception, a person or company does not subject itself to the jurisdiction of the courts of the District of Columbia merely by filing an application with a government agency, like the FDA, or by seeking redress of grievances from the Executive Branch or Congress. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); Freiman v. Lazur, 925 F.Supp. 14, 24 (D.D.C.1996); Environmental Research Int'l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 813 (D.C.1976) (en banc). “The District of Columbia’s unique character as the home of the federal government requires this exception in order to maintain unobstructed access to the in-strumentalities of the federal government.” Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 50 (D.D.C.1994). Furthermore, under the government contacts exception, a person or entity that has unsuccessfully petitioned the Executive Branch, an independent agency or Congress and then seeks redress before the federal or local courts in the District of Columbia is not thereby “transacting business” for purposes of the’ long-arm statute. When instituting suit for that purpose, it continues to be protected by the government contacts exception. Naartex Consulting Corp. v. Watt, 722 F.2d at 787 (citing Doe v. McMillan, 566 F.2d 713, 718 (D.C.Cir.1977)); see Lex Tex Ltd. v. Skillman, 579 A.2d at 248 n. 9; cf. Investment Company Institute v. United States, 550 F.Supp. 1213, 1217 (D.D.C.1982). Accordingly, the fact that Sonus and ImaRx sued the FDA in this jurisdiction does not subject them to jurisdiction for purposes of this patent litigation under the transacting business subsection of the long-arm statute. Moreover, even if there were some theory under which bringing the FDA litigation could be construed as “transacting business” in the District of Columbia, to establish personal jurisdiction under subsection (a)(1) of the long-arm statute, the plaintiffs’ claim itself must have arisen from the business transacted in the District of Columbia. D.C.Code § 13-423(b). See Dooley v. United Technologies Corp., 786 F.Supp. 65, 71 (D.D.C.1992). As this Court held in Cellu-tech, Inc. v. Centennial" }, { "docid": "22054033", "title": "", "text": "claims occurred in the District of Columbia, and because all of the other significant events involved in the litigation took place in Maryland. In so ruling, the court relied on Lamont v. Haig, 590 F.2d 1124 (D.C.Cir.1978), in which the Court of Appeals for the District of Columbia Circuit held that venue is conferred on a district under the general venue statute, 28 U.S.C. § 1391(b), \"where a substantial portion of the acts or omissions giving rise to the actions occurred....” Id. at 1134-35. See Mylan Labs. v. Akzo, N.V., No. 89-1671, slip op. at 13, 1990 WL 58466 (D.D.C. Mar. 26, 1990) (mem.). . In its brief, Mylan argues that two statutes authorize the district court to assert personal jurisdiction over Akzo: (1) the Maryland long-arm statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992), and (2) the RICO service-of-process statute, 18 U.S.C. § 1965(a). We observe that the RICO statute was not argued as a basis for jurisdiction below, and was not cited or discussed in the district court’s memorandum order dismissing Akzo from the case. Mylan’s failure to set up the RICO statute before the district court as an alternative authorization of personal jurisdiction effectively deprives us of appellate jurisdiction to entertain argument about the statute's construction. As Justice Black wrote half a century ago: Ordinarily an appellate court does not consider issues not raised below, for our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). We therefore decline to consider the effect of the RICO statute on the personal jurisdiction question presented herein. . With respect to the Maryland long-arm statute, these inquiries ultimately collapse into virtually the same analysis, because the Maryland Court of Appeals has construed the statute as intended to reach to constitutional limits. See Curtis v. State, 284 Md. 132, 150, 395 A.2d 464, 474 n. 7 (1978) (citing cases); see also Md.Cts. & Jud.Proc.Code Ann. § 6-101(e) (1989 & Supp.1992) (\"extending] the" }, { "docid": "22054020", "title": "", "text": "800 F.2d 1305, 1307 (4th Cir.1986); 2A James W. Moore, Moore’s Federal Practice ¶ 12.-07[2.-2] (1985 & Supp.1992-93). Yet when, as here, the district court decides a pretrial personal jurisdiction dismissal motion without an evidentiary hearing, the plaintiff need prove only a prima facie case of personal, jurisdiction. Combs, 886 F.2d at 676. In deciding whether the plaintiff has proved a prima facie case of personal jurisdiction, the district court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor. Id.; Wolf v. Richmond County Hosp. Auth., 745 F.2d 904, 908 (4th Cir.1984), cert. denied, 474 U.S. 826, 106 S.Ct. 83, 88 L.Ed.2d 68 (1985). To the extent that the district court’s conclusions concerning whether the plaintiff has proved personal jurisdiction rest upon legal precepts, those conclusions are reviewed on appeal de novo. Combs, 886 F.2d at 676. To the extent the district court’s conclusions are based on findings of fact, however, such findings should not be disturbed by an appellate tribunal unless clearly erroneous. Id.; Bowman v. Curt G. Joa, Inc., 361 F.2d 706, 717 (4th Cir.1966). To prove that the district court may assert personal jurisdiction over Akzo, Mylan must show (1) that a statute or rule authorizes service of process on Akzo in the District of Maryland; and (2) that service on Akzo comports with the requirements of the Due Process Clause of the Fourteenth Amendment. See Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102-03, 108 S.Ct. 404, 408-09, 98 L.Ed.2d 415 (1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Mylan contends that the Maryland long-arm statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992), authorizes the district court to assert personal jurisdiction over Akzo. The purpose of the Maryland long-arm statute is to give the courts of the state personal jurisdiction over all out-of-state defendants who purposefully avail themselves of the privilege of conducting activities" }, { "docid": "22054030", "title": "", "text": "the PBI employees’ crimes at the time they were committed. Even if it is true that the PBI employees were acting within the scope of their employment, the lack of any agency relationship between Akzo and PBI preserves Akzo from liability for their behavior. As the preceding paragraphs reveal, the Maryland courts’ “agency” test for piercing the corporate veil relies on common-law agency principles. Together with the Maryland Court of Appeals, therefore, see Vitro Elec., 255 Md. at 502-03, 258 A.2d at 751-52, we consider the veil-piercing issue herein and the Maryland long-arm statute’s agency inquiry to be virtually identical. Because we conclude that Mylan has not adduced sufficient proof of Akzo’s involvement in the affairs of PBI to warrant piercing the veil between parent and subsidiary, we likewise decline to construe the Maryland long-arm statute as authorizing the Maryland courts to assert jurisdiction over Akzo on agency grounds. We therefore reject Mylan’s “agency” theory of personal jurisdiction. As we have explained elsewhere herein, whether a court may assert personal jurisdiction over a particular foreign defendant is a two-part, conjunctive inquiry. See, e.g., Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102-03, 108 S.Ct. 404, 408-09, 98 L.Ed.2d 415 (1987). Because we hold that the Maryland long-arm statute does not authorize the Maryland courts to assert personal jurisdiction over Akzo, we need not consider whether Akzo has sufficient “minimum contacts,” see, e.g., International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), with Maryland to justify service of process on Akzo under the Due Process Clause of the Fourteenth Amendment. III Mylan also contends that the district court abused its discretion in refusing to allow Mylan to take discovery on the personal jurisdiction question. Discovery under the Federal Rules of Civil Procedure is, of course, broad in scope and freely permitted. See Fed.R.Civ.P. 26(b)(1) advisory committee’s note. Yet we agree with the Court of Appeals for the District of Columbia Circuit that district courts “have broad discretion in [their] resolution of discovery problems that arise in cases pending before" }, { "docid": "1785147", "title": "", "text": "this appeal, in response to the court’s inquiry, counsel for Crane acknowledged that, mindful of the statute of limitations, Crane had commenced a protective action in New York. Crane having taken that precaution, the district judge understandably did not consider, in lieu of dismissal, a transfer pursuant to 28 U.S.C. § 1406(a). See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 915, 8 L.Ed.2d 39 (1962); cf. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984). . Cf. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13, 98 S.Ct. 2380, 2389 n. 13, 57 L.Ed.2d 253 (1978) (\"discovery is available to ascertain the facts bearing on [jurisdictional] issues”); Eaton v. Dorchester Development, Inc., 692 F.2d 727, 729-31 (11th Cir.1982) (reversing district court’s dismissal for lack of subject matter jurisdiction and remanding for discovery on jurisdictional facts because ”[p]laintiff must be given an opportunity to develop facts sufficient to support a determination on the issue of jurisdiction”); Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255-56 (1st Cir.1966) (vacating district court’s dismissal for lack of personal jurisdiction; diligent plaintiff entitled to \"reasonably necessary\" discovery in attempting to establish jurisdiction); Collins v. New York Central System, 327 F.2d 880, 882-83 (D.C.Cir.1963) (district court erred in dismissing for lack of personal jurisdiction without allowing plaintiff to conduct discovery). But cf. Naartex Consulting Corp. v. Watt, 722 F.2d at 788 (additional discovery on personal jurisdiction properly disallowed when plaintiff previously had ample opportunity to take discovery). . While the District of Columbia Court of Appeals has not ruled on the reach of (a)(4) of the D.C. statute, it has noted that \"Congress intended to vest courts of the District with jurisdictional reach identical to that in effect in Maryland,” and that Maryland courts have interpreted provisions of the Maryland statute (including (a)(4)) as having a narrower scope than the due process clause. Mouzavires v. Baxter, 434 A.2d 988, 991 (D.C.1981) (en banc), cert. denied, 455 U.S. 1006, 102 S.Ct. 1643, 71 L.Ed.2d 875 (1982)." }, { "docid": "22054016", "title": "", "text": "OPINION ERVIN, Chief Judge: We must decide whether a federal district court may assert personal jurisdiction over a foreign parent corporation solely because the parent’s third-tier subsidiary corporation, over which the parent exerts no control, conducts business in the forum state. We hold that it may not. I On June 8, 1989 Mylan Laboratories, Inc. (“Mylan”) brought this action in the United States District Court for the District of Columbia, seeking damages and injunctive relief for alleged violations of the federal antitrust laws, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, and the Maryland common law of unfair competition and malicious interference with business relations. Mylan’s complaint named as defendants several manufacturers, sellers, and distributors of generic prescription drugs, including Akzo, N.V. (“Akzo”), a Dutch corporation having its principal place of business in the Netherlands, and Pharmaceutical Basics, Inc. (“PBI”), a Delaware corporation that maintains its principal place of business in Illinois. Mylan’s complaint alleged that between 1984 and 1989 the defendants conspired to facilitate and accelerate the United States Food and Drug Administration’s (“FDA”) approval of their abbreviated new drug applications for generic drugs, or “ANDAs,” and to delay or impede approval of ANDAs submitted by competing drug manufacturers, including Mylan. Akzo promptly moved to dismiss Mylan’s complaint for lack of personal jurisdiction. Before ruling on Akzo’s motion, the district court found that venue was improper in the District of Columbia and ordered the case transferred to the District of Maryland pursuant to 28 U.S.C. § 1406(a). On August 15, 1991 the United States District Court for the District of Maryland issued a memorandum opinion and order dismissing all of Mylan’s antitrust claims and a substantial number of its RICO claims. Although it did not dispose directly of Akzo’s pending motion to dismiss for want of personal jurisdiction, the court stated that Akzo is only named in Mylan’s suit because it is the parent company of PBI; unlike Par, [another defendant], it is not alleged to have had any agents busily undermining the raison d’étre of the FDA. Mylan Labs., Inc. v. Akzo, N.V., 770" }, { "docid": "20734366", "title": "", "text": "Having determined that venue is improper as to the plaintiffs Bivens claims and that pendent venue is inappropriate, the Court may either dismiss the case, “or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Before transferring a case pursuant to § 1406(a), a “district court [must] decide as a preliminary matter that venue and jurisdiction would be proper as to all defendants” in the transferee court. Sharp Elecs. Corp. v. Hayman Cash Register Co., 655 F.2d 1228, 1230 (D.C.Cir.1981) (per curiam). Once these prerequisites are satisfied, “[t]he decision whether a transfer or a dismissal is in the interest of justice ... rests within the sound discretion of the district court.” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir.1983). The District of Columbia Circuit favors transfer under § 1406(a) “when procedural obstacles”— such as “lack of personal jurisdiction, improper venue and statute of limitations bars” — “ ‘impede an expeditious and orderly adjudication ... on the merits.’ ” Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C.Cir.1983) (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962)). And transfer is particularly favored over dismissal when the plaintiff is proceeding pro se. See James v. Verizon Servs. Corp., 639 F.Supp.2d 9,15 (D.D.C.2009). The defendants argue that if the Court decides not to dismiss the plaintiffs Bivens claims, the claims should be transferred to the Western District of Louisiana. See Defs.’ Mem. at 35. In evaluating whether this case is even eligible for transfer under § 1406(a), the Court must first determine that the transferee court would possess both venue and personal jurisdiction. See Sharp Elecs. Corp., 655 F.2d at 1230. The Court finds that both conditions are satisfied here. To begin with, venue for the plaintiffs Bivens claims is proper in the Western District of Louisiana because that is the “judicial district in which a substantial part of the events or omissions giving rise to the claim[s] occurred.” 28 U.S.C. § 1391(b)(2); see also Defs.’ Reply" }, { "docid": "16464057", "title": "", "text": "access to petition their government, the courts of this jurisdiction have long recognized “a government contacts” exception to the “transacting business” provision of the long-arm statute. Under that exception, a person or company does not subject itself to the jurisdiction of the courts of the District of Columbia merely by filing an application with a government agency, or by seeking redress of grievances from the Executive Branch or the Congress. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); Freiman v. Lazur, 925 F.Supp. 14, 24 (D.D.C.1996); Environmental Research Int’l., Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d at 813. “The District of Columbia’s unique character as the home of the federal government requires this exception in order to maintain unobstructed access to the instrumentalities of the federal government.” Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 50 (D.D.C.1994). See also Mallinckrodt Medical, Inc. v. Sonus Pharmaceuticals, Inc. 989 F.Supp. 265, 271 (D.D.C.1998). The Columbia Defendants acknowledge that Nisource, Columbia Gas and Columbia Gulf share a federal government relations office in the District of Columbia, but aver that the office’s “sole function is to work with the FERC and other regulatory agencies, and with members of Congress and congressional committees, in connection with federal regulatory and legislative matters,” an assertion plaintiff does not refute in its opposition. See Memorandum of Points and Authorities in Support of Columbia Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction and Related Grounds (“Colum. Defs.’ Mem.”) at 4-5, citing Colum. Defs.’ Mem., Ex. 1, Declaration of Carl Levander ¶¶ 6, 9, 16. The Court easily concludes that such activities are precisely the type of activities protected by the “government contacts” exception and cannot serve as the basis for personal jurisdiction under Section 13-423(a)(1). See Naartex Consulting Corp. v. Watt, 722 F.2d at 787. Second, the Court rejects plaintiffs more particularized assertion that the amended complaint supports jurisdiction because it alleges that Columbia Gas filed false documents with FERC in the District of Columbia, and that such actions do not" }, { "docid": "22054021", "title": "", "text": "v. Curt G. Joa, Inc., 361 F.2d 706, 717 (4th Cir.1966). To prove that the district court may assert personal jurisdiction over Akzo, Mylan must show (1) that a statute or rule authorizes service of process on Akzo in the District of Maryland; and (2) that service on Akzo comports with the requirements of the Due Process Clause of the Fourteenth Amendment. See Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102-03, 108 S.Ct. 404, 408-09, 98 L.Ed.2d 415 (1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Mylan contends that the Maryland long-arm statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992), authorizes the district court to assert personal jurisdiction over Akzo. The purpose of the Maryland long-arm statute is to give the courts of the state personal jurisdiction over all out-of-state defendants who purposefully avail themselves of the privilege of conducting activities in Maryland, thus invoking the benefits and protections of Maryland law. See Novack v. National Hot Rod Ass’n, 247 Md. 350, 353-57, 231 A.2d 22, 24-26 (1967). The statute permits the Maryland courts to assert personal jurisdiction over (1) persons who directly conduct activities in Maryland; and (2) persons who conduct activities in Maryland through an agent. In the proof it adduced below, Mylan made no attempt to show that Akzo possessed direct contacts with Maryland at the time this action commenced. Under these circumstances, service of process on Akzo can be proper only if Akzo’s relationship with its third-tier subsidiary and co-defendant PBI is that of principal to agent. Mylan contends that such a relationship exists, because (1) as PBI’s parent corporation, Akzo controlled significant business activities of PBI in Maryland, warranting attribution of those activities to Akzo; (2) Akzo indirectly owns all the outstanding common stock of PBI, through its direct stock ownership of Akzo Pharma; and (3) certain allegedly criminal acts committed by PBI employees were performed with the intent to benefit" }, { "docid": "22054019", "title": "", "text": "separated. Id. at 1-15 (oral ruling). Based upon these findings, the court reasoned that the Maryland long-arm statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103(b) (1989 & Supp.1992), which Mylan had asserted as supporting jurisdiction, did not authorize it to exercise personal jurisdiction over Akzo. Id. at 15. The court therefore dismissed Akzo from the action, and Mylan took this appeal. Mylan presents two questions for decision: (1) whether the district court erred as a matter of law in determining that it could not assert personal jurisdiction over Akzo; and (2) whether the district court abused its discretion in denying Mylan’s motion to take discovery on the personal jurisdiction issue. We consider these issues in turn. II When a court’s personal jurisdiction is properly challenged by motion under Federal Rule of Civil Procedure 12(b)(2), the jurisdictional question thereby raised is one for the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989); Dowless v. Warren-Rupp Houdailles, Inc., 800 F.2d 1305, 1307 (4th Cir.1986); 2A James W. Moore, Moore’s Federal Practice ¶ 12.-07[2.-2] (1985 & Supp.1992-93). Yet when, as here, the district court decides a pretrial personal jurisdiction dismissal motion without an evidentiary hearing, the plaintiff need prove only a prima facie case of personal, jurisdiction. Combs, 886 F.2d at 676. In deciding whether the plaintiff has proved a prima facie case of personal jurisdiction, the district court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiffs favor. Id.; Wolf v. Richmond County Hosp. Auth., 745 F.2d 904, 908 (4th Cir.1984), cert. denied, 474 U.S. 826, 106 S.Ct. 83, 88 L.Ed.2d 68 (1985). To the extent that the district court’s conclusions concerning whether the plaintiff has proved personal jurisdiction rest upon legal precepts, those conclusions are reviewed on appeal de novo. Combs, 886 F.2d at 676. To the extent the district court’s conclusions are based on findings of fact, however, such findings should not be disturbed by an appellate tribunal unless clearly erroneous. Id.; Bowman" }, { "docid": "12706590", "title": "", "text": "that FCI had waived merits discovery; (2) FCI was not at fault in failing to conduct discovery on the merits; and (3) the outstanding interrogatories, document requests and deposition subpoena were sufficient to inform the district court that further discovery was needed, we find that FCI’s failure to file a Rule 56 affidavit should not preclude it from challenging the district court’s grant of summary judgment. Accordingly, because in the absence of a waiver, summary judgment is appropriate only after plaintiff has had a full opportunity to conduct discovery, we conclude that it was premature for the district court to dismiss the case against Petra and PIBC without first permitting discovery on the merits. Reversed in part and affirmed in part. . Motions for protective orders were filed by the UNEXCO defendants on June 23, 1986, June 25, 1986, September 5, 1986 and December 15, 1986; and by Petra and PIBC on June 26, 1986 and September 2, 1986. . By relying on § 13-423(a)(l) of the District’s long-arm statute, FCI is claiming that special, as opposed to general, jurisdiction exists over the various defendants. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 785 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984) (§ 13-423(a)(l) does not confer specific personal jurisdiction where the claims asserted are \"unrelated to the acts forming the basis for personal jurisdiction\"). Thus, the district court properly confined its jurisdictional analysis to those contacts of the defendants that could be said to have given rise to the claims charged in the plaintiffs complaint. . In Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors, 647 F.2d 200 (D.C.Cir.1981), this court found § 13 — 423(a)(1) personal jurisdiction where an Australian defendant shipped wine to an importer/intermediary with the expectation that the intermediary would distribute the wine in a region that included the District of Columbia. FCI relies on Kaiser for the proposition that a nonresident defendant (like UNEXCO) can be \"transacting business” for jurisdictional purposes through a nonresident intermediary (like PIBC) that is transacting business in the District. Kaiser, however, is distinguishable" }, { "docid": "22054017", "title": "", "text": "and Drug Administration’s (“FDA”) approval of their abbreviated new drug applications for generic drugs, or “ANDAs,” and to delay or impede approval of ANDAs submitted by competing drug manufacturers, including Mylan. Akzo promptly moved to dismiss Mylan’s complaint for lack of personal jurisdiction. Before ruling on Akzo’s motion, the district court found that venue was improper in the District of Columbia and ordered the case transferred to the District of Maryland pursuant to 28 U.S.C. § 1406(a). On August 15, 1991 the United States District Court for the District of Maryland issued a memorandum opinion and order dismissing all of Mylan’s antitrust claims and a substantial number of its RICO claims. Although it did not dispose directly of Akzo’s pending motion to dismiss for want of personal jurisdiction, the court stated that Akzo is only named in Mylan’s suit because it is the parent company of PBI; unlike Par, [another defendant], it is not alleged to have had any agents busily undermining the raison d’étre of the FDA. Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1077 n. 41 (D.Md.1991). Shortly after the Maryland district court’s action, Akzo renewed its motion to dismiss for lack of personal jurisdiction. After hearing oral argument on Akzo’s motion, the district court read into the record a memorandum order holding that because it could not assert personal jurisdiction over Akzo, it was required to dismiss Mylan’s complaint as to the Dutch corporation. See Mylan Labs., Inc. v. Akzo, N.V., No. R-90-1069, at 15 (D.Md. June 19, 1992) (oral opinion). In so ruling, the court relied upon the following findings of fact: (1) Akzo and PBI have no ownership interest in each other; (2) PBI is a third-tier subsidiary corporation of Akzo, being owned by Akzo Pharma, Inc. (“Akzo Pharma”), which in turn is owned by Akzo; (3) PBI and Akzo have no officers and directors in common; (4) Akzo is not authorized to conduct business in Maryland or anywhere else in the United States; (5) Akzo is not actually present in Maryland; and (6) the corporate functions of Akzo and PBI are rigidly" }, { "docid": "16464071", "title": "", "text": "allegation is ambiguous, and can be read in one of two ways. To the extent that plaintiff argues that Section 12 extends the Court’s jurisdictional reach to the entire nation because it provides for national service of process, the court of appeals soundly rejected this interpretation of the statute in GTE New Media Services Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C.Cir.2000). In GTE, the court held that a plaintiff must meet the standards of the first clause of Section 12 and demonstrate proper venue in the relevant jurisdiction prior to availing itself of the scope of the second clause permitting service in those areas. See id. (defendants must be inhabitants of, be found in, or have transacted business in the District as required by first clause of Section 12). Accordingly, the Court does not have personal jurisdiction over any of the defendants pursuant to Section 12 of the Clayton Act under a theory of national contacts. If, on the other hand, plaintiff is asserting that the Court has jurisdiction over the defendants under the “transacts business” language of the first clause of Section 12, the analysis largely parallels the analysis of the similar jurisdictional grant found in the District of Columbia long-arm statute with one exception; jurisdiction under Section 12 does not require that the transactions on which jurisdiction is based be related to the cause of action underlying the suit. See Diamond Chemical Co., Inc. v. Atofina Chemicals, Inc., 268 F.Supp.2d 1, 10 (D.D.C.2003) (citing Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182, 1195 (D.D.C.1984)). In determining whether jurisdiction over defendants exists pursuant to the Clayton Act, the Court must assess only “whether the corporation is doing business in the district of any substantial character, even if its business is entirely interstate in character and is transacted by agents who do not reside in the District.” Caribe Trailer Systems, Inc. v. Puerto Rico Maritime Shipping Authority, 475 F.Supp. 711, 716 (D.D.C.1979); see also Armco Steel Co., L.P. v. CSX Corp., 790 F.Supp. 311, 319-20 (D.D.C.1991); Mylan Laboratories, Inc. v. Akzo, N.V., Civil Action No. 89-1671, 1990" } ]

[ { "docid": "18333970", "title": "", "text": "no longer even work there. . There is also discussion in the papers both in regard to the prosecution memoranda and the Hantman report (see infra) in terms of work product. The operative factors on both sides of that issue are sufficiently similar in this context to the deliberative process question to require the same outcome. See note 38 infra. . The papers themselves were furnished to defendants. . A few redactions were made also in the remainder of the report, and while defendants do not affirmatively agree that these are justified, they do not appear seriously to press any claim in that regard. . In their Supplemental Memorandum, defendants appear to abandon their request for the concluding section of the Hantman report and they demand instead \"all [unspecified] internal documents generated by Kramer and Dowd relating to the Calabrese prosecutions and the other [equally unspecified] relevant internal documents withheld because of the deliberative process privilege.\" Supplemental Memorandum at 4. It is difficult to tell what that means except perhaps the Kramer and Dowd memo-randa discussed supra. These demands, as well as several others, are troublesome because of their lack of specificity and the burden this imposes on the recipients of defendants’ demands. In some pleadings defendants appear to call for certain documents, in others they abandon those requests (or at least they do not defend or support them); in still other pleadings, they claim to provide greater specificity but those claims are sometimes illusory on closer examination. See Department of Justice Reply at 2, 15-17; Defendants' Second Supplemental Memorandum at 15-18. The Court does not expect to keep ruling on ever-changing requests. However, in order not to penalize any party on account of the fuzziness of its demands, the Court is prepared to entertain one more round of precisely focused support for previously-demanded discovery. However, in that regard, the Court expects the parties to use more restraint than they have in the past (see note 17 infra), and it expects the necessary papers, if any, to be filed in short order. . Marchini was investigated for obstruction of justice" } ]

[ { "docid": "6302864", "title": "", "text": "In July 2013, FSOC notified MetLife, Inc. that it was considering the company for designation. Over the course of the next year, MetLife voluntarily submitted over 21,000 pages of documents to FSOC to help it reach a determination. In December 2014, FSOC determined that “material financial distress” at MetLife “could pose a threat to the financial stability of the United States,” id. § 5323(a)(1), and therefore designated MetLife for supervision. Pursuant to 12 U.S.C. § 5323(h), Met-Life challenged FSOC’s designation determination in district court. That section authorizes a nonbank financial company to seek judicial review of a final determination by the Council. The court’s review is “limited to whether the final determination ... was arbitrary and capricious.” Id. During the ensuing summary-judgment briefing, MetLife and FSOC worked together to prepare redacted and unredacted versions of their briefs and 16-volume joint appendix. Some redactions were of portions of FSOC’s final determination designating MetLife; others were of data and information that MetLife had voluntarily submitted to FSOC. Both parties sought leave to file their unredacted briefs and unredacted joint appendix under seal. The district court granted their requests. Thereafter, the parties filed the unredact-ed documents under seal and made the redacted versions publicly available. Before the district court issued its ruling on the merits, MetLife filed new versions of its briefs and the joint appendix with fewer redactions. MetLife redacted a total of approximately 22 lines from the final, public versions of its opening and reply briefs. See J.A. 73-80; MetLife Br. 9, 23. FSOC redacted approximately the same number of lines from the public versions of its briefs. See J.A. 59-72. Those public briefs contained 90 citations to sealed portions of the joint appendix. Better Markets Br. 5. All together, over 1,900 pages of the joint appendix— more than two-thirds of. the total—were redacted from the public version. Id. at 4. Better Markets, Inc. is a “nonpartisan, nonprofit, public-interest organization” focused on the United States financial system. Better Markets Br. at iii. Pursuant to Federal Rule of Civil Procedure 24(b), the organization moved to intervene in the district court litigation and" }, { "docid": "19639541", "title": "", "text": "parties to meet and confer and file a joint report by November 10, 2017, showing cause why this Opinion should not be published in full without redactions on the public docket of this Court. If either party believes that some passage(s) in the Court's Opinion should be redacted, they must specify in the joint report which passage(s) and must specifically state the cause for each redaction. In making any such request, the parties are reminded that the courts are not intended to be, nor should they be, secretive places for the resolution of secret disputes. See, e.g., Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017) (quoting United States v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1980) ) (\"[T]here is a 'strong presumption in favor of public access to judicial proceedings.' \"); Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 980 (D.C. Cir. 2016). The parties are also reminded to consider what was previously published in the redacted version of the Court's initial class certification opinion. See Rail Freight III, 287 F.R.D. 1. Accordingly, any redactions shall be made solely to the extent necessary to preserve the confidentiality of the relevant information in accordance with the terms of the Protective Order issued in this case. See Protective Order ¶¶ 1.3, 1.4. An Order consistent with this Opinion shall issue this same day. SO ORDERED. The papers reviewed in connection with the pending motion include the following: Class Certification. The second consolidated amended class action complaint (\"2d Am. Compl.\") [Dkt. 324]; the direct purchaser plaintiffs' motion for class certification (\"Class Mot.\") [Dkt. 337]; the direct purchaser plaintiffs' memorandum in support of motion for class certification (\"Class Mem.\") [Dkt. 337-9]; exhibits A through D submitted in support of the direct purchaser plaintiffs' motion for class certification; exhibits 1 through 224 submitted in support of the direct purchaser plaintiffs' motion for class certification (individually, \"RD Ex.\"); the Corrected Expert Report of Gordon Rausser (\"Rausser Class Rep.\"); the Corrected Expert Reply Report of Gordon Rausser (\"Rausser Class Reply\") [Dkt. 449]; Defendants' Memorandum of Law in Opposition to Plaintiffs'" }, { "docid": "1316147", "title": "", "text": "originally sought for the following documents: Section A: A-l through A-54; Section D: D-10, 11, 209, 210, 213, 216, 220, 222 and 223. For each protected document which is the subject of this motion, prior defense counsel disclosed an index of privileged documents, reciting the author, recipient, date and page length, but not describing contents or subject matter other than as a report, memorandum or letter. Although compelled to do so by court orders, prior defense counsel took no action to move for a protective order as to the withheld documents, claiming that a conflict of interest in representation of these two groups of defendants had surfaced. Eventually, pursuant to this court’s Order filed November 13, 1987, prior counsel was compelled to withdraw and new counsel were separately substituted on behalf of the “State Police Defendants” and the “Attorney General Defendants” groupings, in a manner so as to ameliorate any perceived conflict of interest in joint representations. The November 13 Order also directed that all claims of privilege as to these withheld documents would be deemed waived unless a motion for protective order was promptly sought. The Order also directed that when the motion is filed, “redacted copies of such documents shall be furnished to plaintiffs’ counsel to the extent that such redactions of privileged information are feasible.” The movant, State of New Jersey, subsequently filed the present motion but initially made no redactions or disclosures of portions of the allegedly privileged documents. An Order filed February 23,1988, required the movant to disclose whether anyone on behalf of the State had reviewed the documents for redaction prior to filing the motion, and to explain why it did not appear feasible to serve edited copies of the documents upon plaintiffs’ counsel, and to re-examine the documents to provide such redacted copies to plaintiffs’ counsel in connection with this motion. Again, in response, the State took no further steps to sever privileged and non-privileged portions of documents. The Affidavit of Deputy Attorney General Williams, dated February 29, 1988, states his view, on behalf of the State, that redaction was not feasible, stated" }, { "docid": "13663659", "title": "", "text": "privilege. The attached agreement is not. It also contains several provisions that refer specifically to Dr. Draus. Plaintiffs motion to compel is granted with respect to document nos. 101688CD-101739CD. Miscellaneous Documents: The documents submitted include two otherwise unprivileged documents that contain privileged notations by attorneys. These documents are nos. 100852CD-00854CD. If these documents have not been produced yet, they shall be produced in a redacted form to exclude production of privileged notes. In addition, document no. 101271CD is not privileged but was attached to privileged documents. If this memorandum has not been produced in some other form, it shall also be produced. CONCLUSION For the reasons set forth above, defendants’ motion to compel return of the Dickerson letter dated November 18, 1991, is hereby DENIED. Plaintiffs motion to compel production of documents is hereby GRANTED with respect to document nos. 101169CD-101171CD and 101688CD-101739CD. Defendants shall produce these documents to plaintiff for inspection and copying no later than 21 days from the date of this entry. In addition, if defendants have not produced unprivileged copies of document nos. 100852CD-100854CD, they shall produce redacted copies to plaintiff for inspection and copying no later than 21 days from the date of this entry. If document no. 101271CD has not been produced, it shall be produced to plaintiff for inspection and copying no later than 21 days from the date of this entry. In all other respects, plaintiffs motion to compel production of documents is hereby DENIED. The court will make no award of attorneys’ fees or costs with respect to these motions. So ordered. . These factors are generally traced to Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y.1985), although the court there appears to have applied the subjective test of the disclosing party's intention, and used the listed factors as evidence as to whether the disclosure was “a knowing waiver or simply a mistake, immediately recognized and rectified.” Id. After finding the disclosure was inadvertent, the Lois Sportswear court found no waiver because there was no intent to waive the privilege. Nevertheless, courts that have reject" }, { "docid": "6302865", "title": "", "text": "unredacted joint appendix under seal. The district court granted their requests. Thereafter, the parties filed the unredact-ed documents under seal and made the redacted versions publicly available. Before the district court issued its ruling on the merits, MetLife filed new versions of its briefs and the joint appendix with fewer redactions. MetLife redacted a total of approximately 22 lines from the final, public versions of its opening and reply briefs. See J.A. 73-80; MetLife Br. 9, 23. FSOC redacted approximately the same number of lines from the public versions of its briefs. See J.A. 59-72. Those public briefs contained 90 citations to sealed portions of the joint appendix. Better Markets Br. 5. All together, over 1,900 pages of the joint appendix— more than two-thirds of. the total—were redacted from the public version. Id. at 4. Better Markets, Inc. is a “nonpartisan, nonprofit, public-interest organization” focused on the United States financial system. Better Markets Br. at iii. Pursuant to Federal Rule of Civil Procedure 24(b), the organization moved to intervene in the district court litigation and to unseal the briefs and joint appendix. Before ruling on those motions, the court granted MetLife’s summary-judgment motion and rescinded FSOC’s designation of MetLife on the ground that it was arbitrary and capricious. See MetLife, Inc. v. Fin. Stability Oversight Council, 177 F.Supp.3d 219, 242 (D.D.C. 2016). The court initially entered its opinion under seal and allowed the parties to suggest redactions. After neither party requested any, the court unsealed the opinion in its entirety. The district court next ruled on Better Markets’ motions. Although the court permitted Better Markets to intervene, it denied the motion to unseal. See MetLife, Inc. v. Fin. Stability Oversight Council, 2016 WL 3024015, No. 15-0045 (D.D.C. May 25, 2016). The court concluded that Dodd-Frank’s confidentiality provision, 12 U.S.C. § 5322(d)(5)(A), required that the relevant portions of the briefs and joint appendix remain sealed because they included data, information, and reports Met-Life submitted to FSOC. MetLife, 2016 WL 3024015, at *6. Dodd-Frank, the court said, “supersedes the multi-factor inquiry prescribed by the D.C. Circuit” for ruling on motions to seal" }, { "docid": "18197911", "title": "", "text": "At that point, there would appear to be no reason why the privilege should not “take flight,” Clark, 289 U.S. at 15, 53 S.Ct. 465, and the section of the 1994 Report turned over. Cf. United States v. AT & T, 86 F.R.D. 603, 625 (D.D.C.1980). 2. The May 1997 Kim Ross Memorandum and Attachments Kim Ross, the operating head of Noranda’s sulfuric acid department during the relevant period, wrote a memorandum to his colleagues on May 8, 1997, outlining a proposed joint venture with DuPont. (Appendix to Plaintiffs Motion, Ex. 10 (NFD 291796-802)). The memo has a five page attachment, which was prepared by the Canadian law firm of Macleod Dixon. The Noranda defendants produced the complete document in discovery in July, 2004, with the exception of, the second half of page two and the top of page three, which were redacted. In November of 2004, plaintiffs showed this document to a witness at a deposition, and Noranda claimed that pages 3 through 7 were privileged and would not permit those pages of the document to be used at the deposition. {Appendix to Plaintiffs Motion, Ex. 11). Plaintiffs challenge the claim that pages 3-7 are privileged, arguing that those pages reflect business, as opposed to legal advice and do not disclose client confidences. They also argue that the crime-fraud exception applies, and that the privilege was waived through inadvertent disclosure. Plaintiffs also request an in camera inspection of the redacted material on pages 2 and 3 to determine if it is privileged. The five pages at issue were prepared by attorneys and address Noranda’s proposed acquisition of a company that produced sulfuric acid, oleum, and alum. The document covers several legal ramifications of the proposal and those sections are privileged and properly redacted. But commercial concerns are also discussed, and those portions may not be redacted, despite attorney participation. Burden-Meehs, 319 F.3d at 898. Only the following portions are privileged: first page, down to heading “Commercial Significance;” second page, beginning with “Such output will ...” on line 6, up to “2. Through the acquisition ...” on line 14; second" }, { "docid": "18197917", "title": "", "text": "that these materials are not privileged in that they do not reveal legal advice or client confidences; and second, that too much time elapsed between the Noranda defendants’ production of the materials and their claim of inadvertence. As already discussed, the plaintiffs’ stance on inadvertent production is incorrect and need not be revisited as to every document at issue. The question of application of the privilege to these documents, however, does require some discussion. a. The September 13, 2000 Memorandum From Kim Ross To Two Other Non-attorney Noranda Employees (Appendix to Plaintiff’s Motion, Ex. 15). Noranda claims the attorney-client privilege for Mr. Ross’ statement that “if we bust-up now, with all the antitrust muddle that will arise....” This phrase does not reveal any confidences or legal advice; it is merely a layman’s speculation to other laymen as to future complications that might arise. It may well be that Mr. Ross spoke with attorneys regarding this topic, but neither his discussions nor attorneys’ advice are revealed in this comment. The statement may not be redacted. b. The June 10, 1998 Memorandum From Kim Ross To Two Non-Attorney Noranda Employees. This is a memorandum from Kim Ross to in-house lawyer, John Whyte, Esq., and Mr. Ross’s superiors regarding a meeting with Marsulex and including a request for legal advice regarding the legal implications of certain facts. (Appendix to Plaintiff’s Motion, Ex. 16). At issue is the Noran-da defendants claim of the privilege for a few sentences on the second page beginning “I believe Marsulex may be....” This portion of the document does not reveal any confidences or legal advice. While the Noranda defendants call it a request for legal advice, it much more closely resembles Mr. Ross’s comment on a Marsulex business strategy, and is not privileged and cannot be redacted. c. The September 13, 1999 Email From John Hammond This email is from one employee of DuPont to another. (.Appendix to Plaintiff’s Motion, Ex. 17) Although the Noranda defendants argue that they may claim the privilege as to the document because they were involved in a joint venture with DuPont and" }, { "docid": "1230180", "title": "", "text": "Finally, denying the defendants the use of the documents at issue would in no way be unfair. The defendants have not suggested that the disclosure was selective such that they will be prejudiced unless more complete information is provided. Nor have they argued that they have already relied on the documents at issue. The defendants do contend that the Coudert Letter is a “smoking gun” that demonstrates the invalidity of certain of the plaintiffs’ claims. But the relevance of a privileged document to the merits of the litigation does not make it unjust to withhold it from discovery. The prejudice factor focuses only on whether the act of restoring immunity to an inadvertently disclosed document would be unfair, not whether the privilege itself deprives parties of pertinent information. By these terms, there is no unfairness in precluding the defendants from using the documents at issue. All of the relevant factors, then, militate in favor of holding that the disclosure to defendants’ counsel of each of the four documents was inadvertent and therefore did not constitute a waiver of the privilege. Accordingly, I will proceed to address the issue of whether the privilege was nevertheless waived by disclosure to third-parties prior to the litigation. III. Common Interest Doctrine The defendants contend that any privilege attaching to the Coudert Letter has been waived because it was circulated to other members of the Bank Group. Likewise, they argue that the redacted portion of the Dinell Memorandum reflects discussions among members of the Bank Group, thus waiving any privilege. The plaintiffs respond that the common interest doctrine precludes any finding of waiver. The common interest doctrine subsumes a number of principles that are sometimes characterized as separate rules and are at other times conflated into a single axiom. Compare Weil Ceramics & Glass, Inc. v. Work, 110 F.R.D. 500, 502-03 (E.D.N.Y.1986) (distinguishing “common defense rule” from “community of interest rule”) with United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989) (joint defense privilege “more properly identified as the ‘common interest rule’ ”). The nomenclature is less important than a determination of the boundaries" }, { "docid": "1230160", "title": "", "text": "from this docu ment was a one-sentence reference to legal advice. The other document is entitled “Credit Presentation” and is dated November 23, 1990 (the “Credit Presentation”). Again, a brief allusion to legal advice was redacted. However, unredacted copies of both documents were subsequently produced in discovery. The plaintiffs move for a protective order declaring the Coudert Letter and the Cancro Memorandum to be privileged and precluding their use in this litigation. According to the plaintiffs, these documents are protected from disclosure by both the attorney-client privilege and the work product doctrine. The plaintiffs argue that the disclosure of these documents in discovery was inadvertent, and therefore did not constitute a waiver of any immunity from discovery. They further contend that the circulation of the Coudert Letter to Chase and other members of the Bank Group waived no privilege because these entities and BBL shared a common interest in the legal issues addressed. Defendants Credit Lyonnais and Paribas respond that the facts here do not support application of either the inadvertent disclosure doctrine or the common interest doctrine, and any claim of privilege as to these documents has therefore been waived. These defendants cross-move for an order declaring that any privileges that might have been asserted as to the Dinell Memorandum and the Credit Presentation have likewise been lost. Again, the defendants argue that the inadvertent disclosure doctrine does not apply. With respect to the Dinell Memorandum, they also contend that the redacted portion reflects legal advice already shared among the Bank Group, so that any privilege has been waived on that basis as well. A more detailed description of the basis for the claims of privilege and the circumstances of disclosure will be set forth in connection with the legal analysis below. Discussion I. Attorney-Client Privilege The plaintiffs argue that all four documents at issue are protected by the attorney-client privilege. In federal courts, the choice of law rules for questions of privilege are set forth in Rule 501 of the Federal Rules of Evidence, which states in pertinent part: The privilege of a witness, person, government, State or" }, { "docid": "1230187", "title": "", "text": "not retained to represent the Bank Group as a whole or any of its other members. Nor is there any suggestion that counsel from that firm coordinated its legal efforts with attorneys for any other Bank Group member. Indeed, there is no indication that counsel were even present at the meeting where representatives of the Bank Group reviewed the Coudert Letter. In sum, BBL obtained an opinion letter from counsel concerning the viability of a potential transaction, and one of the issues addressed in that letter was possible litigation. In order to facilitate a joint business decision, BBL then disclosed that letter first to Chase and through Chase to other members of the Bank Group. In doing so, BBL waived any attorney-client privilege that would otherwise attach to the letter. In the absence of some evidence of a coordinated legal strategy, the presence of such a concern about litigation does not bring a disclosure within the common interest doctrine. A similar result obtains with respect to the Dinell Memorandum. As a communication among non-attorney personnel of BBL, it would itself be privileged only to the extent that it incorporates privileged communications between attorney and client. The redacted portion, however, refers specifically to advice of counsel that was shared among members of the Bank Group. Defendants’ Notice of Cross-Motion, Exh. 11. Because the common interest doctrine does not apply, this dissemination waived the privilege with respect to the advice referred to, and the Dinell Memorandum itself is therefore not privileged. To summarize, the production in discovery of the four documents at issue did not constitute waiver of the attorney-client privilege because their disclosure was inadvertent. However, any privilege attaching to the Coudert Letter and the Dinell Memorandum was waived when the legal advice was shared with third-parties who were not pursuing a common legal strategy with BBL. IV. Work Product Notwithstanding waiver of the attorney-client privilege, the Coudert Letter and the Dinell Memorandum might still be protected from discovery by the work product doctrine because waiver principles applicable to the attorney-client privilege are not identical to those that apply to work" }, { "docid": "18197918", "title": "", "text": "The June 10, 1998 Memorandum From Kim Ross To Two Non-Attorney Noranda Employees. This is a memorandum from Kim Ross to in-house lawyer, John Whyte, Esq., and Mr. Ross’s superiors regarding a meeting with Marsulex and including a request for legal advice regarding the legal implications of certain facts. (Appendix to Plaintiff’s Motion, Ex. 16). At issue is the Noran-da defendants claim of the privilege for a few sentences on the second page beginning “I believe Marsulex may be....” This portion of the document does not reveal any confidences or legal advice. While the Noranda defendants call it a request for legal advice, it much more closely resembles Mr. Ross’s comment on a Marsulex business strategy, and is not privileged and cannot be redacted. c. The September 13, 1999 Email From John Hammond This email is from one employee of DuPont to another. (.Appendix to Plaintiff’s Motion, Ex. 17) Although the Noranda defendants argue that they may claim the privilege as to the document because they were involved in a joint venture with DuPont and the document pertains to that topic, this is an unsupported, conclusory assertion, and one not supported by an examination of the document. (Noranda Defendants’ Response, at 35). It cannot be ascertained whether the communication between two DuPont employees concerns DuPont business or the joint venture. Clearly, the Noranda defendants have not demonstrated they have standing to assert the privilege as to the document. Matter of Walsh, 623 F.2d 489, 493 (7th Cir.1980); Dexia Credit Local v. Rogan, 231 F.R.D. 268, 276-77 (N.D.Ill.2004)(discussing to whom the privilege belongs in a corporate context). But beyond that, and more importantly, the email does not reflect client confidences or legal advice. It is Mr. Hammond’s recollection of one formula for determining market share. He calls it a “simple, incomplete view.” As such, the material is not privileged and cannot be redacted. d. Operating Guidelines for Noranda’s Toronto Acid Marketing Group (Appendix to Plaintiffs Motion, Ex. 18) This is a memorandum from Ian Holden, a Noranda employee, to AI Gourley, an attorney representing Noranda. It sets forth proposed marketing strategies" }, { "docid": "17289901", "title": "", "text": "the relator in qui tam cases, and holding that in cases in which the government has intervened, such a “privilege” exists and extends to disclosures of work product by the relator and his counsel); United States ex rel. [Redacted], 209 F.R.D. at 478-479 (holding that the “common interest doctrine” prevented disclosure of the content of discussions between the relators and the government “in furtherance of the [government’s] investigation” from constituting a waiver of work product protection); Burroughs, 167 F.R.D. at 685-686 (holding that the relator and the government “are essentially the same party” and can assert a “joint prosecution privilege” to avoid a waiver of work product immunity); see also Miller, Anderson, Nash, Yerke & Wiener v. United States Dep’t of Energy, 499 F.Supp. 767, 771 (D.Or.1980) (holding that a party did not waive the attorney-client privilege by turning a privileged memorandum over to a government agency “with similar interests” which was in the process of deciding whether or not to intervene in a lawsuit). Defendant has represented, however, that plaintiffs already have provided defendant with redacted versions of the disclosure statements regarding three of plaintiffs’ claims. [See Joint Stipulation at 2], To the extent that the government or relator already has produced any disclosure statements to defendant, whether in whole or in part (such as in redacted form), plaintiffs have waived work product protection as to the portions already revealed to defendant. Although the disclosure statements qualify as work product, the level of protection from disclosure depends on whether they are characterized as “opinion” work product, “ordinary” work product, or both. The disclosure statements in this case were prepared by relator and his counsel. [See Declaration of Jeffrey Wexler in Opposition to Motion to Compel at 3-5]. Plaintiff lodged the disclosure statements (without the attached exhibits) under seal, and the court has reviewed them. The disclosure statements consist of: (1) a narrative of the specific facts and evidence relator contended were material to his claims; (2) an analysis of the facts and evidence in light of the legal standards relator deemed relevant to show wrongdoing by defendant; and (3)" }, { "docid": "18197916", "title": "", "text": "in Support of Plaintiffs’ Motion, at 10). As such, those arguments are again rejected. 5. Documents Produced to the Government The Noranda defendants produced a raft of documents to the Department of Justice pursuant to subpoena in 1998 thereby waiving any claim of privilege. Rather they argue that the production was inadvertent, as they informed the plaintiffs by letter on February 2, 2005. (Appendix to Plaintiff’s Motion, Ex. 14). Since the protective order offers no protection to the unobjeeted-to response to the government’s subpoena and with little in the way of argument from the Noranda defendants on the circumstances of the claimed inadvertancy of the turnover to the Department of Justice, the privilege is waived, and the documents must be produced to the plaintiffs. 6. Other Inadvertently Produced Documents Plaintiffs challenge on two grounds the Noranda defendants’ claims of privilege as to a number of other documents or redacted portions thereof the Noranda defendants produced in discovery and then sought to claim were privileged in whole or in part as “inadvertently produced.” They argue, first, that these materials are not privileged in that they do not reveal legal advice or client confidences; and second, that too much time elapsed between the Noranda defendants’ production of the materials and their claim of inadvertence. As already discussed, the plaintiffs’ stance on inadvertent production is incorrect and need not be revisited as to every document at issue. The question of application of the privilege to these documents, however, does require some discussion. a. The September 13, 2000 Memorandum From Kim Ross To Two Other Non-attorney Noranda Employees (Appendix to Plaintiff’s Motion, Ex. 15). Noranda claims the attorney-client privilege for Mr. Ross’ statement that “if we bust-up now, with all the antitrust muddle that will arise....” This phrase does not reveal any confidences or legal advice; it is merely a layman’s speculation to other laymen as to future complications that might arise. It may well be that Mr. Ross spoke with attorneys regarding this topic, but neither his discussions nor attorneys’ advice are revealed in this comment. The statement may not be redacted. b." }, { "docid": "1230178", "title": "", "text": "cautious. Attorneys made a page-by-page review of the original documents before producing them in the Ernst & Young Action. Privileged documents were physically segregated and marked. An attorney evidently missed one copy of the Coudert Letter during this process. Then boxes of the documents were provided for inspection. Again, this task was appropriately delegated to a paralegal, though in this instance he mistakenly produced one box of privileged documents. The precautions taken by plaintiffs’ counsel were nevertheless all that might be reasonably expected. The second factor to be considered is the time taken by plaintiffs’ counsel to rectify the error. Inordinate delay in claiming the privilege can prejudice the adversary and may be deemed a waiver. See Baxter Travenol Laboratories, Inc. v. Abbott Laboratories, 117 F.R.D. 119, 121 (N.D.Ill.1987). There was no such delay here. As soon as plaintiffs’ counsel were alerted to the production of the Coudert Letter and the Cancro Memorandum, they asserted the privilege and sought the return of the documents. Indeed, the documents themselves had been accompanied by a designation of privilege. Similarly, by producing redacted copies of the Dinell Memorandum and the Credit Presentation, the plaintiffs asserted privilege, and they were not advised of the production of unredacted copies until the defendants filed their cross-motion here. The third factor, too, favors the plaintiffs. These cases are two of several related complex litigations. GD & C alone produced over 70,000 pages of documents. In the Ernst & Young Action, Duker & Barrett produced approximately 50,000 pages. The scope of discovery, then, is immense. Compared to the volume of documents exchanged, the number of privileged documents erroneously disclosed was minuscule. Four specific documents were inadvertently produced, though the Coudert Letter was disclosed on two occasions. The box produced by Duker & Barrett in the Ernst & Young Action contained many more privileged documents, but under the circumstances of its disclosure, it should be counted as only a single event. Thus, inadvertent disclosure has occurred only to a minimal extent. See Lois Sportswear, 104 F.R.D. at 105 (disclosure of 22 documents out of 16,000 pages inspected held inadvertent)." }, { "docid": "18197882", "title": "", "text": "clients relating to requests for legal advice regarding antitrust and other laws. Accordingly, the attorney-client privilege as to the pages at issue is not waived because the advice was revealed to Noranda and Falconbridge. b. Inadvertent Disclosure Generally, the burden of proving inadvertent disclosure is on the party asserting the privilege. Harmony Gold U.S.A., Inc. v. FASA Corp., 169 F.R.D. 113, 116 (N.D.Ill.1996). That burden has been sustained by the Noranda defendants through the declaration of one of their attorneys regarding the precautions that were taken during the review of the 422 boxes containing approximately 800,000 documents. The 1994 report was produced on four previous occasions, with pages 9-11 redacted. Obviously, the production of the single unredacted copy was inadvertent. Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126-27 (7th Cir.1997). Where discovery is extensive, mistakes are inevitable and claims of inadvertence are properly honored so long as appropriate precautions are taken. Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., Inc., 132 F.R.D. 204, 207 (N.D.Ind.1990)(14,000 documents). This alone might be enough to sustain the defendants’ burden. But there is more. Recognizing the inevitability of mistakes in a case like this, the parties entered into an agreement that defined what was to be done in the event of inadvertent production in discovery; The inadvertent production of any document, thing or information in the Litigation shall be without prejudice to any claim that such material is privileged under the attorney-client privilege, or protected from discovery as work product. No party or entity shall be held to have waived any rights by such inadvertent production so long as the Recipient Party is notified within 30 days of the discovery of such inadvertent production. (Appendix to Plaintiffs’ Motion, Ex. 9, Agreed Protective Order, § 2). The parties agree that the joint protective order was essentially a contract, and rules of contract interpretation govern. Judges have no way of crawling into peoples’ minds; they must act on the basis of external signs. Pos-ner, Overcoming Law, 276 (1995). Thus, the search here, as with other contracts, is for the parties’ intent based on" }, { "docid": "1230179", "title": "", "text": "privilege. Similarly, by producing redacted copies of the Dinell Memorandum and the Credit Presentation, the plaintiffs asserted privilege, and they were not advised of the production of unredacted copies until the defendants filed their cross-motion here. The third factor, too, favors the plaintiffs. These cases are two of several related complex litigations. GD & C alone produced over 70,000 pages of documents. In the Ernst & Young Action, Duker & Barrett produced approximately 50,000 pages. The scope of discovery, then, is immense. Compared to the volume of documents exchanged, the number of privileged documents erroneously disclosed was minuscule. Four specific documents were inadvertently produced, though the Coudert Letter was disclosed on two occasions. The box produced by Duker & Barrett in the Ernst & Young Action contained many more privileged documents, but under the circumstances of its disclosure, it should be counted as only a single event. Thus, inadvertent disclosure has occurred only to a minimal extent. See Lois Sportswear, 104 F.R.D. at 105 (disclosure of 22 documents out of 16,000 pages inspected held inadvertent). Finally, denying the defendants the use of the documents at issue would in no way be unfair. The defendants have not suggested that the disclosure was selective such that they will be prejudiced unless more complete information is provided. Nor have they argued that they have already relied on the documents at issue. The defendants do contend that the Coudert Letter is a “smoking gun” that demonstrates the invalidity of certain of the plaintiffs’ claims. But the relevance of a privileged document to the merits of the litigation does not make it unjust to withhold it from discovery. The prejudice factor focuses only on whether the act of restoring immunity to an inadvertently disclosed document would be unfair, not whether the privilege itself deprives parties of pertinent information. By these terms, there is no unfairness in precluding the defendants from using the documents at issue. All of the relevant factors, then, militate in favor of holding that the disclosure to defendants’ counsel of each of the four documents was inadvertent and therefore did not constitute" }, { "docid": "1230159", "title": "", "text": "vice president of BBL (the “Coudert Letter”). The Coudert Letter was sent to Suzanne Durney, a-vice president at Chase, and she circulated it among members of the Bank Group. During discovery plaintiffs’ counsel identified this document as privileged, but it was nevertheless turned over to defendants’ counsel in the course of document production. The second document is a draft memorandum dated January 9, 1990, authored by Steven M. Cancro, who was then Associate Counsel of Banque Indosuez’s New York branch (the “Cancro Memorandum”). This memorandum was addressed to two Indosuez employees and discussed legal advice provided by the firm of Weil, Gotshal & Manges, outside counsel to Banque Indosuez. Like the Coudert Letter, the Cancro Memorandum was designated as privileged by plaintiffs’ counsel but was then produced during discovery in this case. The two remaining documents were initially withheld as privileged but then produced in discovery in this case in redacted form. One is a memorandum dated October 26, 1990, from Sasha Dinell, a BBL employee, to that party’s Credit Committee (the “Dinell Memorandum”). Redacted from this docu ment was a one-sentence reference to legal advice. The other document is entitled “Credit Presentation” and is dated November 23, 1990 (the “Credit Presentation”). Again, a brief allusion to legal advice was redacted. However, unredacted copies of both documents were subsequently produced in discovery. The plaintiffs move for a protective order declaring the Coudert Letter and the Cancro Memorandum to be privileged and precluding their use in this litigation. According to the plaintiffs, these documents are protected from disclosure by both the attorney-client privilege and the work product doctrine. The plaintiffs argue that the disclosure of these documents in discovery was inadvertent, and therefore did not constitute a waiver of any immunity from discovery. They further contend that the circulation of the Coudert Letter to Chase and other members of the Bank Group waived no privilege because these entities and BBL shared a common interest in the legal issues addressed. Defendants Credit Lyonnais and Paribas respond that the facts here do not support application of either the inadvertent disclosure doctrine or the" }, { "docid": "17175804", "title": "", "text": "279 (S.D.N.Y.1995) (“[W]hile factual materials falling within the scope of the doctrine may generally be discovered upon a showing of ‘substantial need,’ attorney mental impressions are more rigorously protected from discovery unless the doctrine’s protection is otherwise waived.”) (citing Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). Therefore, even if Interior has waived the work product privilege with respect to factual matters contained in the second document, the protection afforded to opinion work product will remain intact so long as that higher protection has also not been waived. In this case, the Court disagrees with plaintiff that opinion work product has been disclosed in the redacted form of the second document, thereby waiving work product protection as to all remaining portions of the document. Cf. Boris Lend Lease, LMB, Inc. v. Seasons Contracting Corp., No. 00 Civ. 9212(DF), 2002 WL 31729693, at *13 (S.D.N.Y. Dec. 5, 2002) (waiver found where unredacted portion of produced document contained work product). Instead, defendants were careful to withhold only those portions of the document indicating the author’s legal conclusions and recommendations, and thus that opinion work product is still entitled to the heightened protections of the doctrine. The redactions consistently follow phrases beginning with: “[b]ased on our review of those materials, as well as our review of pertinent case law, we conclude that”; “[accordingly, we recommend that”; “[w]e believe”; “[i]t is therefore our recommendation”; “[w]e find”; and “[i]n conclusion!.]” (See Strayhorn Supp. Deck, Exh. 6.) An in camera review of the unredacted document confirms that only legal conclusions, opinions, and recommendations were subject to redaction. Accordingly, the Court finds that Interior is entitled to withhold the remaining portions of the second document based on the protections of attorney work product afforded to an attorney’s mental impressions, conclusions, opinions, or legal theories. The Nation’s main contention is that defendants’ “pick-and-choose” disclosure requires that the entirety of the second document to be disclosed. (Pl.’s Supp. Letter, dated Feb. 20, 2009, at 2.) However, the cases upon which plaintiff relies reject partial disclosure pursuant to the privilege in circumstances that" }, { "docid": "20872443", "title": "", "text": "at 5.) We have long recognized the significant interest parties have in maintaining privilege. Crystal Grower’s, 616 F.2d at 461. We have also recognized a general public interest in maintaining robust protections for privileged communications. Id. We have reviewed the portions of the appendices identified by the parties as containing privileged information and agree they should remain under seal. Accordingly, pages 86, 196, 206, 275, 299, 347-48, 359, 375-77, 381-83, and 440 should be redacted upon refiling. We therefore direct the government to refile unsealed versions of the appendices, with the previously identified portions of Dr. Means’ deposition testimony and clergy-penitent documents redacted. As to the parties’ briefing on appeal, Defendant has withdrawn her request to file the briefs under seal. (See generally Appel-lee’s Resp. to Appellant’s Mot. to File Under Seal.) Because the government moved to seal its brief only in response to Defendant’s request, we order the parties to refile unsealed copies of their briefs within 10 days. V. For the foregoing reasons, we REVERSE the district court’s grant of summary judgment in favor of Defendant and remand for further proceedings. The district court’s denial of Defendant’s motion to dismiss is AFFIRMED. The parties are ORDERED to comply with our in structions regarding the briefs and appendix as detailed above. . Other evidence in the record indicates that Defendant was a minister at the local jail and became acquainted with Mr. Roeder in this capacity. However, it is not clear that this information appeared in the news article. Neither party included a copy of the news article in the record on appeal, so our description of this article is based mainly on Dr. Means' testimony regarding the article's contents. . We note that Defendant filed a separate motion for partial summary judgment on the government’s request for a permanent injunction. The district court denied this motion as moot but stated \"that in light of the evidence before it, [Defendant's] motion would appear to have substantial merit.” (Id. at 368.) We agree with the district court’s assessment of the merits of this motion. As it is no longer moot," }, { "docid": "18227945", "title": "", "text": "additional information concerning Mordo’s bicycle licensing agreement that Martindell neglected to request in the above discussed August 2,1995 fax. Therefore, pursuant to the previous discussion the Court finds that Document Nos. 26, 27, and 28 are discoverable in their entirety. Paragraph one of Documents 8 and 29 (which are the same document) is privileged and must be redacted prior to disclosure. B. Disclosure of the July 27 Memorandum Waived the Privilege F.C. Cycles also asserts that even if the memorandum was privileged any protection arising therefrom was waived by the “voluntary” disclosure of the document and, the waiver extends to all other communications relating to the same subject matter. The defendant does not dispute that the memorandum was disclosed. Rather, Fila argues that any waiver that occurred was “inadvertent” and, does not extend to any other document. Thus, it is the scope of the waiver that must be determined by the Court. Since the Court has determined that paragraph (vi) was not privileged (but the rest is), the Court must determine the effect of the production of the memorandum on other documents (or testimony) relating to the same subject matter. It is well understood that “[a]ny disclosure inconsistent with maintaining the confidential nature of the attorney-client relationship waives the attorney-client privilege.” United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982). See also Sheet Metal Workers International Assoc. v. Sweeney, 29 F.3d 120, 125 (4th Cir.1994); United States v. Oloyede, 982 F.2d 133, 140 (4th Cir.1992). Intentional disclosure waives the privilege not only to the disclosed communication, but also to all “other communications relating to the same subject matter.” Jones, 696 F.2d at 1072. See also Hawkins v. Stables, 148 F.3d 379, 384 n. 4 (4th Cir.1998); Sheet Metal Workers, 29 F.3d at 125. Consequently, should this Court find that the July 27, 1995 memorandum was intentionally disclosed the privilege that attached to it and to all other communications relating to the subject matter contained therein is waived. This determination requires that the conduct of the disclosing party be examined objectively for indicia of intent. That is, the Court must" } ]

[ { "docid": "23115034", "title": "", "text": "the provisions to be complied with “ so as to entitle them to a grant.” As there could be no grant until there was some person entitled to receive it, the conclusion would seem to be irresistible that, under this provision, married settlers had no estate in the land which they could devise by will, until from being qualified settlers only they had become qualified grantees. Having completed their settlement, and nothing remaining to 'be done but to get their patent, their estate in the land was one they could de rise by will, or which would go to the surviving husband or wife and children' or heirs of a deceased married person. Not so, however, with the mere possessory rights which preceded a compliance with the provisions of the act so as to entitle the settlers to their grant of the land. Again : “ No alien shall be entitled to a patent for land, granted by this act, until he shall produce to the surveyor-general of Oregon record evidence that his naturalization as a citizen of the United States has been completed; but if any alien, having made his declaration of intention to become a citizen of the United States, after the passage of this act, shall die before his naturalization shall be completed, the possessory right acquired by him under the provisions of this act shall descend to his heirs-at-law or pass to his devisees, to whom, as the case may be, the patent shall issue.” An alien who had declared his intention to become a citizen, or who should do so before Dec. 1, 1850, was a qualified settler, but he was not a qualified grantee until he had completed his naturalization. As no patent could be issued to him before his naturalization, provision was made for the disposition of the “ possessory right ” which one who had declared his intention, after the passage of the act, could acquire as an authorized settler. By the requisite residence and cultivation accompanied by the prescribed preliminary notice and proof of claim and settlement, the alien settler could" } ]

[ { "docid": "22900318", "title": "", "text": "contest with Black before the Land Office, no patent could issue to him under the original homestead law until after the expiration of five years from the date of his entrj7, and not then except upon proof that he, or if he be dead his widow, or if she be dead her heirs or devisees, prove “ by two credible witnesses that he, she or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, [required by § 2290 of the Revised Statutes,] and makes affidavit that no part of such land has been alienated, except as provided in § 2288, and that he, she or they will bear true allegiance to the Government of the United States; then, in such case, he, she or they, if at that time citizens of the United States, shall be entitled to a patent, as in other cases provided by law.” Rev. Stat. § 2291. But by the third section of the act of May 14, 1880, entitled “ An act for the relief of settlers on public lands,” 21 Stat. 140, c. 89, it was provided “ that any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States land office as is now allowed to settlers under the preemption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the preemption laws.” It thus appears that Jackson holds only an inchoate title to the land in dispute, and that he may so conduct-himself before making final proof and securing final certificate as to forfeit his right to obtain a patent -based upon the decision of the Land Office. By the decree below the defendant is enjoined from entering upon the" }, { "docid": "23115039", "title": "", "text": "rights only. Had it been supposed that the title was already in the settler, subject only to defeasance, if the conditions subsequent to the grant should not be performed, we cannot but think that provision would have been made for a transfer of the land free of the conditions, instead of only the settler’s rights. The object of Congress undoubtedly was to allow a settler’s heirs to succeed to his possessions and thus keep his rights alive. But for some such provision all rights of the settler would have been lost by his death. As the law required full four years’ residence by the person who claimed the grant, if no provision and been made for a continuance of his possession the land would have become vacant on his death and open for a new settlement by a new settler, if the law authorizing new settlements still remained in force. Hence it was provided that the possessory rights of a deceased settler should go to his heirs, and that they might gét the land on making the requisite proof, without further residence and cultivation of their own. Their title to the land was to come, not from their deceased ancestors, but from the United States. The title, it is true, was granted to them by reason of the possessory rights of their ancestor, but these were rights which he could not transfer, and which passed to them under the statute without any act of his. On his death his heirs became qualified grantees. Whether they took immediately on his death or after proof of his compliance with the provisions of the act while in life, need not be decided. It is enough for this case that when their ancestor died he had nothing in the land which he could transmit to them, and that what they afterwards got came from the United States-and not from him. All his rights in the land were dependant on his completion of the four years’ possession, but in consideration of what he had done Congress made his heirs the special objects of its bounty" }, { "docid": "22059738", "title": "", "text": "enacted by Congress with similar purpose and pursuant to its general plan with respect to Indian allotments and homesteads, that Indian allotments and Indian homesteads are in all essential respects upon the same footing, and that each is equally within the purview of a statute, in which the Congress may use only the terms “ allottee 7 and “ allotment.” The case of Toss Weaxta, supra, was in all essential respects identical with this case, and it involved the same question of law under the same two statutes. Weaxta had received a trust patent under the Act of 1884, and, at the expiration of the 25-year trust period, he applied to the Commissioner of the General Land Office to issue to him a patent in fee covering his homestead. The Commissioner denied the application, on the ground that the trust period had been', by order of the President, extended, pursuant to the power given the President by the Act of June 21, 1906. Weaxta appealed to the Secretary of the Interior, claiming that an Indian homestead, such as he held, was not an Indian allotment, and that the Act of June 21, 1906, by its terms limits the authority to extend the trust periods to “ Indian allotments only.” The First Assistant Secretary, in affirming the decision of the Commissioner, found: ’ “ The Department all along has considered Indian homesteads and Indian allotments upon the public lands as being upon practically the same footing, and Congress has recognized the similarity.” He concluded, from a review of laws in pari materia, the condition and standing of the Indians, and the obligations of the Government, that both Indian homesteads and Indian allotments must be considered as included within the meaning of the Act of June 21, 1906. In the case of Jim Crow, 32 L. D. 657, 659, the question was whether lands inherited from a deceased Indian homesteader came within the provisions of the Act of May 27, 1902, 32 Stat. 245, 275, which Act, by its terms, authorized the sale and conveyance of inherited Indian lands by the heirs" }, { "docid": "23115032", "title": "", "text": "four years of residence, &c., and had otherwise conformed to the act. Whenever a settler qualified himself to become a grantee, he took the grant and his right to a transfer of the legal title from the United States became vested. But until he was qualified to take, there was no actual grant of the soil. The act of Congress made the transfer only when the settler brought himself within the description of those designated as grantees. A present right to occupy and maintain possession, so as.to acquire a complete title to the soil, was granted to every white person in the Territory having the other requisite qualifications, but beyond this nothing passed until' all was done that was necessary to entitle the occupant to a grant of the land. Whether the fee passed out of the United States before the claim was “ proved up,” it is not necessary now to consider. For the purposes of the present suit it is enough to show.that the occupant got no title himself, beyond that* of a mere right of possession, until he had completed his four years of continued Residence and cultivation. That such was the clear intention of Congress we think is manifested in many provisions of the act. . Thus, where married persons “ have complied with the provisions of the act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon, or since, and either shall die before patent issues, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament, duly and properly executed according to the laws of Oregon.” This evidently related to such married persons as had completed their four years’ residence and cultivation, and had done the other things required in the mean time;, .that is to say, had given notice of the precise tract claimed' (sect. 6), and had proved the commencement of their settlement and cultivation (sect. 7). These were" }, { "docid": "23691705", "title": "", "text": "There is an allegation in the bill to the effect that appellant's wife left little or no personal property except moneys held in trust for her from the sale of inherited Indian lands by the United States, that by § 8419 dower and curtesy were abolished and by § 8418 it was provided as follows: “If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of or e child, [the estate must be distributed] in equal shares io the. surviving husband, or wife and child, or issue of such child. If the decedent leave a surviving husband or wife, and more than one child living, or one child living and the lawful, issue of one or more deceased children, one-third to. the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of representation.” And by § 6328 it is provided: “Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, which shall not in any event be subject to administration proceedings, until it is otherwise disposed of according to law; and upon the death of both husband and wife the children may continue to possess and occupy the whole homestead until the youngest child becomes of age.” It is alleged “that Section 1 of the Act of June 25,1910, of which the Act of February 14, 1913, is amendatory, is as follows: ‘That when any Indian to whom an allotment of land has been made; or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without' having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent. ’ ” On motion of defendants (appellees here) the bill was dismissed for want of equity. The ruling was affirmed by the Circuit Court of Appeals." }, { "docid": "23115018", "title": "", "text": "but now deceased. On the death of Loring, Joshua Delay claimed the land as a settler in behalf of himself and his wife, Sarah Delay, and after a contest with the representatives of Loring before the officers of the Land Department, the heirs of the 'Delays succeeded in obtaining a patent. Much litigation ensued between them and. the heirs of Loring about the title, but, finally, all the estate of both these parties was transferred to the present defendants, in whom it is now vested, but with full knowledge, before the transfer, of the claim of. the complainants. The theory of the present suit is that Loring, by his settlement, acquired an estate in the lands which passed by his will, and that the heirs of the Delays took title under the patent issued to them ..in trust for the devisee of Loring as the real owner of the property. The court below dismissed the bill for the reason, among others, that Loring had no devisable estate in the lands when he died, and, consequently, his devisee took nothing by the will. The case, therefore, in this aspect, presents the question directly whether the heirs of a settler under the Oregon Donation Act, who died before the expiration of the four years’ residence and cultivation required, took by descent from the settler, or as donees of the United States. If by descent, it is conceded the settler had a devisable estate. If as donees, he had not. The sections of the act material to the determination of this question are the fourth, fifth, sixth, seventh,* eighth, and twelfth. The fourth is as follows: — “ Sect. 4. That there shall he, and hereby is, granted to every white settler or occupant of the public lands, American half-breed Indians included, above the age of eighteen years, being a citizen of the United States, or having made a declaration according to law, of his intention to become a citizen, or who shall make such declaration on or before the first day of December, eighteen hundred and fifty-one, now residing in said Territory," }, { "docid": "23115038", "title": "", "text": "mean time as the statute required in order to protect his claim and keep it alive. Down to that time he was an authorized settler on the public lands, but not a grantee. His rights in the land were statutory only, and cannot be extended beyond the just interpretation of the language Congress has used to make known its will. This brings us to the consideration of sect. 8, which, in substance, provided that if a settler died before the expiration of the required four years’ continued possession, all his rights should descend to his heir-at-law, including his widow, if he left one, and that proof of his compliance with the conditions of the act up to the time of his death should be sufficient to entitle them to the patent. Here is a plain indication that the right of the settler before the expiration of his four years’ continued possession was something less than a title in fee to the land, for the provision is not that the land shall descend, but the settler’s rights only. Had it been supposed that the title was already in the settler, subject only to defeasance, if the conditions subsequent to the grant should not be performed, we cannot but think that provision would have been made for a transfer of the land free of the conditions, instead of only the settler’s rights. The object of Congress undoubtedly was to allow a settler’s heirs to succeed to his possessions and thus keep his rights alive. But for some such provision all rights of the settler would have been lost by his death. As the law required full four years’ residence by the person who claimed the grant, if no provision and been made for a continuance of his possession the land would have become vacant on his death and open for a new settlement by a new settler, if the law authorizing new settlements still remained in force. Hence it was provided that the possessory rights of a deceased settler should go to his heirs, and that they might gét the land on" }, { "docid": "7225315", "title": "", "text": "defendant. By her cross petition she attacked the conveyances, alleging that the property constituted a homestead in which she had an undivided one-half interest. The other defendants answered her cross petition, and in her reply she set up the right to take the real estate of her deceased husband by virtue of the treaty of amity and commerce between the United States and Norway. The District Court determined that no fraud had been practiced in obtaining the deeds from Knudson, but that these, and the later conveyances dependent upon them, were void upon the ground that the land was homestead property the title to which remained in Knudson until his death and then descended to his widow and his son. The Supreme Court of the State sustained the decision of the District Court with respect to the issue of fraud, but reversed the judgment upon the ground that, under the treaty with Norway, Knudson was entitled to convey the property and that his grantees took title under his deeds. Engen v. Union State Bank, 118 Neb. 105. This Court granted a writ of certiorari, 280 U. S. 546. We are not called upon to decide as to the validity under the homestead law of Nebraska of a deed of the homestead by the husband when the wife is an alien who has never come to this country' and made the homestead her home. We accept the decision of the Supreme Court of the-State that, aside from the effect of the treaty, Knudson’s conveyances were void under the law of the State. That Court, referring to the statutes of Nebraska as to homestead property, and their application to the .present case, said (118 Neb. 111, 112) : “ For, if we consider the provisions of section 2819 and section 2832, Comp. St. 1922, as applicable to the subject of the present action, it necessarily follows that certain property within the purview of the treaty before us ‘ cannot be conveyed . . . unless the instrument by which it is conveyed ... is executed and acknowledged by both husband and wife/" }, { "docid": "22059739", "title": "", "text": "homestead, such as he held, was not an Indian allotment, and that the Act of June 21, 1906, by its terms limits the authority to extend the trust periods to “ Indian allotments only.” The First Assistant Secretary, in affirming the decision of the Commissioner, found: ’ “ The Department all along has considered Indian homesteads and Indian allotments upon the public lands as being upon practically the same footing, and Congress has recognized the similarity.” He concluded, from a review of laws in pari materia, the condition and standing of the Indians, and the obligations of the Government, that both Indian homesteads and Indian allotments must be considered as included within the meaning of the Act of June 21, 1906. In the case of Jim Crow, 32 L. D. 657, 659, the question was whether lands inherited from a deceased Indian homesteader came within the provisions of the Act of May 27, 1902, 32 Stat. 245, 275, which Act, by its terms, authorized the sale and conveyance of inherited Indian lands by the heirs of a deceased allottee. The Assistant Attorney General held that the Act applied to the heirs of all Indian claimants for portions of the public lands, to whom a trust or other patent containing restrictions upon alienation had been issued, regardless of whether the claim of the Indian was initiated under what are known as Indian homestead laws or under Indian allotment laws. This ruling was approved by the Acting Secretary of the Interior, 32 L. D. p. 659. In that ruling the similarity of the claims of Indians arising out of rights conferred upon them by the General Allotment Act and by the Act of 1884 which gave them homestead entry rights, was pointed out. It was there said: “ The general allotment act, so far as it affects public lands, and the preceding Indian homestead provisions, are so clearly connected that they should be construed in pari materia as relating to the same subject-matter. The later allotment act but carries forward the policy of the former enactments to give Indians a right to" }, { "docid": "23115021", "title": "", "text": "died before patent issues, the survivor and children, or heirs of the deceased, shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament duly and properly executed according to the laws of Oregon. Provided, that no alien shall be entitled to a patent to land, granted by this act, until he shall,produce, to the surveyor-general of Oregon, record evidence that his naturalization as' a citizen of the United States has been completed; but if any alien, having made his declaration of an intention to become a citizen of the United States, after the passage of this act, shall die before his naturalization shall be completed, the possessory right acquired by him under the provisions of this act, shall descend to his heirs-at-law, or pass to his devisees, to whom, as the case may be, the patent shall issue. Provided further, that in all cases provided for in this section, the donation shall embrace the land actually occupied and cultivated by the settler thereon. Provided further, that all future contracts by any person or persons entitled to the benefit of this act, for the sale of the land to which he or they máy be entitled under this act, before he or they had received a patent therefor, shall be void. Provided further, however, that this section shall not be so construed as to allow those claiming rights under the treaty with Great Britain, relative to the Oregon Territory, to claim both under this grant and the treaty, but merely to secure them the election, and confine them to a single grant of land.” The fifth provides “that to all white male citizens of the United States . . . emigrating to and settling in said Territory between the first day of December, 1850, and the first day of December, 1853, . . . wbo shall . . . comply with the foregoing section, and the provisions of this law, there shall be and hereby is granted the quantity of one quarter-section ... if a single" }, { "docid": "9697481", "title": "", "text": "consider it a part of “the matefial pleadings” required to be included according to Rule 75(g) of the New Rules of Civil. Procedure, 28 U.S.C.A. following section 723c. According to the agreed statement, this action was instituted by the United States to quiet title to certain land in Wisconsin. This land had been conveyed in 1897 by patent to one Two Horns, a Winnebago Indian, in accordance with the provisions of the Winnebago Indian Homestead Act of 1881 which required that there should be inserted in every patent issued thereunder, the provision that the title thereby acquired should not be subject to alienation or in-cumbrance, voluntary or otherwise, for a period of twenty years from the date of the patent. 21 Stat. 315 at page 317. The patent containing the necessary limitation upon alienation was duly recorded in the county in which the patented land was located. Two Horns, the grantee, died in 1899, whereupon the alloted land was inherited by his daughter and sole heir, Margaret Two Horns. March 15, 1918, she conveyed the land by warranty deed and for the consideration of $1,700 to appellee Julia Gilbertson who thereafter made improvements upon it. In 1922, Mrs. Gilbertson mortgaged the land to appellee the Federal Land Bank of St. Paul, for a loan of $3,-800 which remains unsatisfied. In 1929, Mrs. Gilbertson conveyed the land by quitclaim deed to her son, appellee Henry Gil-bertson, who made further improvements upon it. Margaret Two Horns is now dead, and the action was brought in behalf of her two heirs at law, a son and a daughter. The conveyance to Mrs. Gilbertson was made after the expiration of the original period of limitation recited in the patent. However, by statute of June 21, 1906, 34 Stat. 325 at page 326, 25 U.S.C.A. § 391, it was provided: “That prior to the expiration of the trust period of any Indian allottee to whom a trust or other patent-containing restrictions upon alienation has been or shall be issued under any law or treaty the President may in his discretion continue such restrictions on alienation" }, { "docid": "23115037", "title": "", "text": "right could have no other effect than that of an abandonment of the settler’s “ claim” and a grant to the purchaser of the right to enter upon the abandoned lands and begin a new settlement of his own. This intention is even more distinctly shown in sect. 5, which being in pari materia with sect. 4 may be resorted to as in some degree showing the meaning of both sections. There the language is, “ that to all white male citizens . . . who shall in all other respects comply with the foregoing section, . . there shall be and hereby is granted,” &c. This indicates clearly that there was to be no grant except to persons who, by complying with the provisions of the act, had qualified themselves to take. We conclude, therefore, that under sect. 4 there was no grant of the land to a settler until he had qualified himself to take a's grantee by completing his four years of residence and cultivation, and .performing siich other acts in the mean time as the statute required in order to protect his claim and keep it alive. Down to that time he was an authorized settler on the public lands, but not a grantee. His rights in the land were statutory only, and cannot be extended beyond the just interpretation of the language Congress has used to make known its will. This brings us to the consideration of sect. 8, which, in substance, provided that if a settler died before the expiration of the required four years’ continued possession, all his rights should descend to his heir-at-law, including his widow, if he left one, and that proof of his compliance with the conditions of the act up to the time of his death should be sufficient to entitle them to the patent. Here is a plain indication that the right of the settler before the expiration of his four years’ continued possession was something less than a title in fee to the land, for the provision is not that the land shall descend, but the settler’s" }, { "docid": "23115020", "title": "", "text": "or who shall become a resident thereof on or before the first day of December, 1850, and who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act, the quantity of one-half section, or three hundred and twenty acres of land, if a single man, and if a married man, or if he shall become married within one year from the first day of December, 1850, the' quantity of one section, or six hundred and forty acres, one-half to himself and the other half to his wife, to be held by her in her own right; and the surveyor-general shall designate the part inuring to the husband and that to the wife, and enter the same on the records of his office; and in all cases where such married persons have complied with the provisions of this act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon, or since, and either shall have died before patent issues, the survivor and children, or heirs of the deceased, shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament duly and properly executed according to the laws of Oregon. Provided, that no alien shall be entitled to a patent to land, granted by this act, until he shall,produce, to the surveyor-general of Oregon, record evidence that his naturalization as' a citizen of the United States has been completed; but if any alien, having made his declaration of an intention to become a citizen of the United States, after the passage of this act, shall die before his naturalization shall be completed, the possessory right acquired by him under the provisions of this act, shall descend to his heirs-at-law, or pass to his devisees, to whom, as the case may be, the patent shall issue. Provided further, that in all cases provided for in this section, the donation shall embrace the land actually occupied and cultivated by" }, { "docid": "23115033", "title": "", "text": "mere right of possession, until he had completed his four years of continued Residence and cultivation. That such was the clear intention of Congress we think is manifested in many provisions of the act. . Thus, where married persons “ have complied with the provisions of the act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon, or since, and either shall die before patent issues, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament, duly and properly executed according to the laws of Oregon.” This evidently related to such married persons as had completed their four years’ residence and cultivation, and had done the other things required in the mean time;, .that is to say, had given notice of the precise tract claimed' (sect. 6), and had proved the commencement of their settlement and cultivation (sect. 7). These were the provisions to be complied with “ so as to entitle them to a grant.” As there could be no grant until there was some person entitled to receive it, the conclusion would seem to be irresistible that, under this provision, married settlers had no estate in the land which they could devise by will, until from being qualified settlers only they had become qualified grantees. Having completed their settlement, and nothing remaining to 'be done but to get their patent, their estate in the land was one they could de rise by will, or which would go to the surviving husband or wife and children' or heirs of a deceased married person. Not so, however, with the mere possessory rights which preceded a compliance with the provisions of the act so as to entitle the settlers to their grant of the land. Again : “ No alien shall be entitled to a patent for land, granted by this act, until he shall produce to the surveyor-general of Oregon record evidence that his naturalization as" }, { "docid": "23115040", "title": "", "text": "making the requisite proof, without further residence and cultivation of their own. Their title to the land was to come, not from their deceased ancestors, but from the United States. The title, it is true, was granted to them by reason of the possessory rights of their ancestor, but these were rights which he could not transfer, and which passed to them under the statute without any act of his. On his death his heirs became qualified grantees. Whether they took immediately on his death or after proof of his compliance with the provisions of the act while in life, need not be decided. It is enough for this case that when their ancestor died he had nothing in the land which he could transmit to them, and that what they afterwards got came from the United States-and not from him. All his rights in the land were dependant on his completion of the four years’ possession, but in consideration of what he had done Congress made his heirs the special objects of its bounty if he died before his own grant had been secured. We.attach no importance to the word “ descend,” as used in this .section. In sect. 4 the word selected to convey substantially the same idea was “entitled.” The-thing done was to give the heirs of a settler the benefit of his rights and to designate them as the recipients of the bounty of the government, instead of him. We have not overlooked the fact that by the territorial enactments of Oregon a settler’s claim might descend to his heirs as real estate, and that his possessory rights might be disposed of by will. But all these enactments are in conflict with the act of Congress, and, therefore, inoperative. The heirs of the settler took only such title as Congress gave them. The territorial government could not add to or take from that grant. It is not contended that under the act of Congress a settler might devise his interest in the land unless the fee passed to him before his death. It follows from, this" }, { "docid": "15946938", "title": "", "text": "derogate from his own grant. It does not lie in his mouth to say that the patent is not good.” On the whole, the estoppel raised in this case is of the same class as that applied by the supreme court in Brazee v. Schofield, 124 U. S. 495, 8 Sup. Ct. 604, where the court said (page 503, 124 U. S., and page 604, 8 Sup. Ct.) as follows: “There is another view of this case which would seem to conclude the appellant as to the sufficiency and legality of this notification by the widow. The patent of the United States was issued upon, the supposed compliance of the patentees with the requirements of the donation act. That instrument is not in the record, but we must presume that it follows the usual form of such instruments, and recites the compliance of the patentees with the requirements of the act, and the production to the proper officers of satisfactory proof on that point. The appellant derives all the title he asserts through conveyances of the heirs of the deceased settler under the patent. As well observed by the supreme court of the territory, under these circumstances these heirs and their grantees are estopped from ‘saying_ to the prejudice of any grantee of theirs, but that the husband and ancestor,' Amos Short, deceased, duly resided upon and cultivated for the prescribed period the donation land claim known as his, or that by virtue of a full compliance with the essential requirements of the donation act, his widow and children were, at the date of his death, in January, 1853, entitled nuder the act to that land claim.’ ” The principle is recognized in Brant v. Iron Co., 93 U. S. at pages 336, 337. In Ball & Socket Fastener Co. v. Ball Glove Fastening Co., 7 C. C. A. 498, 58 Fed. 818, we had occasion to consider the effect of an estoppel as against a licensee operating under tin; peculiar agreement existing in that case, and used the following language: “So far as this suit is concerned, the various" }, { "docid": "17765627", "title": "", "text": "or, in case of her death, to his heirs or devisee, upon proving the necessary settlement and qualification for the time prescribed. This section, it is contended, made the heirs of Norton, (there being no widow) the direct beneficiaries of the statute — that is, the plaintiff and her- grantors. In other words, they took directly under'the statute, not from Norton; and such, it is further contended, is the effect of the decisions of this court, citing McCune v. Essig, 199 U. S. 382; Wadkins v. Producers’ Oil Company, 227 U. S. 368. But it will be observed the cited section provides for cases where the homesteader dies before final proof, other sections applying when such proof has been made and nothing is yet to be performed to entitle to a patent. By § 2448 it is provided that “where patents for public lands have been or may be issued,'in pursuance of any law of the United States, to a person who had died, or who hereafter dies, before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees or assignees of such deceased patentee as if the patent had issued to the deceased person during life.” ' Such are the circumstances in the present case. Norton had made his final proof before his death and had become entitled to the patent. Plaintiff and her grantors, there fore, could only receive the land as his heirs and not directly under § 2291 and as its beneficiaries.. Upon such proof Norton certainly became the equitable owner of the land. Indeed, it practically became his absolute property, subject to his disposition by assignment or by will or to the disposition of the law (United States v. Detroit Lamber Co., 200 U. S. 321, 328), and subject, therefore, upon his death, to the probate jurisdiction of the State. But, it is contended that even if he became such owner, the land was not subject to sale for the satisfaction of debts contracted before the patent was issued.. The debt for which" }, { "docid": "7225314", "title": "", "text": "Mr. Chief Justice Hughes delivered the opinion of the Court. Christian Knudson, a native and citizen of Norway, came to this country in 1868 and settled in Nebraska in 1878. He was never naturalized. He established a homestead on 160 acres of land in Hamilton County, Nebraska, and resided there until he died intestate in August, 1923. His father and mother made their home with him until their death, and his son Knute-C. Engen, who came to» Nebraska in 1893, also lived with him for ,a time. The wife of Knudson remained in Norway. In July, 1923, Knudson executed deeds of the homestead- to his nieces and their husbands, and these grantees conveyed the property to the Union State Bank of Harvard, Nebraska. This suit was brought by the son of Knudson, Knute C. Engen, in the District Court of Hamilton County to cancel the conveyances of the land upon the ground that they were obtained by fraud. The widow of Knudson, Mari Tollefsen. Todok, who had not joined in the deeds, was made a defendant. By her cross petition she attacked the conveyances, alleging that the property constituted a homestead in which she had an undivided one-half interest. The other defendants answered her cross petition, and in her reply she set up the right to take the real estate of her deceased husband by virtue of the treaty of amity and commerce between the United States and Norway. The District Court determined that no fraud had been practiced in obtaining the deeds from Knudson, but that these, and the later conveyances dependent upon them, were void upon the ground that the land was homestead property the title to which remained in Knudson until his death and then descended to his widow and his son. The Supreme Court of the State sustained the decision of the District Court with respect to the issue of fraud, but reversed the judgment upon the ground that, under the treaty with Norway, Knudson was entitled to convey the property and that his grantees took title under his deeds. Engen v. Union State Bank, 118" }, { "docid": "22354637", "title": "", "text": "Mb. Chief Justice White, Memorandum opinion by by direction of the court. The plaintiffs in error, who were plaintiffs below,'alleging themselves to be residents of England and subjects of the Kingdom of Great Britain and Ireland, in 1912 sued the defendants in error to recover a two-thirds interest in a piece of real estate situated in Nebraska. They alleged that John Toop, a resident of Nebraska, who had owned the real estate in question,' died in 1898 intestate and without issue, his widow surviving him, and that as children and grand-children of a deceased brother and sister of Toop they as his heirs became the owners of the two-thirds of the property sued for. It was charged that the right to inherit the property notwithstanding the alleged alienage was secured by a treaty between the United States and Great Britain which took effect in 1900. In their answer the defendants deraigned their title from the children and grand-children of a deceased sister of Toop who, it was alleged', were American citizens at the time of Toop’s death. Without denying the kinship of the plaintiffs .to Toop as they alleged, it was asserted that as aliens they were incapacitated from taking by inheritance or holding real estate in the State of Nebraska in virtue of a law of that State which was in force at the time of Toop’s death. The case was submitted to the court on an agreed statement of facts and was decided against the plaintiffs on the ground that applying the state law prohibiting nonresident aliens “from acquiring title to or taking or holding any lands or real estate in this State by descent, devise, purchase, or otherwise,” etc. (act of March 16, Í889, § 4825, Comp. Stat. of 1907), the plaintiffs had no interest in the property for which they sued.. The court concluded that the treaty referred to in- the pleadings was not necessary to be considered as it only became operative two years after the death of Toop and had no retroactive effect. On the face of the pleadings the only ground upon which" }, { "docid": "23098951", "title": "", "text": "of the General Land-Office, when, if no valid objections were found, patents were to issue according to the certificate, upon the surrender thereof. Sect. 8 provided that, upon the death of any settler before the expiration of the required four years’ continued possession, all his rights should descend to his heirs, including the widow, where one was left, in- equal parts, and that proof of compliance with the conditions of the act up to the time of the death should be sufficient to entitle them to a patent. The prohibition of sales, although contained in sect. 4, applied to all persons entitled to the benefit of the act, and its. repeal was, under the circumstances, equivalent to an express grant of power to sell. The prohibition was of the sale, before patent, of the land to which the settler was entitled under the act. The repeal, therefore, operated under the circumstances the same as a grant of power to sell the land even though a patent had not issued. This, in the absence of any thing to the contrary, implied the power to convey all the government had parted with. When the right to a patent once became vested in a settler under the law, it was equivalent, so far as the government was concerned, to a patent actually issued. We so decided in Stark v. Starrs, 6 Wall. 402. The execution and delivery of the patent after the right to it is complete are the mere ministerial acts of the officer charged with that duty. An authorized sale by a settler, therefore, after his right to a patent had been fully secured, was, as to the government, a transfer of the ownership of the land. We aré thus brought to the consideration of the question, whether such a sale by married persons, entitled to the benefit of the fourth section of the act, would transfer to the purchaser the interest of the children, heirs, or devisees of a husband or wife, who died after the sale, but before the patent was actually received. This depends upon whether the repeal" } ]

[ { "docid": "14537323", "title": "", "text": "elements of those offenses. The instructions on the charge of rape are criticized by the defense on the ground that, although the law officer gave the elements of carnal knowledge, use of force, and lack of consent, he erred in not defining each of these terms. With this we cannot agree. These are not words of art, having a special connotation in the eyes of the law. See United States v. Williams (No. 251), 1 USCMA 231, 2 CMR 137, decided March 14, 1952. Defense at the. trial requested no explanation or definition, and there is no indication that there was any confusion m the minds of the court members. The last issue in relation to the instructions concerns the statements of the law officer relative to the offense of assault with intent to do great bodily harm with a dangerous weapon. Here, he read verbatim the elements of the offense from paragraph 180? of the Manual for Courts-Martial, U. S. Army, 1949. The element of specific intent to do bodily harm was thus omitted. This was prejudicial error that requires us to set aside this finding. United States v. Hopf (No. 372), 1 USCMA 584, 5 CMR 12, decided August 14, 1952; United States v. Cromartie. (No. 374), 1 USCMA 551, 4 CMR 143, decided August 6, 1952. However, we affirm so much of the finding of guilty as involves the lesser included offense of assault with a dangerous weapon. United States v. Hunter (No. 359), 2 USCMA 37, 6 CMR 37, decided this day. We have found no prejudicial error except the failure to fully instruct on the assault charge. Our action on this comparatively minor matter, however, does not require us to return the case to a board of review for reconsideration of the sentence. The conviction is affirmed. Judge Latimer concurs. JBROSMAN, Judge (concurring); I concur fully in the opinion of the Court, but I should like, to add a brief caveat. In United States v. Keith (No. 226), 1 USCMA 442, 4 CMR 34, decided July 3, 1952, we held that we were without statutory" } ]

[ { "docid": "18607174", "title": "", "text": "on the part of an accused in committing the alleged assault, such as “shooting,” “striking,” or “cutting,” with a dangerous weapon, such as a “pistol,” “pickax,” or “bayonet.” However, the entire tenor of the record, including the sentence imposed, and arguments used both at the trial and on appeal, indicates the view that petitioner was charged with and found guilty of the commission of an assault with intent to do bodily harm with a dangerous weapon, instrument, or thing. We shall act on this assumption for the purposes of the present opinion. The law. officer at the trial instructed the court-martial that: “The court is advised that the elements of the offenses are as follows: as to Charge I — that the accused assaulted a certain person with a certain weapon, instrument, or thing; and facts and circumstances indicating that the weapon, instrument, or thing was used in a manner likely to produce death or great bodily harm. “Weapons and other objects are dangerous when they are used in such a manner that they are likely to produce death or great bodily harm.” Petitioner argues that these instructions are fatally defective in that the court-martial was not advised that a specific intent to inflict bodily harm is a necessary ingredient of the offense alleged, and he further urges that a mere reading of the subparagraph “Proof” in the Manual treatment of the offense charged certainly does not constitute compliance with the mandatory provisions of the Uniform Code of Military Justice, Article 51, 50 USC § 626, unless the text so read embraces all elements of the crime. With the latter assertion of appellate defense counsel we are in full accord. It is certain that the law officer in this ease did not explicitly instruct the members of the court-martial on the necessity for a finding of intent on the part of petitioner to inflict bodily injury on Agent Stuart. It remains to inquire whether a specific intent to do bodily harm is an essential ingredient of the offense here charged- — that is, of assault with intent to do bodily" }, { "docid": "14537322", "title": "", "text": "to unpremeditated murder, will not reduce murder to manslaughter. United States v. Roman (No. 191), 1 USCMA 244, 2 CMR 150, decided March 19, 1952. Here, the finding of premeditated murder has already been reduced to unpremeditated murder by the board of review. Proof of intoxication by itself could reduce the offense no further. Therefore, even admitting that it may have been error not to instruct the court on the effect of intoxication in relation to the lesser offense of unpremeditated murder (and we do not deem it necessary to decide the question of whether there was here sufficient evidence of intoxication to properly raise the issue), the reducing action taken by the board of review removes any prejudice that may have resulted therefrom. There was ample evidence of a killing deliberately committed while engaged in rape. The board of review gave the accused the benefit of the doubt by reducing the degree of homicide. We find no evidence raising any lesser offense as a reasonable alternative and therefore no necessity for instruction on the elements of those offenses. The instructions on the charge of rape are criticized by the defense on the ground that, although the law officer gave the elements of carnal knowledge, use of force, and lack of consent, he erred in not defining each of these terms. With this we cannot agree. These are not words of art, having a special connotation in the eyes of the law. See United States v. Williams (No. 251), 1 USCMA 231, 2 CMR 137, decided March 14, 1952. Defense at the. trial requested no explanation or definition, and there is no indication that there was any confusion m the minds of the court members. The last issue in relation to the instructions concerns the statements of the law officer relative to the offense of assault with intent to do great bodily harm with a dangerous weapon. Here, he read verbatim the elements of the offense from paragraph 180? of the Manual for Courts-Martial, U. S. Army, 1949. The element of specific intent to do bodily harm was thus omitted." }, { "docid": "14513276", "title": "", "text": "with negligence or wrongful motives on the part of his counsel as to manifest a complete absence of judicial character. . . .” That the conduct of the defense counsel in this case was well above that standard is obvious. They presented some defense at the trial, showed a working knowledge of trial tactics, made timely objections, presented reliable authorities on points of law, and argued the only reasonable grounds for an acquittal or reduction. Indeed, appellate defense counsel bases some of the assignments of errors on matters developed at the trial. While we cannot know the eiforts or lack of efforts used in obtaining witnesses, it is apparent that eyewitnesses were Koreans whose whereabouts may have been unknown or whose testimony would be unfavorable to the accused. In view of the mass and nature of the evidence which was presented against the accused, coupled with the fact that he had previously admitted the shooting, we are unaware of how defense counsel could have obtained a better result. To hold there was a denial of due process would permit this assignment of error to be sustained merely because appellate counsel could suggest different tactics than those used by trial counsel. While we have reduced the charge of assault with intent to.inflict bodily injury to a lesser included offense of assault with a dangerous weapon, we do not deem it necessary to return the record to the Board of Review to reconsider the sentence. Viewed in the light of the entire record, the reduction of the assault charge is trifling, and we are certain a board of review would not commute the death sentence on such a minor variation. In keeping with our holding in United States v. Hunter, supra, and United States v. James E. Long (No. 529), 6 CMR 45, decided October 17, 1952, we affirm the holding of the Board of Review. Chief Judge Quinn concurs. BROSMAN, Judge (concurring in part and dissenting in part): I concur in the holding that the instructions of the law officer with respect to the charge of assault with a deadly weapon" }, { "docid": "14513277", "title": "", "text": "due process would permit this assignment of error to be sustained merely because appellate counsel could suggest different tactics than those used by trial counsel. While we have reduced the charge of assault with intent to.inflict bodily injury to a lesser included offense of assault with a dangerous weapon, we do not deem it necessary to return the record to the Board of Review to reconsider the sentence. Viewed in the light of the entire record, the reduction of the assault charge is trifling, and we are certain a board of review would not commute the death sentence on such a minor variation. In keeping with our holding in United States v. Hunter, supra, and United States v. James E. Long (No. 529), 6 CMR 45, decided October 17, 1952, we affirm the holding of the Board of Review. Chief Judge Quinn concurs. BROSMAN, Judge (concurring in part and dissenting in part): I concur in the holding that the instructions of the law officer with respect to the charge of assault with a deadly weapon with intent to do bodily harm were defective, and require af-firmance of the lesser offense of assault with a' deadly weapon. This is entirely consistent with previous decisions of this Court in the area of instructions, and is likewise conformable to our disposition of such cases as United States v. Hunter (No. 359), 6 CMR 349, decided October 17, 1952, and United States v. Baguex (No. 699), 8 CMR 106, decided March 13, 1953. However, much is said in the majority opinion of which I cannot approve, and which I hesitate to let pass without comment. I shall advert specifically to those matters only with which I am most out of agreement. I am sure that the precise basis for my dissent will be apparent, as will its necessary bearing on my brothers’ disposition of the case. I cannot at all agree that the terms “malice aforethought” and “premeditation” are self-defining and easily understood in their full legal sense by persons not trained in- the law. They are indeed terms of art to which has" }, { "docid": "14397778", "title": "", "text": "the subject of requests by defense counsel, with one exception, and this concerns the charge given on the assault specifications. In the instructions on the offenses alleged in those specifications charging assaults with a deadly weapon with intent to do bodily harm, the law officer employed the language of paragraphs 180l, and 180l (a), Manual for Courts-Martial, U. S. Army, 1949, and instructed the court-martial that they could return a finding of guilty of the offense if they found from the evidence (1) that the accused assaulted the persons named with' a certain weapon, and (2) facts and circumstances indicating that the weapon was used in a manner likely to produce death or great bodily harm. The element of the required specific intent was not included in the instructions. Similar instructions have been condemned by us in United States v. Cromartie (No. 374), 4 CMR 143, decided August 6, 1952. Our holding in that case requires a holding of error in this case. The record established beyond rea sonable doubt that the offenses of assaults with a dangerous weapon were committed, and that the instructions were appropriate for those offenses. The court-martial having found the accused guilty, it follows that all elements involved in the lesser offenses were considered and proven. Under Article 59 (b), Uniform Code of Military Justice, 50 USC § 646, we have power to affirm or approve so much of the finding as includes the lesser included offense and we, therefore, affirm findings of guilty of assaults with a dangerous weapon alleged under Charge II. This does not, however, dispose of the sentence. We are here faced with a series of heinous offenses; two Koreans, possibly three, were killed, three others wounded, and one child raped. The record is barren of any extenuating or mitigating circumstances. While we have reduced three assault offenses, at least one degree, and while we ordinarily consider it appropriate to have the board of review reconsider the sentence in the light of our holding, this is not made mandatory by the Code. The reduction in the nature and type of offenses" }, { "docid": "23143472", "title": "", "text": "rule of and test for fatal variance. However, insofar as any of those decisions may indicate a more strict application of the rule than is set forth here, we must indicate quite clearly our disagreement with that rationale. We perceive no necessity for giving undue weight to formal deviations where it is quite apparent from the record that the accused was in no way prejudiced thereby. The question certified is answered in the negative. The second issue relates to the instructions by the law officer on the elements of the offense charged. It will be recalled that the offense was assault with intent to commit bodily harm with a dangerous weapon. This offense is discussed in paragraph 180J of the Manual for Courts-Martial, supra, and the law officer gave his instruction substantially in the • language of the portion of that paragraph labelled “proof.” The law officer stated that the elements -were: “That the accused assaulted a certain man with a certain weapon, instrument or thing. And that the facts and circumstances indicated that the weapon as pertains was used in a manner as likely to produce death or great bodily harm.” We have already made it abundantly clear that this offense contemplates a specific intent to commit bodily harm, which essential element must be included in the law officer’s instructions. United States v. Cromartie (No. 374), 1 USCMA 551, 4 CMR 143, decided August 6, 1952. The holding in that case requires us to set aside this finding. The decision of the board of review is reversed and the case is remanded to The Judge Advocate General for rehearing or other action consistent with this opinion. Judges Latimer and Brosman concur." }, { "docid": "14397779", "title": "", "text": "with a dangerous weapon were committed, and that the instructions were appropriate for those offenses. The court-martial having found the accused guilty, it follows that all elements involved in the lesser offenses were considered and proven. Under Article 59 (b), Uniform Code of Military Justice, 50 USC § 646, we have power to affirm or approve so much of the finding as includes the lesser included offense and we, therefore, affirm findings of guilty of assaults with a dangerous weapon alleged under Charge II. This does not, however, dispose of the sentence. We are here faced with a series of heinous offenses; two Koreans, possibly three, were killed, three others wounded, and one child raped. The record is barren of any extenuating or mitigating circumstances. While we have reduced three assault offenses, at least one degree, and while we ordinarily consider it appropriate to have the board of review reconsider the sentence in the light of our holding, this is not made mandatory by the Code. The reduction in the nature and type of offenses in this case is so relatively unimportant, when compared with the more serious crimes committed by the accused, that we do not believe any board of review would commute the death sentence, assuming it had the power so to do. Accordingly the decision of the board of review is affirmed. Chief Judge Quinn concurs. BROSMAN, Judge (concurring): I concur fully in the opinion of the Court, but I should like to add a brief caveat. In United States v. Keith (No. 226), 4 CMR 34, decided July 3, 1952, we held that we were without statutory authority to make a determination of sentence appropriateness as a matter of fact. However, we left “for future consideration the question of whether appropriateness — or its opposite — may be determined by us in a proper case as a matter of law.” I think it important to note that in the present case we have not determined appropriateness — that is, adequacy— either as a matter of fact or as a matter of law, although the sentence as" }, { "docid": "1601337", "title": "", "text": "the act shows a wanton disregard for human life.” In United States v. Joe L. Davis, 2 USCMA 505, 10 CMR 3, decided May 14, 1953, and. United States v. Holsey, 2 USCMA 554, 10 CMR 52, decided May 28, 1953, we held that that arm of the crime of murder does not apply when the act is directed solely against one person. The facts in this case bring the crime within the limitations expressed in those cases. It, therefore, follows that the law officer incorrectly informed the members of the court-martial when he told them they could find the accused guilty if they found he acted in a way inherently dangerous to others without an intent to kill or to do great bodily harm to any particular person. His acts may have been inherently dangerous to, and may have shown a wanton disregard for, the life of the victim, but that theory of murder has been rejected by us. If it fails for the substantive offense, it fails as a supporting element for an assault. For the foregoing reasons, we reaffirm the doctrine that assault with intent to murder should ordinarily mean assault with intent to kill and that instructions should be given which are consistent with that rule. The decision of the board of review is reversed and the cause remanded to The Judge Advocate General of the Army for reference to a board of review for consideration of either a finding on a lesser included offense or a rehearing. BROSMAN, Judge (concurring in the result) : I concur in the result. Quinn, Chief Judge (dissenting): I dissent. We have consistently held that instructions relative to a specific intent must be limited to the particular intent charged, and that the failure to tailor the instructions to fit the intent charged constitutes error. United States v. Russell L. Williams, 1 USCMA 186, 2 CMR 92, decided February 21, 1952; United States v. Hemp, 1 USCMA 280, 8 CMR 14, decided April 8, 1952; United States v. Jenkins, 1 USCMA 329, 3 CMR 63, decided April 21, 1952. This error" }, { "docid": "1601338", "title": "", "text": "assault. For the foregoing reasons, we reaffirm the doctrine that assault with intent to murder should ordinarily mean assault with intent to kill and that instructions should be given which are consistent with that rule. The decision of the board of review is reversed and the cause remanded to The Judge Advocate General of the Army for reference to a board of review for consideration of either a finding on a lesser included offense or a rehearing. BROSMAN, Judge (concurring in the result) : I concur in the result. Quinn, Chief Judge (dissenting): I dissent. We have consistently held that instructions relative to a specific intent must be limited to the particular intent charged, and that the failure to tailor the instructions to fit the intent charged constitutes error. United States v. Russell L. Williams, 1 USCMA 186, 2 CMR 92, decided February 21, 1952; United States v. Hemp, 1 USCMA 280, 8 CMR 14, decided April 8, 1952; United States v. Jenkins, 1 USCMA 329, 3 CMR 63, decided April 21, 1952. This error does not require reversal, however, unless it can fairly be said that reasonable men would be misled by the instructions. The norm by which we shall test for prejudice is “whether the facts, as brought out at the trial, point so clearly to only one type of intent that it is not possible to believe that the court could have premised its findings of guilt on any type other than that charged.” United States v. Jack G. Johnson, 1 USCMA 536, 4 CMR 128, decided August 7, 1952. See also United States v. Jenkins, supra; United States v. Moynihan, 1 USCMA 333, 3 CMR 67, decided April 21, 1952; United States v. Boone, 1 USCMA 381, 3 CMR 115, decided May 9, 1952; United States v. Cooke, 1 USCMA 421, 4 CMR 13, decided June 3, 1952; United States v. Justice, 1 USCMA 643, 5 CMR 71, decided August 28, 1952. In United States v. Jenkins, supra, a unanimous court placed its stamp of approval upon the following basis for this view: “While we desire" }, { "docid": "23143471", "title": "", "text": "nature of the injuries, it is difficult to perceive wherein the accused would have any difficulty through use of the charge, specification, and record of trial, in preventing a second prosecution for the same offense. See United States v. Roman (No. 191), 1 USCMA 244, 2 CMR 150, decided March 19, 1952; United States v. Jarvis (No. 94), 1 USCMA 368, 3 CMR 102, decided May 6, 1952. Consideration of both branches of the test convinces us that this accused was not prejudiced by the variance in question. In deciding this issue, we have given careful consideration to the service decisions cited by counsel as requiring reversal for fatal variance here. Many of these decisions involve entirely distinguishable factual situations. Because the test of prejudice requires assessment of the offense, the specification, and all the evidence, it is obvious that each decision on this question of variance must depend to a great extent upon the facts of the individual case. We find no real disagreement in the cited board of review decisions upon the fundamental rule of and test for fatal variance. However, insofar as any of those decisions may indicate a more strict application of the rule than is set forth here, we must indicate quite clearly our disagreement with that rationale. We perceive no necessity for giving undue weight to formal deviations where it is quite apparent from the record that the accused was in no way prejudiced thereby. The question certified is answered in the negative. The second issue relates to the instructions by the law officer on the elements of the offense charged. It will be recalled that the offense was assault with intent to commit bodily harm with a dangerous weapon. This offense is discussed in paragraph 180J of the Manual for Courts-Martial, supra, and the law officer gave his instruction substantially in the • language of the portion of that paragraph labelled “proof.” The law officer stated that the elements -were: “That the accused assaulted a certain man with a certain weapon, instrument or thing. And that the facts and circumstances indicated that the" }, { "docid": "10582115", "title": "", "text": "pleaded guilty to the lesser offense of assault and battery, in violation of the same Article. Following an explanation of the meaning and effect of that plea, he persisted therein and it was accepted by the court-martial as voluntary. He was found guilty of the offense charged and sentenced to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years. The convening authority approved the sentence. However, a board of review, in the exercise of its fact-finding powers, reduced the offense to assault with a dangerous weapon, also in violation of Code, supra, Article 128, and reassessed the penalty. The evidence adduced at the trial satisfactorily established that the accused and fellow soldiers, all former prisoners in an Army stockade, administered a severe beating to their victim, who had served as their guard. Both fists and feet were used during the assault, and it resulted in the victim’s loss of two front teeth and the splitting of an eyelid. The law officer properly instructed the court members on the elements of the offense charged and those of the lesser offense of assault with a dangerous weapon. He pointed out that the lesser offense of assault was also placed in issue. He did not instruct the court concerning its elements but informed the members that accused’s plea constituted a complete confession of his guilt of that offense. The sole question with which we are faced is whether his failure to delineate the elements of assault was prejudicial error. The accused’s plea of guilty to the lesser offense of assault left in issue only the question whether, by his actions, he intentionally inflicted grievous bodily harm upon his victim or used, as found by the board of review, his hands and feet as a dangerous weapon. United States v Glover, 2 USCMA 164, 7 CMR, 40; United States v Estes, 2 USCMA 171, 7 CMR 47; United States v Dinsmore, 11 USCMA —, 28 CMR —, decided this date; United States v Robertson, 11 USCMA —, 28 CMR —, decided this date. The court-martial was properly" }, { "docid": "1641204", "title": "", "text": "in the instant case. In this particular, the comments of the Supreme Court of Oklahoma, in a decision reversing conviction of assault with a dangerous weapon, to wit, a fist, are of interest: “It would probably simplify the administration of justice in this state if the legislature would pass what has often been denominated as an ‘aggravated assault’ statute; and this coupled with our ‘attempt to kill’ statute, would in all probability clarify the situation as it-now exists. This, of course, is a matter for the consideration of the legislature and not for the courts.” [Smith v. State, 79 Okla Cr 151, 152 P2d 279.] The accused finally contends that the offense found is not a lesser included offense of that charged, for, the use of means likely to produce grievous bodily harm need not be shown to establish the offense charged. Our answer to this contention is simple. Article 128 (6) (2) requires that the grievous bodily harm be intentionally inflicted. Some means attributable to the accused must be shown, otherwise it would be impossible to establish the offense. When, without the intervention of independent causes, the means used actually produce such harm, it would be ridiculous to assert that they were' incapable of causing the harm. The offense found is necessarily included in that charged. See United States v. Wright, 1 USCMA 602, 5 CMR 30; United States v. Day, 2 USCMA 416, 9 CMR 46. The decision of the board of review is affirmed. Judge LatimeR concurs. BROSMAN, Judge (concurring); I concur. However, the final paragraph of the principal opinion troubles me somewhat. I should think that under Article 128(6) (2), a conviction of aggravated assault might properly be sustained if there was an intent to inflict grievous bodily harm, and if such harm was in fact inflicted — regardless of whether the means were of a sort which would normally have that effect. It is probable, of course, that a situation of this sort would arise only rarely. However, its theoretical possibility suggests that the offense proscribed in Article 128(6) (1) would not be included necessarily" }, { "docid": "14537278", "title": "", "text": "wording of the act and the state of the Federal law lead us to conclude that the intent to kill or the intent to inflict grievous bodily harm as they are defined in Article 118 (2) with a lesser penalty are states of mind contemplated by Congress to include only a general intent. If so, the defense of intoxication is inapplicable. Voluntary drunkenness has never been considered as an excuse for committing a crime. All authorities agree that it is easily simulated and that heinous offenses should not go unpunished merely because of self-imposed intoxication. If a person kills intentionally or while perpetrating an intentional act likely to result in death or great bodily harm, he may be convicted of one of the most serious offenses found on the statute books. The excuse of voluntary intoxication should not be perverted into a means of reducing that offense to á misdemeanor. It is necessary to punish those who commit certain offenses while under the influence of intoxicating liquors, and we believe that unpremeditated murder falls in that category. In accordance with our powers under Article 59b, 50 USC § 646, we affirm a finding of guilty of the lesser included offenses of unpremeditated murder under Charge I, and assault with a dangerous weapon under Charge II. In addition, the assault with a dangerous weapon under Charge III is affirmed. -Because of the reduction in two of the principal offenses, we return the record to The Judge Advocate General of the Army, for reference to a board of review for reconsideration of the sentence in the light of our holding. Chief Judge Quinn and Judge Bros-man concur." }, { "docid": "14513265", "title": "", "text": "was misled, confused or under-instructed. While the legal concepts may not have been spelled out with the niceties sometimes found in civilian eases, we are satisfied the instructions were of- sufficient completeness and clarity that any reasonable man would be able to ascertain, with little difficulty, the elements making up the two respective offenses. Perhaps a good test can be found in the clarity with which counsel presented the principles to the court-martial. A quick look at the arguments will establish with conviction the premise that all parties at the trial level understood the rule that intoxication could be used as a defense to premeditation or specific intent to kill to the extent that the crime charged could be reduced to murder unpremeditated. V Although there was no error assigned by counsel for the accused with respect to Charge II, there is error present. The charge against the accused was “Assault with a deadly weapon, with intent to do great bodily harm,” but the instruction neglected to require the court-martial to find the requisite intent. The law officer instructed the court as follows: “The elements of the offense charged in the specification to Charge II are as follows: (1) That the accused assaulted a certain person with a certain dangerous weapon, as alleged; and (2) That the weapon was used in a manner likely to produce death or great bodily harm.” We condemned similar instructions in United States v. Cromartie (No. 374), 4 CMR 143, decided August 6, 1952, and again in United States v. Hunter (No. 359), 6 CMR 37, decided October 17, 1952. It was error in those instances because the court-martial found the accused guilty of the greater offense, on instructions which defined only the lesser and that is the same deficiency found here. It necessarily follows that a finding of assault with a deadly weapon only can be affirmed as the evidence is sufficient to establish that offense beyond a reasonable doubt. VI The next assignment of error urged by the appellant is that certain evidence concerning the death of Kim’s baby was improperly brought to" }, { "docid": "14513278", "title": "", "text": "with intent to do bodily harm were defective, and require af-firmance of the lesser offense of assault with a' deadly weapon. This is entirely consistent with previous decisions of this Court in the area of instructions, and is likewise conformable to our disposition of such cases as United States v. Hunter (No. 359), 6 CMR 349, decided October 17, 1952, and United States v. Baguex (No. 699), 8 CMR 106, decided March 13, 1953. However, much is said in the majority opinion of which I cannot approve, and which I hesitate to let pass without comment. I shall advert specifically to those matters only with which I am most out of agreement. I am sure that the precise basis for my dissent will be apparent, as will its necessary bearing on my brothers’ disposition of the case. I cannot at all agree that the terms “malice aforethought” and “premeditation” are self-defining and easily understood in their full legal sense by persons not trained in- the law. They are indeed terms of art to which has become attached a considerable ideal accretion. In a general sense — perhaps in rough essence — “premeditation” may mean the same to lawyer and layman alike, but in technical detail this cannot be true. And what the term “malice aforethought” must mean to the average juror-in-the-street, I cannot possibly imagine! This is not to say, however, that I believe the law officer here erred in failing to define these terms — in the absence of a request by defense counsel to do so. We have held that the burden of requesting clarification of instructions, given substantially in terms of the applicable Manual subparagraph, rests on defense counsel. United States v. Soukup (No. 533), 7 CMR 17, decided January 23, 1953; see also my concurring opinion in United States v. Cobb (No. 1240), 8 CMR 139, decided March 24, 1953. So here, the instructions of the law officer as to the premeditated offense charged — phrased as they were in the language of the Manual — did state the elements of the offense in substance, and" }, { "docid": "21933354", "title": "", "text": "in refusing to give a lesser included instruction — even one supported by the evidence — if the defendant neglects to make a proper request for one at trial. 184 F.3d at 1234-35 (footnote omitted) (collecting cases). This court, however, has occasionally applied plain error review in contexts similar to that at issue in this case. See, e.g., United States v. Cooper, 812 F.2d 1283, 1286 (10th Cir.1987) (upholding conviction on a lesser offense raised sua sponte by district court on ground that \"trial judge must give instructions to the jury as required by the evidence and the law where the parties so request or not, and to do so although objections are made”); United States v. Arreola, 422 F.2d 869, 869 (10th Cir.1970) (applying plain error to a claim that trial court erred in failing to give a lesser-included instruction though none was requested). . Simple assault is a lesser-included offense of assault with a dangerous weapon. Bruce, however, cannot demonstrate that both elements differentiating the two offense are in dispute. See United States v. Humphrey, 208 F.3d 1190, 1206 (10th Cir.2000) (setting out four-part test for determining whether a lesser-included-offense instruction should be given). In United States v. Johnson, this court held as follows: The elements differentiating assault with a dangerous weapon from simple assault are the use of a deadly weapon and the intent to commit bodily harm. While [defendant’s] intent was very much in dispute by virtue of his level of intoxication, his use of a deadly weapon is not. [Defendant] admitted he pointed a gun at [the police officer] and fired it. When no dispute exists regarding elements of the greater offense which are not part of the lesser offense, then no lesser offense instruction is appropriate. 967 F.2d 1431, 1436 (10th Cir.1992). In essence, Johnson holds that when the charged count is assault with a dangerous weapon, to be entitled to a simple assault instruction the defendant must contest both elements differentiating simple assault from assault with a dangerous weapon, i.e., intent to commit bodily harm and use of a dangerous weapon. Id. Because," }, { "docid": "19094748", "title": "", "text": "knife a “dangerous weapon,” and re-sultantly in finding the accused guilty of aggravated assault. This handling of the problem is much too naive and for the reasons which have been developed herein, it cannot be approved. VI From what has been said, it must be apparent that we cannot say that the court-martial could not rea- sonably have reached a finding that the accused was guilty of aggravated assault. Cf. State v. Barella, 73 RI 367, 56 A2d 185. The instructions of the law officer on the offenses charged were extensive, and adequately guided the court in determining whether the accused was near enough to Siford to be guilty of aggravated assault. Accordingly, the decision of the board of review is affirmed. Chief Judge QuiNN concurs. LatimeR, Judge (dissenting): I dissent. I have no difficulty with the majority opinion so long as it concerns itself with developing the reasons why a simple assault was committed in this case. It must be conceded that the present Manual has adopted an “apparent ability” test rather than a “present ability” test to determine whether the lesser offense has been committed. We have previously interpreted the provision found in Manual for Courts-Martial, U. S. Army, 1949, paragraph 180⅞, page 244, which was couched in the same general terms to that effect. United States v. Norton, 1 USCMA 411, 4 CMR 3. For reasons set forth hereinafter, however, I cannot accept the proposition that the evidence is sufficient to support the offense, of aggravated assault. The majority opinion concedes that a knife is not dangerous per se and that it only becomes dangerous when used in a manner which is likely to produce death or great bodily injury. The Manual defines a dangerous weapon in the following terms (paragraph 2076, page 372) : “Assault with a dangerous weapon. —A weapon is dangerous when used in such a manner that it is likely to produce death or grievous bodily harm. By ‘grievous bodily harm’ is meant serious bodily injury. When the natural and probable consequence of a particular use of any means or force would be" }, { "docid": "14397777", "title": "", "text": "it as the gun from which bullets and shell fragments found near the victims had been fired. The time, the sequence of the events, the condition of accused’s clothes, the immediate check on all military personnel in the area, the unexplained absence of accused from his unit, his presence in the vicinity where the crimes occurred, and his possession of the carbine which fired the shots, furnish substantial support for the finding that accused committed the crimes. VII Lastly, appellate defense counsel make several assignments of error based upon the alleged deficiencies in the instructions given by the law officer. Specifically, they contend that certain technical words should have been defined; that instructions should have been given on lesser included offenses, and on the issue of identification. We are satisfied that the record does not show any issue as to lesser included offenses of unpremeditated murder or rape. Furthermore, the words used by the law officer were of common usage and did not require definition. The other alleged deficiencies in the instructions are unimportant, or the subject of requests by defense counsel, with one exception, and this concerns the charge given on the assault specifications. In the instructions on the offenses alleged in those specifications charging assaults with a deadly weapon with intent to do bodily harm, the law officer employed the language of paragraphs 180l, and 180l (a), Manual for Courts-Martial, U. S. Army, 1949, and instructed the court-martial that they could return a finding of guilty of the offense if they found from the evidence (1) that the accused assaulted the persons named with' a certain weapon, and (2) facts and circumstances indicating that the weapon was used in a manner likely to produce death or great bodily harm. The element of the required specific intent was not included in the instructions. Similar instructions have been condemned by us in United States v. Cromartie (No. 374), 4 CMR 143, decided August 6, 1952. Our holding in that case requires a holding of error in this case. The record established beyond rea sonable doubt that the offenses of assaults" }, { "docid": "23518020", "title": "", "text": "possible that only one member engaged in the court’s examination. Second, the questions directed to the psychiatrist reflect not understanding, but instead utter and consummate confusion on the part of the inquirer or inquirers. Finally — and conceding ar-guendo that all members of the court participated, and all understood the medical bearing of drunkenness on insight — the record passage involved completely fails to indicate any sort of appreciation on the part of the court-martial’s membership of the legal consequences of the medical data with which the examination was concerned. Accordingly, we see no sound basis for distinguishing between this case and applicable decisions of this Court heretofore rendered, and we hold that the failure of the law officer here to instruct on the legal effect of intoxication was prejudicial — and hence reversible— error. On the basis of the complex of evidence produced at the trial, the only lesser offense not involving specific intent fairly raised as a reasonable alternative to the offense charged was assault with a dangerous weapon. The evidence did not, we believe, require instruction on mere assault and battery, or a fortiori as to simple assault. However, we may purge the prejudice resulting to accused from the law officer’s error by affirming the conviction in so far as it extends to guilt of assault with a dangerous weapon only. United States v. Baguex, (No. 699), 8 CMR 106, decided March 13, 1953. Accordingly, the conviction is affirmed, but only in so far as it extends to guilt of assault with a dangerous weapon. The record is returned to The Judge Advocate General, United States Army, for reference to the board of review which considered the case for reconsideration of appropriateness of sentence. Chief Judge Quinn and Judge Latimer concur." }, { "docid": "14513266", "title": "", "text": "The law officer instructed the court as follows: “The elements of the offense charged in the specification to Charge II are as follows: (1) That the accused assaulted a certain person with a certain dangerous weapon, as alleged; and (2) That the weapon was used in a manner likely to produce death or great bodily harm.” We condemned similar instructions in United States v. Cromartie (No. 374), 4 CMR 143, decided August 6, 1952, and again in United States v. Hunter (No. 359), 6 CMR 37, decided October 17, 1952. It was error in those instances because the court-martial found the accused guilty of the greater offense, on instructions which defined only the lesser and that is the same deficiency found here. It necessarily follows that a finding of assault with a deadly weapon only can be affirmed as the evidence is sufficient to establish that offense beyond a reasonable doubt. VI The next assignment of error urged by the appellant is that certain evidence concerning the death of Kim’s baby was improperly brought to the attention of the court-martial to the prejudice of the accused. There were three separate episodes which need to be related together to present the- issue in a light most favorable to the accused. The first arose out of the three following questions directed to and the two answers given by Mrs. Kim: “Q. Do you have any children? A. Yes. Q. How many children do you have? A. I have two children. Q. Do you have any dead children?” Defense counsel made his objection to the last question without specifying his reasons but the law officer sustained the objection, and told the court to disregard the evidence. The second arose in the following manner : On cross-examination, the defense sought to show that the accused had not treated the baby in a rough manner, but had merely placed her on the front seat of the truck. Then on redirect examination, when trial counsel was attempting to have the witness explain some of the answers given on cross-examination the following occurred: “Q. What happened to" } ]

[ { "docid": "2135707", "title": "", "text": "RIVES, Circuit Judge. This suit for refund of income taxes for the years 1947 through 1950 was tried by the district court without a jury. Pursuant to a carefully considered opinion reported as Waterman Steamship Corporation v. United States, D.C., 203 F.Supp. 915, the court entered judgment for the taxpayer Waterman in the total amount of $2,241,388.30, together with interest. On appeal there is no complaint as to the rulings on the three issues which the district court captioned: “I. WATERMAN BUILDING” (203 F.Supp. 917-921), “II. BABY FLAT-TOPS” (Id. 921-925), and “IV. ALABAMA STATE TAX” (Id. 926-928). The remaining questions are: (1) whether Waterman is entitled to a foreign tax credit under section 131 of the Internal Revenue Code of 1939 for certain taxes paid to the Republic of the Philippines; (2) whether the district court correctly determined Waterman’s cost basis for depreciation of eighteen vessels whose sales prices were adjusted pursuant to the Merchant Ship Sales Act of 1946; (3) whether the district court correctly held that interest paid by Waterman on Government-advanced progress payments was properly included in “the original purchase price” of eighteen vessels for purposes of the price adjustment authorized by section 9 of the Merchant Ship Sales Act of 1946. 1. The Foreign Tax Credit Issue. The facts pertaining to this issue as stipulated by the parties and found by the district court appear at page 925 of 203 F.Supp. Generally taxes are allowed as deductions in computing income taxes, rather than as credits against the tax itself. The primary purpose of the provision for credit of foreign income taxes which first appeared m the Revenue Act of 1918 was to mitigate the evil of double taxation. In the case of domestic corporations there was also a purpose to facilitate their foreign enterprises. Burnet v. Chicago Portrait Co., 1932, 285 U.S. 1, 7, 9, 52 S.Ct. 275, 76 L.Ed. 587; New York & H. Rosario Min. Co. v. Commissioner, 2 Cir. 1948, 168 F.2d 745, 12 A.L.R.2d 355. At first the Act allowed as a credit against the tax simply “[t]he amount of income, war-profits" } ]

[ { "docid": "2135716", "title": "", "text": "being sold to the applicant on the date of the enactment of this Act, [March 8, 1946] and not before that time. The amount of such adjustment shall be determined as follows: * * *.” Of the subparagraphs which follow, some provide for a decrease in the cash down payment and mortgage indebtedness [sections 9(b) (1), (2), (3) and (4)] which would adjust the purchase price to conform to the statutory sales price provided by section 3(d) (4). Other subparagraphs provide for adjustments which compensate the purchaser for his investment [section 9(b) (5)], restore charter hire paid or that should have been paid [section 9(b) (6)], and return taxes and tax benefits due to preenactment ownership [sections 9(b)(8) and 9(c)(1)]. Those items, which are not capital in nature, do not enter into the computation of cost for purposes of depreciation. The legislative history of section 9 is set forth at some length in the opinion of the Delaware District Court in 214 F.Supp. at pp. 591-593 and leads to the same conclusion. It was clearly the in- tention of Congress to put pre-enactment purchasers and post-enactment purchasers on the same basis, that of the statutory sales price. 3. Interest on Progress Payments. This issued raised by the Government’s counterclaim is whether the district court erred in including interest paid by Waterman on Government-advanced progress payments in the calculation of the “original purchase price” of the eighteen vessels. Several other questions originally raised by counterclaim were either withdrawn in the district court or decided against the Government (see 203 F.Supp. 932-934), and are not urged on appeal. We agree with the district court’s disposition of this issue (see 203 F.Supp. 930-932). In New York & Cuba Mail Steamship Co. v. United States, 1959, 145 Ct.Cl. 652, 688, 172 F. Supp. 684, 688, the Court of Claims said: “The Maritime Commission in all such situations treated the interest accrued during the construction period as a part of the capital cost of the ship. We think that, as a matter of sound accounting practice, and of logic, that treatment was right.” Reaching the" }, { "docid": "2135714", "title": "", "text": "for some existing income or profits tax. Referring to Treasury Regulation 118, § 39.131 (h)-l(b) the district court said: “If taken in its plain meaning, the Treasury Regulation would seem to preclude a tax credit in the instant case since the amount paid the Philippine government was assessed under two different titles of the Philippine Code.” (203 F.Supp. 925, 926.) Waterman, in brief, vigorously attacks the validity of that regulation and claims that it “abrogated entirely the purpose of extending the scope of section 131.” We need not examine that question because Waterman has made no showing to bring the Title V privileges taxes within the scope of the statute unaided by the regulation. 2. Cost Basis of Vessels for Depreciation. For the purpose of the depreciation issue the facts were also stipulated, and are fairly stated by the district court in 203 F.Supp. at 928. The difference between the amounts contended for as the proper cost basis of the vessels for depreciation is $8,818,838.55. The district court decided this issue in favor of the plaintiff taxpayer in line with earlier decisions in Barber Oil Corporation v. Manning, D.C.N.J.1955, 135 F.Supp. 451, 458-461, and Socony Mobil Oil Co. v. United States, Texaco, Inc. v. United States, Mississippi Shipping Co. v. United States, Ct.Cl.1961, 287 F.2d 910. Later the District Court for the District of Delaware, in an extensive opinion, declined to agree with any of the earlier decisions and decided the issue in favor of the United States. National Bulk Carriers, Inc. v. United States, D.C.Del.1963, 214 F.Supp. 585. After careful study, we are constrained to agree with the District of Delaware, and set forth briefly the reasons which lead us to that decision. The language of the statute and its legislative history show that Congress intended pre-enactment purchases to be treated as if the sale had occurred on the date of enactment, that is, on a parity with post-enactment purchases. That is explicitly stated in the opening paragraph of section 9(b): • “(b) Such adjustment shall be made, as hereinafter provided, by treating the vessel as if it were" }, { "docid": "14835134", "title": "", "text": "that the Commission, charged with administering the Merchant Ship Sales Act of 1946, viewed them as a part of the purchase price; and, finally, that they were so treated in the § 9(b) adjustment agreements. Nor is it contended that the Act of 1946 directs the exclusion of these payments from the computation of purchase price. Rather, the argument is premised on the view that such payments were not a part of the purchase price of the vessels under the Merchant Marine Act of 1936, 46 U.S.C. §§ 1101-1246 (1958 ed.), which applied to the original sale. From this it is urged that Congress did not intend these payments to be included in the term “original purchase price” in § 9 of the Act of 1946. The argument is at best tenuous, for, as the district court pointed out, “the relevance of the text of the 1936 statute is open to question since it is the 1946 Act that is being applied.” 214 F.Supp. at 596, n. 52.' More important, we agree with the cogent analysis of the district court which rejected the contention that these payments were improperly included as a part of the original purchase price in the adjustment under § 9 of the Act of 1946. The two eases we have discovered which rule on the question have reached the same conclusion. United States v. Waterman Steamship Corp., 330 F.2d 128 (C.A.5, 1964); New York & Cuba Mail Steamship Co. v. United States, 145 Ct.Cl. 652, 172 F.Supp. 684 (Ct.Cls.1959). In sum, we are in accord with the excellent, thorough opinion of the district court with regard to each of the issues raised on these appeals. The judgment of the district court will be affirmed. . This amount includes $15,575.12 representing interest on construction progress payments. The Government’s counterclaim for the latter amount is treated later in this opinion. . This amount represents the statutory sales price of the vessels, $5,153,899.31, adjusted for gain and loss not recognized by § 510(e) of the Merchant Marine Act of 1936. 46 U.S.C. § 1160(e) (1958 ed.). . Of course" }, { "docid": "14835135", "title": "", "text": "analysis of the district court which rejected the contention that these payments were improperly included as a part of the original purchase price in the adjustment under § 9 of the Act of 1946. The two eases we have discovered which rule on the question have reached the same conclusion. United States v. Waterman Steamship Corp., 330 F.2d 128 (C.A.5, 1964); New York & Cuba Mail Steamship Co. v. United States, 145 Ct.Cl. 652, 172 F.Supp. 684 (Ct.Cls.1959). In sum, we are in accord with the excellent, thorough opinion of the district court with regard to each of the issues raised on these appeals. The judgment of the district court will be affirmed. . This amount includes $15,575.12 representing interest on construction progress payments. The Government’s counterclaim for the latter amount is treated later in this opinion. . This amount represents the statutory sales price of the vessels, $5,153,899.31, adjusted for gain and loss not recognized by § 510(e) of the Merchant Marine Act of 1936. 46 U.S.C. § 1160(e) (1958 ed.). . Of course no contention is advanced that the applicability of the Internal Revenue Code of 1954 to the tax year 1955 affects the issue in this case. . These statements appear at 91 Cong.Rec. 9182-9185 (1945) (remarks of Rep. Jackson); 9194 (digest of Rep. Bonner); 9196-7 (remarks of Rep. Hale); 9199 (remarks of Rep. McConnell). Typical of these comments were those of Rep. Hale: “Then in section 9 of the bill we have provided that a citizen who has bought a war-built ship since December 81, 1940, may readjust the transaction in such a way that it may be deemed to have occurred at the time of the enactment of this bill. That is to say, we scale down the price which he paid to the price which he would have paid under this bill, and make corresponding adjustments with respect to charter hire, depreciation, and so on. * * *» Cong.Rec. 9197. . This disposition makes it unnecessary for us to consider the alternative argument of the Government that interest, charter hire and taxes are not" }, { "docid": "2135717", "title": "", "text": "the in- tention of Congress to put pre-enactment purchasers and post-enactment purchasers on the same basis, that of the statutory sales price. 3. Interest on Progress Payments. This issued raised by the Government’s counterclaim is whether the district court erred in including interest paid by Waterman on Government-advanced progress payments in the calculation of the “original purchase price” of the eighteen vessels. Several other questions originally raised by counterclaim were either withdrawn in the district court or decided against the Government (see 203 F.Supp. 932-934), and are not urged on appeal. We agree with the district court’s disposition of this issue (see 203 F.Supp. 930-932). In New York & Cuba Mail Steamship Co. v. United States, 1959, 145 Ct.Cl. 652, 688, 172 F. Supp. 684, 688, the Court of Claims said: “The Maritime Commission in all such situations treated the interest accrued during the construction period as a part of the capital cost of the ship. We think that, as a matter of sound accounting practice, and of logic, that treatment was right.” Reaching the same result, the Delaware District Court in National Bulk Carriers, Inc. v. United States, supra, noted that great weight should be given to the interpretation of the Act by the Maritime Commission charged with its administration and enforcement, and further : “By interpreting ‘original purchase price’ to be the total cost to the buyer — contract price plus interest — the basic intent of Congress is furthered. Neither the post-war nor preAct buyer has any competitive advantage. They both pay the same price for the ship, the statutory sales price.” (214 F.Supp. at 596.) The full treatment accorded this issue by the district court in this case, and by the Delaware District Court in the National Bulk Carriers’ case, makes further discussion unnecessary. The judgment of the district court is reversed and the cause remanded for further proceedings consistent with this opinion. Reversed and remanded. CAMERON, Circuit Judge (concurring in part and, in part, dissenting): The decision of the majority of the items designated “1. Foreign Tax Credit Issue” and “3. Interest on Progress Payments”" }, { "docid": "4775592", "title": "", "text": "federal income taxes (§9 (b)(8)) . (430,206) 10. Net credit in favor of Government (line 5 minus lines 7-9). 8,818,838 11. Net 1946 sales price adjustment (line 3 minus line 10). $20,468,904 Neither party here disputes the accuracy of any of these computations. The issue between the parties is the effect of these determinations on the tax treatment of the ships for the years following this 1946 adjustment. In its federal income tax returns for the years 1947 through 1950 petitioner took depreciation on these vessels on the assumption that its cost was $17,685,424, the statutory sales price. In 1959, however, petitioner sued in the United States District Court for the Southern District of Alabama for a tax refund, contending that its real cost and therefore its basis for depreciation was not the statutory sales price, $17,685,424, but rather $26,504,263, the difference between $46,973,167, the original sales price, and $20,468,904, the net 1946 sales price adjustment credited to petitioner. The District Court agreed with petitioner that its real cost was $26,504,263 and that this was its depreciation basis for tax purposes. 203 F. Supp. 915. The Court of Appeals for the Fifth Circuit reversed, however, holding that, under the statutory scheme, petitioner’s real cost was $17,685,424, the statutory sales price, and that this therefore was its proper depreciation basis. 330 F. 2d 128. The difference between the lower courts’ determinations of the real cost to petitioner of these 18 ships is $8,818,838, the net credit in favor of the Government in the preceding calculations of the 1946 sales price adjustment. We granted certiorari, 379 U. S. 927, to resolve a conflict between Courts of Appeals and the Court of Claims on the issue here involved. For the reasons set forth below, we agree with the Court of Appeals in this case and consequently affirm the judgment. Petitioner’s argument, put quite simply, is that during the war it paid $46,973,167 for the ships. In 1946, petitioner asserts, it was paid back $20,468,904. Thus petitioner concludes that its cost and therefore its depreciation basis for tax purposes in these ships is the" }, { "docid": "19264164", "title": "", "text": "$1,121, 111. 61 The net credit in favor of the Commission in the amount of $1,121,111.61 is set forth in the agreement of December 14, 1949 (see Finding 10). 17. Defendant contends that plaintiff paid to the Commission the statutory sales price of seven vessels as follows: Cash paid by plaintiff prior to March 8, 1946_$5, 501, 823. 56 Less credit to plaintiff under section 9(b)(1) for cash paid prior to 3-8-46 in excess of'25% of statutory sales price of five vessels_ 2, 947, 966. 69 $2, 553, 856. 87 Cash paid by plaintiff on Jan. 30, 1950 (Amount equal to excess of 25% of statutory sales price of two vessels over amounts paid therefor prior to 3-8-46 — included in payment of $1,121,111.61 made by plaintiff to the Commission on January 30, 1950.)_ 432, 524. 01 Other cash paid by plaintiff after March 8, 1946_ 7, 827, 008. 61 Trade-in allowance on ships exchanged by plaintiff_ 1,132,134. 00 $11,945, 523.49 Total 18. Plaintiff contends that the cost basis of the seven vessels is as follows: Original purcliase price_ $20,134,130. 86 Less: Reduction in trade-in al- lowance from_$2,498, 680. 00 to_ 1,132,134. 00 Net reduction_$1, 366, 446. 00 Reduction of mortgage indebted- ness _ 4, 306, 718. 68 6, 673,164. 68 $14,460, 966.17 Plus: Cash adjustment in favor of U.S. Maritime Commission» 1,121, 111. 61 Cost basis seven vessels_ $15, 582, 077. 78 Proof Cash paid prior to March 8, 1946_ $5, 501, 823. 56 Cash, adjustment in favor of U.S. Maritime Commission_ 1,121, 111. 61 Readjusted trade-in allowance_ 1,132,134. 00 Adjusted Mortgage indebtedness_ 7, 827, 008. 61 Cost basis seven vessels_ $15, 582, 077. 78 Cost basis allowed by Commissioner of Internal Revenue (Adjusted Statutory Sales Price under Merchant Ship Sales Act of 1946)_ 11, 945, 523.49 Amount of cost basis in controversy _ $3,636,554.29 19. In the computation of plaintiff’s income tax for 1946, 1947, 1948, and 1949, the Commissioner of Internal Revenue allowed plaintiff deductions for depreciation on the seven vessels in question. The Commissioner used as a basis for depreciation the statutory sales price of the" }, { "docid": "14835132", "title": "", "text": "the relief it now seeks. However, this bill failed of enactment when it was vetoed by President Truman. As the Supreme Court has stated in a similar situation, “If there is anything in these subsequent events at odds with our finding of the meaning of § 3, it would not supplant the contemporaneous intent of the Congress which enacted the Lucas Act.” Fogarty v. United States, 340 U.S. 8, 13-14, 71 S.Ct. 5, 8, 95 L.Ed. 10 (1950). In its brief the plaintiff asserts that three other Federal courts have held in its favor on this issue. Socony Mobil Oil Co. v. United States, 287 F.2d 910 (Ct.Cls.1961) [a consolidation of three cases] ; Barber Oil Corp. v. Manning, 135 F.Supp. 451, (D.C.N.J.1955); and Waterman Steamship Corp. v. United States, 203 F.Supp. 915 (S.D.Ala.1962). Subsequent to the argument of this appeal, however, the decision in Waterman was reversed by the Fifth Circuit. United States v. Waterman Steamship Corp., 330 F.2d 128 (C.A.5, 1964). Thus, the rule in the Third and Fifth Circuits is opposed to the view of the Court of Claims. , In its amended answer to the plaintiff’s complaint, the Government filed a non-tax counterclaim alleging that $15,575.12 in construction progress interest payments made by the plaintiff on two of the vessels in question were wrongfully credited to plaintiff under § 9 of the Act. In addition to requesting the return of that amount, the Government asserts that as these payments were erroneously included in the original purchase price, it is also entitled to a refund of the interest credited to the plaintiff under § 9(b) (5) — 3% per cent on the excess of original purchase price over trade-in allowance — to the extent al-locable to the erroneous inclusion. The portion of the § 9(b) (5) credit is said to be $621.53. The Government admits that the plaintiff paid the construction progress interest amounts to the Maritime Commission; that the original contract of sale between the plaintiff and the Commission specifically and unequivocally provided that these amounts were included in the purchase price of the vessels ;" }, { "docid": "14835131", "title": "", "text": "in status quo.” Black’s Law Dictionary, Fourth Ed., 1951, defining “Rescission of Contract.” The necessary consequence of this view of the legislatlon is that the dlstnct court correctly determined the cost basis of the plamtiff. The plaintiff admits that the original bills in both houses of Congress equated the adjusted price to the statutory sales price. The plaintiff argues, however, that the amendment offered on the floor of the House and subsequently enacted into law rejected this approach in favor of the “formula theory” contained in the eight paragraphs of § 9. The flaw in this argument is that it is clearly based on a misreading of the legislative history. For, as we have seen, each of the original bills required additional adjustments in favor of the Government as a condition to receiving an adjustment in price. The purpose of the amendment was simply to provide a more equitable unwinding of the original contract of sale. The plaintiff relies on the legislative history of a subsequent bill considered by the Congress which would have provided the relief it now seeks. However, this bill failed of enactment when it was vetoed by President Truman. As the Supreme Court has stated in a similar situation, “If there is anything in these subsequent events at odds with our finding of the meaning of § 3, it would not supplant the contemporaneous intent of the Congress which enacted the Lucas Act.” Fogarty v. United States, 340 U.S. 8, 13-14, 71 S.Ct. 5, 8, 95 L.Ed. 10 (1950). In its brief the plaintiff asserts that three other Federal courts have held in its favor on this issue. Socony Mobil Oil Co. v. United States, 287 F.2d 910 (Ct.Cls.1961) [a consolidation of three cases] ; Barber Oil Corp. v. Manning, 135 F.Supp. 451, (D.C.N.J.1955); and Waterman Steamship Corp. v. United States, 203 F.Supp. 915 (S.D.Ala.1962). Subsequent to the argument of this appeal, however, the decision in Waterman was reversed by the Fifth Circuit. United States v. Waterman Steamship Corp., 330 F.2d 128 (C.A.5, 1964). Thus, the rule in the Third and Fifth Circuits is opposed to" }, { "docid": "2135715", "title": "", "text": "plaintiff taxpayer in line with earlier decisions in Barber Oil Corporation v. Manning, D.C.N.J.1955, 135 F.Supp. 451, 458-461, and Socony Mobil Oil Co. v. United States, Texaco, Inc. v. United States, Mississippi Shipping Co. v. United States, Ct.Cl.1961, 287 F.2d 910. Later the District Court for the District of Delaware, in an extensive opinion, declined to agree with any of the earlier decisions and decided the issue in favor of the United States. National Bulk Carriers, Inc. v. United States, D.C.Del.1963, 214 F.Supp. 585. After careful study, we are constrained to agree with the District of Delaware, and set forth briefly the reasons which lead us to that decision. The language of the statute and its legislative history show that Congress intended pre-enactment purchases to be treated as if the sale had occurred on the date of enactment, that is, on a parity with post-enactment purchases. That is explicitly stated in the opening paragraph of section 9(b): • “(b) Such adjustment shall be made, as hereinafter provided, by treating the vessel as if it were being sold to the applicant on the date of the enactment of this Act, [March 8, 1946] and not before that time. The amount of such adjustment shall be determined as follows: * * *.” Of the subparagraphs which follow, some provide for a decrease in the cash down payment and mortgage indebtedness [sections 9(b) (1), (2), (3) and (4)] which would adjust the purchase price to conform to the statutory sales price provided by section 3(d) (4). Other subparagraphs provide for adjustments which compensate the purchaser for his investment [section 9(b) (5)], restore charter hire paid or that should have been paid [section 9(b) (6)], and return taxes and tax benefits due to preenactment ownership [sections 9(b)(8) and 9(c)(1)]. Those items, which are not capital in nature, do not enter into the computation of cost for purposes of depreciation. The legislative history of section 9 is set forth at some length in the opinion of the Delaware District Court in 214 F.Supp. at pp. 591-593 and leads to the same conclusion. It was clearly" }, { "docid": "9726300", "title": "", "text": "In the instant case with respect to the six Cl-B’s, the Government concedes that Maritime improperly added charges for desirable features to the floor price of the vessels. The Government argues, however, that the plaintiff accepted a settlement adjustment and release of its claims with respect to these six vessels, by virtue of the agreement between the plaintiff and Maritime pursuant to section 9 of the Ship Sales Act. That agreement, in the form of a notice from Maritime to the plaintiff, countersigned by the plaintiff’s duly authorized officers, provided : “On October 16, 1951, the Maritime Administrator approved your application for an adjustment, under section 9 of the Merchant Ship Sales Act of 1946, in the price(s) of the vessel (s) named above. * * * If the adjustment as so approved is acceptable to you in full and complete settlement of all claims by you or on your behalf in respect of the purchase price(s) of the above vessel^) and if you are prepared to submit with the return of this letter your certified check in payment of the amount of the excess charter hire after March 8, 1946, please countersign and return * * This court has held that the Merchant Ship Sales Act of 1946 established terms which were to be adhered to, and that it “did not leave any room for individual bargaining for terms contrary to the statute, nor much room for the application of such doctrines as estoppel and acquiescence.” Nautilus Shipping Cor poration v. United States, 158 F.Supp. 353, 355, 141 Ct.Cl. 391, 394-395. See also Southeastern Oil Florida, Inc. v. United States, 119 F.Supp. 731, 127 Ct. Cl. 409, certiorari denied, 348 U.S. 834, 75 S.Ct. 56, 99 L.Ed. 658; A. H. Bull Steamship Co. v. United States, supra, 123 Ct.Cl. at page 528, 108 F.Supp. at page 99. We see no reason for departing from these previous holdings. With respect to the seven C3S-A5’s, the question before us is whether certain charges, totaling $33,400 per vessel, paid by the plaintiff were paid for features which are “desirable features” within the" }, { "docid": "4775618", "title": "", "text": "if it had all been paid in cash. The last two vessels purchased by petitioner were delivered on February 27, 1946, and March 11, 1946, respectively, one just before and the other just after the date (March 8, 1946) of the Merchant Ship Sales Act of 1946, 60 Stat. 41, as amended, 50 U. S. C. App. § 1735 et seq. (1958 ed.), and thus were not chartered to the Government before the Act. Section 9, in relevant part, is set out in the Appendix to this opinion. As with the original purchase price, this figure is after an allowance for the four vessels traded in. The statutory price (without trade-in allowance) was $17,997,981. The trade-in allowance (determined under § 9 (b) (7) was $312,557. For simplicity, in the remainder of this opinion, the figures used for both the original sales price and the statutory sales price will be those of the price after these respective trade-in allowances. The total $29,287,743 purchase price credit was comprised of a cash credit of $11,735,951 and a reduction of mortgage indebtedness of $17,551,792. As with the original purchase price, see note 1, supra, for simplicity this total credit will be considered as if it were all a cash credit. See note 2, supra. This recalculation included a readjustment of previous depreciation allowed. The figure $20,468,904 is one dollar smaller than the difference between $29,287,743 and $8,818,838. This discrepancy is caused by the omission from the calculation of figures of amounts less than one dollar. This net credit of $20,468,904 was divided into a cash credit to petitioner of $2,917,112 and a reduction of the mortgage indebtedness by $17,551,792. Again, for simplicity, this 1946 net credit will be considered as if it were all a cash credit. See notes 1 and 5, supra. See note 8, supra. See note 14, infra. The Court of Appeals for the Third Circuit agrees with the result of the Court of Appeals in this case. See National Bulk Carriers, Inc. v. United States, 331 F. 2d 407. However, these decisions conflict with that of the Court of Claims" }, { "docid": "14835118", "title": "", "text": "from an allowance-for two vessels traded in at the time of the purchases. The new vessels were-then chartered by the Government, and on its Federal tax returns plaintiff reported this charter hire as income for the-years in which it was received, in addition to making depreciation deductions for the vessels. Following the enactment of the Merchant Ship Sales Act of 1946,. the plaintiff applied for a price adjustment under § 9 of the statute. The adjusted “statutory sales price” of the three vessels as computed in accordance with § 3(d) was $5,107,796.02. Accordingly, under § 9(b) (3), the outstanding mortgage indebtedness was reduced by $1,886,619.97. However, § 9(b) provides for additional adjustments, more fully discussed later in this opinion, including a credit to the Maritime Commission for all amounts of charter hire paid for the use of the vessels prior to the date of the Act, a credit to the applicant for charter hire he would have received for the use of any vessel traded in at the time of the original purchase, and a recomputation of Federal tax liability based on these adjustments. These additional adjustments resulted in a credit of $1,397,283.08 in favor of the Maritime Commission. This amount was then deducted from the $1,886,619.97 credit due the plaintiff on its mortgage indebtedness, resulting in a net reduction in mortgage indebtedness of $489,336.89. The plaintiff then subtracted that amount from the agreed upon cost basis of the vessels as of the date of the Act, $6,602,-366.17 to arrive at $6,113,029.28 as its cost basis under the statute. Its depreciation deductions for the tax years in question, 1946-1953 and 1955, were based on that figure. The United States, on the other hand, successfully contended in the plaintiff’s suit for tax refund in the district court that the proper cost basis of the vessels is their adjusted “statutory sales price,” $5,107,796.02, or $1,005,233.26 less than the figure used by the plaintiff. This judgment was premised on the view that the additional adjustments required by § 9 were merely intended to eliminate the benefits and detriments of pre-enactment ownership and were" }, { "docid": "19264158", "title": "", "text": "relevant to this proceeding that citizens of the United States purchased ships from the Maritime Commission after March 8, 1946, under the Merchant Ship Sales Act of 1946. 9. In 1947 and 1948, plaintiff bought five vessels from the Commission under Section 4 of the Act. For each vessel, plaintiff paid an amount equal to the statutory sales price and has treated this amount with adjustments required by law as the cost of the vessel for tax purposes. For the years 1947, 1948, and 1949, plaintiff has claimed, and the Commissioner of Internal Eevenue has allowed, depreciation deductions for the five vessels computed upon the basis shown in the schedule attached as Exhibit 1 to the stipulation filed by the parties, by reference made a part of these findings. Plaintiff does not consider it relevant to this proceeding that it purchased vessels from the Maritime Commission under Section 4 of the Merchant Ship Sales Act of 1946 after March 8,1946. 10. Section 9 of the Act authorizes adjustments for certain sales to citizens made prior to March 8, 1946. Thereafter, plaintiff filed with the Commission applications under Section 9 for an adjustment in the price of each of the seven vessels purchased in 1943 and 1944. The applications were approved and an agreement for adjustment was entered into by plaintiff and the Commission under date of December 14, 1949. A copy of the agreement is attached as Exhibit 2 to the stipulation filed by the parties, by reference made a part of these findings. 11. Under Section 3(d) of the Act, the statutory sales prices of the seven vessels purchased by plaintiff totaled $11,945,523.49. 12. If another taxpayer had purchased from the Commission on March 8, 1946, under Section 4 of the Act, seven vessels identical to those here in question except for improvements or additions made by plaintiff, that taxpayer would have had to pay the statutory sales price of $11,945,523.49 for the vessels. The cost of the vessels for tax purposes would have been $11,945,523.49. Plaintiff does not consider it relevant that another taxpayer would have had to" }, { "docid": "19264157", "title": "", "text": "was $12,133,727.29. 7. Upon delivery of the vessels to plaintiff, they were chartered by the Government until various dates in 1945. At various times during the charters, the Government paid charter-hire to plaintiff. On its federal income tax returns for the years 1943-1945, plaintiff reported the charter-hire as income and deducted depreciation for the seven vessels. 8. On March 8,1946, Congress enacted the Merchant Ship Sales Act of 1946, c. 82, 60 Stat. 41, 50 U.S.C. App. (1952 ed.) § 1735, hereinafter referred to as “the Act.” Under Section 4, citizens of the United States were given the right to purchase from the United States Maritime Commission war-built vessels at the statutory sales price defined in Section 3(d). Purchasers were required to pay at the time of sale at least 25% of the statutory sales price and the balance was payable in not more than twenty equal annual installments with interest at 3y2% per annum. By January 15, 1951, 843 ships had been sold under Section 4 of the Act. Plaintiff does not consider it relevant to this proceeding that citizens of the United States purchased ships from the Maritime Commission after March 8, 1946, under the Merchant Ship Sales Act of 1946. 9. In 1947 and 1948, plaintiff bought five vessels from the Commission under Section 4 of the Act. For each vessel, plaintiff paid an amount equal to the statutory sales price and has treated this amount with adjustments required by law as the cost of the vessel for tax purposes. For the years 1947, 1948, and 1949, plaintiff has claimed, and the Commissioner of Internal Eevenue has allowed, depreciation deductions for the five vessels computed upon the basis shown in the schedule attached as Exhibit 1 to the stipulation filed by the parties, by reference made a part of these findings. Plaintiff does not consider it relevant to this proceeding that it purchased vessels from the Maritime Commission under Section 4 of the Merchant Ship Sales Act of 1946 after March 8,1946. 10. Section 9 of the Act authorizes adjustments for certain sales to citizens made prior" }, { "docid": "2135718", "title": "", "text": "same result, the Delaware District Court in National Bulk Carriers, Inc. v. United States, supra, noted that great weight should be given to the interpretation of the Act by the Maritime Commission charged with its administration and enforcement, and further : “By interpreting ‘original purchase price’ to be the total cost to the buyer — contract price plus interest — the basic intent of Congress is furthered. Neither the post-war nor preAct buyer has any competitive advantage. They both pay the same price for the ship, the statutory sales price.” (214 F.Supp. at 596.) The full treatment accorded this issue by the district court in this case, and by the Delaware District Court in the National Bulk Carriers’ case, makes further discussion unnecessary. The judgment of the district court is reversed and the cause remanded for further proceedings consistent with this opinion. Reversed and remanded. CAMERON, Circuit Judge (concurring in part and, in part, dissenting): The decision of the majority of the items designated “1. Foreign Tax Credit Issue” and “3. Interest on Progress Payments” accords with my own views, and in the decision on these issues I concur. The holding of the majority on the issue designated “2. Cost Basis of Vessels for Depreciation” goes so far afield of my own view that I am constrained to state my views in a brief dissent. Admittedly, there is no clear statutory authority for the decision of the majority that Appellee’s basis for depreciation of the vessels which form the subject of this litigation must be reduced by the $8,818,839.55 in dispute, which amount represents reductions in the additional amount of the cost of said vessels to be paid under the purchase contracts as originally executed. The majority appears to adopt the conclusion of the District Court of Delaware in National Bulk Carriers, Inc. v. United States, D.C.Del.1963, 214 F.Supp. 585. That court, basing its holding solely upon its reading of the legislative history of Section 9 of the Merchant Ship Sales Act of 1946, 50 U.S.C., Appendix, 1952 ed., Sec. 1742 states as its conclusion: “A decision for the taxpayer" }, { "docid": "19264165", "title": "", "text": "follows: Original purcliase price_ $20,134,130. 86 Less: Reduction in trade-in al- lowance from_$2,498, 680. 00 to_ 1,132,134. 00 Net reduction_$1, 366, 446. 00 Reduction of mortgage indebted- ness _ 4, 306, 718. 68 6, 673,164. 68 $14,460, 966.17 Plus: Cash adjustment in favor of U.S. Maritime Commission» 1,121, 111. 61 Cost basis seven vessels_ $15, 582, 077. 78 Proof Cash paid prior to March 8, 1946_ $5, 501, 823. 56 Cash, adjustment in favor of U.S. Maritime Commission_ 1,121, 111. 61 Readjusted trade-in allowance_ 1,132,134. 00 Adjusted Mortgage indebtedness_ 7, 827, 008. 61 Cost basis seven vessels_ $15, 582, 077. 78 Cost basis allowed by Commissioner of Internal Revenue (Adjusted Statutory Sales Price under Merchant Ship Sales Act of 1946)_ 11, 945, 523.49 Amount of cost basis in controversy _ $3,636,554.29 19. In the computation of plaintiff’s income tax for 1946, 1947, 1948, and 1949, the Commissioner of Internal Revenue allowed plaintiff deductions for depreciation on the seven vessels in question. The Commissioner used as a basis for depreciation the statutory sales price of the vessels (which totaled $11,945,523.49) adjusted on account of (1) unrecognized gain of $999,016.09 realized on the trade-in of four vessels, (2) certain payments made upon five of the seven vessels in question from funds deposited in a construction reserve fund, and (3) certain improvements and betterments made to the seven vessels in question. These adjustments are shown in the 3 schedules attached as Exhibits 3, 4, and 5 to the stipulation filed by the parties, by reference made a part of these findings. The plaintiff does not challenge the correctness of these adjustments but submits that the Commissioner erred in using the statutory sales prices as the cost of the vessels. 20. On October 28, 1953, plaintiff filed timely claims for refund for 1946,1947,1948, and 1949. Copies of the claims are attached as Exhibits 6, 7, 8, and 9 to the stipulation filed by the parties, by reference made a part of these findings. 21. Statutory notices of disallowance were mailed to plaintiff as follows: Claim, for Year Date of Notice 1946 June 23,1954 1947" }, { "docid": "4775593", "title": "", "text": "its depreciation basis for tax purposes. 203 F. Supp. 915. The Court of Appeals for the Fifth Circuit reversed, however, holding that, under the statutory scheme, petitioner’s real cost was $17,685,424, the statutory sales price, and that this therefore was its proper depreciation basis. 330 F. 2d 128. The difference between the lower courts’ determinations of the real cost to petitioner of these 18 ships is $8,818,838, the net credit in favor of the Government in the preceding calculations of the 1946 sales price adjustment. We granted certiorari, 379 U. S. 927, to resolve a conflict between Courts of Appeals and the Court of Claims on the issue here involved. For the reasons set forth below, we agree with the Court of Appeals in this case and consequently affirm the judgment. Petitioner’s argument, put quite simply, is that during the war it paid $46,973,167 for the ships. In 1946, petitioner asserts, it was paid back $20,468,904. Thus petitioner concludes that its cost and therefore its depreciation basis for tax purposes in these ships is the difference between these two figures, or $26,504,263. The Government agrees that petitioner paid $46,973,167 during the war and received back $20,468,904 in 1946. It points out, however, that from 1942 through 1946 petitioner also received from the Government in charter hire for the use of the ships, a net of $8,818,838 (the net credit to the Government under the unwinding provisions of the Act), which petitioner would not have received had it not bought these ships prior to the date of the Act. The Government contends that when this $8,818,838 paid to petitioner from 1942 to 1946 is added to the amount of $20,468,904 paid as a lump sum to petitioner in 1946, it is clear that petitioner has received a total of $29,287,743 from the Government. The Government concludes that petitioner’s cost and therefore its basis for depreciation for tax purposes in these ships is the difference between the original sales price, $46,973,167, and this total refund, $29,287,743, or $17,685,424 — the statutory sales price. Petitioner cannot and does not dispute the fact that" }, { "docid": "14835117", "title": "", "text": "STALEY, Circuit Judge. The primary question posed by these-appeals is whether the district court correctly determined the cost basis for tax purposes of three vessels purchased by the plaintiff from the United States, the prices of which were adjusted pursuant to the Merchant Ship Sales Act of 1946, 50 U.S.C.Appendix, §§ 1735-1746 (1958. ed.). The district court held that the cost basis of these vessels is their “statutory sales price” as computed under the Act,, rejecting the plaintiff’s contention that, all of the adjustments and credits referred to in § 9(b) of the statute, 50-U.S.C.Appendix, § 1742, must be applied to determine the proper cost basis. 214 F.Supp. 585 (D.Del.1963). The operative facts have been stipulated and are fully summarized in the opinion of the district court. Accordingly,, they will be repeated here only in such brief outline form as is essential to a determination of the issues raised in this-court. The plaintiff purchased the véssels in question during the Second World War at a price of $7,707,957.12. A portion of this price was paid from an allowance-for two vessels traded in at the time of the purchases. The new vessels were-then chartered by the Government, and on its Federal tax returns plaintiff reported this charter hire as income for the-years in which it was received, in addition to making depreciation deductions for the vessels. Following the enactment of the Merchant Ship Sales Act of 1946,. the plaintiff applied for a price adjustment under § 9 of the statute. The adjusted “statutory sales price” of the three vessels as computed in accordance with § 3(d) was $5,107,796.02. Accordingly, under § 9(b) (3), the outstanding mortgage indebtedness was reduced by $1,886,619.97. However, § 9(b) provides for additional adjustments, more fully discussed later in this opinion, including a credit to the Maritime Commission for all amounts of charter hire paid for the use of the vessels prior to the date of the Act, a credit to the applicant for charter hire he would have received for the use of any vessel traded in at the time of the original purchase, and a" }, { "docid": "4775619", "title": "", "text": "of mortgage indebtedness of $17,551,792. As with the original purchase price, see note 1, supra, for simplicity this total credit will be considered as if it were all a cash credit. See note 2, supra. This recalculation included a readjustment of previous depreciation allowed. The figure $20,468,904 is one dollar smaller than the difference between $29,287,743 and $8,818,838. This discrepancy is caused by the omission from the calculation of figures of amounts less than one dollar. This net credit of $20,468,904 was divided into a cash credit to petitioner of $2,917,112 and a reduction of the mortgage indebtedness by $17,551,792. Again, for simplicity, this 1946 net credit will be considered as if it were all a cash credit. See notes 1 and 5, supra. See note 8, supra. See note 14, infra. The Court of Appeals for the Third Circuit agrees with the result of the Court of Appeals in this case. See National Bulk Carriers, Inc. v. United States, 331 F. 2d 407. However, these decisions conflict with that of the Court of Claims in Socony Mobil Oil Co. v. United States, 153 Ct. Cl. 638, 287 F. 2d 910, upon which the District Court in the instant case relied. As stated in note 1, supra, the original purchase price of $46,-973,167 consisted of a $6,449,107 cash payment and $40,524,060 in mortgage indebtedness. By the statutory enactment date of March 8, 1946, petitioner had paid an additional $9,786,339 on the mortgage. At that date therefore the original $46,973,167 purchase price consisted of a cash payment of $16,235,446 and a now reduced mortgage indebtedness of $30,737,721. As stated in note 8, supra, the 1946 payment to petitioner was comprised of a cash credit of $2,917,-112 and a reduction of the mortgage indebtedness by $17,551,792. Thus under petitioner’s calculations, after the 1946 adjustment its cost of the vessels was the sum of its cash investment of $13,318,334 ($16,235,446 minus $2,917,112) and its mortgage indebtedness of $13,185,929 ($30,737,721 minus $17,551,792), or $26,504,263. See note 8, supra. The figure of $8,818,838 is one dollar lower than the difference between the basis figures as" } ]

[ { "docid": "3370642", "title": "", "text": "tossed onto the garage floor). The district court was entitled to credit the officers’ testimony that Barrera handed the bag to Mr. Montes. See United States v. Thornton, 197 F.3d 241, 247 (7th Cir.1999) (“In a swearing contest, the trial judge’s choice of whom to believe will not be rejected unless the judge credited exceedingly improbable testimony.”). Moreover, Mr. Montes’ lack of candor was an appropriate fact for the court to consider in determining eligibility under the safety valve provision. See Ponce, 358 F.3d at 468-69. And, finally, Mr. Montes’ bare assertion that he was truthful and that the Government was not, see Appellant’s Reply Br. at 5, does not satisfy his burden to prove by a preponderance of the evidence that he provided a full and honest disclosure. See Ramirez, 94 F.3d at 1101 (concluding that “the language and purpose of the safety valve provision require that the defendant, not the government,” prove his entitlement to the safety valve, “which in-eludes proof of complete and honest disclosure”); United States v. Ajugiuo, 82 F.3d 925, 929 (9th Cir.1996) (finding insufficient the defendant’s bare assertion that she had provided all relevant information). In sum, the district court did not clearly err in finding that Mr. Montes had not provided completely truthful information and, thus, did not qualify for relief from the statutory minimum sentence under § 3553(f) and U.S.S.G. § 5C1.2. Conclusion For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED. . See United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.1990) (holding that constructive possession suffices). . See also United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir.1995) (interpreting the scope of § 3553(f) and § 5C1.2). . See also United States v. Thompson, 106 F.3d 794, 801 (7th Cir.1997) (denying safety valve relief when defendants \"continued to cling to a false version of events and dispute their own culpability\"); accord United States v. Reynoso, 239 F.3d 143, 145 (2d Cir.2000) (affirming denial of safety valve for defendant who acknowledged distributing crack cocaine but denied having served as a drug courier or deliverer based" } ]

[ { "docid": "22845774", "title": "", "text": "in applying the guidelines for clear error. Whitfield, 590 F.3d at 365-66. “There is no clear error if the district court’s finding is plausible in light of the record as a whole.” CisnerosGutierrez, 517 F.3d at 764 (internal quotation marks omitted). B. In calculating Richardson’s guidelines range, the probation officer assigned a base offense level of 14. See U.S.S.G. § 2J1.2(a) (2010). The probation officer then applied five enhancements to the offense level: (1) a three-level enhancement because the “offense resulted in substantial interference with the administration of justice,” id. § 2Jl.2(b)(2); (2) a two-level enhancement because the offense “involved the destruction, alteration, or fabrication of a substantial number of records, documents, or tangible objects,” id. § 2J1.2(b)(3)(A); (3) a two-level enhancement because “the defendant knew or should have known that a victim of the offense was a vulnerable victim,” id. § 3Al.l(b)(l); (4) a two-level enhancement because “the defendant was an organizer, leader, manager, or supervisor in any criminal activity,” id. § 3Bl.l(e); and (5) a two-level enhancement because the defendant “abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense,” id. § 3B1.3. Richardson objected to the enhancements’ application, but the probation officer overruled his objections. The district court also overruled the objections and adopted the PSR. An adjusted offense level of 25, coupled with a criminal history category of I, resulted in a guidelines range of 57-71 months. Before imposing the sentence, the district court heard testimony from Lisa Leyva, Richardson’s secretary. Leyva testified that she met Richardson in August 2010—after he knew he was under investigation in the instant case—at the immigration court in Dallas, Texas. Leyva was there to get an immigration bond for her deported husband when she struck up a conversation with Richardson. He informed her that he was an immigration attorney and that he could get her husband back in the United States with a visa in two weeks if she would agree to work as his secretary. Leyva agreed. Richardson also told her he would pay her a salary," }, { "docid": "22601976", "title": "", "text": "amount of drugs Quintero-Leyva carried, the monetary incentive Quintero-Leyva had, and the fact that Quintero-Leyva re-initiated contact with the individual who set up the criminal scheme. The court calculated Quintero-Leyva’s adjusted offense level at 31 with a range of 108-135 months’ incarceration. The court then granted a 36-month downward variance, sentencing Quintero-Leyva to 72 months’ incarceration and five years’ supervised release. On November 1, 2015, approximately one year after Quintero-Leyva was sentenced, the United States Sentencing Commission passed Amendment 794. The Commission did so because, after conducting an independent review, it found that minor role reductions were being “applied inconsistently and more sparingly than the Commission intended.” U.S.S.G. App. C. Amend. 794. Specifically, “[i]n drug cases, the Commission’s study confirmed that mitigating role is applied inconsistently to drug defendants who performed similar low-level functions.” Id. II. Standard of Review We review the district court’s interpretation of the Sentencing Guidelines de novo and the district court’s factual findings for clear error. United States v. Hornbuckle, 784 F.3d 549, 553 (9th Cir.2015). We have previously noted an intra-circuit conflict as to whether the standard of review for application of the Guidelines to the facts is de novo or abuse of discretion. Id. We need not resolve that conflict here because “the choice of standard ... does not affect the outcome of this case.” Id. (internal quotation marks omitted). III. Analysis We first address whether the Amendment applies retroactively to direct appeals. We consider three factors when assessing whether an amendment to the Guidelines applies retroactively: (1) whether the amendment is listed as a retroactive amendment in U.S.S.G. § lB1.10(c); (2) whether the amendment is characterized as a clarification; and (3) whether the amendment resolves a circuit split. United States v. Christensen, 598 F.3d 1201, 1205 (9th Cir.2010) (citing United States v. Morgan, 376 F.3d 1002, 1011 (9th Cir.2004)). The Government concedes that the Amendment applies retroactively, and we agree. First, the Amendment resolves a circuit split. The Commission specified that the Amendment “addresses a circuit conflict and other case law that may be discouraging courts from applying the adjustment in otherwise appropriate" }, { "docid": "7901177", "title": "", "text": "the fact that the presentence investigation report did not recommend a sentencing reduction under U.S.S.G. § 5C1.2. He argued that in his two proffers he had given the government all of the relevant information he had regarding his crime, most importantly the names of the other participants. The government countered that Ponce did not deserve the reduction because he was lying about not being present in Laredo during the pick-up of the drugs. According to the government, Ponce assured the CI that he would be there, and he was subsequently identified from a photograph by two DEA agents posing as drivers who maintained he was there. The government also noted that Ponce admitted making a call to the Cl from Little Rock while the drugs were in transport, and that the Cl had told him that “he must have passed the truck on the interstate and that it was behind him,” still on its way to Chicago. This geographic reference makes sense, the government argued, only if Ponce had himself been traveling from Laredo to Chicago. The government also noted that Ponce, unlike his co-defendants, had not been immediately forthcoming in his proffers and that he did not supply relevant information until first being confronted with contradictory evidence. After listening to these arguments, the district court found that “[t]he government has raised serious questions about the defendant’s presence in Texas at the time the shipment was loaded” and that Ponce had not established “that he was fully cooperative in providing truthful information” during his interviews. The court consequently imposed the statutory minimum sentence of ten years’ imprisonment. The sole issue on appeal is whether the district court erred in determining that Ponce failed to show that he truthfully provided all relevant information to the government. The defendant bears the burden of proving he is eligible for the safety-valve exception. United States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir.2000). We review the district court’s determination that a defendant failed to meet his burden for clear error. United States v. Alvarado, 326 F.3d 857, 860 (7th Cir.2003). Under § 5C1.2, a" }, { "docid": "14355563", "title": "", "text": "somewhat more willing to find “prejudice”. With these principles in mind, we turn to Cabrera-Baez’s attacks on the analysis that led the pre-sentence report (and hence the district court) to attribute 7266.08 grams of crack to him. We conclude that the pre-sentence report either used the wrong legal standard or failed to make adequate factual findings in attributing 2298.70 of those grams to Cabrera-Baez. Cabrera-Baez argues, first, that the report misanalyzed his “relevant conduct”. At the time of his sentencing, the guidelines specified that “relevant conduct” could include three categories of acts (if adequately connected to the crime of conviction, which is not in dispute here): (1) those that the defendant himself committed, (2) those that he “aided and abetted”, and (3) those “for which the defendant would be otherwise accountable”. U.S.S.G. § lB1.3(a)(l). The third category incorporates, among other things, the well-settled principle of conspiracy law that someone who jointly undertakes a criminal activity with others is accountable for their reasonably foreseeable conduct in furtherance of the joint undertaking. See, e.g., Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). But Cabrera-Baez suggests that in analyzing this third category, the pre-sentence report neglected the requirement that the acts be “in furtherance of’ the joint undertaking, holding him responsible for all drug quantities attributable to his co-conspirators as long as he could reasonably foresee the transactions. Such an approach would clearly be error, even under the version of the guidelines that existed at the time of Cabrera-Baez’s sentencing. (The current version makes the “in furtherance of’ requirement more explicit.) The extent of a defendant’s vicarious liability under conspiracy law is always determined by the scope of his agreement with his co-conspirators. Mere foreseeability is not enough: someone who belongs to a drug conspiracy may well be able to foresee that his co-venturers, in addition to acting in furtherance of his agreement with them, will be conducting drug transactions of their own on the side, but he is not automatically accountable for all of those side deals. See, e.g., United States v. Jenkins, 4 F.3d 1338," }, { "docid": "23350909", "title": "", "text": "withdraw will be granted, and a defendant’s reasons for filing such a motion will be more closely scrutinized when he has delayed his motion for a substantial length of time. Id. at 1197. Defendant Baez did not even mention his change of heart regarding his plea until the day of sentencing, August 4, 1993, when he informed his attorney of his intentions. Under such circumstances, Baez’s failure to excuse his delay works soundly against him. We conclude that this unjustified, last-minute change of heart is insufficient to support a motion to withdraw. Other recognized factors also work against Baez. Some courts have held that the absence of a defendant’s vigorous and repeated protestations of innocence support the denial of a motion to withdraw a guilty plea. See United States v. Saft, 558 F.2d 1073, 1082 (2nd Cir.1977). Here, Baez admitted his guilt at the plea healing and did not reassert his innocence until the day of sentencing. There is also no evidence here of any unusual circumstances underlying the plea, such as defendant’s naivete with respect to the criminal justice system. See Alexander, 948 F.2d at 1004. In denying Baez’s motion, the court emphasized that Baez had clearly stated to the court that he understood the charges against him, understood his rights, had not been pressured, and was satisfied with the representation he received from his attorney. Under these circumstances, it is clear that the district court did not err in denying Baez’s motion to withdraw his guilty plea. As for Baez’s claim that the court did not conduct an adequate hearing on the motion, we conclude that Judge Matia gave Baez an adequate opportunity to argue in support of his motion, and that no further consideration of the motion was necessary. B. Baez’s second argument on appeal is that his guilty plea was improperly entered by the court without establishing a sufficient factual basis to support it. The factual basis requirement set forth in Rule 11(f) of the Federal Rules of Criminal Procedure reads as follows: Notwithstanding the acceptance of a plea of guilty, the court should not enter" }, { "docid": "19888439", "title": "", "text": "unconstitutional. (5) Trial counsel was ineffective for failing to introduce evidence about L.B.’s previous accusation against Jose Rojas. App. 613-14. The District Court referred Leyva’s petition to a Magistrate Judge, who recommended denying relief for three reasons. Leyva v. Williams, 2005 WL 746042, at *2 (E.D.Pa. Mar.30, 2005). First, the Magistrate Judge concluded that claim 1(a) was procedurally defaulted because Leyva failed to comply with Pennsylvania’s “affidavit rule” when presenting his claim in state court. Id. at *3. Second, she concluded that claims 1(b), 2(a), 3, and 4 were procedurally defaulted because Leyva failed to comply with Pennsylvania’s custody requirement for bringing a PCRA petition. Finally, reaching the merits of claims 2(b) and 5, the Magistrate Judge concluded that Leyva had not demonstrated that the state court decision was contrary to, or an unreasonable application of, clearly established federal law under 28 U.S.C. § 2254(d). Leyva, 2005 WL 746042, at *6-7. Leyva did not object to the Magistrate Judge’s report and recommendation, and the District Court adopted it in full. On November 14, 2005, we granted a certificate of appealability, requesting that Ley-va address whether his claims had been procedurally defaulted. II. Jurisdiction and Standard of Review A. Jurisdiction A federal court has jurisdiction to entertain a habeas petition under 28 U.S.C. § 2254(a) “only if [a petitioner] is in custody in violation of the constitution or federal law.” DeFoy v. McCullough, 393 F.3d 439, 441 (3d Cir.2005); see also Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir.2003) (“[F]or a federal court to have jurisdiction, a petitioner must be in custody under the conviction he is attacking at the time the habeas petition is filed.”). The term “custody” extends beyond physical confinement, and encompasses other “significant restraints on ... liberty” that are “not shared by the public generally.” Jones v. Cunningham, 371 U.S. 236, 242, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The requirement is satisfied when a petitioner is on probation. Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.2004) (“It is ... clear that being on probation meets the ‘in custody1 requirement for purposes of" }, { "docid": "22601973", "title": "", "text": "OPINION D.W. NELSON, Senior Circuit Judge: Norberto Quintero-Leyva appeals the district court’s denial of a minor role reduction at sentencing pursuant to U.S.S.G. § 3B1.2(b) after pleading guilty to importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. On November 1, 2015, approximately one year after Quintero-Leyva was sentenced, the United States Sentencing Commission issued Amendment 794 (the Amendment), which amended the commentary to U.S.S.G. § 3B1.2. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we hold that the Amendment applies retroactively in direct appeals. We reverse and remand with directions that the district court re-sentence Quintero-Leyva under the newly amended § 3B1.2. I. Background On May 31, 2014, eighteen-year-old Quintero-Leyva attempted to enter the United States from Mexico at the port of entry at Tecate, California as the sole occupant and driver of a Ford Focus. When border patrol officers noticed Quintero-Leyva’s nervous appearance, they referred him to secondary screening for further investigation. A canine alerted to the vehicle, and officers subsequently found 13.26 kilograms of methamphetamine worth approximately $265,200 hidden in the gas tank. Quintero-Leyva was arrested. When interviewed by authorities, Quintero-Leyva stated that prior to his arrest, he had been approached by an individual who offered him work transporting narcotics. Later that same day, the individual contacted Quintero-Leyva and told him to wait for a phone call for further instructions. After waiting a few days without receiving any contact, Quintero-Leyva re-contacted the individual. Quinte-ro-Leyva was then given instructions and a promise that he would be paid $100,000. Quintero-Leyva also told authorities that he did not purchase or register the vehicle, was not present when the narcotics were loaded into the vehicle, and did not know where the narcotics were concealed in his vehicle. He said he believed the narcotic he was transporting was marijuana, not methamphetamine. He further told authorities that he did not know where he was supposed to drop off the vehicle after crossing into the United States, and was only told that someone would contact him later with instructions. This was Quinte-ro-Leyva’s first attempt at transporting narcotics and he" }, { "docid": "14853201", "title": "", "text": "not believe the trial court abused its discretion in denying the motion for severance, we do believe it was error to admit the evidence of the fight against appellant Lopez-Leyva. We believe this error warrants a new trial for Lopez-Leyva. 1. Admissibility. Under Federal Rule of Evidence 404(b), evidence of a “prior bad act” is admissible to show motive or intent but not to show the propensity of an individual to commit the act of which he is accused. As to Hernandez, evidence of the fight clearly qualified under the “motive” exception of Rule 404(b). He had been involved in a fight a mere five or six hours previously. Tr. 217, 276-277. Price’s account of Donny’s statement, indicating that appellants were out looking for Price, also indicated that evidence of the fight was probative of motive. This statement was circumstantially corroborated by the fact that the arrest took place within a short distance of an apartment where Price was thought to reside. Appellant Lopez-Leyva, however, presents a different case. The record does not suggest that he was involved in the fight. He was merely present and, according to Price, was shouting “something” in a foreign language (i.e., Spanish). At no time was it determined just what LopezLeyva was shouting. On the basis of such “shouting” the District Court determined that Lopez-Leyva was a participant in the fight and therefore that evidence of the fight was probative of his motive as well. Tr. 227. We cannot agree. There was simply no basis for determining whether the shouting at issue constituted encouragement or protest. It was simply indecipherable. Given that the government has the burden of proving the relevance of such “prior bad act” testimony, see United States v. Foskey, 636 F.2d 517, 523 (D.C.Cir.1980), it was error to make the defendant bear the burden of uncertainty as to the meaning of his “shouting.” The admission of the prior bad act testimony therefore violated Rule 404(b). If we were to find that Lopez-Leyva’s “shouting” did constitute participation in the fight, it would be involvement of the most attenuated type. Such attenuated involvement" }, { "docid": "23428845", "title": "", "text": "his Miranda warnings, he signed a waiver of rights and gave a statement. Baez-Gonzalez’s statement, redacted to remove the names of some of the defendants, was admitted at trial through the testimony of an FBI agent. The statement was that one week before the robbery an individual told Baez-Gonzalez that he (the individual) would be coming into some large money and asked Baez-Gonzalez whether he would hold the money for him; and further, that the Friday or Saturday after the robbery, the individual told Baez-Gonzalez that the money was from the Loomis Fargo robbery. Baez-Gonzalez’s redacted statement did not identify any of the defendants. Other evidence identified Mojica-Baez as the individual. Specifically, Nevarez-Marrero (the fellow jailmate) testified that Mojica-Baez had told him that “somebody had taken from one of his uncles almost half a million dollars, and he was thinking that his own uncle was squealing on him.” Nevarez-Marrero further testified that Mojica-Baez had told him that the money was “[f]rom the holdup” and that he (Moji-ca-Baez) had “given it to his uncle for safekeeping.” While there was an overruled objection to Nevarez-Marrero’s statement, there was no objection to the FBI agent’s testimony about Baez-Gonzalez’s statement. A Bruton objection was initially made to the Baez-Gonzalez statement, see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), but it was withdrawn upon coun sel’s learning that the statement was redacted. Thus, there was no relevant objection to the Baez-Gonzalez statement, although the issue is now pursued on appeal by Mojica-Baez and Cartagena-Merced. There was no clear theory of admissibility for Baez-Gonzalez’s statement; there is no evidence from the record that the statement was admitted as a co-conspirator statement, and no Petrozziello ruling was made as to the statement. See United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.1977). But the defendants did not make these points at trial and so are in a very weak position to argue them now. The government urges that if there were any error, it was harmless. The defendants say that the claimed error was not harmless, because if the" }, { "docid": "23428844", "title": "", "text": "defendants’ homes on the theory that the items were the “tools of the trade” of professional robbers. The evidence included ski masks, bullets, a blue police emergency light, and police uniforms. There was no claim by the government that these were used during the Loomis Fargo robbery. Reyes-Hernandez, Ramos-Cartagena, and Mojica-Baez claim the evidence is impermissible character propensity evidence barred by Federal Rule of Evidence 404(b) and that it should have been excluded as overly prejudicial under Federal Rule of Evidence 403. There was no error. Disguises are common tools of the trade and have been found admissible even if not used in the crime charged. See, e.g., United States v. Candelaria-Silva, 162 F.3d 698, 706 (1st Cir.1998). There was no unfair prejudice to the defendants. 5. Admission of Redacted Postr-Arrest Admission of Papo, a Co-Defendant Not On Trial Rafael A. Baez-Gonzalez was a charged co-defendant who was not on trial with these defendants. On May 23, 1997, FBI agents went to his house and found almost $400,000 hidden on the property. After he received his Miranda warnings, he signed a waiver of rights and gave a statement. Baez-Gonzalez’s statement, redacted to remove the names of some of the defendants, was admitted at trial through the testimony of an FBI agent. The statement was that one week before the robbery an individual told Baez-Gonzalez that he (the individual) would be coming into some large money and asked Baez-Gonzalez whether he would hold the money for him; and further, that the Friday or Saturday after the robbery, the individual told Baez-Gonzalez that the money was from the Loomis Fargo robbery. Baez-Gonzalez’s redacted statement did not identify any of the defendants. Other evidence identified Mojica-Baez as the individual. Specifically, Nevarez-Marrero (the fellow jailmate) testified that Mojica-Baez had told him that “somebody had taken from one of his uncles almost half a million dollars, and he was thinking that his own uncle was squealing on him.” Nevarez-Marrero further testified that Mojica-Baez had told him that the money was “[f]rom the holdup” and that he (Moji-ca-Baez) had “given it to his uncle for safekeeping.”" }, { "docid": "7243073", "title": "", "text": "not result in death or serious bodily injury to any person; (4) he was not an organizer, leader, manager, or supervisor, as determined under the sentencing guidelines; and (5) no later than the time of the sentencing hearing, he has truthfully provided the government all information and evidence he has concerning the offense or offenses that were part of the same course of conduct. 18 U.S.C. § 3553(f). We review the district court’s failure to impose the safety valve provision for clear error. United States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir.2000). Martinez bears the burden of proving he is eligible for the safety valve provision, see id., and he cannot meet this burden if the government challenged the truthfulness, accuracy, or completeness of his statements and he produced nothing to persuade the district court that his disclosures were truthful and complete. See United States v. Ramirez, 94 F.3d 1095, 1101 (7th Cir.1996). In this case, although the PSR concluded that Martinez was eligible for the safety valve provision, the government objected to that finding. The government argued, and the district court agreed, that Martinez failed to provide all the information he had. Not only did Martinez’s proffer lack details to aid in the investigation of the source of the drugs, he recanted his admission to prior drug runs and refused to give information for fear of putting his family in jeopardy. Judge Stiehl’s finding that Martinez’s testimony did not qualify for the reduction is not clearly erroneous, and therefore, we affirm the denial of the safety valve provision. III. CONCLUSION Because the district court did not err in imposing Martinez’s 120 month sentence, the judgment of the district court is AfFIRMED. . Martinez argues that because he did not foresee the cocaine, the court was in error in sentencing him for possessing cocaine. But foreseeability is all that is required under 21 U.S.C. § 846, see United States v. Herrero, 893 F.2d 1512, 1535 (7th Cir.1990), the conspiracy statute. Martinez was charged with possession under § 841, however, and § 841 requires actual knowledge." }, { "docid": "19031236", "title": "", "text": "that he withheld any information. Therefore, he argues, his submission was timely and satisfied the requirements for safety-valve relief. Acevedo-Fitz bore the burden of proving by a preponderance of the evidence “that he provided a full and honest disclosure.” United States v. Montes, 381 F.3d 631, 637 (7th Cir.2004); see United States v. Ramirez, 94 F.3d 1095, 1101 (7th Cir.1996) (same). We review a district court’s refusal to apply the safety valve for clear error. United States v. Corson, 579 F.3d 804, 813 (7th Cir.2009). To qualify for the safety valve, a defendant must satisfy five statutory elements. See 18 U.S.C. § 3553(f). The fifth element is that, “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” Id. § 3553(f)(5). Congress intended that the safety valve be limited to the low-level defendant who can “demonstrate that he has made a good faith attempt to cooperate with the authorities.” United States v. Arrington, 73 F.3d 144, 148 (7th Cir.1996); see Corson, 579 F.3d at 814; Montes, 381 F.3d at 634; United States v. Marin, 144 F.3d 1085, 1095 (7th Cir.1998). We have long held the view that lying is inconsistent with a good-faith effort to cooperate, and thus a sentencing judge may refuse the safety valve to a defendant who was caught lying during safety-valve debriefings. See Montes, 381 F.3d at 637 (explaining that defendant’s “lack of candor was an appropriate fact for the court to consider in determining eligibility under the safety valve provision”); United States v. Ponce, 358 F.3d 466, 468 (7th Cir.2004) (“[A] district court may consider a defendant’s lack of candor in determining eligibility under the safety-valve provision.”); United States v. Alvarado, 326 F.3d 857, 861 (7th Cir.2003) (“[D]efendants who mislead the government do not fall within the class that the safety valve statute was intended to protect: those who genuinely and fully disclose all the information they possess.”); United States" }, { "docid": "19888436", "title": "", "text": "that more serious offense. App. 305. On September 16, 1999, he sentenced Leyva to eleven-and-a-half to twenty-three months in prison, followed by three years’ probation. On appeal, Leyva retained a new attorney who submitted to the trial court a statement of matters complained of on appeal, as required under Pennsylvania Rule of Appellate Procedure 1925(b). Notably, he included an affidavit from Leyva’s wife stating that trial counsel told her and Ley-va that L.B.’s mother offered to drop the charges against Leyva in exchange for $5,000. In response, the trial judge issued an opinion concluding that Leyva’s claims of ineffectiveness warranted a new trial. This opinion was without effect, however, because the case was already on appeal before the Superior Court. On appeal, Leyva argued that trial counsel was ineffective for: failing to interview several potential witnesses; failing to withdraw based on a conflict of interest because of his prior representation of Lopez; failing to present L.B.’s mother as a witness; and failing to withdraw from representing Leyva in order to testify at trial. On October 17, 2002, the Superior Court affirmed Leyva’s conviction. The court disposed of Leyva’s first two claims on the merits, concluding that neither trial counsel’s failure to interview the witnesses identified by Leyva, nor the alleged conflict of interest constituted error or prejudiced Leyva. Regarding Leyva’s second two claims, the court declined to reach them on the merits, concluding that Leyva had failed to present affidavits indicating that L.B.’s mother or Leyva’s trial counsel would have testified. Leyva petitioned for reconsideration, and shortly thereafter petitioned the Pennsylvania Supreme Court for allowance of appeal. Both petitions were denied. On August 5, 2004 — four days before the expiration of his probation — Leyva filed a petition for collateral relief under Pennsylvania’s Post Conviction Relief Act (“PCRA”), raising additional claims of ineffective assistance of counsel. A few months later, however, the Court of Common Pleas summarily dismissed the PCRA petition because Leyva was no longer in custody. On the same day that Leyva filed his PCRA petition, he also filed a petition for habeas corpus in federal court." }, { "docid": "4456932", "title": "", "text": "between Enriquez on the one hand and the conspirators on the other. But we are of opinion that the record affords reason for believing that Enriquez was more than a mere onlooker. Numerous incidents shown point cumulatively in the direction of his active connection with this underworld traffic in drugs, perhaps even to his being the chief figure in it. We mention but a few of them. Enriquez’ car, a green Cadillac sedan, was proved to have been used several times in making deliveries 'of narcotics, particularly a certain rather large delivery of opium. On one occasion federal agent Johnson spoke to Enriquez concerning some customers who desired opium at once. Johnson said he had not been able to get hold of Arturo Leyvas [one of the conspirators] with whom he had been dealing. Enriquez replied that there was nothing in town, “and you will not be able to get anything until Art [Leyvas] gets back.” There was nothing, Enriquez said, “that I can do until the stuff gets here.” After further conversation Enriquez said, “I know that Art is going to be back tomorrow night. If you will be here [in Pirata’s Club] between 5:00 and 5:30, I will see to it that Art meets you right here.” At the time and place appointed agent Johnson was waiting. After an interval Arturo Leyvas appeared and said “Arnold [Enriquez] told me to contact you.” The contact resulted at that time in the delivery by Leyvas to the agent of a quantity of opitim for which the agent paid Leyvas $1,000. 2. Three incidents in this general pattern of behavior afford evidence claimed by the government to show guilt and at the same time furnish the basis of appellant’s claim that the court erred in admitting hearsay testimony. Agent Smith was permitted to testify that on January 15, 1949, he was present in a corner drugstore in Phoenix and watched one Cobos dial a certain telephone number. Cobos was an undercover man working with Smith. The number he was seen to dial was identified as Enriquez’ residence telephone. Upon completion of" }, { "docid": "22601975", "title": "", "text": "has no prior convictions. Quintero-Leyva entered a fast-track plea agreement with the Government. The Government recommended a 108-month sentence based on an adjusted offense level of 31 under the Sentencing Guidelines. The Presentence Investigation Report (PSR) calculated an adjusted offense level of 35. After applying the fast-track departure, the PSR calculated the final offense level at 31. The PSR then recommended a downward variance to 60 months. Neither the Government nor the PSR recommended a minor role reduction, which grants a two point reduction to defendants who are found to be “substantially less culpable than the average participant in the criminal activity.” U.S.S.G. § 3B1.2, comment, n. 3 (A). In Quintero-Leyva’s case, a minor role reduction would have triggered further reductions. At sentencing, Quintero-Leyva argued that he should be granted a minor role reduction, highlighting to the district court his youth and naiíveté, his limited role in the scheme, and his lack of prior criminal history. The court noted these factors, but nonetheless denied a minor role reduction. In so doing, the court emphasized the amount of drugs Quintero-Leyva carried, the monetary incentive Quintero-Leyva had, and the fact that Quintero-Leyva re-initiated contact with the individual who set up the criminal scheme. The court calculated Quintero-Leyva’s adjusted offense level at 31 with a range of 108-135 months’ incarceration. The court then granted a 36-month downward variance, sentencing Quintero-Leyva to 72 months’ incarceration and five years’ supervised release. On November 1, 2015, approximately one year after Quintero-Leyva was sentenced, the United States Sentencing Commission passed Amendment 794. The Commission did so because, after conducting an independent review, it found that minor role reductions were being “applied inconsistently and more sparingly than the Commission intended.” U.S.S.G. App. C. Amend. 794. Specifically, “[i]n drug cases, the Commission’s study confirmed that mitigating role is applied inconsistently to drug defendants who performed similar low-level functions.” Id. II. Standard of Review We review the district court’s interpretation of the Sentencing Guidelines de novo and the district court’s factual findings for clear error. United States v. Hornbuckle, 784 F.3d 549, 553 (9th Cir.2015). We have previously noted an" }, { "docid": "19888460", "title": "", "text": "the proceeding would have been different.’ ”) (quoting Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir.1996)). We thus conclude that Leyva’s claims are not defaulted on account of his failure to be in custody. D. Conflict of Interest Within his second habeas claim, Leyva alleged that trial counsel represented him in spite of a conflict of interest created by his former representation of L.B.’s mother’s boyfriend, Wilfredo Lopez. The Pennsylvania Superior Court rejected this claim, explaining that trial counsel’s “representation of Lopez, in an unrelated matter, concluded three years before [Ley-va’s] trial” and only provided him additional information about L.B.; it thereby did not constitute a conflict that was prejudicial to Leyva. App. 364. The Magistrate Judge determined that this ruling was not “contrary to or an unreasonable application of clearly established federal law.” Leyva, 2005 WL 746042, at *6-7. See 28 U.S.C. § 2254(d). Leyva does not attempt to rebut this determination, and nowhere points out how trial counsel “actively represented conflicting interests” in a way that “adversely affected [his] performance.” Hess v. Mazurkiewicz, 135 F.3d 905, 910 (3d Cir.1998) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). We do not believe it was “contrary to or an unreasonable application of clearly established federal law” for the Superior Court to find no constitutionally significant conflict of interest when trial counsel represented Lopez prior to representing Leyva. Accordingly, we will affirm this portion of the District Court’s dismissal. IV. Conclusion We conclude that neither the affidavit rule nor the custody requirement bar consideration of Leyva’s claims on the merits. Accordingly, we vacate the dismissal of claims 1, 2(a), 3, and 4. Because the merits of these claims have not been briefed or argued before us, we will remand to the District Court for further proceedings. . Leyva waived his right to trial by jury. . He also found Leyva not guilty of indecent assault. . Leyva also submitted an affidavit from Jose Rojas, who stated he had previously been wrongly accused by L.B. of sexual assault. . Under Pennsylvania Rule of Appellate" }, { "docid": "19888456", "title": "", "text": "As the Magistrate Judge explained, these claims were not raised on direct appeal in the state coux'ts, but were x'aised in Leyva’s PCRA petition. The PCRA court dismissed this petition without a review on the merits when Leyva’s term of probation ended because he had failed to comply with the state law requirement that he be “currently serving a sentence.” See 42 Pa. Stat. § 9543(a)(1)® (“To be eligible for relief ... the petitioner must plead and prove ... that the petitioner ... is at the time relief is granted ... currently serving a sentence of imprisonment, probation or parole for the crime.”); Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718, 720 (1997). Leyva argues that his noncompliance with Pennsylvania’s custody requirement should not bar federal review of his claims. Specifically, he argues that the x'equirement does not create a procedural bar, but simply deprives him of “available State corrective process” under § 2254(b). We have explained, however, that the absence of state corrective process is generally an excuse to the exhaustion requirement, see, e.g., Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir.2005), not to the application of procedural default. We have therefore applied procedural default when the reason for the absence of state process is a petitioner’s failure to comply with state procedural xules. See, e.g., McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999) (“When a claim is not exhausted because it has not been ‘fairly presented’ to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.’ In such cases, however, applicants are considered to have procedurally defaulted their claims ____”) (quoting 28 U.S.C. § 2254(b)(1)(A)). This is not required here. Noncompliance with Pennsylvania’s custody requirement did not result from any failure on the part Leyva, but simply from the expiration of his sentence. This factor was outside Leyva’s control and need not form the basis for a default. See Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435" }, { "docid": "22195739", "title": "", "text": "mandatory minimum ten-year sentence. 18, U.S.C. § 924(c)(l)(B)(i). In Mojica-Baez, 229 F.3d 292, the defendants argued that their indictment was constitutionally infirm, requiring \"per se” reversal, inasmuch as the indictment did not specify that the firearm they used in the underlying offense was a semiautomatic assault weapon. Id..at 306-07. . See also McCoy v. United States, 266 F.3d 1245, 1250 n. 7 (11th Cir.2001) (recognizing that in Prentiss, the Tenth Circuit overruled prior cases that had held failure to allege element of drug quantity cannot be reviewed for plain or harmless error). . See Neder, supra note 14. . Although the evidence at the Benfords’ trial may have established that the overall conspiracy contained quantities of drugs that would permit affirming a sentence imposed under 21 U.S.C. § 841(b)(1)(A) or (b)(1)(B), we have held that Apprendi requires that a defendant is entitled to have drug quantity charged in the indictment and proved beyond a reasonable doubt where his or her sentence exceeds that prescribed\" by § 841(b)(1)(C). See Neuhausser, 241 F.3d at 465-66. Appren-di is clearly implicated in Mrs. Benford's case, and I do not find the error to be harmless beyond a reasonable doubt based on the record. Therefore, I would find that she is entitled to be re-sentenced. . We also believe that Rossell has failed to meet his burden of showing that he was entitled to a reduction in his sentence pursuant to the safety valve provision of USSG § 5C1.2. Under that provision of the Sentencing Guidelines, a defendant convicted under 21 U.S.C. §§ 841, 846 or other enumerated statutes shall be sentenced without regard to any statutory minimum sentence if the defendant meets five criteria. One of those criterion is that the “defendant did not use violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense ... USSG § 5C1.2(2) (emphasis added). The defendant bears the burden of showing eligibility for the safety valve by a preponderance of the evidence. United States v. Salgado, 250 F.3d 438, 459 (6th Cir.2001) (citation omitted). Every circuit" }, { "docid": "14853202", "title": "", "text": "he was involved in the fight. He was merely present and, according to Price, was shouting “something” in a foreign language (i.e., Spanish). At no time was it determined just what LopezLeyva was shouting. On the basis of such “shouting” the District Court determined that Lopez-Leyva was a participant in the fight and therefore that evidence of the fight was probative of his motive as well. Tr. 227. We cannot agree. There was simply no basis for determining whether the shouting at issue constituted encouragement or protest. It was simply indecipherable. Given that the government has the burden of proving the relevance of such “prior bad act” testimony, see United States v. Foskey, 636 F.2d 517, 523 (D.C.Cir.1980), it was error to make the defendant bear the burden of uncertainty as to the meaning of his “shouting.” The admission of the prior bad act testimony therefore violated Rule 404(b). If we were to find that Lopez-Leyva’s “shouting” did constitute participation in the fight, it would be involvement of the most attenuated type. Such attenuated involvement could not support the introduction of evidence of the fight as against Lopez-Leyva. For even if the government had shown that the fight was relevant to Lopez-Leyva’s motive, the court must still determine whether the probative value of that evidence outweighed its prejudicial effect under Federal Rule of Evidence 403. In the case of Lopez-Leyva it is plain that whatever the slim probative value of his prior “shouting,” it was overwhelmed by its prejudicial effect. Admission of such evidence would naturally lead a jury to assume that Lopez-Leyva had the motive of his associates: a slightly refined version of guilt by association. Although we are mindful that a trial court’s admission of evidence under Rule 403 should only be overturned on appeal in cases of abuse of discretion, see United States v. Lavelle, 751 F.2d 1266, 1277 (D.C.Cir.), cert. denied, — U.S.-, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985), we believe that admitting evidence of such nebulous involvement in a prior bad act constitutes just such an abuse. By contrast, the admission of evidence of" }, { "docid": "19888455", "title": "", "text": "A.2d 242, 254 (1998) (emphasis added). In setting forth the requirements of such a claim, the Supreme Court relied on Commonwealth v. Stanley, 534 Pa. 297, 632 A.2d 871, 872 (1993), which stated that “[t]he existence and availability of the witness must be shown,” without specifying any required method for doing so. These Supreme Court cases do not support the application of an affidavit requirement at the time of Leyva’s default. In sum, the Superior Court denied review of Leyva’s claims because he failed to submit an affidavit from trial counsel. Based on the foregoing, Leyva did not have “fair notice of the need” to do so in presenting his appeal. Bronshtein, 404 F.3d at 707. Accordingly, we conclude that an affidavit requirement was not firmly established or regularly applied at the time of the purported default. Leyva is therefore not barred from pursuing federal review of his first claim on the merits. C. The Custody Requirement The Magistrate Judge declined to reach the merits of claims 2(a), 3, and 4, because of procedural default. As the Magistrate Judge explained, these claims were not raised on direct appeal in the state coux'ts, but were x'aised in Leyva’s PCRA petition. The PCRA court dismissed this petition without a review on the merits when Leyva’s term of probation ended because he had failed to comply with the state law requirement that he be “currently serving a sentence.” See 42 Pa. Stat. § 9543(a)(1)® (“To be eligible for relief ... the petitioner must plead and prove ... that the petitioner ... is at the time relief is granted ... currently serving a sentence of imprisonment, probation or parole for the crime.”); Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718, 720 (1997). Leyva argues that his noncompliance with Pennsylvania’s custody requirement should not bar federal review of his claims. Specifically, he argues that the x'equirement does not create a procedural bar, but simply deprives him of “available State corrective process” under § 2254(b). We have explained, however, that the absence of state corrective process is generally an excuse to the exhaustion requirement, see," } ]

[ { "docid": "2498241", "title": "", "text": "result from the additional conviction. United States v. Walls, 577 F.2d 690, 699 (9th Cir. 1978). We find no adverse collateral legal consequences to these applicants; and, in the exercise of our discretion, we decline to review these appellants’ arguments on this issue. Appellant Davenport’s sentence on the felony facilitation count runs concurrently with the misdemeanor conviction for possession. However, he received a three-year sentence on the felony count, suspended to six months’ confinement, with three years’ probation upon release from confinement, whereas he received a sentence of six months only on the misdemeanor. We must therefore review the conviction on the facilitation count. Davenport’s appeal on this count presents us with a question of interpretation of 21 U.S.C. § 843(b), which prohibits the use of a telephone to facilitate certain drug-related felonies. Davenport specifically was charged in Count 19 of the indictment as follows: On or about October 28,1975, in the State and Northern District of California, STEPHEN BRUCE DAVENPORT, aka Steve, defendant herein, did, in violation of Title 21, United States Code, Section 843(b), knowingly and willfully use a communication facility namely, a telephone, in facilitating a conspiracy to possess with intent to distribute and to distribute heroin and cocaine, in violation of Title 21, United States Code, Sections 846 and 841(a)(1). The telephone call specified in the indictment as the basis for the charge was a telephone call between Davenport and Johnson, in which Davenport attempted to purchase a small amount of cocaine. The evidence does not support a finding that Davenport knew of the existence of the conspiracy to distribute, nor that he had any involvement in the distribution of cocaine or heroin himself. Davenport, in the telephone conversation was, at • most, attempting to purchase cocaine for his personal use. Although there was some effort by the prosecution to establish from the telephone conversation that Davenport was attempting to acquire cocaine for distribution, the small amount he sought to obtain (2-4 grams) is not ordinarily consistent with an intent to distribute. There was mention in the conversation of wishing to borrow scales to “weigh something" } ]

[ { "docid": "22272027", "title": "", "text": "the use of a communication facility “in committing or in causing or facilitating the commission of, or in attempting to commit, any act or acts constituting an offense or a conspiracy to commit [various substantive narcotics offenses]_” The court concluded that the failure to carry over the conspiracy and attempt language of section 1403(a) to 21 U.S.C. § 843(b) evinced a congressional intent not to make narcotics conspiracies and attempts to commit substantive narcotics violations subject to communications facility charges. See United States v. Farrar, 470 F.Supp. 128, 129 (S.D.Miss.1979). The government contends that the holding in Leslie has been uniformly rejected and that the defendants were properly convicted of the section 843(b) counts because the telephone calls facilitated the conspiracy to import and distribute heroin. We agree. A review of the case law from circuits that have addressed this issue demonstrate that appellants’ reliance on Leslie is ill-advised due to the fact that its reasoning and holding have largely been abandoned. In United States v. Pierorazio, 578 F.2d 48, 51 (3d Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 652 (1978), the Third Circuit rejected the reasoning in Leslie, stating that: “Section 843(b) makes criminal the use of a telephone ‘in committing, or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter [subchapter I] or subchapter II of this chapter [chapter 13 of Title 21].’ Included within sub-chapter I is section 846, which makes it a felony for a person to attempt or conspire to commit any offense defined in subchapter I (such as distribution or possession with intent to distribute, defined as offenses in section 841). In other words, attempt to distribute a controlled substance, conspiracy to distribute a controlled substance, attempt to possess a controlled substance with intent to distribute it, and conspiracy to possess a controlled substance with intent to distribute it, are all felonies under provisions of subchapter I. As such, they are plainly included within the terms of section 843(b). We can discern nothing in the legislative history,[ ] nor" }, { "docid": "23150341", "title": "", "text": "HOLLOWAY, Circuit Judge. Defendants-appellants Watson, Maxwell, and Brown have taken these timely direct appeals from convictions under 21 U.S.C. § 846, conspiracy to commit offenses defined in 21 U.S.C. § 841(a)(1), (distributing or possessing with intent to distribute, etc., a controlled substance) and in 21 U.S.C. § 843(b), (use of a communication facility to facilitate the commission of offenses defined in 21 U.S.C. § 841(a)(1)) and from convictions of each appellant of a substantive offense under § 843(b) of such use of a telephone. Appellants’ major contentions are that tape recordings of intercepted telephone conversations and transcripts thereof were improperly permitted to be used against them, that there was insufficient proof to support their convictions, and that there was, in any event, no single conspiracy proved as charged. Several other arguments are also made, and we will discuss all those having some substance. The indictment charged fifteen individuals, including appellants, with conspiracy knowingly and intentionally to possess with intent to distribute and to distribute heroin and cocaine, and to use a telephone to facilitate commission of such offenses. In addition, appellants were each charged with one count of knowingly and intentionally using a communications facility, i. e., a telephone, to facilitate the accomplishment of and to accomplish the possession with intent to distribute and the distribution of heroin and cocaine. The conspiracy involved a California supplier, “Pete” Anderson, a Tulsa wholesaler, John Thompson, assisted by one Karen Brooks, and several retailers or street dealers, including appellants Watson, Maxwell, and Brown. Appellants claim there was insufficient evidence in this case to support their convictions. Viewing all the evidence, together with all reasonable inferences therefrom, in the light most favorable to the government, as we must, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Krohn, 573 F.2d 1382, 1385 (10th Cir.), cert. denied sub nomine Hahn v. United States, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792; United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), we must disagree with this contention. Yet, since appellants have challenged the admission in evidence" }, { "docid": "21597355", "title": "", "text": "21 U.S.C.A. § 843(b), the Government must establish that the defendant knowingly and intentionally used a communications facility, e.g., a telephone, to facilitate the commission of a narcotics offense. In order to establish the facilitation element, the Government must show that the telephone call comes within the common meaning of facilitate—“to make easier” or less difficult, or to assist or aid. It is sufficient if a defendant’s use of a telephone to facilitate the possession or distribution of controlled substances facilitates either his own or another person’s possession or distribution.’ United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. Unit B 1981) (emphasis supplied), cert. denied, 457 U.S. 1136 [102 S.Ct. 2965, 73 L.Ed.2d 1354] (1982); see United States v. Watson, 594 F.2d 1330, 1342 n. 14 (10th Cir.) (defendant could be charged with telephone facilitation if underlying distribution was by either himself or third party), cert. denied, 444 U.S. 840 [100 S.Ct. 78, 62 L.Ed.2d 51] (1979).” As noted previously, the jury found Harper guilty of conspiracy and “simple” possession of cocaine in addition to the use of a communication facility. The “simple” possession crime was a lesser-included offense of the crime of possession of cocaine with intent to distribute, on which the jury acquitted Harper. Harper alleges that the findings of guilt on the use of a communication facility charges are inconsistent with the finding of guilt for “simple” possession of cocaine. Harper somehow argues that his guilty verdict on the possession offense means that the jury impliedly found that Harper did not use the telephone to obtain cocaine with intent to distribute, a finding which Harper contends is inconsistent with his conviction of a use of a communication facility offense. Thus, he argues that the use of a communication facility convictions must be reversed. We disagree. It is well settled that an alleged “inconsistency” between a jury’s verdicts, if in fact one does exist, does not support reversal of a conviction in a criminal case. In the leading case on this issue, United States v. Powell, 469 U.S. 57, 69, 105 S.Ct. 471, 479, 83 L.Ed.2d" }, { "docid": "22272029", "title": "", "text": "has any policy been advanced, which would call for a different result.[] Hence, the fact that particular language found in former section 1403(a) was thereafter omitted from section 843(b) does not persuade us that Congress intended to preclude a section 843(b) facilitation conviction where the underlying felony is attempt or conspiracy under section 846.” (Emphasis in original and footnotes omitted). Decisions from the Second, Fifth, Sixth, Ninth and Tenth Circuits are in accordance with the Third Circuit’s holding in Pierorazio. See United States v. McGhee, 854 F.2d 905, 908 (6th Cir.1988); United States v. Rey, 641 F.2d 222, 224 n. 6 (5th Cir.), cert. denied, 454 U.S. 861, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981); United States v. Watson, 594 F.2d 1330, 1343 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979); United States v. Rodriguez, 546 F.2d 302, 307-08 (9th Cir.1976); United States v. Steinberg, 525 F.2d 1126, 1133 (2d Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). Although this Court has not dealt expressly with this issue, it is worth noting that in United States v. Keck, 773 F.2d 759 (7th Cir.1985), without expressly addressing the argument raised herein, we upheld a defendant’s section 843(b) conviction where the underlying offense was conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. In any case, we agree with the reasoning set forth in Pierorazio and the cases cited above and hold that a violation of 21 U.S.C. § 843(b) may be premised on the facilitation of a narcotics conspiracy, a felony under 21 U.S.C. § 846. In view of our holding in section IV.A. of this opinion that there was sufficient evidence to establish the existence of a conspiracy to import and distribute heroin, we conclude that the government established the required predicate offense for the defendants’ section 843(b) convictions. The defendants next argue that even if the conspiracy charge was an adequate underlying offense for their section 843(b) convictions, the government nevertheless failed to establish that the telephone calls “facilitated” the conspiracy. According to them," }, { "docid": "22272086", "title": "", "text": "and includes mail, telephone, wire, radio, and all other means of communication.” . In a similar vein, Ajibade also contends that because \"the government alleged both inchoate offenses and the substantive object of the inchoate crimes” as predicate offenses for the section 843(b) charge, the government was required to prove, by a preponderance of the evidence, each of the inchoate and substantive offenses alleged in each count. Although the indictment alleged in the conjunctive that the telephone calls facilitated the substantive narcotics offenses (importation, distribution and possession with intent to distribute), as well as the conspiracy to commit those offenses, it was sufficient for the government to prove that either the substantive offenses or the conspiracy to commit those offenses was facilitated. See Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970); United States v. Watson, 594 F.2d 1330, 1343 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). . Although not a sufficiency of the evidence question, Ajibade also argues that his convictions under section 843(b) are invalid because there were no allegations in the counts based on that section from which he could determine what he allegedly facilitated through the use of a communications facility. Ajibade contends that this deficiency violates United States v. Hinkle, 637 F.2d 1154 (7th Cir.1981), in which this court held that an indictment charging violations of 21 U.S.C. § 843(b) “must specify the type of communication facility used, the date on which it was used, the controlled substance involved and some sort of statement of what is being facilitated with that controlled substance which constitutes a felony.” Id. at 1158. Counts 87, 88 and 92—the counts in.the indictment charging Ajibade with violations of section 843(b)—allege that on a certain date and time, Ajibade \"knowingly and intentionally use[d] and caused to be used communication facilities, namely telephones, in committing and causing and facilitating the commission of, violations of Title 21, U.S.Code sections 841(a)(1), 846, 952(a) and 963, namely, the unlawful importation of heroin, possession with intent to distribute heroin, distribution of heroin," }, { "docid": "11877506", "title": "", "text": "from approving an entrapment charge involving two elements, with different burdens of proof on different parties for each element. We see no valid justifications for imposing such a confused standard on a jury in a criminal case for a judicially created defense which, as pointed out above, involves essentially a single element. Indeed, we are supported in this view by the Government brief in this case which concedes that “it must fairly be said that the initial treatment in the charge of the entrapment issue could generate confusion on the part of the jury.” The judgment of the district court will be affirmed as to Count III and reversed as to all other counts on which defendant was convicted. The case will be remanded for a new trial or other proceedings consistent with this opinion. . Counts I and II involved possession with intent to distribute, and knowing and intentional distribution, on March 22, 1972. Count III involved intentional use of a telephone in facilitating the intentional distribution of heroin on January 5, 1972.. Count IV is not in issue, since Watson was acquitted on this count. Counts V and VI involved intentional use of a telephone to facilitate distribution, and conspiracy to distribute, on March 31, 1972. 21 U.S.C. §§ 841(a)(1), 843(b), 846. He was sentenced on Count I to a prison term of ten years and given suspended sentences or parole on the other counts on which he was convicted. 436-437, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). . Although the Government stated at oral argument that its failure to object to the giving of the charge was merely tactical, we note that Government counsel in his closing argument to the jury conceded that Watson’s testimony had raised the defense of entrapment and had made the defense a question of fact for the jury. . Watson admitted that he had been using narcotics for two years prior to the meeting. The fact that he was a user, however, does not establish that he was also a predisposed seller unable to claim entrapment. United States v. Ewbank, 483 F.2d" }, { "docid": "22272026", "title": "", "text": "well as conspiracy and attempt to commit such offenses. The defendants present several arguments challenging the government’s proof supporting their convictions under section 843(b). We address these arguments in turn. The defendants initially contend that the government failed to establish that the telephone calls serving as the basis for the counts charging them with section 843(b) violations resulted in actual distributions of heroin, which, according to them, is a requirement of demonstrating a violation of that section. In support of this argument, the defendants cite the reasoning applied in United States v. Leslie, 411 F.Supp. 215 (D.Del.1976), urging us to adopt the holding therein. In Leslie, the court held that proof of an underlying actual, consummated substantive offense under the federal narcotics laws is a necessary predicate for a section 843(b) conviction. In so holding, the court stated that a section 843(b) violation could not be premised upon an inchoate offense, such as attempt or conspiracy. The court reached this result by comparing section 843(b) with its predecessor, 18 U.S.C. § 1403(a) (1964), which proscribed the use of a communication facility “in committing or in causing or facilitating the commission of, or in attempting to commit, any act or acts constituting an offense or a conspiracy to commit [various substantive narcotics offenses]_” The court concluded that the failure to carry over the conspiracy and attempt language of section 1403(a) to 21 U.S.C. § 843(b) evinced a congressional intent not to make narcotics conspiracies and attempts to commit substantive narcotics violations subject to communications facility charges. See United States v. Farrar, 470 F.Supp. 128, 129 (S.D.Miss.1979). The government contends that the holding in Leslie has been uniformly rejected and that the defendants were properly convicted of the section 843(b) counts because the telephone calls facilitated the conspiracy to import and distribute heroin. We agree. A review of the case law from circuits that have addressed this issue demonstrate that appellants’ reliance on Leslie is ill-advised due to the fact that its reasoning and holding have largely been abandoned. In United States v. Pierorazio, 578 F.2d 48, 51 (3d Cir.), cert. denied," }, { "docid": "21597354", "title": "", "text": "the evidence was sufficient to establish Grier and Harper’s guilt on conspiracy charges. Thus, Grier and Harper’s convictions for use of a communication fa cility could be based upon their conspiracy convictions. Harper goes on to argue that his conviction also must be reversed because the jury’s finding of guilt on the charge of use of a communication facility in committing, causing or facilitating a drug-related offense was logically inconsistent with its finding that he was guilty of “simple” possession of cocaine. Under 21 U.S.C. § 843(b) the government must prove a “(1) knowing or intentional (2) use of a telephone (3) to facilitate the commission of an offense.” United States v. Jefferson, 714 F.2d 689, 699 (7th Cir.1983) (citations omitted). As we observed in United States v. Alvarez, 860 F.2d at 813: “[T]he actual distribution of narcotics need not be perpetrated by the defendant charged with the crime of telephone facilitation. As the Fifth Circuit aptly summarized the crime of telephone facilitation under 21 U.S.C. § 843(b): ‘In order to prove a violation of 21 U.S.C.A. § 843(b), the Government must establish that the defendant knowingly and intentionally used a communications facility, e.g., a telephone, to facilitate the commission of a narcotics offense. In order to establish the facilitation element, the Government must show that the telephone call comes within the common meaning of facilitate—“to make easier” or less difficult, or to assist or aid. It is sufficient if a defendant’s use of a telephone to facilitate the possession or distribution of controlled substances facilitates either his own or another person’s possession or distribution.’ United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. Unit B 1981) (emphasis supplied), cert. denied, 457 U.S. 1136 [102 S.Ct. 2965, 73 L.Ed.2d 1354] (1982); see United States v. Watson, 594 F.2d 1330, 1342 n. 14 (10th Cir.) (defendant could be charged with telephone facilitation if underlying distribution was by either himself or third party), cert. denied, 444 U.S. 840 [100 S.Ct. 78, 62 L.Ed.2d 51] (1979).” As noted previously, the jury found Harper guilty of conspiracy and “simple” possession of cocaine in" }, { "docid": "22272025", "title": "", "text": "distribute heroin. Based on this evidence, we cannot say on this record that the jury acted irrationally in reaching this conclusion. Under Jackson v. Virginia, supra, this determination ends our inquiry on this issue. See Vega, 860 F.2d at 800. Thus, we affirm Briscoe’s conviction on the conspiracy charge. B. Telephone Facilitation Counts Defendants Orija, Erinle, Dua-le, Smith and Ajibade argue that the evidence was insufficient to establish their convictions under 21 U.S.C. § 843(b) for using the telephone to facilitate the violation of the federal narcotics laws. In order to prove a violation of this section, “the Government must establish that the defendant knowingly and intentionally used a communications facility, e.g., a telephone, to facilitate the commission of a narcotics offense.” United States v. Alvarez, 860 F.2d 801, 813 (7th Cir.1988) (quoting United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. Unit B 1981)). The government alleged at trial that the defendants used the telephone to facilitate the following offenses: importation of heroin, possession with intent to distribute heroin, distribution of heroin, as well as conspiracy and attempt to commit such offenses. The defendants present several arguments challenging the government’s proof supporting their convictions under section 843(b). We address these arguments in turn. The defendants initially contend that the government failed to establish that the telephone calls serving as the basis for the counts charging them with section 843(b) violations resulted in actual distributions of heroin, which, according to them, is a requirement of demonstrating a violation of that section. In support of this argument, the defendants cite the reasoning applied in United States v. Leslie, 411 F.Supp. 215 (D.Del.1976), urging us to adopt the holding therein. In Leslie, the court held that proof of an underlying actual, consummated substantive offense under the federal narcotics laws is a necessary predicate for a section 843(b) conviction. In so holding, the court stated that a section 843(b) violation could not be premised upon an inchoate offense, such as attempt or conspiracy. The court reached this result by comparing section 843(b) with its predecessor, 18 U.S.C. § 1403(a) (1964), which proscribed" }, { "docid": "23150367", "title": "", "text": "commission of, and facilitating knowing and intentional possession with intent to distribute and distribution of controlled substances, and that there was no proof of any delivery of the substances after the calls. Since the actual offense charged, which included distribution, was not proven, appellants contend there was insufficient proof of violation of § 843(b), as was held by United States v. Leslie, 411 F.Supp. 215 (D.C.Del.); cf. United States v. Rodriguez, 546 F.2d 302, 307-09 (9th Cir.). There are variations in the facts with respect to each of these three appellants, and the proof was stronger against defendants Watson and Maxwell than it was against defendant Brown. Neverthe less, we are persuaded that the substantive convictions of all these appellants should be upheld on the basis of the position presented by the government to the trial court, and as accepted and spelled out in the discussion of the issue by the trial judge when he overruled the defendants’ motions for acquittal. (V R. 690-701). The theory of the trial judge was essentially that, viewing the evidence favorably to the government, Thompson was a distributor, that he was committing the felony of possession with intent to distribute the controlled substances, that under the modus operandi of Thompson the telephone was used to facilitate distribution, and that when defendants used the telephone and contacted Thompson, they thus facilitated his unlawful possession with intent to distribute. We agree, for the telephone, as this record shows, was indeed used to facilitate distribution and to reap the profits which fed the operation. Viewing the evidence favorably to the government, there was proof that the appellants, as street dealers, were using the telephone to obtain heroin or cocaine for resale. Their calls come within the common meaning of facilitate— “to make easier,” Webster’s New Collegiate Dictionary, p. 410 (1975) — by making easier the commission, of the offense of possessing the substances with intent to distribute. The facilitation of that offense of possession is enough. Although the indictment did also allege conjunctively that the calls aided the distribution of the substances as well as possession with" }, { "docid": "2498222", "title": "", "text": "HUG, Circuit Judge: Searcy Baker Andrews, Charles Johnson, Anthony Martin, Lewis Dixon, Nolan Hall and Stephen Davenport appeal from their convictions for violations of federal laws relating to the distribution and possession of illegal drugs. Defendants Andrews, Johnson, Hall and Martin were convicted after a two-day trial before the court, the primary evidence considered by the court being facts stipulated to by the prosecution and the defense. Defendants Davenport and Dixon were convicted after a jury trial. All of the convictions arose from the same set of events, and the cases have been consolidated on appeal. Although the appellants challenge their convictions on numerous grounds, the principal issues presented for review concern the admissibility of evidence obtained through the use of wiretaps and the requisite elements of the crime of facilitation of the commission of a felony. We affirm as to all parties except Davenport. We affirm his conviction for attempted possession of narcotics, but reverse his conviction for facilitation of the drug conspiracy. I. COURSE OF THE PROCEEDINGS All defendants were charged in one count with conspiracy to distribute, and to possess with the intent to distribute, heroin and cocaine, in violation of 21 U.S.C. § 846. All defendants except Davenport were convicted of this charge. The jury acquitted Davenport of the conspiracy charge, but convicted him of attempted possession of cocaine or heroin. All defendants were charged in various counts with use of a telephone to facilitate a conspiracy in violation of 21 U.S.C. § 843(b), and each was convicted on one or more counts arising out of these charges. Except in the case of Davenport, the sentence imposed on each defendant was ordered to run concurrently with his sentence for the conspiracy conviction. In Davenport’s case, the sentence was ordered to run concurrently with the sentence for the attempted possession charge. Andrews was also convicted of the substantive offense of possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The sentence imposed was ordered to run concurrently with the sentence for the conspiracy conviction. II. FACTS In mid-1975, the Drug Enforcement Administration" }, { "docid": "23532178", "title": "", "text": "shipntents of cocaine with Papajohn at the time of the actual transaction. We reject appellant’s argument that the evidence disclosed only a buyer-seller relationship. Because the crime of conspiracy requires a concert of action among two or more persons for a common purpose, the mere agreement of one person to buy what another agrees to sell, standing alone, does not support a conspiracy conviction. The relationship of buyer and seller absent any prior or contemporaneous understanding beyond the mere sales agreement does not prove a conspiracy to sell, receive, barter or dispose of stolen property although both parties know of the stolen character of the goods. In such circumstances, the buyer’s purpose is to buy; the seller’s purpose is to sell. There is no joint objective. United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.) (conspiracy to distribute and to possess with intent to distribute heroin), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978), citing United States v. Ford, supra, 324 F.2d at 952 (conspiracy involving stolen goods; emphasis added). However, the buyer-seller relationship cases upon which appellant relies involved only evidence of “a single transient sales agreement” and small amounts of drugs consistent with personal use. See United States v. Mancillas, supra, 580 F.2d at 1307; accord, United States v. Watson, 594 F.2d 1330, 1337 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979); cf. United States v. Martin, 599 F.2d 880, 888-89 (9th Cir.) (person who attempts to purchase small amount of drug for personal use from a member of a conspiracy to sell that drug cannot be convicted by that act alone of facilitation of a conspiracy under 21 U.S.C. § 843(b)), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979). The large quantity of cocaine involved here supports an inference or prs sumption that appellant knew that he was “a part of a venture which extend[ed] beyond his individual participation.... By virtue of this quantity the vertical nature of the conspiracy was known to the suppliers and customers.” United States v. Magnano, 543" }, { "docid": "23270906", "title": "", "text": "to do with how he operates his business, or, if it does, it’s so marginally relevant that it doesn’t mean anything. We agree. The Avery cocaine network at issue in this conspiracy case began after the falling-out with Cappas. The specific events that brought an end to the Avery-Cappas relationship are merely background information for the events charged in count one of the indictment. The proffered testimony has no purpose other than to buttress a claim that the witness was lying. Merely attempting to prove that a witness is lying is not a proper purpose of impeachment by contradiction. Simmons Inc., 762 F.2d at 604. The district court, therefore, committed no error in excluding the testimony. 2. The application of the “Buyer-Seller” defense to 21 U.S.C. § 843(b) The appellants were convicted of using a communication facility to facilitate the distribution of cocaine in violation of 21 U.S.C. § 843(b). They argued that if they were using the telephone to purchase cocaine for their own use, the buyer-seller defense should apply and preclude conviction under section 843(b). The district court instructed the jury that the buyer-seller defense was a valid defense to the conspiracy charge. On the telephone charges, however, the court gave the following instruction: Concerning the use of a telephone, however, a person may facilitate the distribution of drugs without regard to what the person does or intends to do with the cocaine that is purchased. The appellants claim that this instruction was improper. We reject their argument on this point. The statute in question reads as follows: It shall be unlawful for any person knowingly or intentionally to use [the telephone] in ... facilitating the commission of any act or acts constituting a felony under any provision of [Title II of the Comprehensive Drug Abuse Prevention and Control Act]. 21 U.S.C. § 843(b). Distributing cocaine is felony under that act. 21 U.S.C. § 841. The appellants were charged with using the telephone to facilitate that distribution. If, by their use of the telephone, the appellants have made the distribution of the cocaine easier, they have facilitated it" }, { "docid": "2498242", "title": "", "text": "843(b), knowingly and willfully use a communication facility namely, a telephone, in facilitating a conspiracy to possess with intent to distribute and to distribute heroin and cocaine, in violation of Title 21, United States Code, Sections 846 and 841(a)(1). The telephone call specified in the indictment as the basis for the charge was a telephone call between Davenport and Johnson, in which Davenport attempted to purchase a small amount of cocaine. The evidence does not support a finding that Davenport knew of the existence of the conspiracy to distribute, nor that he had any involvement in the distribution of cocaine or heroin himself. Davenport, in the telephone conversation was, at • most, attempting to purchase cocaine for his personal use. Although there was some effort by the prosecution to establish from the telephone conversation that Davenport was attempting to acquire cocaine for distribution, the small amount he sought to obtain (2-4 grams) is not ordinarily consistent with an intent to distribute. There was mention in the conversation of wishing to borrow scales to “weigh something out” and of “splitting it up”, but it was apparent from the testimony of an expert witness and a lay witness associated with Davenport that this had nothing to do with the cocaine conspiracy, but rather, related to the division of some marijuana that he and a friend had purchased. Furthermore, it is evident from a careful review of the transcript, the instructions of the court, and the numerous questions from the jury concerning those instructions, that both the judge and the jury were of the opinion that Davenport was not attempting to purchase cocaine for distribution, but was attempting to purchase cocaine from Johnson for his own use. The basic premise of Davenport’s argument is that a purchaser’s relationship to the distribution conspiracy from which he buys is of such a marginal nature that he cannot be considered a “facilitator” within the meaning of the statute. Simply stated, he argues that a buyer cannot facilitate the very sale which creates his status. The government argues that a conspiracy is an ongoing enterprise, a continuing" }, { "docid": "12706219", "title": "", "text": "he can be convicted of using a telephone to facilitate distribution of cocaine when the underlying offense is not distribution of cocaine but only possession with intent to distribute. Possession with intent to distribute and distribution are violations of the same statute, 21 U.S.C. § 841(a)(1) (1982); and pursuant to 21 U.S.C. § 843(b) (1982), the plaintiff can be convicted for using a telephone to facilitate “any act or acts constituting a felony under any provision of this subchapter_” Thus, plaintiff’s conviction on count 9 could be based on either distribution or possession with intent to distribute. The verdicts on counts 9 and 10 are not inconsistent. Furthermore, defendant does not explain how the new evidence would shed any light on the jury’s alleged inconsistency or would be likely to change the verdict. Thus, the court did not abuse its discretion in denying the motion. V. Appeal from Denial of Motion for Judgment of Acquittal Based on Insufficient Evidence to Support a Conviction for the Use of a Communication Facility Section 843(b) of title 21 provides: It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. 21 U.S.C. § 843(b) (1982). To prove “facilitation” this court has required a showing that the use of the communication facility, a telephone in this case, makes the commission of the offense easier. United States v. Watson, 594 F.2d 1330, 1343 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). The Government argues that when he telephoned, by reaching a busy signal defendant inferred that Ms. Royal (a known source) was at home; and he therefore immediately went to Ms. Royal’s apartment where he obtained cocaine. The jury could have inferred that if he had not reached a busy signal, defendant would not have gone to Ms. Royal’s apartment, and might have gone to other efforts to procure cocaine elsewhere. Therefore, the call facilitated the" }, { "docid": "2498240", "title": "", "text": "of 37 days. In light of the significance of Johnson’s involvement in the conspiracy and the state of the investigation at the time the extension was granted, we think this period was reasonable. The wiretaps on the other phones were used only for brief periods of time and were also reasonable. V. FACILITATION OF THE CONSPIRACY Dixon, Johnson, Andrews and Davenport contest the validity of their convictions under 21 U.S.C. § 843(b) for the use of a telephone to facilitate the conspiracy to possess with the intention to distribute and to distribute cocaine or heroin. We do not reach the contentions of Dixon, Johnson and Andrews, for the reason that their sentences under this conviction run concurrently with the sentences on the conspiracy conviction which we affirm. This circuit follows the concurrent sentence doctrine under which the appellate court, as a matter of discretion, may decline to review a conviction under one count if a conviction under another count is affirmed and the sentences run concurrently and no adverse collateral legal consequences for the appellant result from the additional conviction. United States v. Walls, 577 F.2d 690, 699 (9th Cir. 1978). We find no adverse collateral legal consequences to these applicants; and, in the exercise of our discretion, we decline to review these appellants’ arguments on this issue. Appellant Davenport’s sentence on the felony facilitation count runs concurrently with the misdemeanor conviction for possession. However, he received a three-year sentence on the felony count, suspended to six months’ confinement, with three years’ probation upon release from confinement, whereas he received a sentence of six months only on the misdemeanor. We must therefore review the conviction on the facilitation count. Davenport’s appeal on this count presents us with a question of interpretation of 21 U.S.C. § 843(b), which prohibits the use of a telephone to facilitate certain drug-related felonies. Davenport specifically was charged in Count 19 of the indictment as follows: On or about October 28,1975, in the State and Northern District of California, STEPHEN BRUCE DAVENPORT, aka Steve, defendant herein, did, in violation of Title 21, United States Code, Section" }, { "docid": "23228000", "title": "", "text": "did not constitute a substantial step to sustain a conviction for attempted possession with intent to distribute heroin because too many steps remained for the crime to be completed. (citation and internal quotation marks omitted). Here, as in Hemandez-Franco, “there was much less uncertainty,” as the only task remaining was for Munoz to obtain the cocaine. Id. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could conclude that Mincoffs conduct “was undertaken in accordance with a design to violate the statute.” Id. (citation omitted). C. Sufficiency of Evidence of Unlawful Use of a Communication Facility “In order to show a violation of section 843(b), the government must establish knowing and intentional use of a communications facility, e.g., a telephone, to facilitate the commission of a narcotics of fense.” United States v. Davis, 960 F.2d 820, 827 (9th Cir.1992) (citation, alterations, and internal quotation marks omitted). “The knowledge element of § 843(b) requires the government to prove that the defendant knowingly or intentionally used the communication device in order to aid or facilitate the underlying criminal violation.” United States v. Whitmore, 24 F.3d 32, 35 (9th Cir.1994) (citations and footnote reference omitted). “What is essential is that the defendant knows that he or she is using the communication device to facilitate the drug transaction.” Id. There was sufficient evidence to support Mincoffs convictions under § 843(b). The recorded calls between Mineoff and Munoz, where price, quantity, and delivery were discussed, establish that Mineoff knowingly used a telephone to facilitate the distribution of cocaine. See Davis, 960 F.2d at 827 (concluding that direct and circumstantial evidence were sufficient to show that defendant used a telephone, or instructed another to use a telephone, to facilitate a drug deal). Mincoffs reliance on United States v. Rivera, 775 F.2d 1559 (11th Cir.1985), is unavailing because he went far beyond merely checking on the status of Munoz’s efforts. Cf. id. at 1562 (noting that defendant made calls “simply to find out whether any sales had been made,” not to facilitate the sales). In contrast, Mineoff urged Munoz to find a" }, { "docid": "22272030", "title": "", "text": "expressly with this issue, it is worth noting that in United States v. Keck, 773 F.2d 759 (7th Cir.1985), without expressly addressing the argument raised herein, we upheld a defendant’s section 843(b) conviction where the underlying offense was conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. In any case, we agree with the reasoning set forth in Pierorazio and the cases cited above and hold that a violation of 21 U.S.C. § 843(b) may be premised on the facilitation of a narcotics conspiracy, a felony under 21 U.S.C. § 846. In view of our holding in section IV.A. of this opinion that there was sufficient evidence to establish the existence of a conspiracy to import and distribute heroin, we conclude that the government established the required predicate offense for the defendants’ section 843(b) convictions. The defendants next argue that even if the conspiracy charge was an adequate underlying offense for their section 843(b) convictions, the government nevertheless failed to establish that the telephone calls “facilitated” the conspiracy. According to them, the calls could not have facilitated the conspiracy because they were short and innocuous, and because the word “heroin” was never specifically mentioned in any of the conversations. The defendants conveniently overlook the fact that this court has stated on a number of occasions that the absence of an explicit reference to the name of the drug in question does not prevent a rational trier of fact from inferring that the conversations concerned the drug in question. Indeed, in Zambrana, supra, we stated: “[T]he content of the telephone conversations between Jesus and Jay Zambrana and the other co-conspirators provided direct evidence tying them to the attempted delivery of cocaine- Although the word ‘cocaine’ was never referred to in any of the conversations, the trial judge could properly have accepted the government’s contention that phrases such as ‘metallic paint’ were used as code words to allude to the illegal drugs.” 841 F.2d at 1346. Furthermore, in Vega, supra, we observed: “In this case the jury was confronted with conversations which contained ‘code words’ that, when considered" }, { "docid": "2498223", "title": "", "text": "count with conspiracy to distribute, and to possess with the intent to distribute, heroin and cocaine, in violation of 21 U.S.C. § 846. All defendants except Davenport were convicted of this charge. The jury acquitted Davenport of the conspiracy charge, but convicted him of attempted possession of cocaine or heroin. All defendants were charged in various counts with use of a telephone to facilitate a conspiracy in violation of 21 U.S.C. § 843(b), and each was convicted on one or more counts arising out of these charges. Except in the case of Davenport, the sentence imposed on each defendant was ordered to run concurrently with his sentence for the conspiracy conviction. In Davenport’s case, the sentence was ordered to run concurrently with the sentence for the attempted possession charge. Andrews was also convicted of the substantive offense of possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The sentence imposed was ordered to run concurrently with the sentence for the conspiracy conviction. II. FACTS In mid-1975, the Drug Enforcement Administration (DEA) instituted an investigation into what they believed to be a highly sophisticated drug ring involving some of the appellants. To facilitate this investigation, in August of 1975 the DEA sought and received authorization to conduct a series of wiretaps. The primary basis for the appeals of the defendants revolves around the validity of these wiretaps under 18 U.S.C. § 2518, since the most significant evidence offered by the government in the prosecution below was obtained by means of these wiretaps. The initial wiretap was ordered on August 18, 1975. The issuing court authorized a wiretap on the phone of Robert Earl Andrews, a defendant who is not a party to this appeal, authorizing the interception of the conversations of “Robert Earl Andrews and others as yet unknown”. This authorization, although potentially effective for 20 days, was terminated ^ifter seven days, since the phone at the residence was replaced. On August 28, a new wiretap was ordered on this phone, naming Robert Andrews and appellants Searcy Baker Andrews and Charles Johnson as probable con-versers. This" }, { "docid": "9418303", "title": "", "text": "two conduct elements that the government must prove: first that the defendant used a communication facility, and second, that in doing so, the defendant committed, facilitated, or caused to be committed a drug felony. That the commission of or facilitation of an underlying drug felony is a predicate offense to a Section 843(b) violation finds support in the Supreme Court’s decision in Abuelhawa v. United States, 556 U.S. 816, 129 S.Ct. 2102, 173 L.Ed.2d 982 (2009). In Abuelhawa, the Court held that a defendant’s misdemeanor drug purchase could not support a Section 843(b) offense, even though it made possible his drug supplier’s felonious drug distribution. Id. at 2104. In analyzing the legislative history of Section 843(b), the Court reasoned that “Congress-meant to treat purchasing drugs for personal use more leniently than the felony of distributing drugs, and to narrow the scope of the communications provision to cover only those who facilitate a drug felony.” Id. at 2107 (emphasis added). Implicit in this analysis is the proposition that the defendant commits a felony for which he may be convicted. Our case law similarly requires a defendant to be complicit in an underlying drug felony for a Section 843(b) conviction to stand. For example, in United States v. Baggett, our court held that simple possession of heroin, punishable only as a misdemeanor, could not support a Section 843(b) conviction. 890 F.2d 1095, 1097-98 (10th Cir.1989); accord Abuelhawa, 129 S.Ct. at 2105 n. 2. Later, however, in United States v. Small, our court noted that because possession of more than five grams of crack cocaine is punishable as a felony, it could therefore support a Section 843(b) conviction. 423 F.3d 1164, 1185-86 (10th Cir.2005) (emphasis added). In the instant case, the underlying drug felony is a conspiracy. We have previously held that inchoate crimes such as attempt and conspiracy qualify as drug felonies that may underlie a Section 843(b) offense. United States v. Reed, 1 F.3d 1105, 1108-09 (10th Cir.1993) (“[W]e hold that proof of an underlying inchoate crime, such as attempt or conspiracy under § 846, is sufficient to sustain a facilitation" } ]

[ { "docid": "3073199", "title": "", "text": "serial numbers and handwritten directions explaining how to clone cellular phones. Scott also possessed a credit card “wedge” that can be used to read account information from legitimate credit cards. Scott and his traveling companion at Midway were also holding some $25,000 in cash when they were stopped. As a follow-up to the Midway stop, Scott turned over to postal inspectors some 60 cards and equipment he used to make them into phony, but usable, credit cards. Scott also acknowledged that at one time he possessed an additional 140 credit cards that, in many instances, he manufactured into counterfeit credit cards. He explained that he purchased the 200 cards from the person who created the phony “Kevin Minter” cards he used to make fraudulent purchases in November of 1999. Scott was charged in a 2-count indictment with knowingly possessing 15 or more counterfeit access devices with intent to defraud in violation of 18 U.S.C. § 1029. The access devices were the 414 cloned telephone numbers he possessed at Midway Airport and the 60 counterfeit credit cards he turned over after his Midway arrest. Scott pled guilty, without a plea agreement, to both counts of the indictment, admitting that he possessed the cloned telephone numbers so he could “basically use them for telephone calls without paying for the calls.” He also admitted possessing the 60 counterfeit credit cards “to obtain some things of value [he] wouldn’t have to pay for if [he] used those credit cards.” At his sentencing hearing, Scott made several arguments in an attempt to reduce the amount of loss attributable to him for purposes of calculating his positioning on the sentencing guideline grid. His final argument, the one he makes on this appeal, is that guideline § 2X1.1, which concerns “attempts” to commit a crime, governs his case. The district court rejected Scott’s argument, proceeding instead under the fraud and deceit guideline, § 2F1.1. As we shall see, the court made the right choice. Guideline § 2F1.1, which covers “Fraud and Deceit,” carries a base offense level of 6. Scott then received a 6 level increase in" } ]

[ { "docid": "2181516", "title": "", "text": "because their actions clearly indicate an intent to violate the law. Their argument that the drafts were not unauthorized access devices under the statute is not relevant. The jury verdict did not require evidence that the drafts were unauthorized; the government presented adequate evidence that the drafts were to be counterfeited through alteration. On remand, the district court must determine, based upon a fully developed record, whether the government’s investigatory efforts proceeded from reasoned grounds. AFFIRMED IN PART and REMANDED IN PART. . 18 U.S.C. § 1029(b)(1) provides, \"Whoever attempts to commit an offense under subsection (a) of this section shall be punished as provided in subsection (c) of this section\". . 18 U.S.C. § 1029(e)(3) provides, \"the term ‘unauthorized access device’ means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud\". . Factoring credit card drafts is a common process in which a merchant who does not have a valid credit card account with a bank, sells the drafts at a discount to a merchant who has an account. The authorized merchant deposits the drafts and obtains payment from the bank and then gives a portion to the original merchant. This form of factoring is not illegal, but may violate the merchant's contract with the bank. Factoring of unauthorized credit card drafts however is a violation of 18 U.S.C. § 1029 and is often used to obtain immediate payment for invalid drafts. This type of factoring is often the result of telephone operators who obtain credit card account numbers while advertising sham merchandise to members of the public. The account numbers are then used to produce invalid drafts. The payments from the drafts are received before the card holder discovers the fraud and notifies the bank. There is no evidence that Kegley’s telemarketing activities fit this illegal model. . The acts consist of a March 12, 1987 phone conversation between Kegley and an undercover agent of the secret service, the subsequent March 13, 1987 meeting, the agreement by Keg-ley and Luttrell to supply counterfeit and unauthorized credit card drafts to be processed" }, { "docid": "22872903", "title": "", "text": "proffered at trial fails to establish that she knowingly participated in the chargeback-manipulation scheme. She argues, as she did with respect to the conspiracy count, that she was merely a maternal marionette in her son’s operation. She contends that she simply hit a button and had no knowledge that she was being used to manipulate the chargeback ratio. For the reasons addressed ante at II.F.2, this argument again falls flat. I. Conspiracy to Commit Access-Device Fraud (18 U.S.C. § 1029) Warshak’s next argument is that there was insufficient evidence to support his conviction for conspiracy to commit and attempt to commit access-device fraud, in violation of 18 U.S.C. § 1029(a)(5), (b)(1)-(2). Under 18 U.S.C. § 1029(a)(5), “[whoever ... knowingly and with intent to defraud effects transactions, with 1 or more access devices [such as credit cards] issued to another person or persons, to receive payment or any other thing of value during any 1-year period the aggregate value of which is equal to or greater than $1,000” is guilty of access-device fraud. See United States v. Tunning, 69 F.3d 107, 112 (6th Cir.1995) (“The definition of ‘access device’ includes a credit card.”). An attempt to violate this statute results in “the same penalties as those prescribed for the offense attempted.” 18 U.S.C. § 1029(b)(1). Additionally, those who conspire to violate the statute are subject to slightly diminished penalties. See 18 U.S.C. § 1029(b)(2). Warshak was charged with a single count of conspiracy to commit and attempt to commit access-device fraud (Count 29). The indictment alleged that Warshak conspired to harvest customers’ credit cards from Berkeley’s database and charge them various amounts without the customers’ consent. The indictment also alleged that this was done for the purpose of lowering Berkeley’s chargeback ratio. Admitting that “Berkeley charged customers’ credit cards without authorization to reduce the chargeback ratio,” Warshak contends that the government nonetheless failed to prove that he had the specific intent to defraud and that he conspired to obtain payment from the. cards of more than $1,000. Appellant’s Br. at 120. He notes that, in charging the customers, he “never intended" }, { "docid": "23705384", "title": "", "text": "many activities which it criminalizes, however, a person could be convicted under the credit card fraud statute for: “[o]btain[ing] control over a credit card number as security for debt,” or “[r]emit[ting] to an issuer or acquirer a record of a credit card or credit card number transaction which is in excess of the monetary amount authorized by the cardholder.” § 18.2-195(l)(c), (2)(a). Neither of these activities involves the “taking of property.” As a result, Virginia’s “credit card fraud” offense does not “substantially correspond” to a theft offense under Subsection (G), and the Virginia offense for which Solimán was convicted is thus not a “categorical” match for a Subsection (G) offense, as required by Taylor, 495 U.S. at 602, 110 S.Ct. 2143. Although the bare offense of Soliman’s conviction is not a categorical match for a Subsection (G) theft offense, we are also obliged to apply a “modified” categorical approach, looking beyond the mere fact of her state conviction, to examine the charging papers and similar documents in the state court, to assess what Soliman’s conviction “necessarily rested on.” Shepard, 125 S.Ct. at 1259-61 (describing limitations of such inquiry in plea context); Randhawa v. Ashcroft, 298 F.3d 1148,1152 (9th Cir.2002) (discussing applicability of modified categorical approach to assessment of whether petitioner had committed theft offense). In this regard, the indictment specifies that Solimán “did felo-niously and with the intent to defraud obtain property valued in excess of $200.00, by representing, without the consent of the cardholder, that she was the holder of a Visa check card, issued to Helen Best. Va.Code § 18.2-195.” For multiple reasons, this indictment allegation does not show that Solimán was convicted of all the elements of a “theft offense” under Subsection (G). First, the indictment does not charge Solimán with taking goods without the consent of the merchant, and thus she was not convicted of a theft offense against the merchant. Second, although the indictment does allege, as part of the fraud charge, that Solimán used the credit card itself without consent of its owner, the allegations of the indictment for her fraud conviction, fail to" }, { "docid": "23558482", "title": "", "text": "BATCHELDER, J., delivered the opinion of the court, in which McKEAGUE, J., joined. CLAY, J. (pp. 544-49), delivered a separate dissenting opinion. OPINION ALICE M. BATCHELDER, Circuit Judge. On November 25, 2003, a federal grand jury charged defendant-appellant, Janell Cage (“Cage”), with knowingly and with intent to defraud possessing fifteen access devices in violation of 18 U.S.C. § 1029(a)(2) and 18 U.S.C. § 3147(1). Cage pleaded guilty to Counts 1 and 2, and the district court sentenced her to 37 months in prison followed by two years of supervised release. At the sentencing hearing the court stated that a sentence that falls within the Guidelines range enjoys a presumption of reasonableness. The court sentenced Cage at the bottom of the recommended range. Cage filed this timely appeal challenging the district court’s method of sentencing and the reasonableness of her sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the following reasons, we AFFIRM the district court’s determination. I. Janell Cage has a history of engaging in credit card and access device fraud. From December 2002 through May 2003, Cage used her position as a medical transcriptionist to access confidential information and fraudulently open new credit accounts. She submitted over 30 credit applications, withdrew cash advances, and purchased and insured motor vehicles. Cage admitted using her employment to obtain patients’ names, dates of birth, and Social Security numbers that she then used to open and take over credit card accounts. Her victims’ total losses from her conduct exceeded $132,000. Cage was indicted on June 30, 2003, on several fraud counts. She pleaded guilty to one count of access device fraud in violation of 18 U.S.C. § 1029(a)(2), and was sentenced to 30 months in prison, followed by three years of supervised release. See United States v. Janell Cage, 134 Fed.Appx. 833, 834 (6th Cir.2005). She appealed, and on May 13, 2005, her case was remanded for resentencing consistent with Booker. Id. at 838. After she was indicted but before she was sentenced for those offenses, Cage again engaged in access device fraud. Between" }, { "docid": "22872904", "title": "", "text": "v. Tunning, 69 F.3d 107, 112 (6th Cir.1995) (“The definition of ‘access device’ includes a credit card.”). An attempt to violate this statute results in “the same penalties as those prescribed for the offense attempted.” 18 U.S.C. § 1029(b)(1). Additionally, those who conspire to violate the statute are subject to slightly diminished penalties. See 18 U.S.C. § 1029(b)(2). Warshak was charged with a single count of conspiracy to commit and attempt to commit access-device fraud (Count 29). The indictment alleged that Warshak conspired to harvest customers’ credit cards from Berkeley’s database and charge them various amounts without the customers’ consent. The indictment also alleged that this was done for the purpose of lowering Berkeley’s chargeback ratio. Admitting that “Berkeley charged customers’ credit cards without authorization to reduce the chargeback ratio,” Warshak contends that the government nonetheless failed to prove that he had the specific intent to defraud and that he conspired to obtain payment from the. cards of more than $1,000. Appellant’s Br. at 120. He notes that, in charging the customers, he “never intended for any of the cardholders to lose so much as a dollar.” Appellant’s Br. at 121. Additionally, he observes that “Berkeley’s actions in debiting various customers’ credit cards did not deprive the cardholders of any property or thing of value totaling more than $1000, because Berkeley on virtually every occasion immediately credited back the debit.” Ibid. Warshak’s argument fails for a number of reasons. First, the fact that he only intended for Berkeley’s customers to be temporarily parted from their money has no bearing on the issue of intent to defraud. “Whether he intended that the effects of his fraud be permanent or temporary has no legal relevance.” United States v. Olson, 925 F.2d 1170, 1175 (9th Cir.1991), abrogated on other grounds by United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Thus, the testimony that Warshak deliberately charged customers’ credit cards without permission is sufficient to establish specific intent. Similarly, it is of no consequence that Berkeley’s access to the fraudulently obtained funds was ephemeral. Under the plain language" }, { "docid": "23705380", "title": "", "text": "offense in the aggravated felony context, as including a fraud scheme, is contrary to congressional intent. That alone, however, is not dispos- itive of our resolution of Soliman’s petition for review. In order to complete that determination, we must also assess whether, applying the proper “without consent” element of theft, Solimán has been previously convicted of an “aggravated felony.” B. In assessing whether Soliman’s Virginia state court conviction was for a theft offense, we are obliged to utilize the categorical analysis approach spelled out in Taylor v. United States, 495 U.S. 575, 598-600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This analysis requires that we first examine whether the statutory elements of credit card fraud in Virginia, under Virginia Code § 18.2-195, include the elements of an aggravated felony theft offense, under Subsection (G), “regardless of [the] exact definition or label” of the Virginia crime. Taylor, 495 U.S. at 599, 110 S.Ct. 2143. If the statute of conviction may, but does not necessarily, include all the elements of “theft” under Subsection (G), we are then obliged to look to the indictment (or information) and similar documents for the state law offense, and assess whether the state court, in adjudging guilt, was required to find the elements of theft required by federal law. Shepard v. United States, — U.S.-, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005); Taylor, 495 U.S. at 602, 110 S.Ct. 2143. 1. Importantly for this analysis, the Commonwealth of Virginia has created separate statutory provisions for “credit card theft,” on the one hand, and “credit card fraud,” on the other. In Virginia Code § 18.2-192, entitled “Credit card theft,” an offender’s unauthorized taking of money from a credit card owner is criminalized. This provision specifies that a person is guilty of credit card theft when, inter alia, the offender takes a credit card or credit card number from the person, possession, custody or control of another without the cardholder’s consent ... with intent to use it or sell it, or to transfer it to a person other than the issuer or the cardholder. § 18.2-192(a). A separate" }, { "docid": "16513243", "title": "", "text": "threshold on trafficking ... and the possession of 15 or more ... counterfeit devices, will insure that Federal involvement is concentrated on those situations where they can best supplement the efforts of State and local governments. H.R.Rep. No. 894, 98th Cong., 2d Sess. 16, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3689, 3702. The House Report explains that [sjection 1029(a)(3) provides a separate offense for possession of 15 or more counterfeit or unauthorized access devices with intent to defraud. The purr pose of the numerical limitation is to concentrate Federal Government involvement on major traffickers and counterfeiters and to authorize such involvement even in cases where producing, trafficking in or using such access devices cannot be established. Id. at 17, reprinted in 1984 U.S.Code Cong. & Admin.News at 3703 (emphasis added). Rushdan contends that the statute embodies Congress’ desire to place a substantial limitation on federal jurisdiction over credit card offenses. The legislative history of section 1029 does not support Rush-dan’s view. There is no evidence that Congress was concerned about an overly broad exercise of jurisdiction; rather, the sections of the House Report quoted suggest that Congress wanted to establish a broad jurisdictional base for prosecution of credit card offenses that were large enough to meet the specified thresholds as to dollar amount or number of access devices possessed. Cases under section 1029 and 15 U.S.C. § 1644, which prohibits fraudulent use affecting interstate commerce of legitimate credit cards, have not interpreted the interstate commerce requirement in situations similar to Rushdan’s, but have interpreted the requirement in cases dealing with use of a counterfeit or fraudulently obtained credit card, rather than with possession of such credit cards. See, e.g., United States v. Lee, 818 F.2d 302, 305 (4th Cir.1987) (interstate telephone call by a bank manager triggered by defendant’s attempt to use credit card sufficient to establish interstate commerce under § 1029); United States v. Helgesen, 513 F.Supp. 209, 218 (E.D.N.Y.1981) (transaction affected interstate commerce as required by 15 U.S.C. § 1644 when defendant used stolen credit card to obtain payments from federally insured bank). The government cites" }, { "docid": "23705385", "title": "", "text": "“necessarily rested on.” Shepard, 125 S.Ct. at 1259-61 (describing limitations of such inquiry in plea context); Randhawa v. Ashcroft, 298 F.3d 1148,1152 (9th Cir.2002) (discussing applicability of modified categorical approach to assessment of whether petitioner had committed theft offense). In this regard, the indictment specifies that Solimán “did felo-niously and with the intent to defraud obtain property valued in excess of $200.00, by representing, without the consent of the cardholder, that she was the holder of a Visa check card, issued to Helen Best. Va.Code § 18.2-195.” For multiple reasons, this indictment allegation does not show that Solimán was convicted of all the elements of a “theft offense” under Subsection (G). First, the indictment does not charge Solimán with taking goods without the consent of the merchant, and thus she was not convicted of a theft offense against the merchant. Second, although the indictment does allege, as part of the fraud charge, that Solimán used the credit card itself without consent of its owner, the allegations of the indictment for her fraud conviction, fail to demonstrate that she was convicted of each element of credit card theft. In particular, the indictment tracks the provisions of § 18.2 — 195(l)(b)(i) of Virginia’s credit card fraud statute, which makes it unlawful for any person, with the intent to defraud, to “obtain[] money, goods, services or anything else of value by representing ... without the consent of the cardholder that he is the holder of a specified card or credit card number.” Importantly, the indictment does not track § 18.2-195(l)(a) of the statute, which deals with the situation where a fraud scheme arises from an underlying credit card theft — where the card used to obtain property has been obtained “in violation of 18.2-192,” the credit card theft statute. Nor is it conclusive, from the indictment, that Solimán actually obtained any proper ty from the cardholder — the indictment merely alleges that she “represented” that the card was hers in order to obtain property from a merchant, whereas § 18.2-195(l)(a), by way of example, requires that the card be “used” to obtain such" }, { "docid": "16199730", "title": "", "text": "BYE, Circuit Judge. After Joseph Jonquil Oates pleaded guilty to credit card fraud and identity theft, the district court sentenced him to forty-one months of imprisonment. Oates appeals contending the district court erred in calculating his sentence under the United States Sentencing Guidelines (U.S.S.G.). Oates also raises constitutional challenges to his sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm. I A federal grand jury indicted Oates on two counts of identity theft in violation of 18 U.S.C. § 1028(a) and one count of credit card fraud in violation of 18 U.S.C. § 1029(a). Oates used another’s social security number to obtain a business credit card account in the name of “U.S. Government International Concierge” and then charged $41,330.09 for his own personal use to the credit card account. Pursuant to a plea agreement, Oates agreed he was guilty of credit card fraud and one count of identity theft. The agreement stipulated to a base offense level of six, plus a six-level increase for the amount of loss under U.S.S.G. § 2B1.1(b)(1). The agreement precluded Oates from withdrawing his plea if the district court applied enhancements not contemplated by the parties. At the plea hearing, the district court told Oates the identity theft count carried a statutory maximum of fifteen years, while the credit card count carried a statutory maximum of ten years. The district court asked the probation office to prepare a pre-sentence investigation report (PSR) for use at sentencing. The PSR’s recommendations differed from the sentence contemplated by the parties in two respects. First, the PSR indicated the base offense level should be seven rather than six because Oates had a prior conviction for credit card fraud. The prior conviction doubled the statutory maximum for the credit card fraud count, see 18 U.S.C. § 1029(c)(1)(B) (“[The penalty for] an offense that occurs after a conviction for another offense under this section [is] imprisonment for not more than 20 years”), and consequently increased the base offense level," }, { "docid": "9573783", "title": "", "text": "Bice-Bey’s trial counsel’s behavior in connection with the polygraph examination was an error resulting “from neglect or ignorance rather than from informed, professional deliberation.” Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir.1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978). VI. Section 1644(a) of Title 15 of the United States Code imposes criminal liability on any person who knowingly in a transaction affecting interstate or foreign commerce, uses or attempts or conspires to use any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain money, goods, services, or anything else of value which within any one-year period has a value aggregating $1,000 or more. Bice-Bey contends that she could not be convicted under this statute because the government failed utterly to show that she made any use whatsoever of a credit card— as opposed to a credit card number — or that she obtained the numbers by theft or fraud rather than in some lawful manner. Because her conduct does not come literally within the statutory language, she asserts that the statute does not reach her alleged activities. As Bice-Bey points out, it is difficult to fit her actions within the statute’s wording. The government did not claim that she obtained possession by fraud or theft of the credit cards, the account numbers of which she allegedly utilized in placing orders with Oak Park Electronics. Nor did the government seek to prove that the cards had been lost or stolen. Indeed, the holder of one of those cards testified that the card remained within his control at all relevant times. A fortiori, Bice-Bey made no use of a plastic credit card which was “counterfeit, fictitious, altered [or] forged.” Bice-Bey derives additional comfort from the definition given “credit card” in 15 U.S.C. § 1602(k) (1982): The term “credit card” means any card, plate, coupon book or other credit device existing for the purpose of obtaining money, property, labor, or services on credit. This provision makes it clear, in her view, that section 1644 is concerned with the misappropriation and misuse of the" }, { "docid": "22840784", "title": "", "text": "through 11. Accordingly, Hughey’s convictions with respect to those counts are affirmed. HUGHEY’S CHALLENGE TO COUNT 2 OF THE INDICTMENT Hughey argues that count 2 of the indictment was impermissibly duplicitous. We agree that count 2 is defective. Rather than charging two separate offenses, however, count 2 charges no federal offense at all. We therefore reverse Hughey’s conviction with respect to that count. Count 2 charged use of an unauthorized access device in violation of 18 U.S.C. § 1029(a)(2) and (b)(1). The statute provides: whoever ... knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or moré during that period ... shall, if the offense affects interstate or foreign commerce, be punished as provided in subsection (c) of this section. 18 U.S.C. § 1029(a)(1). Section 1029(b)(1) provides that an attempt to violate § 1029(a) will be punished under the same provision governing a substantive violation of § 1029(a). 18 U.S.C. § 1029(b)(1). The applicable version of § 1029 defines an unauthorized access device as follows: (e) As used in this section— (1) the term “access device” means any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access device to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument). # jji sji (3) the term “unauthorized access device” means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud. 18 U.S.C. § 1029(e)(1) & (3) (emphasis added). Section 1029 was passed to stem the tide of large-scale fraud arising from the unauthorized use and counterfeiting of credit cards, debit cards, and the account numbers assigned thereto. S.Rep. No. 98-368, at 2,10 (1984), reprinted in 1984 U.S.C.C.A.N. 3648, 3656; H.R.Rep. No. 98-894, at 4-5, 6-8 (1984), reprinted in 1984 U.S.C.C.A.N. 3689-91, 3692-94. Congress drafted the statute broadly to include any fraud" }, { "docid": "12133640", "title": "", "text": "prosecution may exist. This case, however, is even further removed from the traditional larceny ease: Even if his scheme had succeeded, at no time would the accused have come into physical possession of property other than that which he already had, unlike a person who fraudulently transfers funds from someone else’s account to his own. There is no doubt that the economic consequences of the accused’s actions may be considered the same as those resulting from a simple larceny of funds. Indeed, this may be another instance where changes in the way business is transacted have outpaced traditional common-law categories. Nonetheless, the strict construction we are required to give to penal statutes requires that any necessary expansion of “larceny” come from Congress. . However, he would be guilty of obtaining services under false pretenses in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934; see para. 78, Part IV, Manual for Courts-Martial, United States, 1984, and he would be subject to the same punishment as if his act had been larceny. Compare para. 78 e(l) and (2) with para. 46 e(l)(a) and (b), Manual, supra. . It is interesting to note that under Article 9 of the Uniform Commercial Code, \"accounts” are not included in the category of \"general intangi bles,” and they are not considered \"goods.” Rather, they occupy a unique status. See U.C.C. § 9-106. . In many ways, technological advances — such as those involved in the use of computers and electronic transfers of funds — are hard to reconcile with common-law categories. . Military prosecutors may also be able to deal with some new types of theft and commercial fraud by use of the third clause of Article 134 to incorporate relevant provisions of title 18, which has in recent years been amended from time to time to deal with new conditions. See, e.g., 18 U.S.C. § 1030 (computer fraud and abuse); 18 U.S.C. § 1029 (credit card fraud); see also 18 U.S.C. §§ 13 and 1001." }, { "docid": "6189312", "title": "", "text": "OPINION S. THOMAS ANDERSON, District Judge. Jimmie Moon appeals the substantive reasonableness of his 96-month sentence for conspiracy to commit wire fraud. As part of his plea agreement, Moon admitted that he obtained scores of credit card and gift card numbers with fraudulent intent, though only a fraction of them were usable. On appeal Moon argues that the district court should have calculated the loss resulting from his offense by including only actual losses from the usable numbers. The district court applied the guidelines and calculated the intended loss of the crime by assuming a $500 minimum loss for each stolen number. Moon contends that the district court’s approach overstates the severity of his offense. Based on the clear language of the plea agreement, we hold that Moon waived his right to appeal. Even if he had not waived his right to appeal, we find that Moon’s sentence was substantively reasonable. We AFFIRM. I. Beginning in April 2011, Moon and a co-conspirator conspired to obtain credit card numbers and gift cards for the purpose of making fraudulent purchases with the cards. According to the presentence report, Moon and his co-conspirator would acquire credit card numbers issued to third parties and then use the information to create counterfeit credit cards and stored-value cards (i.e. gift cards). Moon would then use the counterfeit cards to purchase merchandise and a high volume of other stored-value cards from merchants like Sam’s Club and Meijer. A federal grand jury indicted Moon and his co-conspirator on one count of conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349; one- count of access device fraud in violation of 18 U.S.C. § 1029; one count of aggravated identity theft in violation of 18 U.S.C. § 1028A; and forfeiture allegations. On November 26, 2013, Moon entered into a plea agreement with the United States under which he agreed to change his plea to guilty as to the wire fraud count. In exchange for Moon’s guilty plea to the wire fraud offense, the government agreed to move for the dismissal of the access device fraud" }, { "docid": "23705381", "title": "", "text": "obliged to look to the indictment (or information) and similar documents for the state law offense, and assess whether the state court, in adjudging guilt, was required to find the elements of theft required by federal law. Shepard v. United States, — U.S.-, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005); Taylor, 495 U.S. at 602, 110 S.Ct. 2143. 1. Importantly for this analysis, the Commonwealth of Virginia has created separate statutory provisions for “credit card theft,” on the one hand, and “credit card fraud,” on the other. In Virginia Code § 18.2-192, entitled “Credit card theft,” an offender’s unauthorized taking of money from a credit card owner is criminalized. This provision specifies that a person is guilty of credit card theft when, inter alia, the offender takes a credit card or credit card number from the person, possession, custody or control of another without the cardholder’s consent ... with intent to use it or sell it, or to transfer it to a person other than the issuer or the cardholder. § 18.2-192(a). A separate provision of the Virginia Code, § 18.2-195, entitled “Credit card fraud,” creates the distinct crime of credit card fraud and specifies, inter alia, that: (1) A person is guilty of credit card fraud when, with intent to defraud any person, he: (a) Uses for the purpose of obtaining money, goods, services or anything else of value a credit card or credit card number obtained or retained in violation of § 18.2-192 or a credit card or credit card number which he knows is expired or revoked; [or] (b) Obtains money, goods, services or anything else of value by representing (i) without the consent of the cardholder that he is the holder of a specified card or credit card number or (ii) that he is the holder of a card or credit card number and such card or credit card number has not in fact been issued.... Va. Stat. § 18.2-195 (emphasis added). The credit card fraud provision of the Virginia Code thus criminalizes the utilization of another’s credit card number to obtain something of value" }, { "docid": "21593180", "title": "", "text": "its accuracy. United States v. Hutson, 821 F.2d 1015, 1021 (5th Cir.1987). The government responds that each witness testified that to his own knowledge the records were received and kept in the ordinary course of business activity, and it was each employee’s regular business practice to receive the business records. As a result, the requirements of Rule 803(6) were satisfied and no error is shown. Finally, Iredia complains that he was not properly charged with separate offenses for each unauthorized use of a credit card in excess of $1,000 under 18 U.S.C. § 1029. Convicted on thirteen counts under 18 U.S.C. § 1029, he contends that a strict construction of the statute requires a finding that he should stand convicted of only one, aggregating the use of all unauthorized credit cards during a one year period to constitute a single offense. In support of his argument, the appellant looks to our interpretation of the credit card section of the Truth in Lending Act, 15 U.S.C. § 1644 in United States v. Mikelberg, 517 F.2d 246, 250 (5th Cir.1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1104, 47 L.Ed.2d 313 (1976). In Mikelberg, we determined that the term “transaction” could comprise more than one use of a fraudulently obtained credit card. Iredia equates this with the use of the singular “offense” in 18 U.S.C. § 1029(c) as it relates to § 1029(a). The United States interprets 18 U.S.C. § 1029 as establishing a separate criminal offense for the use of each unauthorized access device for which $1,000 of value has been obtained during a one year period. It argues that a practical reading of the “one or more” language of (a)(2) is that Congress intended to cover those situations where multiple unauthorized access devices are required in conjunction with each other to complete a fraudulent transaction. This interpretation of the statute is consistent with the “primary focus” of § 1029 to “fill cracks in the criminal law targeted at credit card abuse.” United States v. Brewer, 835 F.2d 550, 553 (5th Cir.1987). The appellant was thus properly charged with each unauthorized" }, { "docid": "14478740", "title": "", "text": "only elements of the other offense and that the elements of the larceny charge were not “fairly embraced” in the factual allegations of the false identification card offense, citing Baker, 14 M.J. at 368. At trial, Holt had not challenged the failure of the larceny specifications to state how the thefts were accomplished. Even though the response to a motion for a bill of particulars might have demonstrated that the factual allegations of the larceny offenses embraced the identification card offenses, the Court declined to “go beyond the language of the specification on which the case is tried.” Holt, 16 M.J. at 394. The Holt decision was followed on the same day by United States v. Allen, 16 M.J. 395 (C.M.A.1983). In Allen, the accused was convicted of larceny of airline tickets and of bad check offenses, in violation of Articles 121 and 123a, UCMJ, 10 U.S.C. § 923a, respectively. The Court had no difficulty in finding that the worthless check offenses, alleging that the checks were made for the procurement of the airline tickets, were the false pretense by which the accused wrongfully obtained the property. The failure in the courts below to set aside the multiplicious bad check findings was plain error requiring relief. Most recently, in United States v. Jones, 23 M.J. 301 (C.M.A.1987), the United States Court of Military Appeals considered whether a finding of larceny of U.S. currency was multiplicious with uttering a forged check in the same amount at the same time and place, in violation of Articles 121 and 123, UCMJ, respectively. Quoting Holt, the Court held that the larceny offense did not “fairly embrace” the worthless check offense under the Baker rationale even though a companion conspiracy charge made it clear that such a relationship did exist. The failure of the defense counsel to request appropriate relief at the trial level was fatal to the belated appellate claim. In this case, as in Jones, the specifications allege no direct relationship between the larceny and the forgery, i.e. there is no indication that the forgery was the means by which the larceny was" }, { "docid": "9753667", "title": "", "text": "more during that period; shall if the offense affects interstate or foreign commerce, be punished as provided in subsection (c) of this section. Turcks contends that because the statute applies to the use of “one or. more unauthorized devices ... aggregating $1,000 or more” during a one-year period, the government may only convict him of one offense no matter how many credit cards or how much “value” over $1,000 was obtained by him. He argues, in the alternative, that either the statutory language plainly permits only one conviction or that the rule of lenity requires that we construe the statute in his favor to permit only one conviction. When read in the context of its legislative history, we hold that the statute permits multiple prosecutions whenever the defendant’s course of conduct exceeds the relevant jurisdictional minima. Section 1029’s predecessor was the Truth in Lending Act, 15 U.S.C. § 1644(a). H.Rep. No. 98-894, 98 Cong., 2d Sess. 5, reprinted in 1984 U.S.Code Cong. & Admin.News pp. 3182, 3691. Prior to the enactment of § 1029, § 1644 was the principal federal statute used to prosecute credit card fraud. A reading of the two statutes demonstrates their similarity. Section 1644 punishes: Whoever knowingly ... uses ... any ... fraudulently obtained credit card to obtain ... anything else of value which within any one-year period has a value aggregating $1,000 or more. Section 1029(a)(2) punishes: Whoever knowingly and with intent to defraud ... uses one or more unauthorized access devices during any one-year period, and ... obtains anything of value aggregating $1,000 or more. With the exception of the phrase “one or more unauthorized access devices” found in § 1029(a)(2), the statutes are virtually identical. Hence, judicial interpretation of the Truth in Lending Act (§ 1644) provides instruction for the interpretation of the access device fraud act (§ 1029) with which we are concerned here. As we read the legislative history regarding the progression from the Truth in Lending Act to the access device fraud act and as we understand the cases decided under the Truth in Lending Act, it is evident that" }, { "docid": "9753668", "title": "", "text": "1644 was the principal federal statute used to prosecute credit card fraud. A reading of the two statutes demonstrates their similarity. Section 1644 punishes: Whoever knowingly ... uses ... any ... fraudulently obtained credit card to obtain ... anything else of value which within any one-year period has a value aggregating $1,000 or more. Section 1029(a)(2) punishes: Whoever knowingly and with intent to defraud ... uses one or more unauthorized access devices during any one-year period, and ... obtains anything of value aggregating $1,000 or more. With the exception of the phrase “one or more unauthorized access devices” found in § 1029(a)(2), the statutes are virtually identical. Hence, judicial interpretation of the Truth in Lending Act (§ 1644) provides instruction for the interpretation of the access device fraud act (§ 1029) with which we are concerned here. As we read the legislative history regarding the progression from the Truth in Lending Act to the access device fraud act and as we understand the cases decided under the Truth in Lending Act, it is evident that Congress passed § 1029 to combat a dramatic increase in credit card fraud. S.Rep. No. 98-368, 98th Cong., 2d Sess. 2 & H.Rep. No. 98-894, 98th Cong., 2d Sess. 5, reprinted in 1984 U.S.Code Cong. & Admin.News 3648, 3691-92. In particular, Congress added the phrase “one or more unauthorized access devices” in § 1029(a)(2) to close a loophole that appeared in § 1644. The Truth in Lending Act (§ 1644) had required that $1,000 fraudulently be obtained by the use of each individual card. Thus, the Act was not violated if ten individual cards were used to defraud each true owner of $900 per card, even though the total thus acquired by the defrauder was $9,000, an amount which exceeded the $1,000 threshold. The legislative history of § 1029 reveals that criminal syndicates were therefore using unauthorized credit cards to charge just up to, but not beyond, the jurisdictional amount. Id. By inserting the “one or more” language in § 1029, Congress enabled the federal government to prosecute these crime rings. Id. at 3691. Although" }, { "docid": "11635162", "title": "", "text": "defines the punishment for that crime. Id. The statute thus incorporates Virginia’s common-law recitation of the elements for larceny. And although Descamps addressed a state crime defined by statute, we have since held that the Descamps analysis applies to state crimes that, as here, are defined by common law rather than by statute. United States v. Hemingway, 734 F.3d 323, 331-33 (4th Cir.2013). . As these cases demonstrate, a \"wrongful” taking means a taking without the victim's consent; a \"fraudulent” taking means a taking with the victim's consent that has been obtained fraudulently. As set forth below, both wrongful and fraudulent takings satisfy the \"without consent” element of larceny under Virginia law. In contrast, under the generic federal definition of \"theft,” fraudulent takings do not constitute takings \"without consent.” See Soliman v. Gonzales, 419 F.3d 276, 282-83 (4th Cir.2005). The \"without consent” element under Virginia law is thus significantly broader than the federal “without consent” element. .These documents derive their name from the Supreme Court's decision in Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Relevant Shepard documents include the \"charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.\" Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010). .Because we find that the modified categorical approach does not apply, we need not address Omargharib's alternative argument that he would also prevail under that approach because the Shepard documents purportedly do not demonstrate whether he was convicted of a \"theft offense.” .An indivisible crime, by contrast, contains the same elements as the federal crime (or omits an element entirely), but construes those elements expansively to criminalize a \"broader swath of conduct” than the relevant federal law. Descamps, 133 S.Ct. at 2281. . Although Virginia law does distinguish certain types of fraud offenses from general larceny, see Va.Code Ann. §§ 18.2-111 (proscribing embezzlement), 18.2-178 (proscribing obtaining money by false pretense), the above authorities clearly demonstrate that larceny by trick—a fraud-based offense—is included within" }, { "docid": "11265710", "title": "", "text": "does not show whether appellant's processing for the dormitory room and meal card should have included some action to terminate the allowances or whether appellant had a duty to do that separately. From 20 October 1988 until 28 February 1990, he continued to receive both BAS and BAQ while residing in the dormitory and possessing a meal card. During his providency inquiry, appellant admitted that he knew he was being overpaid and that he was not entitled to either allowance while he was living in the dormitory and using a meal card. He also admitted that he never tried to stop his receipt of either allowance. He further admitted he should have returned the overpayment of allowances to the Air Force. Appellant did not admit the use of any false pretense to obtain the overpayments or BAQ or BAS. The stipulation of fact described the misconduct as larcenies by wrongful withholding of BAQ and BAS monies from the government. Trial counsel stated the government’s theory of larceny was wrongful withholding, and he specifically denied any reliance on a theory of obtaining by false pretenses. The military judge agreed and used the elements and explanation for wrongful withholding to explain the offenses to appellant and inquire into the factual basis for his pleas. Military Law of Larceny The basis of appellant’s argument lies in the antecedents of the various larceny theories included in Article 121, UCMJ, 10 U.S.C. § 921. Therefore, to resolve the issue, we must trace the origin of these larceny theories. Article 121, UCMJ combined the offenses of common law larceny, embezzlement, and obtaining property by false pretenses into one offense of larceny. United States v. McFarland, 8 U.S.C.M.A. 42, 23 C.M.R. 266 (1957); United States v. Buck, 3 U.S.C. M.A. 341, 12 C.M.R. 97 (1953); MCM, Part IV, paragraph 46c(1)(a) (1984). The purpose of the consolidation was to eliminate technical distinctions previously involved in drafting specifications to allege the different larceny offenses. INDEX AND LEGISLATIVE HISTORY: UNIFORM CODE OF MILITARY JUSTICE, at 1232 and 1244; LEGAL AND LEGISLATIVE BASIS MANUAL FOR COURTS-MARTIAL 1951, 273, 274. The consolidation" } ]

[ { "docid": "15773028", "title": "", "text": "this rule. In the alternative, it might be contended that appellant’s action should be allowed under the statute of limitations “saving clause” at the end of Rule 60(b). That clause excepts, from the one-year limitation, an equitable action to set aside a judgment because of “fraud upon the court.” However, the factual underpinnings of the complaint do not allege a “fraud upon the court” as this phrase has been interpreted. “Fraud upon the court” as a basis for equitable relief is construed narrowly in order to preserve the finality of judgments, an important legal and social interest. See, Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 640-642 (N.D.Cal.1978); Toscano v. Commissioner of Internal Revenue, 441 F.2d 930, 934 (9th Cir. 1971). Fraud of this nature is the exception and confers equitable jurisdiction on a court: Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where the attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney corruptly sells out his client’s interest to the other side. . . United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878). The concern of the court in Throckmorton and its progeny was that because of this type of fraud, the injured party is prevented from fairly presenting his claim or defenses or from introducing relevant or material evidence. Id, at 66; see also 7 Moore’s Federal Practice, Second Edition, § 60.37 (1979). The fraud alleged by appellant is not the type contemplated by the extraordinary remedy of an independent action to set aside a judgment. The record and the facts presented herein do not justify relief. In this case, a claim for relief based upon “fraud upon the court” would have to be grounded in appellant’s claim that the United States was not properly represented." } ]

[ { "docid": "10400099", "title": "", "text": "accordance with the clearly expressed intention of the parties to the agreement, and although the petitioners now urge a different interpretation of the agreement, we have rejected their requested interpretation. We are still of the opinion that the decisions were entered in accordance with the agreement, and there has been absolutely no evidence of any fraud on the Court. In the alternative, the petitioners argue that the decisions in their cases are void because the opinion in Heinz indicates that they were denied due process and, therefore, the Court has the power to vacate such decisions. The decision and opinion in Heinz were limited to those taxpayers who exercised their right to appeal decisions entered as a result of the agreement. The petitioners did not exercise their rights and failed to notify the Court of their due process claims until almost 2 years after our opinion in Gauntt. Additionally, there is no evidence that the Court of Appeals considered such a constitutional question. The phrase “due process” does not appear in its opinion and is absent from the opinion in Cool Fuel, the case from which most of the court’s legal conclusion was quoted. It is clear that the petitioners have only themselves to blame for their misfortune. Their decision not to file appeals was a decision to accept this Court’s opinion in Gauntt. The petitioners rely on Sennett v. Commissioner, 69 T.C. 694 (1978), as support for their motion. In Sennett, a case subject to an agreement to be bound by the final decision of this Court, the Commissioner alleged that a fraud had been committed on the Court in the lead case. He argued that the subject cases should not follow the decision in the lead case. We held that the Commissioner could not collaterally attack the decision in the lead case and, therefore, the agreement to be bound would be enforced. Additionally, the Court indicated that undue delay might be fatal to a direct attack on the lead case. Contrary to the petitioners’ belief, such case does not stand for the proposition that if the decision in" }, { "docid": "23400901", "title": "", "text": "fraud on the court. E.g., Toscano, 441 F.2d at 933; Kenner v. Commissioner, 387 F.2d 689, 691 (7th Cir.), cert. denied, 393 U.S. 841, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968). The second is when the decision was based on mutual mistake. Reo Motors, Inc. v. Commissioner, 219 F.2d 610 (6th Cir.1955); La Floridienne J. Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir.1933). This circuit has sharply criticized the exception based on mutual mistake and has so far declined to recognize it. Lasky, 235 F.2d at 99-100; Toscano, 441 F.2d at 932-33; Feistman, 587 F.2d at 943. Appellants have approached the jurisdictional bar to their motion from several different directions. They suggest, alternatively, that there was fraud on the Tax Court, that the decisions never became final because they were tied to the decision in the lead cases by virtue of the agreement to be bound, and that we should expand the exceptions to the finality rules to include this situation. Appellants also argue that we should obviate the jurisdictional issue by making our judgment in Heinz applicable to them, even though they did not appeal. We address each of these arguments. Appellants claim the Commissioner perpetrated a fraud on the Tax Court by misleading it into a misconstruction of the agreement to be bound. Although “fraud on the court” is not easily defined, we have said that it may occur when the acts of a party prevent his adversary from fully and fairly presenting his case or defense. Luttrell v. United States, 644 F.2d 1274, 1276 (9th Cir.1980) (Rule 60(b)); Toscano, 441 F.2d at 934. Appellants maintain that they relied on the agreement in not objecting to entry of decisions against them and in not appealing those decisions. They believed their cases ultimately would be decided in accordance with the outcome of the lead cases, regardless of whether decisions were entered against them in the interim. Ambiguity regarding the agreement’s application during the appellate process may well have invited reliance which resulted in appellants being deprived of the opportunity to fully present their case or to have" }, { "docid": "23400894", "title": "", "text": "which was attached to the Commissioner’s motion to calendar and consolidate the five lead cases, provided in relevant part: 6. Because the subject cases involve common questions of law and fact with respect to the deductibility of the partnership losses, and in the interest of efficiently resolving all of the cases, the parties agree as follows: a.That they will file a motion to calendar and consolidate for trial the five cases listed below, each of which involves a petitioner who was a limited partner in one of the five partnerships b. That all of the subject cases will be bound by this Court’s opinion in the five consolidated cases listed above, and decisions may be entered in accordance therewith. c. That all of the subject cases except the five consolidated cases listed above will be continued generally until such time as an opinion is issued with respect to the consolidated cases. The core of this dispute concerns whether appellants were bound by the Tax Court’s opinion in the lead cases, as the Commissioner urges, or only by a final decision in the lead cases, as appellants claim. However, because of the posture of the case at the time of this appeal, we are primarily concerned with jurisdictional issues. The lead cases were decided against the taxpayers on summary judgment. Gauntt v. Commissioner, 82 T.C. 96 (1984). Subsequently, upon motion of the Commissioner, decisions were entered in the trailing cases pursuant to the agreement to be bound. Two of the taxpayers whose cases were among the consolidated lead cases filed appeals, as did 36 of the taxpayers whose cases were decided pursuant to the agreement. These 38 cases were consolidated on appeal, and the Tax Court’s decision was reversed in Heinz v. Commissioner, 770 F.2d 874 (9th Cir.1985). The court in Heinz held that summary judgment, granted on the basis of an issue first raised by the Commissioner in the final round of simultaneous briefs and never briefed by the taxpayers, deprived the taxpayers of a “full and fair opportunity to ventilate the issues involved in the motion.” Id. at 876." }, { "docid": "23400893", "title": "", "text": "POOLE, Circuit Judge: This case presents a difficult question of Tax Court jurisdiction. The Tax Court entered decisions against appellants pursuant to their agreement to be bound by the opinion in five representative lead cases. After the lead cases were reversed on appeal, appellants filed a motion to vacate the decisions in their cases. The Tax Court declined to hear the motion, based in part on its lack of jurisdiction to vacate final decisions, and in part on its conclusion that the decisions were proper even though the lead cases had been overturned. We affirm. FACTS AND PROCEEDING BELOW The fourteen appellants were among a large group of taxpayers who claimed deductions in connection with their investment in five related limited partnerships. The Commissioner disallowed the deductions, and the taxpayers petitioned the Tax Court for redetermination of their resulting deficiencies. Five representative cases were consolidated for trial, and a group of taxpayers, including the fourteen appellants, agreed to be bound by the Tax Court’s opinion in the lead case. The “Agreement to Be Bound” (agreement), which was attached to the Commissioner’s motion to calendar and consolidate the five lead cases, provided in relevant part: 6. Because the subject cases involve common questions of law and fact with respect to the deductibility of the partnership losses, and in the interest of efficiently resolving all of the cases, the parties agree as follows: a.That they will file a motion to calendar and consolidate for trial the five cases listed below, each of which involves a petitioner who was a limited partner in one of the five partnerships b. That all of the subject cases will be bound by this Court’s opinion in the five consolidated cases listed above, and decisions may be entered in accordance therewith. c. That all of the subject cases except the five consolidated cases listed above will be continued generally until such time as an opinion is issued with respect to the consolidated cases. The core of this dispute concerns whether appellants were bound by the Tax Court’s opinion in the lead cases, as the Commissioner urges, or" }, { "docid": "23400898", "title": "", "text": "had been no fraud on the court which would give it the power and duty to vacate the final decisions. Id. Finally, it held that reversal of the lead case did not void the decisions in appellants’ cases, because the Ninth Circuit’s decision was “limited to those taxpayers who exercised their right to appeal decisions entered as a result of the agreement.” Id. Appellants appeal from the order of denial, raising essentially the same issues argued before the Tax Court. At some point, the lead cases and some of the trailing cases settled, without a final decision having been entered in the lead cases. Appellants claim they attempted to accept the settlement offered to the other taxpayers, but the government refused. STANDARD OF REVIEW We review the Tax Court’s denial of leave to file the motion to vacate for abuse of discretion. Flood v. Commissioner, 468 F.2d 904 (9th Cir.1972), cert. denied, 411 U.S. 906, 93 S.Ct. 1529, 36 L.Ed.2d 195 (1973); Toscano v. Commissioner, 441 F.2d 930, 938 (9th Cir.1971) (Byrne, J., dissenting). We will reverse for abuse of discretion only if we have a definite and firm conviction that the Tax Court committed a clear error of judgment in the conclusion it reached. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985). The question whether the Tax Court had jurisdiction to grant appellants’ motion to vacate is a question of law, which we review de novo. See Toscano, 441 F.2d at 932 (reviewing de novo without explicitly stating the standard of review). DISCUSSION Tax Court decisions become final according to detailed rules set forth at 26 U.S.C. § 7481. A decision may become final by “expiration of the time allowed for filing a notice of appeal, if no such notice has been duly filed within such time.” 26 U.S.C. § 7481(a)(1). The notice of appeal must be filed within 90 days after the decision is entered. 26 U.S.C. § 7483. The Tax Court held that its decision was final as to appellants because no appeal was taken within the allotted time. As a general rule," }, { "docid": "23400902", "title": "", "text": "our judgment in Heinz applicable to them, even though they did not appeal. We address each of these arguments. Appellants claim the Commissioner perpetrated a fraud on the Tax Court by misleading it into a misconstruction of the agreement to be bound. Although “fraud on the court” is not easily defined, we have said that it may occur when the acts of a party prevent his adversary from fully and fairly presenting his case or defense. Luttrell v. United States, 644 F.2d 1274, 1276 (9th Cir.1980) (Rule 60(b)); Toscano, 441 F.2d at 934. Appellants maintain that they relied on the agreement in not objecting to entry of decisions against them and in not appealing those decisions. They believed their cases ultimately would be decided in accordance with the outcome of the lead cases, regardless of whether decisions were entered against them in the interim. Ambiguity regarding the agreement’s application during the appellate process may well have invited reliance which resulted in appellants being deprived of the opportunity to fully present their case or to have it fully presented for them in the lead case. The difficulty is that we can discern no fraud. Fraud on the court must involve “an unconscionable plan or scheme which is designed to improperly influence the court in its decision.” Toscano, 441 F.2d at 934, quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir.1960). See also Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 64 S.Ct. 997, 1001, 88 L.Ed. 1250 (1944) (finding a “deliberately planned and carefully executed scheme to defraud”). We do not think it can seriously be argued that the Commissioner committed fraud by urging his construction of the agreement in Tax Court. There is simply no indication of a fraudulent plan or scheme designed to improperly influence the Tax Court, however unfair and devoid of utility the ultimate result might be. Appellants also argue that the decisions against them did not become final because they were tied to the decision in the lead cases, which never became final. They claim no appeal was necessary to avoid finality or" }, { "docid": "23400903", "title": "", "text": "it fully presented for them in the lead case. The difficulty is that we can discern no fraud. Fraud on the court must involve “an unconscionable plan or scheme which is designed to improperly influence the court in its decision.” Toscano, 441 F.2d at 934, quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir.1960). See also Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 64 S.Ct. 997, 1001, 88 L.Ed. 1250 (1944) (finding a “deliberately planned and carefully executed scheme to defraud”). We do not think it can seriously be argued that the Commissioner committed fraud by urging his construction of the agreement in Tax Court. There is simply no indication of a fraudulent plan or scheme designed to improperly influence the Tax Court, however unfair and devoid of utility the ultimate result might be. Appellants also argue that the decisions against them did not become final because they were tied to the decision in the lead cases, which never became final. They claim no appeal was necessary to avoid finality or to benefit from reversal of the lead cases. The Commissioner disagrees, maintaining that once the decisions against appellants were entered, the necessity of and time for appeal were not in any way affected by appeal of the lead cases. While we can see no utility in such an arrangement, we also find nothing which would preclude it. The agreement is silent on the point. Appellants might have been successful had they argued their version of the agreement on a direct and timely appeal from the decisions against them, but their argument does not change the finality of the decisions now. In essence they maintain that the decisions were entered erroneously, contrary to the provisions of the agreement to be bound. Even erroneous decisions become final under 26 U.S.C. § 7481 if no appeal is filed within the allotted time. Nor are we persuaded that this situation is sufficiently analogous to “fraud on the court” to warrant an exception to the rule that the Tax Court lacks jurisdiction to vacate a final decision. As we have" }, { "docid": "967609", "title": "", "text": "Internal Revenue, 142 F.2d 746, 748 (3d Cir. 1944); United States v. Howard, 296 F.Supp. 264 (D. Or.1968). Although the authorities are not in agreement, an exception has been constructed to this jurisdictional bar allowing the tax court to reexamine an otherwise final decision in the event it is shown that such decision was produced by fraud upon the court. Kenner v. Commissioner of Internal Revenue, 387 F.2d 689 (7th Cir. 1968), cert. denied, 393 U.S. 841, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968); Toscano v. C. I. R., supra. Contra: Jefferson Loan Co. v. Commissioner of Internal Revenue, 249 F.2d 364, 367 (8th Cir. 1957). In Kenner, the court defined fraud upon the court as that “species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging eases that are presented for adjudication.” The petitioner alleged that the agents of the I.R.S. acted improperly or showed animus toward him. The court concluded that “[E]ven assuming, however, that the agents were hostile or had an attitude of unfairness toward Dr. Kenner, the petition leaves us completely in the dark as to how the agents fraudulently induced the court to decide against Dr. Kenner. We suspect that Dr. Kenner may have proceeded upon the unfounded assumption that the acts of the agents of the internal revenue service are chargeable to the tax court.” 387 F.2d at 692. In Toscano, the phrase was said to apply to those “acts of the adverse party ‘ * * * as prevented the losing party from fully and fairly presenting his case or defense’.” The record in this case, as in Kenner, sheds no light on the allegation of fraud. The stipulations were entered into voluntarily. The “fraud,” if any, practiced by the attorneys was nothing more than “some puffing of the supposed strength of the Government’s position in the settlement negotiations.” Appellants cannot escape the intimation of their own conduct that indeed there may have been" }, { "docid": "23400904", "title": "", "text": "to benefit from reversal of the lead cases. The Commissioner disagrees, maintaining that once the decisions against appellants were entered, the necessity of and time for appeal were not in any way affected by appeal of the lead cases. While we can see no utility in such an arrangement, we also find nothing which would preclude it. The agreement is silent on the point. Appellants might have been successful had they argued their version of the agreement on a direct and timely appeal from the decisions against them, but their argument does not change the finality of the decisions now. In essence they maintain that the decisions were entered erroneously, contrary to the provisions of the agreement to be bound. Even erroneous decisions become final under 26 U.S.C. § 7481 if no appeal is filed within the allotted time. Nor are we persuaded that this situation is sufficiently analogous to “fraud on the court” to warrant an exception to the rule that the Tax Court lacks jurisdiction to vacate a final decision. As we have said, one of the concerns underlying the “fraud on the court” exception is that such fraud prevents the opposing party from fully and fairly presenting his case. See Luttrell, 644 F.2d at 1276; Toscano, 441 F.2d at 934. Ambiguities in the agreement to be bound may have contributed to appellants’ loss of opportunity to be heard on the merits, but their own lack of diligence in the face of that ambiguity was also a contributing factor. They could have sought to resolve the ambiguity by timely appealing from the decisions, as did other taxpayers who were subject to the agreement. Appellants’ situation is more analogous to a misunderstanding of Tax Court procedure or instructions than to “fraud on the court,” and the former is insufficient to overcome the finality rules. See Russell v. Commissioner, 678 F.2d 782, 784 (9th Cir.1982); Feistman, 587 F.2d at 943. Exceptions which would allow final decisions to be reconsidered must be construed narrowly in order to preserve the finality of judgments. Luttrell, 644 F.2d at 1276. We do not think" }, { "docid": "10400097", "title": "", "text": "subject cases, but these petitioners agreed to follow the opinion of this Court in the lead case, not a final decision in that case. The petitioners appear to suggest that we should construe their agreement as one to extend the appeal period, but such an agreement would be unenforceable. See Mitchell v. Maurer, 293 U.S. 237, 244 (1934); Feistman v. Commissioner, 587 F.2d 941 (9th Cir. 1978), dismissing appeal from 63 T.C. 129 (1974); Fed. R. App. P. 26(b). These observations lead us to conclude that the petitioners made a conscious decision not to appeal the decisions in their cases and that, as a result, the decisions in their cases became final prior to their filing the motion at hand. The petitioners also argue that a failure to enforce the interpretation of the agreement they promote results in a fraud on the court and, therefore, we have the power and the duty to vacate the decisions entered in their cases. Fraud on the court is “only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjud[g]ing cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court.” Toscano v. Commissioner, 441 F.2d at 933, quoting 7 J. Moore, Federal Practice, par. 60.33 (2d ed. 1970). To prove such fraud, the petitioners must show that an intentional plan of deception designed to improperly influence the Court in its decision has had such an effect on the Court. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 245-246 (1944); Toscano v. Commissioner, 441 F.2d at 935; Keys v. Dunbar, 405 F.2d 955, 957-958 (9th Cir. 1969), citing Atchison, Topeka & Santa Fe Railway Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Kraasch v. Commissioner, 70 T.C. 623, 626 (1978); see Kenner v. Commissioner, 387 F.2d at 691-692. When the Court entered the decisions in the petitioners’ cases, it did so in" }, { "docid": "10400094", "title": "", "text": "be attacked. Lasky v. Commissioner, 352 U.S. 1027 (1957), affg. 235 F.2d 97 (9th Cir. 1956), dismissing petition for review of 22 T.C. 13 (1954); see R. Simpson & Co. v. Commissioner, 321 U.S. 225 (1944); Helvering v. Northern Coal Co., 293 U.S. 191 (1934). Yet, this Court has “in keeping with the inherent power of all courts, the power to vacate a void decision” (Brannon’s of Shawnee, Inc. v. Commissioner, 71 T.C. 108, 112 (1978)), and we have jurisdiction to set aside a decision which would otherwise be final where there is “fraud on the court” (Toscano v. Commissioner, 441 F.2d 930 (9th Cir. 1971), vacating 52 T.C. 295 (1969); Kenner v. Commissioner, 387 F.2d 689 (7th Cir. 1968), affg. an unreported order of dismissal of this Court), or where it is based on mutual mistake (Reo Motors v. Commissioner, 219 F.2d 610 (6th Cir. 1955)). The petitioners claim that it was the intention of the parties to the agreement that every participating taxpayer would be bound by the final decision in the lead case. Because some decisions were properly appealed and reversed and remanded, those decisions are not final. Therefore, the petitioners maintain that the decisions in their cases should not be considered final and should be vacated to carry out their understanding of the agreement. In effect, they argue that the agreement provides them with all the benefits of an appeal without incurring the expense and without complying with the statutory procedural requirements. The agreement states that “the subject cases will be bound by this Court’s opinion” in the lead case and that all subject cases except the lead case “will be continued generally until such time as an opinion is issued” in the lead case. Additionally, it states that the “trial” of the lead case will determine all issues relating to the five partnerships in the subject cases. The agreement contains no reference to an appeal or to a final decision of the Tax Court in the lead case, and the only court referred to is the Tax Court. Thus, nothing in the agreement supports the" }, { "docid": "23400907", "title": "", "text": "upon involved joint tortfeasors, cross claimants, or multiple parties asserting rights against a stakeholder. Appellants’ respective liabilities are simply not entangled with that of the Heinz defendants in the same way as the parties in those cases. Third, the Supreme Court has recently construed Fed.R.App.P. 3(c), which provides that a notice of appeal shall specify the party or parties taking the appeal, as a jurisdictional prerequisite. Torres v. Oakland Scavenger Co., — U.S. -, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988). It explained that “failure to name a party in a notice of appeal is more than excusable ‘informality;’ it constitutes a failure of that party to appeal.” Id. 108 S.Ct. at 2407. For these reasons, we do not believe our judgment in Heinz can be made directly applicable to appellants. It affects their cases only through the agreement to be bound, and appellants lost the opportunity to challenge the Tax Court’s interpretation of the agreement when they failed to appeal from the decisions within 90 days of entry. Appellants make a related argument that the Heinz decision necessarily applies to them because reversal of the Tax Court decision was based on denial of due process. In fact, the decision was reversed because summary judgment was entered prematurely, but the distinction is unimportant because the judgment in Heinz does not benefit non-appealing parties regardless of its basis, unless it does so via the agreement to be bound. There is “no general equitable doctrine ... which countenances an exception to the finality of a party’s failure to appeal merely because his rights are ‘closely interwoven’ with those of another party.” Federated Department Stores v. Moitie, 452 U.S. 394, 400, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103 (1981). CONCLUSION The decisions against appellants became final after the time for appeal expired. Because the Tax Court lacked jurisdiction to vacate the decisions, it did not abuse its discretion in denying leave to file the motion to vacate. AFFIRMED." }, { "docid": "23400906", "title": "", "text": "this situation warrants an exception. Finally, we address appellants’ argument that this circuit may make its decision in Heinz binding upon them, even though they did not appeal. They base this argument on Bryant v. Technical Research Co., 654 F.2d 1337 (9th Cir.1981), and similar cases in which the courts found exceptions to the general rule that when less than all the co-defendants appeal from an adverse judgment, the non-appealing co-defendants cannot benefit from an appellate decision reversing the judgment. We must reject this argument for several reasons. First, appellants were not parties to the Tax Court decisions appealed from in Heinz. The cases they rely on involved parties to the judgment which was appealed, and the decisions rested on the principle that once a timely notice of appeal has been filed from a judgment, the court has jurisdiction to review the entire judgment. See e.g., Hysell v. Iowa Public Service Co., 559 F.2d 468, 476 (8th Cir.1977). That principle has no application here because separate decisions were entered against appellants. Second, the cases relied upon involved joint tortfeasors, cross claimants, or multiple parties asserting rights against a stakeholder. Appellants’ respective liabilities are simply not entangled with that of the Heinz defendants in the same way as the parties in those cases. Third, the Supreme Court has recently construed Fed.R.App.P. 3(c), which provides that a notice of appeal shall specify the party or parties taking the appeal, as a jurisdictional prerequisite. Torres v. Oakland Scavenger Co., — U.S. -, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988). It explained that “failure to name a party in a notice of appeal is more than excusable ‘informality;’ it constitutes a failure of that party to appeal.” Id. 108 S.Ct. at 2407. For these reasons, we do not believe our judgment in Heinz can be made directly applicable to appellants. It affects their cases only through the agreement to be bound, and appellants lost the opportunity to challenge the Tax Court’s interpretation of the agreement when they failed to appeal from the decisions within 90 days of entry. Appellants make a related argument" }, { "docid": "23400895", "title": "", "text": "only by a final decision in the lead cases, as appellants claim. However, because of the posture of the case at the time of this appeal, we are primarily concerned with jurisdictional issues. The lead cases were decided against the taxpayers on summary judgment. Gauntt v. Commissioner, 82 T.C. 96 (1984). Subsequently, upon motion of the Commissioner, decisions were entered in the trailing cases pursuant to the agreement to be bound. Two of the taxpayers whose cases were among the consolidated lead cases filed appeals, as did 36 of the taxpayers whose cases were decided pursuant to the agreement. These 38 cases were consolidated on appeal, and the Tax Court’s decision was reversed in Heinz v. Commissioner, 770 F.2d 874 (9th Cir.1985). The court in Heinz held that summary judgment, granted on the basis of an issue first raised by the Commissioner in the final round of simultaneous briefs and never briefed by the taxpayers, deprived the taxpayers of a “full and fair opportunity to ventilate the issues involved in the motion.” Id. at 876. Thirteen additional taxpayers subject to the agreement also appealed, but did so after the original 38 cases had been consolidated. These later appeals were held in abeyance until after Heinz was decided, then summarily reversed and remanded for further proceedings in accordance with Heinz. The fourteen appellants in this case did not appeal the decisions entered against them as a result of the opinion issued in the lead cases. Upon remand of the appealed cases, settlement negotiations commenced, concurrent with discussions in Tax Court on procedures to comply with this circuit’s mandate in Heinz. It is not clear from the record whether appellants participated in the settlement negotiations, but they appear at least to have been aware of their progress. When the negotiations stalled, appellants filed a motion to vacate the decisions in the Heinz cases and in their own. They argued that the agreement required that the decisions be vacated, whether or not the taxpayers had appealed, because it provided that all the taxpayers would be treated the same in accordance with the outcome" }, { "docid": "23400896", "title": "", "text": "Thirteen additional taxpayers subject to the agreement also appealed, but did so after the original 38 cases had been consolidated. These later appeals were held in abeyance until after Heinz was decided, then summarily reversed and remanded for further proceedings in accordance with Heinz. The fourteen appellants in this case did not appeal the decisions entered against them as a result of the opinion issued in the lead cases. Upon remand of the appealed cases, settlement negotiations commenced, concurrent with discussions in Tax Court on procedures to comply with this circuit’s mandate in Heinz. It is not clear from the record whether appellants participated in the settlement negotiations, but they appear at least to have been aware of their progress. When the negotiations stalled, appellants filed a motion to vacate the decisions in the Heinz cases and in their own. They argued that the agreement required that the decisions be vacated, whether or not the taxpayers had appealed, because it provided that all the taxpayers would be treated the same in accordance with the outcome of the lead cases. Appellants contended that denial of the motion to vacate would deny them equal treatment and would amount to a fraud carried into the court. Finally, they argued that the decisions were void because of this circuit’s opinion in the lead cases. Because Rule 162 of the Tax Court Rules of Practice and Procedure requires leave of the court to file a motion to vacate more than 30 days after a decision is entered, the Tax Court treated the motion as one for leave to file a motion to vacate. The motion was bifurcated with respect to the fourteen appellants, and leave was denied in Abatti v. Commissioner, 86 T.C. 1319 (1986). Tbe Tax Court concluded that the agreement to be bound did not affect the rights or duties of appellants to appeal their cases individually and that they had made a conscious decision not to appeal. Accordingly, the Tax Court viewed the decisions as having become final 90 days after entry. Id. at 1325. The Tax Court also concluded that there" }, { "docid": "10400096", "title": "", "text": "petitioners’ position. After carefully reviewing the entire agreement, the only reasonable interpretation is that it did not affect the rights and duties of the petitioners to appeal their cases individually. Such interpretation is supported by the fact that timely notices of appeal were filed in 51 cases subject to the agreement. Clearly, the taxpayers in those 51 cases believed the decisions in their cases had to be appealed to gain the benefits of appellate review. The petitioners’ conduct also supports our interpretation. The petitioners did not object when motions for entry of decision were filed in their cases or within the 90 days following such entries. Their silence was in keeping with the agreement — the petitioners knew that the opinion referred to in the agreement had been issued. Finally, the petitioners and the Commissioner could have entered into an agreement providing that decisions in the subject cases would be entered into in accordance with a final decision in the lead case. Under such an agreement, no decisions would yet have been entered in the subject cases, but these petitioners agreed to follow the opinion of this Court in the lead case, not a final decision in that case. The petitioners appear to suggest that we should construe their agreement as one to extend the appeal period, but such an agreement would be unenforceable. See Mitchell v. Maurer, 293 U.S. 237, 244 (1934); Feistman v. Commissioner, 587 F.2d 941 (9th Cir. 1978), dismissing appeal from 63 T.C. 129 (1974); Fed. R. App. P. 26(b). These observations lead us to conclude that the petitioners made a conscious decision not to appeal the decisions in their cases and that, as a result, the decisions in their cases became final prior to their filing the motion at hand. The petitioners also argue that a failure to enforce the interpretation of the agreement they promote results in a fraud on the court and, therefore, we have the power and the duty to vacate the decisions entered in their cases. Fraud on the court is “only that species of fraud which does, or attempts to," }, { "docid": "23400900", "title": "", "text": "the Tax Court lacks jurisdiction to vacate a decision once it becomes final. Lasky v. Commissioner, 235 F.2d 97 (9th Cir.1956), aff'd 352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598 (1957). This rule originated when the Tax Court was an administrative agency and lacked the equitable powers of a court, but it remains valid today because, even as an Article I court, the Tax Court’s jurisdiction to grant equitable relief is strictly limited. Feistman v. Commissioner, 587 F.2d 941, 943 (9th Cir.1978). See also Commissioner v. McCoy, — U.S. -, 108 S.Ct. 217, 219, 98 L.Ed.2d 2 (1987) (per curiam) (Tax Court has limited jurisdiction and lacks general equitable powers). With only two exceptions, the Courts of Appeals have consistently held that once a decision becomes final the Tax Court cannot reopen the case, even for fraud, newly discovered evidence, excusable neglect, or various other grounds which have been urged. See Toscano, 441 F.2d at 932 and cases cited therein. The first, and most widely recognized, exception is when the decision was obtained by fraud on the court. E.g., Toscano, 441 F.2d at 933; Kenner v. Commissioner, 387 F.2d 689, 691 (7th Cir.), cert. denied, 393 U.S. 841, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968). The second is when the decision was based on mutual mistake. Reo Motors, Inc. v. Commissioner, 219 F.2d 610 (6th Cir.1955); La Floridienne J. Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir.1933). This circuit has sharply criticized the exception based on mutual mistake and has so far declined to recognize it. Lasky, 235 F.2d at 99-100; Toscano, 441 F.2d at 932-33; Feistman, 587 F.2d at 943. Appellants have approached the jurisdictional bar to their motion from several different directions. They suggest, alternatively, that there was fraud on the Tax Court, that the decisions never became final because they were tied to the decision in the lead cases by virtue of the agreement to be bound, and that we should expand the exceptions to the finality rules to include this situation. Appellants also argue that we should obviate the jurisdictional issue by making" }, { "docid": "23400897", "title": "", "text": "of the lead cases. Appellants contended that denial of the motion to vacate would deny them equal treatment and would amount to a fraud carried into the court. Finally, they argued that the decisions were void because of this circuit’s opinion in the lead cases. Because Rule 162 of the Tax Court Rules of Practice and Procedure requires leave of the court to file a motion to vacate more than 30 days after a decision is entered, the Tax Court treated the motion as one for leave to file a motion to vacate. The motion was bifurcated with respect to the fourteen appellants, and leave was denied in Abatti v. Commissioner, 86 T.C. 1319 (1986). Tbe Tax Court concluded that the agreement to be bound did not affect the rights or duties of appellants to appeal their cases individually and that they had made a conscious decision not to appeal. Accordingly, the Tax Court viewed the decisions as having become final 90 days after entry. Id. at 1325. The Tax Court also concluded that there had been no fraud on the court which would give it the power and duty to vacate the final decisions. Id. Finally, it held that reversal of the lead case did not void the decisions in appellants’ cases, because the Ninth Circuit’s decision was “limited to those taxpayers who exercised their right to appeal decisions entered as a result of the agreement.” Id. Appellants appeal from the order of denial, raising essentially the same issues argued before the Tax Court. At some point, the lead cases and some of the trailing cases settled, without a final decision having been entered in the lead cases. Appellants claim they attempted to accept the settlement offered to the other taxpayers, but the government refused. STANDARD OF REVIEW We review the Tax Court’s denial of leave to file the motion to vacate for abuse of discretion. Flood v. Commissioner, 468 F.2d 904 (9th Cir.1972), cert. denied, 411 U.S. 906, 93 S.Ct. 1529, 36 L.Ed.2d 195 (1973); Toscano v. Commissioner, 441 F.2d 930, 938 (9th Cir.1971) (Byrne, J., dissenting). We" }, { "docid": "23400905", "title": "", "text": "said, one of the concerns underlying the “fraud on the court” exception is that such fraud prevents the opposing party from fully and fairly presenting his case. See Luttrell, 644 F.2d at 1276; Toscano, 441 F.2d at 934. Ambiguities in the agreement to be bound may have contributed to appellants’ loss of opportunity to be heard on the merits, but their own lack of diligence in the face of that ambiguity was also a contributing factor. They could have sought to resolve the ambiguity by timely appealing from the decisions, as did other taxpayers who were subject to the agreement. Appellants’ situation is more analogous to a misunderstanding of Tax Court procedure or instructions than to “fraud on the court,” and the former is insufficient to overcome the finality rules. See Russell v. Commissioner, 678 F.2d 782, 784 (9th Cir.1982); Feistman, 587 F.2d at 943. Exceptions which would allow final decisions to be reconsidered must be construed narrowly in order to preserve the finality of judgments. Luttrell, 644 F.2d at 1276. We do not think this situation warrants an exception. Finally, we address appellants’ argument that this circuit may make its decision in Heinz binding upon them, even though they did not appeal. They base this argument on Bryant v. Technical Research Co., 654 F.2d 1337 (9th Cir.1981), and similar cases in which the courts found exceptions to the general rule that when less than all the co-defendants appeal from an adverse judgment, the non-appealing co-defendants cannot benefit from an appellate decision reversing the judgment. We must reject this argument for several reasons. First, appellants were not parties to the Tax Court decisions appealed from in Heinz. The cases they rely on involved parties to the judgment which was appealed, and the decisions rested on the principle that once a timely notice of appeal has been filed from a judgment, the court has jurisdiction to review the entire judgment. See e.g., Hysell v. Iowa Public Service Co., 559 F.2d 468, 476 (8th Cir.1977). That principle has no application here because separate decisions were entered against appellants. Second, the cases relied" }, { "docid": "10400098", "title": "", "text": "defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjud[g]ing cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court.” Toscano v. Commissioner, 441 F.2d at 933, quoting 7 J. Moore, Federal Practice, par. 60.33 (2d ed. 1970). To prove such fraud, the petitioners must show that an intentional plan of deception designed to improperly influence the Court in its decision has had such an effect on the Court. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 245-246 (1944); Toscano v. Commissioner, 441 F.2d at 935; Keys v. Dunbar, 405 F.2d 955, 957-958 (9th Cir. 1969), citing Atchison, Topeka & Santa Fe Railway Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Kraasch v. Commissioner, 70 T.C. 623, 626 (1978); see Kenner v. Commissioner, 387 F.2d at 691-692. When the Court entered the decisions in the petitioners’ cases, it did so in accordance with the clearly expressed intention of the parties to the agreement, and although the petitioners now urge a different interpretation of the agreement, we have rejected their requested interpretation. We are still of the opinion that the decisions were entered in accordance with the agreement, and there has been absolutely no evidence of any fraud on the Court. In the alternative, the petitioners argue that the decisions in their cases are void because the opinion in Heinz indicates that they were denied due process and, therefore, the Court has the power to vacate such decisions. The decision and opinion in Heinz were limited to those taxpayers who exercised their right to appeal decisions entered as a result of the agreement. The petitioners did not exercise their rights and failed to notify the Court of their due process claims until almost 2 years after our opinion in Gauntt. Additionally, there is no evidence that the Court of Appeals considered such a constitutional question. The phrase “due process” does not appear in its opinion and is" } ]

[ { "docid": "22142392", "title": "", "text": "in Coffey v. United States. The judgment in that case was placed distinctly upon the ground that the facts ascertained in the criminal case, as between the United States and the claimant, could not be “again litigated between them, as the basis of any statutory punishment denounced as a consequence of the existence of the facts.” In the Coffey case there was no claim of the United States to property, except as the result of forfeiture. In support of its conclusion, the court referred to United States v. McKee, 4 Dill. 128, observing that the decision in that case was put on the ground “that the defendant could not be twice punished for the same crime, and that the former conviction and judgment was a bar to the suit/or the penalty.” The present action is unlike that against Coffey. This is not a suit to recover a penalty, to impose a punishment, or to declare a forfeiture. The only relief sought here is a judgment for' the value of property wrongfully converted by the defendant. The proceeding by libel against Coffey, although civil in form, was penal in its nature, because it sought to have an adjudication of the forfeiture of his property for acts prohibited. It was, as we have seen, a case in which a punishment, denounced by statute, was sought to be inflicted as a consequence of the existence of facts that were in issue and had been finhlly determined against the United States in a criminal proceeding. The nature of the proceeding against Coffey, and the scope of the decision in that case, were recognized in Boyd v. United States, 116 U. S. 616, 634, where the court said: “As showing the close relation between the civil and criminal proceedings on the same statute in such cases, we may refer to the recent case of Coffey v. United States, in which we decided that an acquittal on a criminal information was a good plea in bar to a civil information for thq forfeiture of goods, arising upon the same acts. As, therefore, suits for penalties and" } ]

[ { "docid": "15113265", "title": "", "text": "permitting the convicted attorney to challenge the validity of the conviction. Silverton v. Department of Treasury, 644 F.2d 1341, 1347 (9th Cir. 1981); Washburn v. Shapiro, 409 F.Supp. 3, 11 (S.D. Fla. 1976). . There are other arbitration cases in which a prior criminal conviction was accorded preclusive effect on the issue of the occurrence of the alleged misconduct involved in the labor dispute. See, e. g., In re Department of the Air Force, 74 Lab.Arb.Rep. 949 (1980); In re American Airlines, Inc., 68 Lab.Arb.Rep. 1245, 1247 (1977). . In this respect it differs from res judicata which bars litigation of claims which could have been raised in an earlier action. See Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955); Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877). See also 1B Moore’s Federal Practice (| 0.441 [1] (2d ed. 1980). . In Ashe, the Court incorporated collateral estoppel into the constitutional protection against double jeopardy. The court in which a criminal defendant is seeking to use a judgment of acquittal must “conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” 397 U.S. at 444, 90 S.Ct. at 1194. On the other hand, collateral estoppel use of a criminal acquittal is invariably foreclosed in a subsequent civil suit because of the differing standards of proof. Thus a determination that the government did not prove its case beyond a reasonable doubt will not preclude either the government or a private party from attempting to prove the same set of facts by a preponderance of the evidence. See United States v. National Ass’n of Real Estate Bds., 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); Helvering v. Mitchell, 303 U.S. 391, 397-98, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938); 1B Moore’s Federal Practice H 0.418[1], at 2703 — 4 (2d ed. 1980). Acquittal of criminal charges is not binding in agency proceedings seeking to remove the employee from service. Alsbury v." }, { "docid": "11126426", "title": "", "text": "acquittal in the criminal case. Pursuant to this plea he filed a motion for summary judgment. The District Court granted the motion from which the Government brings this appeal. In the trial court, and here, Burch rests on Coffey v. United States, 1886, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684. On that approach there are two subsidiary inquiries. They may appear to be separate, but as both are concerned in a way with the Coffey case and especially the manner in which it is treated and distinguished by later cases, they are closely related. The first inquiry concerns the nature of the forfeiture proceeding as criminal or civil, punitive or remedial. The second relates directly to the vitality of Coffey as a controlling precedent. A libel of forfeiture under 26 U.S.C.A. § 7302 is, nominally, at least, a civil action. This is not, of course, determinative of its true nature — that is, whether the action is really civil as opposed to criminal, or as it is sometimes expressed remedial rather than punitive. The distinction may be of decisive importance. If the forfeiture action is criminal (punitive) then a determination in the one might bar re-examination of the same issue in the other. On the other hand, if it is a civil, that is remedial, suit there is considerable doubt that res judicata would act as a bar to the maintenance of it. This is so because an acquittal in a criminal action is considered “merely * * * an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.” Helvering v. Mitchell, 1938, 303 U.S. 391, at page 397, 58 S.Ct. 630, 632, 82 L.Ed. 917. As to the issues raised, it does not constitute an adjudication on the preponderance-of-the-evidence test which applies in civil proceedings. United States v. National Ass’n of Real Estate Boards, 1950, 339 U.S. 485, 492-494, 70 S.Ct. 711, 94 L.Ed. 1007; United States v. One 1953 Oldsmobile 98 4 Door Sedan, 4 Cir., 1955, 222 F.2d 668, at page 673; see 30A Am. Jur.," }, { "docid": "16268897", "title": "", "text": "a single offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). The parties do not dispute that Alt was punished once for his tax offenses. See United States v. Ursery, 59 F.3d 568, 572 (6th Cir.1995), cert, granted, — U.S.-, 116 S.Ct. 762, 133 L.Ed.2d 707 (1996) (jeopardy attaches when court accepts guilty plea). The sole issue before us is whether the assessment of tax penalties is another “punishment.” A civil award is punishment whenever it “cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes.” Halper, 490 U.S. at 448,109 S.Ct. at 1902. The tax penalties at issue in this case are authorized by 26 U.S.C. §§ 6653(a), 6653(b), and 6661. These sections are located in Chapter 68 of the Internal Revenue Code (“Additions and Penalties”), next to other civil additions to taxes, such as the penalty for not filing a return on time, § 6651, or the penalty for bringing a frivolous action in court, § 6673. The criminal provisions of the Code are located at § 7201 et seq. in Chapter 75 (“Crimes”). The Code instructs that the civil penalties are to be assessed, collected, and paid in the same manner as normal taxes. 26 U.S.C. § 6662(a)(1) and (2). The Supreme Court has held that a civil tax “addition” for a fraudulent filing serves only a remedial purpose, and does not constitute punishment for the purposes of double jeopardy analysis. Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938). Accord Traficant v. Commissioner, 884 F.2d 258, 263 (6th Cir.1989). In Mitchell, the federal government indicted Mitchell for tax fraud. After a jury acquitted Mitchell, the federal government sought tax penalties constituting 50% of the taxes that he did not pay. The Court held that such penalties were not criminal penalties, but were intended by Congress to reimburse the Government for the costs of discovering and recovering losses caused by Mitchell’s tax fraud. Id. 303 U.S. at 399-405, 58 S.Ct. at" }, { "docid": "9709101", "title": "", "text": "the dismissal of the North Dakota civil suit bars the prosecution of this criminal action in Minnesota. We need not determine to what extent the two cases are based upon the same facts, nor must we decide whether the SBA, which was represented in the civil suit in North Dakota by a special assistant United States attorney, is in privity with the United States, represented here by the United States Attorney for the District of Minnesota. For two separate reasons, we find that the District Court erred in dismissing the indictment on res judicata grounds. First, the civil action in North Dakota and this criminal proceeding in Minnesota do not involve the same cause of action. It is well established that the government may have both a civil and a criminal cause of action as a result of a single factual situation. See, e.g., United States v. Ursery, — U.S. -, -, 116 S.Ct. 2135, 2140, 135 L.Ed.2d 549 (1996) (civil forfeiture actions and criminal prosecutions arising out of same con duct); United States v. National Ass’n of Real Estate Bds., 339 U.S. 485, 493, 70 S.Ct. 711, 716-17, 94 L.Ed. 1007 (1950) (civil and criminal actions for violation of Sherman Act); Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938) (civil assessment for tax fraud and crime of tax evasion); Stone v. United States, 167 U.S. 178, 188-89, 17 S.Ct. 778, 782, 42 L.Ed. 127 (1897) (civil conversion action and crime of unlawful removal of timber from government property). In the North Dakota civil action, the SBA sought to recover its losses arising from the Twin Valley loan transaction; in the present criminal proceeding, the government seeks to punish defendants for their conduct. These two cases serve different societal interests and could not have been joined in the same lawsuit, and we conclude that they involve different causes of action. Even if we were to assume that the two cases involved the same cause of action, we would reverse the District Court because the earlier civil case was not punitive within the meaning" }, { "docid": "7563108", "title": "", "text": "only issue before us on the present, appeal. We affirm. A taxpayer's prior acquittal of attempted tax evasion through fraud does not bar the Commissioner from proving his fraud civilly, whether the criminal acquittal was upon a jury verdict, Helvering v. Mitchell, 303 U.S. 391, 397-398, 58 S.Ct. 630, 82 L.Ed. 917 (1938), or upon a motion for judgment of acquittal pursuant to F.R.Cr.P. 29, United States v. Real Estate Boards, 339 U.S. 485, 492-494, 70 S.Ct. 711, 94 L.Ed. 1007 (1950). This rule, which declines to apply the doctrine of collateral estoppel is based on a recognition of certain fundamental dissimilarities in the principles which govern the litigation of these virtually identical fraud issues in criminal and civil trials. When a civil trial follows criminal proceedings which were based on the same facts, a different cause of action is involved and the doctrine of collateral estoppel rather than that of res judicata must be considered. IB J. Moore, Federal Practice j[ 0.418 [1], p. 2701 (2d ed.). In Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1877), Mr. Justice Field elaborated this doctrine as follows: “the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.” In other words, “the judgment in the first suit operates as a collateral estoppel as to, but only as to, those matters or points which were in issue or controverted and upon the determination of which the initial judgment necessarily depended.” IB J. Moore, supra, j[ 0.-441 [2], p. 3777. This doctrine has been developed by the" }, { "docid": "5403145", "title": "", "text": "of points on appeal. There is, however, a broader ground upon which to reject this defense. There can be no doubt that a prior acquittal, or conviction for that matter, is a bar to a subsequent action based upon the same facts the object of which is also punishment, because the second action would subject the defendant to double jeopardy forbidden by the Fifth Amendment. Helvering v. Mitchell, 1938, 303 U.S. 391, 398, 58 S.Ct. 630, 82 L.Ed. 917; United States ex rel. Marcus v. Hess, 1943, 317 U.S. 537, 548 et seq., 63 S.Ct. 379, 87 L.Ed. 443. But it is just as firmly established that the difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata as a bar to a civil suit subsequent to an acquittal in a criminal prosecution grounded on the same facts, for the reason that the prior acquittal only adjudicated that the proof offered in the criminal case was not enough to establish the guilt of the accused beyond all reasonable doubt. Helvering v. Mitchell, supra, 303 U.S. at page 397, 58 S. Ct. at page 632; United States v. National Ass’n of Real Estate Boards, 1950, 339 U.S. 485, 493, 70 S.Ct. 711, 94 L.Ed. 1007, and cases cited. Thus, although for a different reason, the question presented by the plea of res judicata in this case is the same as the question presented by a plea of double jeopardy, that is, whether the object of the proceeding is to inflict punishment or to obtain redress. And the Supreme,Court of the United States in the leading case of United States ex rel. Marcus v. Hess, supra, answered this question categorically. It said, in holding that a prior prosecution for conspiracy to defraud the government ending in the imposition of a fine after a plea of nolo contendere •did not bar a suit such as this on the ground that it constituted double jeopardy in violation of the Fifth Amendment, that suits under the False Claims Statute were not penal, but instead" }, { "docid": "15113266", "title": "", "text": "defendant is seeking to use a judgment of acquittal must “conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” 397 U.S. at 444, 90 S.Ct. at 1194. On the other hand, collateral estoppel use of a criminal acquittal is invariably foreclosed in a subsequent civil suit because of the differing standards of proof. Thus a determination that the government did not prove its case beyond a reasonable doubt will not preclude either the government or a private party from attempting to prove the same set of facts by a preponderance of the evidence. See United States v. National Ass’n of Real Estate Bds., 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); Helvering v. Mitchell, 303 U.S. 391, 397-98, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938); 1B Moore’s Federal Practice H 0.418[1], at 2703 — 4 (2d ed. 1980). Acquittal of criminal charges is not binding in agency proceedings seeking to remove the employee from service. Alsbury v. United States Postal Serv., 530 F.2d 852 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Polcover v. Secretary of Treasury, 477 F.2d 1223 (D.C.Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973). . In Emich Motors the Court construed section 5 of the Clayton Act, 15 U.S.C. § 16(a) (1976), which provides that a final judgment in favor of the government in an antitrust action shall be prima facie evidence against the defendant in a subsequent civil suit by any person, as enabling a private plaintiff to use the criminal conviction as extensively as the government would be able to under the doctrine of collateral estoppel. 340 U.S. at 568-69, 71 S.Ct. at 413-14. The evidentiary use of the conviction under this section was therefore to be governed by reference to general principles of estoppel. Id. . In Silverton v. Department of Treasury, 644 F.2d 1341, 1347 (9th Cir. 1981), the court noted that the district court which had affirmed the Treasury Department’s disbarment of" }, { "docid": "4028235", "title": "", "text": "245, 247-48, 60 L.Ed. 533 (1916). Brooks urges that Anthony Frank’s acquittal on the bribery charge bars the application of the principle to the settlement in question; but it is also well established that because of the different burdens of proof involved, acquittal of a criminal charge is not res judicata in a civil case. United States v. National Association of Real Estate Boards, 339 U.S. 485, 492-94, 70 S.Ct. 711, 715-17, 94 L.Ed. 1007 (1950) (Sherman Act); Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938) (income tax). Here, nothing in the record or the briefs indicates that the district court’s finding of fraud was clearly erroneous. We also agree with the district court that Brooks lacks standing to attempt to estop the Government from asserting its tax lien against Antone. It is true that the tax code requires that “[u]pon the rejection of any such offer [made under § 7122], the Secretary or his delegate shall refund to the maker of such offer the amount thereof.” 26 U.S.C.A. § 7809 (1967 & Supp.1987). But Brooks’ reliance on the provision is unavailing, because Brooks was not the maker of the offer. See Ralston Steel Corp. v. United States, 340 F.2d 663, 669-72, 169 Ct.Cl. 119 (1965), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 723 (1965). Brooks has no standing to challenge transactions to which he is a stranger. The tax code gives Brooks standing to bring a civil action challenging the government’s levy on property in which Brooks has a competing property interest, 26 U.S.C.A. § 7426(a)(1) (1967 & Supp. 1987); but Brooks may not challenge the underlying tax assessment, which is conclusively presumed to be valid. Id. § 7426(c). Once the compromise transaction was voided by Anthony Frank’s actions, the IRS was entitled to treat the $250,000 as any other assets of the delinquent taxpayers in government possession. In the present case, the government found only $50,000 of the fund actually belonged to one of the taxpayers at issue (Brimar), and turned the remainder over to the Gibson Companies." }, { "docid": "7811382", "title": "", "text": "is committed and therefore, Parker had no property interest in the money as of that moment. Indeed, even if Parker had never been charged with a crime or had been acquitted of all criminal wrongdoing, the government would have remained free to pursue forfeiture. “That acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based has long been settled.” Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938); see also One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984). The reason that an acquittal does not bar a forfeiture action is twofold. First, forfeiture is a civil, remedial measure brought against the offending property rather than a criminal penalty against the person acquitted. United States v. $2500 in United States Currency, 689 F.2d 10, 12-16 (2d Cir.1982); United States v. D.K.G. Appaloosas, Inc., 829 F.2d 532 (5th Cir.1987), cert. denied, 485 U.S. 976, 108 S.Ct. 1270, 99 L.Ed.2d 481 (1988). In an in rem forfeiture proceeding, [i]t is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted and punished. The [in rem] forfeiture is no part of the punishment for the criminal offense. Various Items of Personal Property v. United States, 282 U.S. 577, 581, 51 S.Ct. 282, 284, 75 L.Ed. 558 (1931). Second, even if the government is unable to prove a criminal charge against a defendant “beyond a reasonable doubt,” there may be sufficient evidence to support a civil forfeiture. In a civil forfeiture proceeding under 21 U.S.C. § 881(a)(6), the government has the burden of proving only that there is probable cause for belief" }, { "docid": "11126427", "title": "", "text": "The distinction may be of decisive importance. If the forfeiture action is criminal (punitive) then a determination in the one might bar re-examination of the same issue in the other. On the other hand, if it is a civil, that is remedial, suit there is considerable doubt that res judicata would act as a bar to the maintenance of it. This is so because an acquittal in a criminal action is considered “merely * * * an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.” Helvering v. Mitchell, 1938, 303 U.S. 391, at page 397, 58 S.Ct. 630, 632, 82 L.Ed. 917. As to the issues raised, it does not constitute an adjudication on the preponderance-of-the-evidence test which applies in civil proceedings. United States v. National Ass’n of Real Estate Boards, 1950, 339 U.S. 485, 492-494, 70 S.Ct. 711, 94 L.Ed. 1007; United States v. One 1953 Oldsmobile 98 4 Door Sedan, 4 Cir., 1955, 222 F.2d 668, at page 673; see 30A Am. Jur., Judgments § 472 et seq. at 512. This approach would require that we categorize this particular action, at least for the purposes of this inquiry, as civil (remedial) or criminal (punitive) in nature. Under the existing case law, this is a none too easy task. Save for a few carefully delineated areas, it is not at all clear what, if any, suits for forfeiture of property, or for payment of multiple damages to the Government should more properly be regarded as punitive rather than civil. However, the weight of authority seems to support the proposition that forfeiture m rem actions, such as the present one, are essentially civil in nature, and should not be burdened with the attributes of a criminal action. Various Items of Personal Property v. United States, 1931, 282 U.S. 577, 580, 51 S.Ct. 282, 75 L.Ed. 558; Helvering v. Mitchell, supra, 303 U.S. 391, at page 400, 58 S.Ct. 630; United States v. 42 Jars, etc., D.C.D.N.J.1958, 160 F.Supp. 818, at page 821; United States v. 20 Strings Seed Pearls, D.C.S.D.N.Y.1929," }, { "docid": "9709105", "title": "", "text": "second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Halper, 490 U.S. at 440, 109 S.Ct. at 1897. Because defendants have not previously been acquitted or convicted of any crime in connection with the Twin Valley transaction, they must rely on the multiple-punishment element of double jeopardy. We have already determined above that the North Dakota civil action was not punitive in nature. Therefore, any punishment defendants may suffer as a result of this criminal proceeding would be their first punishment, not their second. In other words, since defendants have not yet been in jeopardy, a criminal trial in this case cannot constitute double jeopardy. See Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975) (explaining that accused must suffer jeopardy before he can suffer double jeopardy). Cf. Ursery, — U.S. at -, 116 S.Ct. at 2147 (recognizing that because civil forfeiture is not punitive, it cannot be ground for double jeopardy). y. Next we consider defendants’ contention that collateral estoppel precludes the government from pursuing this prosecution. The doctrine of collateral estoppel, or issue preclusion, provides that when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in another lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970); United States v. Bailey, 34 F.3d 683, 688 (8th Cir.1994). A criminal defendant may assert the issue-preclusive effect of a prior civil action. Yates v. United States, 354 U.S. 298, 335, 77 S.Ct. 1064, 1085, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In their appeal, however, defendants have not identified which factual issues they believe have been established in the North Dakota civil case. The SBA made no factual concessions in its settlement agreement with defendants, and the only fact contained in the judgment of dismissal is that the parties stipulated to the dismissal of the civil action." }, { "docid": "9709100", "title": "", "text": "judicial economy by preventing litigants from bringing repetitive lawsuits based on the same cause of action. See Baptiste v. Commissioner, 29 F.3d 433, 435 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1251, 131 L.Ed.2d 133 (1995). Res judicata bars a party from asserting a claim in court if three requirements are met: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the decision was a final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Headley v. Bacon, 828 F.2d 1272, 1274 (8th Cir.1987). We have stated that a civil action may preclude a later criminal prosecution, but only if both actions are based on the same facts and both have punishment as their object. Dranow v. United States, 307 F.2d 545, 556 (8th Cir.1962). The government has raised a number of objections to the District Court’s decision that the dismissal of the North Dakota civil suit bars the prosecution of this criminal action in Minnesota. We need not determine to what extent the two cases are based upon the same facts, nor must we decide whether the SBA, which was represented in the civil suit in North Dakota by a special assistant United States attorney, is in privity with the United States, represented here by the United States Attorney for the District of Minnesota. For two separate reasons, we find that the District Court erred in dismissing the indictment on res judicata grounds. First, the civil action in North Dakota and this criminal proceeding in Minnesota do not involve the same cause of action. It is well established that the government may have both a civil and a criminal cause of action as a result of a single factual situation. See, e.g., United States v. Ursery, — U.S. -, -, 116 S.Ct. 2135, 2140, 135 L.Ed.2d 549 (1996) (civil forfeiture actions and criminal prosecutions arising out of same con duct); United States v." }, { "docid": "12980821", "title": "", "text": "of claim preclusion. Indeed, the rule expressly provides that a plaintiff may proceed “[ejxcept as otherwise provided by law.” Fed.R.Civ.P. Supp. C(l)(b). The law of claim preclusion precludes a party from proceeding on the same cause of action in a subsequent lawsuit. Thus, the Court finds, as did the Second Circuit in Central Hudson, that Rule C(l)(b) does not abrogate the claim preclusion doctrine. See Central Hudson, 56 F.3d at 366. c. Different Rights. The Government further contends that these two proceedings involve different claims because different rights are involved. The Government focuses on the different purposes of forfeiture and penalty actions. It contends that the Civil Forfeiture action is remedial in nature, while the Civil Penalty action is punitive. The Government relies on United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), as support for its proposition that different rights are involved in forfeiture and penalty actions. See id. at 274-284, 116 S.Ct. 2135. Ursery held that a prior civil forfeiture action followed by a criminal penalty action did not violate the Double Jeopardy Clause because a civil forfeiture action was remedial and not punitive. Of course, for other purposes, the Supreme Court has found that forfeiture actions are, in part, punitive. See Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993)(holding that a forfeiture action is punishment for the purposes of the Eight Amendment’s Excessive Fines Clause). Furthermore, the Supreme Court has never held that the claim preclusion doctrine is inapplicable because one of the actions was remedial and the other punitive in nature. Thus, the Government is actually asking this Court to import Double Jeopardy principles into the claim preclusion doctrine. The Double Jeopardy Clause, however, is distinct from the claim preclusion doctrine. The Government points to no case that has collapsed the two concepts. Therefore, this Court declines to do so. Moreover, even if different rights were involved, as the Government contends, it would not preclude the application of the claim preclusion doctrine. The most important factor in determining whether the claims are the same is" }, { "docid": "2485422", "title": "", "text": "707 (1969). While the “primary evil” to be prevented by the Double Jeopardy Clause is successive prosecution, Schiro v. Farley, 510 U.S. 222, 230, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994), the Supreme Court has also construed the Clause to bar “successive punishments.” United States v. Ursery, 518 U.S. 267, 273, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The protection against multiple punishments prohibits the government from “ ‘punishing twice, or attempting a second time to punish criminally, for the same offense.’ ” Witte v. United States, 515 U.S. 389, 396, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (quoting Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938)). Civil proceedings do not place defendants in “jeopardy” within the accepted constitutional meaning of that term. Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Ordinarily, legislatures may impose both a civil and a criminal sanction for the same conduct. Such cumulative sanctions do not intrinsically violate the defendant’s Double Jeopardy rights, see Helvering, 303 U.S. at 399, 58 S.Ct. 630, even when the civil sanction has some punitive effect. Ursery, 518 U.S. at 284 n. 2, 116 S.Ct. 2135. In a “rare case,” a civil sanction may impose “punishment” sufficient to implicate the Double Jeopardy Clause’s proscription against multiple punishments. United States v. Halper, 490 U.S. 435, 451, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); United States v. Beaty, 147 F.3d 522, 524 (6th Cir.1998). After the district court’s dismissal of the petitions in the eases at the bar, the Supreme Court issued its decision in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). Like the case before us, Hudson presented a question of whether, after the administrative imposition of sanctions that the public might describe as “punishment,” the Double Jeopardy Clause would bar criminal proceedings that stemmed from essentially the same conduct that had led to the administrative sanctions. Id. at -, 118 S.Ct. at 491-93. The Hudson decision" }, { "docid": "4028234", "title": "", "text": "agreement not signed by qualified delegate under § 7122). Those cases and others have held that the exclusivity of § 7122 bars enforcement of apparent agreements under general concepts of accord and satisfaction. See, e.g., Bowling v. United States, 510 F.2d 112, 113 (5th Cir.1975); Moskowitz v. United States, 285 F.2d 451, 453, 152 Ct.Cl. 412 (1961). Therefore, despite Brooks’ arguments to the contrary, the fact that the government kept and applied to claims against Brimar and Anthony Frank the $250,000 tendered with the compromise offer does not create an enforceable settlement. Even if the purported acceptance letter had been signed by an authorized official, the settlement could have been set aside by the government because of Anthony Frank’s attempt to bribe the IRS agent. It is well established that an agreement with the government obtained by fraud cannot be enforced against the government. Pan American Petroleum & Transport Co. v. United States, 273 U.S. 456, 500, 47 S.Ct. 416, 422, 71 L.Ed. 734 (1927); Crocker v. United States, 240 U.S. 74, 80-81, 36 S.Ct. 245, 247-48, 60 L.Ed. 533 (1916). Brooks urges that Anthony Frank’s acquittal on the bribery charge bars the application of the principle to the settlement in question; but it is also well established that because of the different burdens of proof involved, acquittal of a criminal charge is not res judicata in a civil case. United States v. National Association of Real Estate Boards, 339 U.S. 485, 492-94, 70 S.Ct. 711, 715-17, 94 L.Ed. 1007 (1950) (Sherman Act); Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938) (income tax). Here, nothing in the record or the briefs indicates that the district court’s finding of fraud was clearly erroneous. We also agree with the district court that Brooks lacks standing to attempt to estop the Government from asserting its tax lien against Antone. It is true that the tax code requires that “[u]pon the rejection of any such offer [made under § 7122], the Secretary or his delegate shall refund to the maker of such offer the amount thereof.” 26" }, { "docid": "7563107", "title": "", "text": "and $17,909.13, respectively, and paid approximately $27,500 in additional taxes. The Commissioner, however, in August of 1966 determined that only $2,000 was allowable to the taxpayer as a business expense deduction in each of those two years and computed and fixed deficiencies and penalty additions to Neader-land’s tax of almost $48,000 under 26 U.S.C. § 6653(b), because of fraud in the initial 1954 and 1955 returns. On appeal, the Tax Court found that the taxpayer had not carried his burden of proving deductions larger than the $2,-000 allowed. It also found, largely from the confusion and evasiveness of Nead-erland’s own testimony, that at least a part of the underpayment in 1954 and 1955 was due to fraud with intent to evade the tax, so that the statute of limitations was no bar to collection of these deficiencies. The Tax Court further found no merit in Neaderland’s argument that his prior acquittal in the 1965 criminal case barred a finding of fraud in the subsequent civil proceeding through the doctrine of collateral estoppel. This is the only issue before us on the present, appeal. We affirm. A taxpayer's prior acquittal of attempted tax evasion through fraud does not bar the Commissioner from proving his fraud civilly, whether the criminal acquittal was upon a jury verdict, Helvering v. Mitchell, 303 U.S. 391, 397-398, 58 S.Ct. 630, 82 L.Ed. 917 (1938), or upon a motion for judgment of acquittal pursuant to F.R.Cr.P. 29, United States v. Real Estate Boards, 339 U.S. 485, 492-494, 70 S.Ct. 711, 94 L.Ed. 1007 (1950). This rule, which declines to apply the doctrine of collateral estoppel is based on a recognition of certain fundamental dissimilarities in the principles which govern the litigation of these virtually identical fraud issues in criminal and civil trials. When a civil trial follows criminal proceedings which were based on the same facts, a different cause of action is involved and the doctrine of collateral estoppel rather than that of res judicata must be considered. IB J. Moore, Federal Practice j[ 0.418 [1], p. 2701 (2d ed.). In Cromwell v. County of Sac, 94" }, { "docid": "23561873", "title": "", "text": "was confronted with an attempt by the Internal Revenue to assess a deficiency for fraud with intent to evade tax after the taxpayer had been acquitted for evasion of tax. The Court stated: “The difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata. The acquittal was ‘merely . an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.’ ” Id. at 397, 58 S.Ct. at 632, quoting Lewis v. Frick, 233 U.S. 291, 302, 34 S.Ct. 488, 58 L.Ed. 967 (1914). Because of this difference in burdens of proof, an adjudication of the issues in a criminal case “does not constitute an adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings.” One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1971). See also Neaderland v. Commissioner, 424 F.2d 639, 642 (2 Cir. 1970); Strachan v. Shea, 406 F.2d 521, 522 (5 Cir. 1969). The nature of the sanction imposed by a proceeding also is determinative of whether collateral estoppel applies. Thus, an “acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based . Helvering v. Mitchell, supra, 303 U.S. at 397, 58 S.Ct. at 632 (emphasis added). Where, however, a punitive sanction results from a “civil” action, a prior acquittal in a criminal proceeding will bar the subsequent civil action. See Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed.2d 684 (1886). This distinction is illustrated by cases involving forfeiture proceedings instigated subsequent to acquittals in criminal proceedings. In United States v. One 1967 Cadillac El Dorado, 453 F.2d 396 (9 Cir. 1971), this court held that the operative facts of a forfeiture proceeding were the same as those in a prior criminal proceeding so that the judgment of acquittal foreclosed the forfeiture proceeding. The court based its decision on the combined impact" }, { "docid": "16268898", "title": "", "text": "frivolous action in court, § 6673. The criminal provisions of the Code are located at § 7201 et seq. in Chapter 75 (“Crimes”). The Code instructs that the civil penalties are to be assessed, collected, and paid in the same manner as normal taxes. 26 U.S.C. § 6662(a)(1) and (2). The Supreme Court has held that a civil tax “addition” for a fraudulent filing serves only a remedial purpose, and does not constitute punishment for the purposes of double jeopardy analysis. Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938). Accord Traficant v. Commissioner, 884 F.2d 258, 263 (6th Cir.1989). In Mitchell, the federal government indicted Mitchell for tax fraud. After a jury acquitted Mitchell, the federal government sought tax penalties constituting 50% of the taxes that he did not pay. The Court held that such penalties were not criminal penalties, but were intended by Congress to reimburse the Government for the costs of discovering and recovering losses caused by Mitchell’s tax fraud. Id. 303 U.S. at 399-405, 58 S.Ct. at 633-36. Alt argues that the rule expressed in Mitchell should be set aside because of three recent cases: Halper, 490 U.S. at 435, 109 S.Ct. at 1892; Dept. of Revenue of Montana v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); and Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Each of these eases found that a particular civil penalty rose to the level of “punishment.” In Halper, the defendant Medicare provider made sixty-five false claims, each resulting in a loss to the government of nine dollars. The government prosecuted the defendant for fraud, and the defendant was convicted. The government then filed a separate civil action to recover a $2,000 civil penalty for each of the sixty-five violations. The Court held that a civil penalty “more than 220 times greater than the Government’s measurable los[s] qualified as punishment.” Halper, 490 U.S. at 436, 109 S.Ct. at 1895. In Kurth, the defendant was convicted of a federal drug violation. The State of Montana then sought" }, { "docid": "9709102", "title": "", "text": "National Ass’n of Real Estate Bds., 339 U.S. 485, 493, 70 S.Ct. 711, 716-17, 94 L.Ed. 1007 (1950) (civil and criminal actions for violation of Sherman Act); Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938) (civil assessment for tax fraud and crime of tax evasion); Stone v. United States, 167 U.S. 178, 188-89, 17 S.Ct. 778, 782, 42 L.Ed. 127 (1897) (civil conversion action and crime of unlawful removal of timber from government property). In the North Dakota civil action, the SBA sought to recover its losses arising from the Twin Valley loan transaction; in the present criminal proceeding, the government seeks to punish defendants for their conduct. These two cases serve different societal interests and could not have been joined in the same lawsuit, and we conclude that they involve different causes of action. Even if we were to assume that the two cases involved the same cause of action, we would reverse the District Court because the earlier civil case was not punitive within the meaning of Dranow. Although the False Claims Act, 31 U.S.C. § 3729 (1994), authorizes treble damages, the Supreme Court has determined that “the Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages-” United States v. Halper, 490 U.S. 435, 446, 109 S.Ct. 1892, 1900, 104 L.Ed.2d 487 (1989). See also United States ex rel. Marcus v. Hess, 317 U.S. 537, 551-52, 63 S.Ct. 379, 387-88, 87 L.Ed. 443 (1943) (recognizing that purpose of False Claims Act is to make government completely whole). A multiple recovery of this type is compensatory rather than punitive, even though it contains a penalty element, unless the amount sought by the government “bears no rational relation to the goal of eompensat-ing the Government for its loss_” Halper, 490 U.S. at 449, 109 S.Ct. at 1902. In Halper, the Court recognized that “in the ordinary ease fixed-penalty-plus-double-damages provisions can be said to do no more than make the Government whole.” Id." }, { "docid": "9709104", "title": "", "text": "We do not see how the treble-damages provision of the False Claims Act is different from the “ordinary case” discussed in Halper, and we hold that the North Dakota civil case was compensatory rather than punitive. See United States v. Field, 62 F.3d 246, 248 (8th Cir.1995) (compromise for less than amount claimed is not punitive); United States v. Barnette, 10 F.3d 1553, 1559-60 (11th Cir.) (3.2-to-1 ratio of recovery to actual damages is not punitive), cert. denied, — U.S. -, 115 S.Ct. 74, 130 L.Ed.2d 28 (1994). As a result, the North Dakota civil ease does not create a bar to the present action. Dranow, 307 F.2d at 556. IV. Although the District Court did not rely on the Double Jeopardy Clause in dismissing the indictment, both parties have addressed the applicability of that clause to the present action. We hold that a criminal trial of defendants on remand would not constitute double jeopardy. The Double Jeopardy Clause protects an accused from three abuses: “a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Halper, 490 U.S. at 440, 109 S.Ct. at 1897. Because defendants have not previously been acquitted or convicted of any crime in connection with the Twin Valley transaction, they must rely on the multiple-punishment element of double jeopardy. We have already determined above that the North Dakota civil action was not punitive in nature. Therefore, any punishment defendants may suffer as a result of this criminal proceeding would be their first punishment, not their second. In other words, since defendants have not yet been in jeopardy, a criminal trial in this case cannot constitute double jeopardy. See Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975) (explaining that accused must suffer jeopardy before he can suffer double jeopardy). Cf. Ursery, — U.S. at -, 116 S.Ct. at 2147 (recognizing that because civil forfeiture is not punitive, it cannot be ground for double jeopardy). y. Next we consider defendants’ contention that collateral estoppel precludes" } ]

[ { "docid": "15596196", "title": "", "text": "BETTS, District Judge. The act of congress, entitled “An act to amend the several acts respecting copyrights,” passed February 3d, 1831, (4 Stat. 436,) embodies the provisions of the acts of May 31st, 1790, and of April 29th, 1802, on the subject, and imposes on persons claiming the privilege of a copyright the same duties and liabilities which attended the right under the prior statutes. It is quite useless to go into the general learning appertaining to the subject, or to state at large the decisions rendered in Great Britain under the English statutes. The supreme court of the United States, in the case of Wheaton v. Peters, 8 Pet. [33 U. S.] 591, has given an exposition of our statutes, which is obligatory on this court, and essen tially covers the main question raised on this motion. The principle declared by that decision is, that under the laws of the United States a copy-right title is not perfected without a strict compliance with the provisions of the statute. Those requirements which, in England, are generally regarded as directory, and not as conditions precedent to title, (1 Daniell, Ch. Pr. 419; Curt. Copyr. 198, 205; Gods. Pat. 211,) are, under our laws, important and indispensable pre-requisites to a perfect title. Depositing the title-page in the proper clerk’s office, publishing a notice according to the act, and delivering a copy of the book, are held to be conditions, the performance of which is essential to the title. On rhat authority, I think the point is placed beyond question, that the failure, in the present case, to publish the notice demanded by the act, in the manner directed, creates a fatal defect in the plaintiffs’ title. Even though the failure to publish the statutory notice arose from mistake, this court would have no power to accept the intention of the party, in place of a performance, any more in respect to the insertion of that notice on the proper page, than in respect to the deposit of the title of the book. But there was no mistake in this case. The plaintiffs" } ]

[ { "docid": "3590076", "title": "", "text": "PER CURIAM. This is a suit to enjoin the defendants from producing a portion of a' play entitled “After Dark.” and written by one Dion Boucicault, on tie ground that such portion is a colorable imita lion of a scene in a copyrighted play written by the complainant, and entitled “Under the Gaslight.” The law regulating copyrights requires, as a condition indispensable to its creation, and to the existence of any literary property in a. published work, that there he deposited before publication, in the proper oilier', “a printed copy of the title of the book,” etc. The circuit court, in the case at bar, held that that condition had not been complied with; there being, as it found, a material variance between the registered and the published title, whereby the substantial identity between the two tilles is doubtful, and might deceive the public into the belief that they refer to different publications. The title, as filed, was: UNDER THE GASLIGHT, A Romantic Panorama of flic Streets and Homes of New York. By AUGUSTIN DALY, Author of “Leah, the Forsaken,” “Griffith Gaunt,” “Taming a Butterfly,” etc. The title, as published, was: UNDER THE GASLIGHT, A Totally Original and Picturesque Drama of Life and Love in Those Times, in Five Acts. By AUGUSTIN DALY, Author of “Leah, the Forsaken.” Griffith Gaunt,” “Taming a Butterfly,” etc., etc. That there is a difference between the litle pages is plain, but we are unable to assent to the proposition that there is a variance in (lie title. What is the title of a book' which the statute requires tin* author to lile? It is the name which is given to the book, and by which it is designated and is to be known; the name by which, it is to he called in the speech of the people; by which, it is to he inquired for and sold. It may also include a subtitle, but it does not include' a description of the book upon the title page. Thus, the title, “Webster’s Dictionary,” would be the title of the book, although a description of" }, { "docid": "22782880", "title": "", "text": "these papers the memorandum of the fact and of the date of' the deposit of the work, signed by the clerk, was written. The clerk was the officer required to receive the deposit of the work. He was not required to keep a record of such deposit; and he was required to transmit the works so deposited, to theA Secretary of State, at least once a year. The memorandum in the present case of the fact and date of the deposit, purporting to be signed by the clerk, must be regarded as a sufficient prima facie certificate of such deposit, and as competent evidence of the fact and of the date, without further proof of the signature of the clerk, that being on the same paper with his signature as clerk to the certificate of the copy of the record of the deposit of the title, and it being open to the defendants to show that his signature to the memorandum was not genuine.. We do not think the present case is governed by the decision in Merrell v. Tice, 104 U. S. 557. In that case the librarian of .Congress liad given a certificate to a copy of the record of the deposit of the title of the book. On that paper was written a memorandum in these words: “ Two copies of the above publication deposited” on a date given. This memorandum was not signed by the librarian of Congress. This court held; the memorandum not to be competent as proof of the deposit of the two copies of the book, on the ground that it was not a certificate of that fact. We are of opinion that the memorandum in the present case, purporting to be signed by the same clerk, is substantially a certificate of the fact and date of the .deposit of the work, written by him on the same paper with the other'Certificate; and that it is not open to the objection which obtained in the case of Merrell v. Tice. The defendants offered in evidence certificates made by the auditor of public accounts" }, { "docid": "17338180", "title": "", "text": "S. Rep. No. 1473, 56th Cong., 1st Sess. . S. Rep. No. 1473, supra, p. 2: “The Committee on Printing will not undertake to discuss the legal question here involved further than to say that the prohibition contained in the printing act was intended to cover every publication authorized by Congress in all possible forms, * * * ” . It would not seem to us that occasional use of a governmental secretary for transcribing or of multilithing machines for copies for publicizing the speeches would fall under the statutory concept of a publication by or at the cost of the United States. . “The publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor.” . See the list of fifteen senior military officers who, while on active duty, were said to have published books relating to military experiences. 105 Cong.Rec. 15927-15928 (daily ed., Aug. 31, 1959). See 7 Decisions of Comp.Gen. 221, 223. . See a thorough note on this case below, 60 Col.L.Rev. 398 (1960); 73 Harv.L.Rev. 1219 (1960). See a discussion of cases 24 Geo.Wash.L.Rev. 423, 443-447 (1955-56). . Callaghan v. Myers, 128 U.S. 617, 649, 9 S.Ct. 177, 32 L.Ed. 547; Wheaton v. Peters, 8 Pet. 591, 668, 8 L.Ed. 1055. . Callaghan v. Myers, supra, 128 U.S. at page 650, 9 S.Ct. at page 185. See Mr. Justice Story on circuit in Gray v. Russell, C.C.D.Mass.1839, 10 Fed.Cas. pp. 1035, 1039, No. 5,728, 1 Story 11, 20-21. . The word “forfeit” is adopted to avoid “dedication” or “abandonment” which seem to suggest purposeful release to the public. The purpose of a statutory “publication” is immaterial. National Comics Publications v. Fawcett Publications, 2 Cir., 1951, 191 F.2d 594, 598; Nimmer, Copyright Publication, 56 Col.D.Rev. 185 note 4 (1956). . Ferris v. Frohman, 223 U.S. 424, 434, 32 S.Ct. 263, 56 L.Ed. 492; 17 U.S.C." }, { "docid": "7742256", "title": "", "text": "LANNING, Circuit Judge. In this case the Circuit Court decided (182 Fed. 150) that a painting, if it possess artistic merit and be suitable, also, for use as a design, may, at the owner’s election, be protected either by copyright or by patent. On this broad question we express no opinion. The case before us can be disposed of on the ground that, assuming that the complainant’s painting is such a one, the statutory conditions precedent to the investiture of the right to protection under the copyright law have not been complied with. For 75 years it has been the settled law of this country that protection under, the copyright law is granted only to those who perform thé conditions essential to a perfect copyright title. Wheaton v. Peters, 8 Pet. 591, 665, 8 L. Ed. 1055; Merrell v. Tice, 104 U. S. 557, 560, 26 L. Ed. 854; Callaghan v. Myers, 128 U. S. 617, 652, 9 Sup. Ct. 177, 32 L. Ed. 547; Thompson v. Hubbard, 131 U. S. 148-150, 9 Sup. Ct. 710, 33 L. Ed. 76; Higgins v. Keuffel, 140 U. S. 428, 11 Sup. Ct. 731, 35 L. Ed. 470; Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 Fed. 54, 18 C. C. A. 431; Osgood v. A. S. Aloe Instrument Co. (C. C.) 83 Fed. 470; Freeman v. Trade Register (C. C.) 173 Fed. 419. Copyright protection is wholly statutory, and one who claims it must prove affirmatively his performance of all the statutory conditions precedent to his right of action. In the case before us the subject of the alleged copyright is a painting. Section 4952 of the Revised Statutes (U. S. Comp. St. 1901, p. 3406) gives to each author or proprietor of a painting, upon complying with the provisions of the chapter concerning copyright, the sole liberty of copying and vending the same. The first section of the act of June 18, 1874, c. 301, 18 Stat. 78 (U. S. Comp. St. 1901, p. 3411), which supersedes section 4962 of that chapter, declares that no person shall maintain an action for" }, { "docid": "7389280", "title": "", "text": "composer, having placed the composition with the publisher for publication and distribution, intended to authorize him to obtain a copyright in his name, or in that of the corporation in whose behalf the assignment appears to have been taken. Mifflin v. White, 190 U. S. 263, 23 Sup. Ct. 769, 47 L. Ed. 1040; Belford v. Scribner, 144 U. S. 505, 12 Sup. Ct. 734, 36 L. Ed. 514. It was held in Callaghan v.. Myers, 128 U. S. 658, 9 Sup. Ct. 177, 32 L. Ed. 547, that a written assignment may be necessary to convey title after obtaining a copyright, but a publisher undoubtedly may become the owner by parol transfer of the rights of the author or composer. Moreover, it clearly appears that the composer, Geibel, had knowledge of the copyrighting by the complainant prior to the agreement for royalties, and acquiesced therein. The later agreement contained nothing derogatory to the prior transaction or transfer of the composition, and would seem, in view of the facts, to be a ratification of that which had gone before. Hence it is sufficiently established by the evidence that the complainant had the exclusive right, as proprietor, to' multiply copies of the copyrighted musical composition, and to expose the same for sale. As stated, the important question for consideration is whether defendant’s method of representing and reproducing the musical compositions infringed the copyrights of the complainant.' The principle thought to control, based upon the Revised Statutes, is found in Perris v. Hexamer, 99 U. S. 674, 25 L. Ed. 308. It is there stated: “A copyright gives the author or the publisher the exclusive right of multiplying copies of what he has written or printed. It follows that, to infringe this right, a substantial copy of the whole or of a material part must be produced.” By section 4952 of the Revised Statutes [Ú. S. Comp. St. 1901, p. 3406], the author or proprietor of any musical composition, upon compliance with the provisions of the copyright act, is given the exclusive liberty of copying and vending the same. Are the perforated" }, { "docid": "10358610", "title": "", "text": "the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute an infringement. The court later says: “Tlie privilege of fair use accorded to a subsequent writer must be such, and such only, as will not cause substantial injury to the proprietor of the first publication.” And the decision of the court was to the effect that many of the notes did infringe corresponding notes of the complainant’s publication, that the respondent borrowed very largely the arrangement of the antecedent edition, and, without making a detailed specification of the instances of infringement, the question was referred to a master to report the extent of the infringement, and to classify the instances thereof. The United States Supreme Court, in 1888, decided the case of Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547, in which it was held that a law reporter was entitled to obtain a 'copyright for the matter which was the result of his own intellectual labor, including the title page table of cases, any headnotes or syllabi, the statement of facts, argument of counsel, and index. But the court also said, as had been held in Wheaton v. Peters, 33 U. S. 590, 8 L. Ed. 1055, and Banks v. Manchester, 128 U. S. 244, 9 Sup. Ct. 36, 32 L. Ed. 425, that the rights obtained by copyright did not cover the opinions of the courts, nor the official statements of fact, and syllabi, if prepared by the court itself. . • ......... A number of cases are cited in the case of Callaghan v. Myers, at page 650 of 128 U. S., and page 185 of 9 Sup. Ct. (32 L. Ed. 547), following these propositions, and in that suit damages were granted in the final decree for infringements of the copyright of such volumes as had been satisfactorily proven to be copyrighted, and to have been infringed. Those books as to which these conditions were not proven were excluded from the effect of the decree; but where an infringing volume also contained" }, { "docid": "14789811", "title": "", "text": "convey the same idea; in others, the substance of expression is taken with small variations of language; and in some instances portions of considerable length are copied 'verbatim. Th'e speeches, letters, and conversations, by themselves alone, are facts not understood to be the subjects of a copyright. Cary v. Longman, 1 East, 358; Banks v. Manchester, 128 U. S. 244, 9 Sup. Ct. Rep. 36. But that these were used'in making up the work copyrighted would not seem to deprive it of protection. 2 Kent, Comm. 381; Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. Rep. 177. Neither does the using of parts as quotations appear to avoid liability for taking them to make up another work. 2 Kent, Comm. 382. The writings of authors arq. what congress is authorized to secure to them, (Const. U. S. art. 1, § 8;) and these are what the sole liberty of copying and vending conferred by congress applies to. The sole liberty is invaded when any material part of what is the author’s own work is appropriated. Sayre v. Moore, 1 East, 362, note; 2 Kent, Comm. 382, note. The work of Gilmore was written for a presidential campaign, and that of Alger for young persons; and this difference of purposes is relied upon as a justification. But the author’s right is absolute when perfected, and the purpose of an invasion noivhere appears to be made an excuse for it. According to the defendant Alger’s own account of his writing his book, lie procured Gilmore’s and others at the beginning, and wrote important parts of his with Gilmore’s constantly open before him. Still the use made of other parts than the second and third chapters of Gilmore’s book would not indicate as matter of fact a material appropriation of bis writing. But so much of the ideas, language, and mode of expression of Gilmore in these chapters is carried into the defendant’s book as to show that Alger did not stop with the use of Gilmore’s book for information only, but appropriated parts of it to making up his own." }, { "docid": "23564890", "title": "", "text": "to wit: (here insert the title or description), the right whereof he claims as author, &e., in conformity with the laws of tbe United States respecting copyrights. C. D., Librarian of Congress.” ■' The Librarian is required; to give- a copy ,of the title or description, under the seal. of. the Librarian, of Congress, top the proprietor •■whenever he shall require it. - Sect. 4958 prescribes the Librarian’s fees: “ First, for recording the title or description of any copyright book or other article,- fifty cents; -second, for every copy under seal, of such record actually given to the person claiming the copyright, or his assigns, fifty cents,” &c. •-•Sect.¡4959 declares ■ that the proprietor of, every copyright book, &c., shall deliver at the office of the Librarian of Congress,- or.deposit in .the .mail addressed to him, within ten (Jays ■ after its publication, two cbmplete printed copies thereof, of the best edition .issued, and a copy of every subsequent edition wherein any substantial changes are made. Sect. 4960 imposes a-penalty of twenty-five-dollars-for failure to' deposit the- published copies as required in the previous sections. Sect. 4961 declares as follows: “ The postmaster to whom such copyright book, title, or other article is delivered, shall, if requested, give a receipt therefor; and- when so delivered, he shall mail it to its destination..!’ On a mere inspection of -these enactments it is very obvious that the deposit of two copies of the book, after its publication, either with the Librarian of Congress, or in the mail addressed to him, is an essential condition of the proprietor’s right; and must, in some way, be proved in an action for infringement. The words of the law are: “ No person shall be entitled to a. copyright unless lie shall also within ten days, &c., deliver at the office of the Librarian of Congress, or deposit in the mail, &c., two copies of such copyright book.” Nothing can be plainer than this. Then; what is competent proof of such a deposit? If, after complying with all the requisite conditions, the law had authorized letters-patent" }, { "docid": "21811668", "title": "", "text": "the defendant. Mr. Moore’s letter of October 25, 1922, was, of course, not copyrighted, but the common-law property right of an author in his manuscript gives him redress against any one who publishes it without his authority. Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 S. Ct. 722, 52 L. Ed. 1086. The author of a literary work or production “has a right to determine whether it shall be published at all, and if published, when, where, by whom, and in what form. This exclusive right is confined to the first publication. When once published it is dedicated to the public, and the author has not, at common-law, any exclusive right to multiply copies of it or to control the subsequent issues of copies by others.” Palmer v. De Witt, 47 N. Y. 532, 7 Am. Rep. 480. The common-law property right exists only in works which have not been published within the meaning of the copyright acts and is a perpetual right. The statutes relating to copyright are intended to secure to the author the exclusive right in his work for a limited term of years which have been published in accordance with the statute. Caliga v. Inter Ocean Newspaper Co. (C. C. A.) 157 F. 186, affirmed 215 U. S. 182, 30 S. Ct. 38, 54 L. Ed. 150; Werckmeister v. American Lithographic Co. (C. C. A.) 134 F. 321, 68 L. R. A. 591; Wheaton v. Peters, 33 U. S. (8 Pet.) 591, 8 L. Ed. 1055; Baker v. Libbie, 210 Mass. 599, 97 N. E. 109, 37 L. R. A. (N. S.) 944, Ann. Cas. 1912D, 551; Drone on Copyright, p. 100. At common law, as well as under the copyright acts, it is the form, sequence, and manner in which' the composition expresses the idea which is secured to the author, not the idea. White-Smith Music Co. v. Apollo Co., 209 U. S. 1, 28 S. Ct. 319, 52 L. Ed. 655, 14 Ann. Cas. 628; Stowe v. Thomas, Fed. Cas. No. 13, 514; Haskins v. Ryan, 71 N. J. Eq. 575, 64 A." }, { "docid": "23396142", "title": "", "text": "an action for the infringement of Ms copyright. The word “ action ” means an action either at law or in equity. Section 3 of the act of May 31, 1790, c. 15, 1 Stat, 125, declared that no person should be entitled to the benefit of that act, unless he should first deposit a printed copy, of the title of a book in the prescribed office; and further provided that the author or proprietor should, within a prescribed time, cause a copy of the record of the title to be published in one ■or more newspapers, as prescribed. Section 1 of the act of April 29, 1802, c. 36, 2 Stat. 171, provided that every person who should seek to obtain a copyright of a book should, in addition to the requisites enjoined in the act of 1790, give information, by causing the copy of the record to be inserted at full length in the title-page, or in the page immediately following the title of the book. Section 5 of the act of February 3, -1831, c. 16, 4 Stat. 437, declared that ho person should be entitled to the benefit of that act, unless he should insert the prescribed words in the published copies of the book. In section 97 of the act of July 8, 1870, c. 230, 16 Stat. 214, now section 4962 of the Revised Statutes, the language of section 5 of the act of 1831 was changed so as to declare that no person should maintain an action- for the infringement of his copyright, unless he should insert in the several published copies the notice prescribed. This requirement of giving the prescribed notice has always been held, under all of the statutes, to be one of the conditions precedent to the'perfection of the copyright, the other two being the deposit, before publication, of the printed copy of the title, and the depositing in the public office, within the prescribed time after publication, of a copy or copies of the book. Wheaton v. Peters, 8 Pet. 591; Merrell v. Tice, 104 U. S. 557; Callaghan" }, { "docid": "14789810", "title": "", "text": "one may not be decreed. Clark v. Wooster, 119 U. S. 322, 7 Sup. Ct. Rep. 217. The delay in bringing the suit is relied upon as a defense. That the right'of recovery is barred by any statute of limitations is not claimed; but the lapse of time is said to meet the equity, if any, of the oratrix’s case. There is, however, no proof of acquiescence in, or failure in objecting to, anything done by the defendants constituting the infringement. complained of. The conduct of the defendants has not been induced, nor their liability varied, by anything done or omitted to be done by those interested in the copyright. Nothing is apparent adequate to cut off any right accrued. Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. Rep. 143. \" The most difficult question is as to whether there has in fact been any substantial infringement. Some of the parts in question are quotations from conversations, letters, and speeches; in some, prominent words of statements are taken, and used with others to convey the same idea; in others, the substance of expression is taken with small variations of language; and in some instances portions of considerable length are copied 'verbatim. Th'e speeches, letters, and conversations, by themselves alone, are facts not understood to be the subjects of a copyright. Cary v. Longman, 1 East, 358; Banks v. Manchester, 128 U. S. 244, 9 Sup. Ct. Rep. 36. But that these were used'in making up the work copyrighted would not seem to deprive it of protection. 2 Kent, Comm. 381; Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. Rep. 177. Neither does the using of parts as quotations appear to avoid liability for taking them to make up another work. 2 Kent, Comm. 382. The writings of authors arq. what congress is authorized to secure to them, (Const. U. S. art. 1, § 8;) and these are what the sole liberty of copying and vending conferred by congress applies to. The sole liberty is invaded when any material part of what is the author’s own work" }, { "docid": "22782872", "title": "", "text": "Congress, in the year-, by A. B., in the clerk’s office of the District Court of-.” Undoubtedly, the three conditions prescribed by the statute, namely, the.deposit before publication of the printed copy of the title of the book, the giving of information of the copyright by the insertion of the notice on the title-page or the next page, and the depositing of a copy of the book within 'three months after the publication, are conditions precedent to the perfection of the copyright. Wheaton v. Peters, 8 Pet. 591; Merrell v. Tice, 104 U. S. 557. It is contended by the defendants that the plaintiff has not proved the date of the publication of any of the volumes in question; that the only proof he has offered is in the form of certificates by the clerk of the District Court, showing the dates of the filing of the printed titles of the volumes; and that he has failed to show whether such filing preceded or followed the publication of the volumes. The record shows\" that the plaintiff, in respect of volumes 32 to 46, offered in evidence fifteen certificates made by William H. Bradley, clerk of the District Court of the United States for the Northern District of Illinois, each of which was in the following form, except as to the number of the volume, and its.contents, and except that, as to volumes 39 to 43, the name “Eugene B. Myers,” and as to volumes 44 to 46, the name “ E. B. Myers,” was substituted for the names “ E. B. Myers & Chandler: ” “Uniter ^ ates of Ameeica, ) “ Northern Pistrict of Illinois, J “Greek’s Office of the Disteict Couet op the “United States foe said Disteict. “ Be it remembered, that on the 12th day of August, a.d. 1865, E. B. Myers & Chandler, of said district, deposited in this office the title of a book as follows, to wit: Reports of cases at law and in chancery argued and determined in the Supreme Court of Illinois, by Norman L. Freeman, counsellor- ' at-law, volume 32," }, { "docid": "23107821", "title": "", "text": "copyright for five years copies thereof, in the form of toys and dolls. Ho did so, distributing thousands of them. Appellants deny infringement, and argue that the copyright is invalid because tho appellees published copies of the copyrighted work without complying with sections 9 and 18 of the Copyright Law (USCA title 17, §§ 9 and 18). This alleged invalidity presents the question of the sufficiency of notiee as required by the statute (USCA title 17, § 9). Any person entitled thereto may secure a copyright for his work by publication thereof with notice of copyright as required by the act. The notice “'shall be affixed to each copy thereof published or offered for sale in tho United States by authority of the copyright proprietor, except in the ease of books seeking ad interim protection under section 21 of this title.” Section 18 provides that the notice required by section 9 “shall eonsist either of the word 'Copyright' or the abbreviation 'Copr.,' accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notiee shall include also the year in which the copyright was secured by publication.” The appellant argues that the notiee, in the form of “Betty Boop des. and copyrighted by Fleischer Studios,” which was placed upon the front of the doll’s skirt, was insufficient to comply with the statute, and that each appellee assumed direct responsibility for the form of the notice so affixed to the appellees’ doll. The notice is claimed to bo insufficient, in that it fails to use the correct name, Fleischer Studios, Inc., instead of Fleischer Studios, and omits tho year of the grant of ilie copyright. The argument proceeds that the law of copyright is statutory and demands strict compliance with the requirements of notiee if the copyright is to receive protection under the statute. Caliga v. Inter Ocean Newspaper Co., 215 U. S. 182, 30 S. Ct. 38, 54 L. Ed. 150; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 28 S. Ct. 72, 52 L. Ed. 208, 12 Ann." }, { "docid": "23396143", "title": "", "text": "3, -1831, c. 16, 4 Stat. 437, declared that ho person should be entitled to the benefit of that act, unless he should insert the prescribed words in the published copies of the book. In section 97 of the act of July 8, 1870, c. 230, 16 Stat. 214, now section 4962 of the Revised Statutes, the language of section 5 of the act of 1831 was changed so as to declare that no person should maintain an action- for the infringement of his copyright, unless he should insert in the several published copies the notice prescribed. This requirement of giving the prescribed notice has always been held, under all of the statutes, to be one of the conditions precedent to the'perfection of the copyright, the other two being the deposit, before publication, of the printed copy of the title, and the depositing in the public office, within the prescribed time after publication, of a copy or copies of the book. Wheaton v. Peters, 8 Pet. 591; Merrell v. Tice, 104 U. S. 557; Callaghan v. Myers, 128 U. S. 617, 652. It is not enough that Thompson, while he owned the copyright, gave the required notice in the copies of every edition he published, while it was Ms copyright. The inhibition of the statute extended to and operated upon Hubbard while he owned the copyright, in respect to the copies of every .edition which he published, and for his failure he is debarred from maintaining his action. The view is urged, that the only object of the notice required by the statute is to give notice' of the copyright to the public; and that, as Thompson himself took the copyright, and had vested the title to it in Hubbard, he has no right to infringe the copyright, although it may be invalid as to the rest of the world. JBut we are of opinion that the failure of Hubbard to comply with the statute operated to prevent his right of action against Thompson from coming into existence. This right of action, as well as the copyright itself, is wholly" }, { "docid": "17361378", "title": "", "text": "do not apply. In Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547, the title of a book was deposited in 1867, while the notice of copyright gave the year as 1866. This variance was held to be immaterial. The date in the notice was conclusive, and the only effect of the mistake was to shorten the duration of the copyright by one year. The title of another book was deposited by “E. B. Myers & Chandler,” while the notice of copyright gave the name of “E. B. Myers” alone. This also was held to be an immaterial variance “under the circumstances of the case” (apparently because Myers was a partner in the firm) ; and the statute was said to be “substantially complied with, particularly as it is not shown that the defendants were misled by the variance, or induced to do or omit anything because of it.” In Falk v. Schumacher (C. C.) 48 Fed. 222, the notice was “1889, Copyrighted by B. J. Falk, New York.” As the court said, this was “less symmetrical and concise” than a notice which was in accord with the strict letter of the statute, but was nevertheless sufficient under the decision in Callaghan v. Myers as a substantial compliance with the statute. In Snow v. Mast (C. C.) 65 Fed. 995, the notice was “Copyright ’94. By B. L. Snow”; and the obvious and well-known abbreviation for 1894 was held to point with sufficient certainty to the year. Bolles v. Outing Co. (C. C. A.) 77 Fed. 966, 23 C. C. A. 594, 46 L. R. A. 712, decided that a notice reading “Copyright 93 by Bolles, Brooklyn,” was good; citing Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. 279, 28 L. Ed. 349, as authority for the use of “Bolles” without a given name or initial, and holding, also, that no person could possibly be deceived by the omission of the figures denoting the century. And finally in Hills v. Austrich (C. C.) 120 Fed. 862, the notice “Copyright 1902, Published" }, { "docid": "23157243", "title": "", "text": "connected with the fine arts; and also that no prints or labels ■designed to be used for any other articles of m mufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commissioner of Patents is charged with the supervision and control of the entry or .registry oif such prints or labels in conformity with the- regulations provided by law as to copyright of prints. This statute does not, however, make any change in the requirement of notice; it only permits the form of it to be changed. The copyright^: secured when the registration is complete, and a certifica.j of the registration is given,by the commissioner; just as under the former law it was secured when the proper filing had been made with the Librarian of Congress and his certificate was issued. ■ But in this case notice of the copyright obtained has not been given as required. The law in that' respect has not been followed. The fact of registration' alone is placed upon the label. The word “ copyright ” is not used, and, of course, with its omission the essential facts respecting any copyright áre omitted also. The law, therefore, has not been complied with, .and by its very terms fib action can be' maintained for the infringement of the alleged copyright with out such compliance, and, of course,, no suit in equity to restrain any future use of the label. Rev. Stat. § 4962; Wheaton v. Peters, 8 Pet. 591; Callaghan v. Myers, 128 U. S. 617, 652. Decree affirmed." }, { "docid": "3831227", "title": "", "text": "De Witt, 47 N. Y. 532, 7 Am. Rep. 480. ‘‘Xciiher tlio author nor proprietor of a literary work has any property in its name. It is a term of description, which servos to identify the work; ¡rat any other person can, with impunity, adopt it and apply it to any other book, or to any trade commodity, provided he does not use it as a false token to induce the public; to boltcve that the thing to which it is applied is the identical thing which it originally designated. If literary property could he protected under the theory that Hie name by which it is christened is equivalent to a trade-mark, there would be no necessity for copyright laws.” Black v. Ehrich (C. C.) 44 Fed. 793. So tlie copyright of a book does not prevent others front taking- the same title for another book, though the copyright has not expired; and on the expiration of the copyright of a novel any person may use the plot for a play, copy or publish it, or make any other use of it he sees fit. In such case, where one writes and copyrights a play based on a novel, and bearing the same title as the novel, he cannot prevent another from giving the same name to an entirely different play which has been constructed from that novel. Glaser v. St. Elmo Co. (C. C.) 175 Fed. 276. The right to use a copyrighted' name upon the expiration of the copyright becomes public property,, subject to the limitation that the right be so exercised as not to deceive members of the public and lead them to believe that they are buying the particular thing which was produced under the copyright. G. & C. Merriam Co. v. Ogilvie (C. C. A.) 159 Fed. 638, 88 C. C. A. 596, 16 L. R. A. (N. S.) 549, 14 Ann. Cas. 796. Original section 4952, R. S. U. S., provided that “authors may reserve the right to dramatize or to translate their own works.” Unless this reservation was made, the public was free" }, { "docid": "17361377", "title": "", "text": "November. The relevant facts have been already stated, and need not be repealed. I have re-examined the title pages of the numbers issued during that period, and I am confirmed in the belief “that the date on the second line is the date of publication, and evidently was not intended to be a part of the notice of copyright.” Nothing can make this fact so plain as the inspection of one of these numbers. A continuous black line is drawn completely across the column between the first and second lines, separating the two as distinctly as if they were in different columns, and making it perfectly clear that the copyright notice was regarded as fully finished upon the first line, and that the second line was used for the different purpose of giving the date of publication, the volume number, and what seems to be the total number of the weekly issues. The cases that have been cited in order to persuade the court to read the date from the second line into the first do not apply. In Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547, the title of a book was deposited in 1867, while the notice of copyright gave the year as 1866. This variance was held to be immaterial. The date in the notice was conclusive, and the only effect of the mistake was to shorten the duration of the copyright by one year. The title of another book was deposited by “E. B. Myers & Chandler,” while the notice of copyright gave the name of “E. B. Myers” alone. This also was held to be an immaterial variance “under the circumstances of the case” (apparently because Myers was a partner in the firm) ; and the statute was said to be “substantially complied with, particularly as it is not shown that the defendants were misled by the variance, or induced to do or omit anything because of it.” In Falk v. Schumacher (C. C.) 48 Fed. 222, the notice was “1889, Copyrighted by B. J. Falk, New York.”" }, { "docid": "22782871", "title": "", "text": "the Secretary of State, to be deposited in his office. Although, under § 6 of the same act, the exclusive right to the copyright vests upon the recording of the title of the book, and runs for the prescribed period from that date, and although the right of action for infringement, under § 6, also accrues at that time, yet it is quite clear, that, under § 4, in respect at least to suits brought after three months from the publication of the book, it must be shown, as a' condition precedent to the right to maintain the suit, that a dopy of the book was delivered to the clerk of the District Court within three' months from the publication. Section 5 of the same act provides, that no person shall be entitled to the benefit of the act, unless he shall give information of copyright being secured, by causing to be inserted in the published copies, on the title-page of the book or the page immediately following, the words: “Entered -according to act of Congress, in the year-, by A. B., in the clerk’s office of the District Court of-.” Undoubtedly, the three conditions prescribed by the statute, namely, the.deposit before publication of the printed copy of the title of the book, the giving of information of the copyright by the insertion of the notice on the title-page or the next page, and the depositing of a copy of the book within 'three months after the publication, are conditions precedent to the perfection of the copyright. Wheaton v. Peters, 8 Pet. 591; Merrell v. Tice, 104 U. S. 557. It is contended by the defendants that the plaintiff has not proved the date of the publication of any of the volumes in question; that the only proof he has offered is in the form of certificates by the clerk of the District Court, showing the dates of the filing of the printed titles of the volumes; and that he has failed to show whether such filing preceded or followed the publication of the volumes. The record shows\" that the" }, { "docid": "10358609", "title": "", "text": "of the original copyright. Further, following the same idea, it is held that an abridgment of a copyrighted edition of old material, if the material itself be open to use, is not an infringement, unless the arrangement is copied; that the doctrine is different from that of a patent, where the idea of the patent cannot be used, even if independently conceived—citing again Story v. Holcombe, supra. The court ultimately determined that Dana’s notes were not in the nature of an abridgment of Lawrence’s Wheaton, but were new notes to the original text, and then went on to consider whether there had been unfair use of the original edition in making up the new notes. The court there approves the rule of Judge Story, that to constitute an invasion of copyright it is not necessary that the whole of a work should be copied, nor even a large portion of it, in form or substahce, but that if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute an infringement. The court later says: “Tlie privilege of fair use accorded to a subsequent writer must be such, and such only, as will not cause substantial injury to the proprietor of the first publication.” And the decision of the court was to the effect that many of the notes did infringe corresponding notes of the complainant’s publication, that the respondent borrowed very largely the arrangement of the antecedent edition, and, without making a detailed specification of the instances of infringement, the question was referred to a master to report the extent of the infringement, and to classify the instances thereof. The United States Supreme Court, in 1888, decided the case of Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547, in which it was held that a law reporter was entitled to obtain a 'copyright for the matter which was the result of his own intellectual labor, including the title page" } ]

[ { "docid": "1155119", "title": "", "text": "license. As there was no perfection of the security interest, Judge Brody held that under Section 9-301 of the Uniform Commercial Code the rights of the creditor were subordinate to those of the trustee. Judge Brody’s decision was cited and followed in In re Mason, 18 B.R. 817 (Bankr.W.D.Tenn.1982) and In re Gencarelli, 14 B.R. 751 (Bankr.D.R.I.1981). In In re Rudy’ Inc., 23 B.R. 1 (Bankr.E.D.Mich.1981) Judge Walker held that although a security interest by a bank in the liquor license and liquor inventory was perfected, it was not valid as to a state tax lien as Rule 19 of the Commission provided: “ ‘(a) security agreement between a buyer and a seller of a license retail business, or between a debtor and a secured party, shall not include the license or alcoholic liquor.’ ” Judge Graves in In re Ratcliff, supra, took a different view and held that Rule 19 was contrary to the U.C.C. Art. IX and that notwithstanding Rule 19, an unperfected security interest in a liquor license would be subordinate to a perfected security interest. In In re Beefeaters, Inc., 27 B.R. 848 (Bankr.W.D.Mich.1983) Judge Howard of this court held that since Rule 19 did not allow a security agreement in a liquor license, there was no requirement for filing, with the Secretary of State’s office, the agreement to reconvey the license as contained in the sales agreement. In In Re Bernies, Inc., 44 B.R. 296 (Bankr.E.D.Mich.1983) Judge Bernstein and District Judge Newblatt followed In re Beefeaters, Inc., supra. In re Beefeaters, Inc., was decided under Rule 19 and would therefore not be determinative in this case where the creation of the lien took place prior to Rule 19’s enactment. In the case of In re McCormick, 26 B.R. 869 (Bankr.E.D.Mich.1983), the security interest was created and perfected before the effective date of Rule 19 and was subject to Emergency Rule 23(6) which only prohibited a security agreement in alcoholic liquor. Judge Woods held that a perfected security interest in a liquor license was therefore valid. The XXI Amendment to the Constitution of the United States" } ]

[ { "docid": "18734302", "title": "", "text": "differing equitable interests. The interests which Michigan law recognizes as arising out of the reassignment agreement are not merely contractual rights but, rather, are more in the nature of equitable interests in the license. Accordingly, various Michigan cases have held that “an agreement to assign a class ‘C’ liquor license is valid and performance thereof, under proper circumstances, may be required by a court of equity”. Com’l Accept. Corp. v. Benvenuti, 341 Mich. 100, 103, 67 N.W.2d 129, 130 (1954) citing, Roodvoets v. ’ Anscer, 308 Mich. 360, 13 N.W.2d 850 (1944), and MacNicol v. Grant, 337 Mich. 309, 60 N.W.2d 290 (1953). Accepting the fact that Michigan courts have recognized strong equitable interests arising out of an agreement to reassign a liquor license, the Court believes that, as against the Trustee, Appellant is entitled to an equitable lien on the two liquor licenses. See generally, Warren Tool Co. v. Stephenson, 11 Mich.App. 274, 281, 161 N.W.2d 133 (1968). The conclusion that the equitable lien doctrine is appropriate in this case is supported by the fact that the documents executed upon the sale of Appellant’s business to Debtors evidenced a clear intent by Appellant to preserve as great an interest in the licenses as Michigan law allowed. In reaching this conclusion, this Court recognizes that conflicting case law authority exists in this area. In its research, the Court found five cases on point, of which approximately half support the decision in this case. The five cases which the Court found are: Matter of Matto’s, Inc., 9 B.R. 89 (Bankr.E.D.Mich.1981); In Re Rudy’s Inc., 23 B.R. 1 (Bankr.E.D.Mich.1981); Matter of McCormick, 26 B.R. 869 (Bankr.E.D.Mich.1983); Matter of Beefeaters, Inc., 27 B.R. 848 (Bankr.E.D.Mich.1983); In Re Bernie’s, Inc., 44 B.R. 296 (Bankr.E.D.Mich.1983). In analyzing these cases, the Court believes that Matter of Matto’s, Inc., supra, is of limited value in that it failed to discuss the importance of Michigan’s prohibition against perfecting security interests in liquor licenses. In In Re Rudy’s Inc., supra, the Court held flatly that “Rule 19 obfuscates a lender’s security interest in a liquor license.” In Re Rudy’s" }, { "docid": "1180027", "title": "", "text": "fixtures and improvements. Nevertheless, quoting Bizier v. Globe Financial Services, Inc., 654 F.2d 1, 8 (1st Cir.1981), which pointed out that an inaccurate, over-inclusive “disclosure” of a security interest was violative of the TILA, this Court in Perry had no difficulty in finding a TILA violation. Accord, e.g.: Basham v. Finance America Corp., 583 F.2d 918, 923-26 (7th Cir.1978); Reid v. Liberty Consumer Discount Co., 484 F.Supp. 435, 440-41 (E.D.Pa.1980) (per BRODERICK, J.); and Cadmus v. Commercial Credit Plan, Inc., 437 F.Supp. 1018, 1019-21 (D.Del.1977) (per STAPLETON, J.). In the latter three (3) cases, one authored by Third Circuit Court of Appeals Judge Walter K. Stapleton and one arising in our own district court, the courts held that over-inclusive disclosure statements, which failed to note the ten-day limitation on security interest in after-acquired consumer goods imposed by Article 9-204 of the Uniform Commercial Code (UCC), were violative of the TILA. We might add that the disclosure statement here contains a similar disclosure violation as well. We note that the Mortgagee cites to a single authority, Williams v. Western Pacific Financial Corp., 643 F.2d 331 (5th Cir.1981), in reply to the several authorities of the Debtor and the past rulings of this court on this point. In that case, however, the mortgagee took a security interest in only after-acquired fixtures and equipment, not on “consumer goods” such as appliances and furniture, as here, and the disclosure statement there stated that, while security was taken on certain after-acquired property, it was not taken on “furniture, fixtures, and equipment.” To the extent that Williams is in conflict with Basham, Reid, and Cadmus, we are inclined to follow the latter three (3) decisions, particularly when it is considered that we should make every effort to follow the decisions of the district court where we are sitting. See In re Moisson, 51 B.R. 227, 229 (Bankr.E.D.Mich.1985); In re Investment Sales Diversified, Inc., 49 B.R. 837, 846 (Bankr.D.Minn.1985); and In re V-M Corp., 23 B.R. 952, 954-55 (Bankr.W.D.Mich.1982). Further, the Williams court distinguishes its previous decision in Pollock v. General Finance Corp., 535 F.2d 295 (5th" }, { "docid": "7654550", "title": "", "text": "ever come when the state supreme court decides these issues differently, then the federal courts must yield. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Reid v. Volkswagen of America, Inc., 575 F.2d 1175 (6th Cir.1978). . Hereafter, all references to the Michigan Uniform Commercial Code shall be cited as \"U.C.C. § _-_” in lieu of the full statutory citation. . One opinion was rendered in 1969. In re Plummer, No. 68-5770 (Bankr.E.D.Mich. March 24, 1969) (Bobier, Referee in Bankruptcy). . They include District Judge Stewart A. New-blatt, and'Bankruptcy Judges Bernstein, Brody, Howard, Walker and Woods (later District Judge), and Bankruptcy Referee (later Judge) Bobier. . This case is not a proper one for certification because many of the sub-issues which might be resolved do not arise here. Specifically, the parties have not raised the issue of whether the Michigan Liquor Control Commission validly adopted Rule 19. Nor do they argue that Rule 19, as being in apparent conflict with the provisions of Article 9 of the Michigan Uniform Commercial Code, is beyond the constitutional authority of the commission. See In re Rudy’s, Inc., 23 B.R. 1, 3 (Bankr.E.D.Mich.1981). For example, U.C.C. § 1-201(37) defines a “security interest” as \"an interest in personal property or fixtures which secures payment or performance of an obligation.” A liquor license is a form of personal property known as an \"intangible\". Underground Flint, Inc. v. Viro, Inc., No. 81-40230 (E.D.Mich. June 30, 1982); In re Matto’s, Inc., 9 B.R. 89, 7 B.C.D. 351, 4 C.B.C.2d 136 (Bankr.E.D.Mich.1981). The agreement to reassign a liquor license is collateral to the underlying obligation of the debtor/purchaser of a bar or restaurant and secures performance of the payment and other requirements contained in the purchase documents. Accordingly, it could be forcefully argued that the purchaser’s separate agreement to reassign a liquor license to the seller upon a specified default in the contract’s terms creates in the seller nothing other than a \"security interest” in the license. Furthermore, U.C.C. § 9-102 was intended by the legislature to bring all forms of consensual security" }, { "docid": "4466964", "title": "", "text": "position which would assume various administrative and ‘ oversight duties. See H.R.Rep. No. 595, 95th Cong., 1st Sess. 100-102, 104-105 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 6061-63, 6065-66. The Senate bill initially did not contain a U.S. Trustee provision and thus reserved to bankruptcy judges those administrative responsibilities. While the Senate may have ultimately accepted the House version of § 1112(b), it did not accept a nationwide U.S. Trustee program. For some courts, depriving a bankruptcy court of the power to act on its own, in those districts where there was no U.S. Trustee system and in those cases where there was no active creditors’ committee, was contrary to Congressional intent. Matter of Nikron, 27 B.R. 773 (Bankr.E.D.Mich.1983); accord, In re Harvey Probber, Inc., 44 B.R. 647 (Bankr.D. Mass.1984). The Gusam holding also provided theoretical difficulties for courts struggling with the concept of the “good faith” bankruptcy filing. The requirement of “good faith” is not express in the Code but is usually implied based upon an historical analysis. See In re Victory Construction Co. Inc., 9 B.R. 549 (Bankr.C.D.Cal.1981), order vacated on other grounds, 37 B.R. 222 (Bankr. 9th Cir.1984). To the extent a statutory source is mentioned, the most common has been § 1112(b) (“cause”). In re Johns-Manville Corp., 36 B.R. 727 (Bankr.S.D.N.Y.1984), leave to appeal denied, 39 B.R. 234 (S.D.N.Y.1984), mandamus denied, 749 F.2d 3 (1984); Matter of Northwest Recreational Activities, Inc., 4 B.R. 36, 39 (Bankr.N.D.Ga.1980). In discussing good faith dismissals, courts have relied upon administrative oversight concepts designed to protect both the court and creditors from debtor abuse: Good faith, in the sense perceived by this court to have continued relevance, is merged into the power of the court to protect its jurisdictional integrity from schemes of improper petitioners seeking to circumvent jurisdictional restrictions and from petitioners with demonstrable frivolous purposes absent any economic reality. Matter of Northwest Recreational Activities, Inc., 4 B.R. at 39. Courts dealing with the good faith issue, sua sponte, have almost been forced to carve out an exception to the Gusam holding. See Matter of Little Creek Development," }, { "docid": "19003542", "title": "", "text": "or not such a creditor exists. 11 U.S.C. § 544(a)(1) (Supp. III 1985). Pursuant to this section, the trustee in bankruptcy can avoid unperfected liens on property belonging to the bankruptcy estate. Matter of Chaseley’s Foods, Inc., 726 F.2d 303, 307 (7th Cir.1983); White & Summers, Uniform Commercial Code § 24-3, at 996-97 (2d ed. 1980). Once the trustee has assumed the status of a hypothetical lien creditor under § 544(a)(1), state law is used to determine what the lien creditor’s priorities and rights are. In re Clifford, 566 F.2d 1023 (5th Cir.1978); In re Gringeri Brothers Transportation Co., 14 B.R. 396 (Bankr.D.Mass.1981); e.g., In re Cushman Bakery, 526 F.2d 23 (1st Cir.1975) (whether security interest has been perfected against trustee in bankruptcy is a question of state law), cert. denied, 425 U.S. 937, 96 S.Ct. 1670, 48 L.Ed.2d 178 (1976). Hence, the bankruptcy court and the district court examined Vermont law to determine what rights the trustee had as a hypothetical lien creditor under § 544(a)(1). The bankruptcy court found, and the district court agreed, that under Vermont law the Howard Bank failed to perfect its security interest in the Kors equipment. Under Article 9 of the Vermont Uniform Commercial Code, a security interest may be perfected by filing a financing statement signed by the debtor. Vt.Stat.Ann. tit. 9A §§ 9-302, 9-402(1), 9-403 (1966). The failure to identify and obtain the signature of a debtor on a financing statement is fatal to the perfection of the security interest. Id. at § 9-402(2). As owner of the collateral, Kors was the debt- or whose signature was necessary on the financing statement for perfection. Indeed, the Bank loaned money for the equipment to Kors and RIDC jointly. Since only RIDC, and not Kors, signed the financing statement, the bankruptcy court found that the Bank did not hold a perfected security interest against Kors in any collateral. 50 B.R. 874, 879 (Bankr.D.Vt.1985). Thus, at the commencement of the bankruptcy case, the Bank had an unper-fected security interest in Kors’ collateral. Since Vermont law gives a lien creditor rights superior to those of" }, { "docid": "18765068", "title": "", "text": "vendor and vendee, and must be characterized as personal property....” Id. at 1156. See also Matter of D.J. Maltese, Inc., 42 B.R. 589 (Bkrtcy.E.D.Mich.1984); In re S.O.A.W. Enterprises, Inc., 32 B.R. 279 (Bkrtcy.W.D.Tex.1983); In re Columbia Pacific Mortgage, Inc., 22 B.R. 753 (Bkrtcy.W.D.Wash.1982); Matter of Equitable Development Corp., 20 U.C.C.Rep.Serv. 1349, (Bkrtcy.S.D.Fla.1976). The contracts in the instant ease are defined as “general intangibles” by the U.C.C. Matter of D.J. Maltese, Inc., supra. Accordingly, the Court holds that the contracts collaterally assigned to Defendant are subject to the filing requirements of Article 9 of the Uniform Commercial Code as adopted in Florida. SUFFICIENCY OF DEFENDANT’S FINANCING STATEMENT Having determined that Article 9 applies, the Court must determine whether the language in the Defendant’s financing statement is sufficiently descriptive enough to put third party creditors on notice that the Defendant had a security interest in a substantial number of the debtor’s contract receivables, “general intangibles.” The statutory standard for the sufficiency of the description of personal property collateral is whether the description reasonably identifies what is described. § 679.110, Fla.Stat. (1983). The second and ultimate statutory standard for the sufficiency of a filing statement is that it is “not seriously misleading.” § 679.402, Fla.Stat. (1983). The Florida Courts have adopted the standard set forth in “[t]he comment to Section 9-110 of the Uniform Commercial Code [which] states that the test of sufficiency of a description ‘... is that the description do the job assigned to it — that it make possible the identification of the thing described.’ ” American Restaurant Supply Company v. Wilson, 371 So.2d 489, 490 (Fla. 1st DCA 1979). This standard applies to descriptions contained in both financing statements and security agreements. Id. at 490. While the rule under the U.C.C. is that the description need only be sufficient to put a third party on inquiry notice that the secured party may have a security interest in the property described, Matter of Glasco, Inc., 642 F.2d 793 (5th Cir.1981), where the description is nonetheless seriously misleading or simply insufficient, a third party creditor is entitled to prevail against the" }, { "docid": "19003543", "title": "", "text": "agreed, that under Vermont law the Howard Bank failed to perfect its security interest in the Kors equipment. Under Article 9 of the Vermont Uniform Commercial Code, a security interest may be perfected by filing a financing statement signed by the debtor. Vt.Stat.Ann. tit. 9A §§ 9-302, 9-402(1), 9-403 (1966). The failure to identify and obtain the signature of a debtor on a financing statement is fatal to the perfection of the security interest. Id. at § 9-402(2). As owner of the collateral, Kors was the debt- or whose signature was necessary on the financing statement for perfection. Indeed, the Bank loaned money for the equipment to Kors and RIDC jointly. Since only RIDC, and not Kors, signed the financing statement, the bankruptcy court found that the Bank did not hold a perfected security interest against Kors in any collateral. 50 B.R. 874, 879 (Bankr.D.Vt.1985). Thus, at the commencement of the bankruptcy case, the Bank had an unper-fected security interest in Kors’ collateral. Since Vermont law gives a lien creditor rights superior to those of the holder of an unperfected security interest, the trustee, pursuant to § 544(a)(1) of the Code, had rights superior to those of the Bank on the date of the bankruptcy filing. Vt.Stat.Ann. tit. 9A § 9-301(1)(b) (1966); see In re Jerome, 31 Bankr. 266 (Bankr.D.Vt.1983); In re Rutland Tile Center, Inc., 5 U.C.C.Rep.Serv. (Callaghan) 1115 (Bankr.D.Vt.1968); see also A. Cohen, Bankruptcy, Secured Transactions and Other Debtor-Creditor Matters 361 n. 4 (1981) (“The trustee has the status of a creditor with a judicial lien as of the time of the commencement of the bankruptcy case, resulting in the trustee having the power to assert priority in the collateral pursuant to U.C.C. § 9-301(1)(b).”) Section 551 of the Code automatically preserves for the benefit of the estate any interest avoided under § 544. “Section 551 ... provide[s] that any transfer of an interest in property avoided under Code Section 544 is preserved for the benefit of the estate.” In re Vermont Fiberglass, Inc., 45 B.R. 603 (Bankr.D.Vt.1984). Applying § 551, the bankruptcy court preserved the Bank’s unperfected" }, { "docid": "7654551", "title": "", "text": "Commercial Code, is beyond the constitutional authority of the commission. See In re Rudy’s, Inc., 23 B.R. 1, 3 (Bankr.E.D.Mich.1981). For example, U.C.C. § 1-201(37) defines a “security interest” as \"an interest in personal property or fixtures which secures payment or performance of an obligation.” A liquor license is a form of personal property known as an \"intangible\". Underground Flint, Inc. v. Viro, Inc., No. 81-40230 (E.D.Mich. June 30, 1982); In re Matto’s, Inc., 9 B.R. 89, 7 B.C.D. 351, 4 C.B.C.2d 136 (Bankr.E.D.Mich.1981). The agreement to reassign a liquor license is collateral to the underlying obligation of the debtor/purchaser of a bar or restaurant and secures performance of the payment and other requirements contained in the purchase documents. Accordingly, it could be forcefully argued that the purchaser’s separate agreement to reassign a liquor license to the seller upon a specified default in the contract’s terms creates in the seller nothing other than a \"security interest” in the license. Furthermore, U.C.C. § 9-102 was intended by the legislature to bring all forms of consensual security interests in personal property, (with the exception of those listed in § 9-104), no matter how the transaction is nominally arranged, into the ambit of Article 9. Nickell v. Lambrecht, 29 Mich.App. 191, 199-200, 185 N.W.2d 155 (1970); Uniroyal, Inc. v. Michigan Bank, N.A., 12 U.C.C. Rep. 745, 750 (Mich.Cir.Ct.1972); Redisco, Inc. v. United Thrift Stores, Inc., 363 F.2d 11 (3rd Cir.1966); In re Brookside Drug Store, Inc., 29 U.C.C.Rep. 230, 237, 3 B.R. 120, 124 (Bankr.D.Conn.1980); E. Turgeon Constr. Co. v. Elhatton Plumbing & Heating Co., 110 R.I. 303, 292 A.2d 230, 10 U.C.C.Rep. 1353, 1358 (1972). Specifically designated as one of the devices which create nothing more than a \"security interest\", as so defined, is an \"assignment”. In the transaction in question, the purchaser's agreement to \"reassign” the license to the seller should be treated no differently than any other procedural artifice designed to avoid Article 9 analysis. Id. U.C.C. § 9-105(l)(h) defines a \"security agreement\" as \"an agreement which creates or provides for a security interest\". Unless the creditor has possession of" }, { "docid": "1155120", "title": "", "text": "a perfected security interest. In In re Beefeaters, Inc., 27 B.R. 848 (Bankr.W.D.Mich.1983) Judge Howard of this court held that since Rule 19 did not allow a security agreement in a liquor license, there was no requirement for filing, with the Secretary of State’s office, the agreement to reconvey the license as contained in the sales agreement. In In Re Bernies, Inc., 44 B.R. 296 (Bankr.E.D.Mich.1983) Judge Bernstein and District Judge Newblatt followed In re Beefeaters, Inc., supra. In re Beefeaters, Inc., was decided under Rule 19 and would therefore not be determinative in this case where the creation of the lien took place prior to Rule 19’s enactment. In the case of In re McCormick, 26 B.R. 869 (Bankr.E.D.Mich.1983), the security interest was created and perfected before the effective date of Rule 19 and was subject to Emergency Rule 23(6) which only prohibited a security agreement in alcoholic liquor. Judge Woods held that a perfected security interest in a liquor license was therefore valid. The XXI Amendment to the Constitution of the United States repealed the XVIII Amendment and provided.in part: “Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128 (1939) holds that under the Twenty-first Amendment a state may adopt measures to reasonably restrict the transportation, sale or possession of intoxicating liquors. Art. IV § 39 of the Michigan Constitution of 1963 provides in part that “the legislature may by law establish a liquor control commission which, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof.” Mich.Comp.Laws § 436.7 (Mich.Stat.Ann. 18.977 (Callaghan 1980)) provides in part that: “The commission shall adopt rules and regulations governing the carrying out of this act the duties and responsibilities of licensees in the proper conduct and management of their licensed places.” In Mallchok v. Liquor Control Commission, 72 Mich.App. 341, 249 N.W.2d 415" }, { "docid": "7654555", "title": "", "text": "liquor license subject to the approval of the M.L.C.C.” Either way, the creditor could maintain the position with the commission that it did no more than obtain an agreement to reassign the license (of which the commission approves), and yet perfect under the U.C.C. whatever U.C.C. — generated rights that agreement gave it. Certainly nothing in Rule 19 requires a party not to publicly record a document of which the commission otherwise approves. . Also see In re Plummer, supra, and cases cited therein. . Although it is argued that the commission informally applied such a rule even prior to its formal adoption, the Court will disregard \"informal practices” of the commission which were never reduced through due process to a formal rule. Mallchok v. Liquor Control Comm., 72 Mich.App. 341, 249 N.W.2d 415 (1976). For this reason, the plaintiffs cannot argue that they would have violated \"state law” if they had filed a financing statement noting a security interest in the license at the time of the transaction. Compare Yiannatji v. Bernie’s, Inc., 44 B.R. 296 (Bankr.E.D.Mich.1983); In re Beefeaters, Inc., 27 B.R. 848 (Bankr.W.D.Mich.1983). . That section provides that an unperfected security interest in property is subordinate to the rights of a lien creditor in that same property. Since a trustee in bankruptcy is defined in U.C.C. § 9-301(3) as a \"lien creditor” from the date of the filing of the bankruptcy, it is clear as a matter of state law that the trustee’s rights in the collateral are superior to those of a creditor holding an unperfected security interest therein. . The license was sold during the pendency of this case by consent of the parties and upon the approval of the Court. This case therefore involves the parties’ relative rights to the proceeds of that sale." }, { "docid": "6640782", "title": "", "text": "MEMORANDUM OPINION AND ORDER HARVEY D. WALKER, Bankruptcy Judge. In this adversary proceeding the Court is asked to decide whether or not a creditor can obtain a valid security interest in a debtor’s liquor license and inventory of alcoholic liquor. On October 10, 1978, the Bank of the Commonwealth took a security interest in a liquor license and liquor inventory held by the Debtor, Rudy’s Incorporated. The Bank perfected its security interest in the collateral and any proceeds derived from the collateral by filing a financing statement on March 29, 1979. The State of Michigan now claims a tax priority lien under 11 U.S.C. § 507(a). The State contends that Rule 19, promulgated by the Michigan Liquor Control Commission, prohibits a lender from obtaining a valid security interest in a liquor license or alcoholic liquor. Rule 19 recites, in pertinent part: “(a) security agreement between a buyer and a seller of a licensed retail business, or between a debtor and a secured party, shall not include the license or alcoholic liquor.” In short the State takes the position that Rule 19 negates the validity of the Bank’s lien on the liquor license and the liquor inventory. First, the Court notes that the parties do not contest whether a security interest can be obtained in accordance with the Uniform Commercial Code in a liquor license or li quor inventory absent state regulations precluding such an arrangement. The Bank’s arguments in defending the validity of its lien fails to confront, however, the effect of Rule 19. The Bank relies most strongly on Matto’s Inc. v. Olde Colonie Place, 9 B.R. 89, 7 BCD 351 (Bkrtcy. ED Mich. 1981) which extended a lien in a liquor license pursuant to a security agreement. The Matto’s court, however, never discussed the impact of Rule 19 on the lien’s validity. The impact of Rule 19 is the heart of this case. Matto’s failure to raise this issue prevents that case from controlling the decision in the case at bar. Furthermore, other cases, cited by the Bank, in which a security interest in a liquor license was" }, { "docid": "18734304", "title": "", "text": "Inc., 23 B.R. 1, 2 (Bankr.E.D.Mich.1981). Nevertheless, Rudy’s involved the priority of a Michigan tax lien and inasmuch as the state of Michigan holds an ultimate power of approval over license transfers through the MLCC, this decision does not disturb the result reached in Rudy’s. In the two recent cases of Matter of McCormick, supra, and Matter of Beefeaters, Inc., supra, Courts recognized the dilemma created by the conflict of Rule 19 and 11 U.S.C. § 544(a)(1). More importantly, these cases recognized the rights of creditors to have liquor licenses reassigned to them in bankruptcy proceedings. In the Matter of McCormick, however, the Court concluded that, prior to the enactment of Rule 19, it was in fact possible to perfect a security interest in a liquor license. Accordingly, because the McCormick court found that the plaintiff in that case had perfected a security interest in the liquor license, the court avoided any discussion of the impact of Rule 19. McCormick, 26 B.R. at 873-74. The McCormick court based its conclusion that it was possible to perfect a security interest in a Michigan liquor license pri- or to Rule 19 on a reading of Interim Rule 23(6). Id. Interim Rule 23(6) failed to expressly prohibit the taking of a security interest in a Michigan liquor license. Nevertheless, this court believes that such a conclusion is contrary to previously discussed Michigan case law and contrary to MLCC policy at that time. Finally, in the Matter of Beefeaters, Inc., 27 B.R. 848 (Bankr.E.D.Mich.1983), the court concluded that the defendant creditor’s rights in a liquor license, which was transferred pursuant to the sale of a bar, was superior to the interest of the Trustee. The Court concluded In this case, however, the transaction was entered into after the effective date of Rule 19. The creditor and debtor must have been aware that the Liquor Control Commission prohibited the taking of a security interest in a liquor license. For this court to now state that the parties should have ignored the Rule and perfected the interest is patently unfair. Accordingly, I find the defendant’s rights" }, { "docid": "7654545", "title": "", "text": "courts or federal district courts in Michigan have been issued since 1981 on the question of whether a party may obtain a security interest in a liquor license granted by the Michigan Liquor Control Commission. Each judge who considered it came to a somewhat different conclusion. Consequently, legal practitioners in the State of Michigan are without guidance on how to protect their clients in the sale of their restaurants or bars when a liquor license is part of the transaction. As the determination of this issue involves purely state law, it is obvious that the only definitive answer to this question can come from the Michigan Supreme Court. That is why that Court is invited to decide the issue. Two points now seem to be settled-beyond dispute. The first is that a liquor license is “property”. Paramount Finance Co. v. United States, 379 F.2d 543 (6th Cir.1967); Bundo v. Walled Lake, 395 Mich. 679, 238 N.W.2d 154 (1976). The second is that such property is “property of the estate” for purposes of § 541 of the Bankruptcy Code. In re Matto’s, Inc., 9 B.R. 89, 7 B.C.D. 351, 4 C.B.C.2d 136 (Bankr.E.D.Mich.1981); Underground Flint, Inc. v. Viro, Inc., No. 81-40230 (E.D.Mich. June 30, 1982); see also In re McCormick, 26 B.R. 869 (Bankr.E.D.Mich.1983); In re Rudy’s, Inc., 23 B.R. 1 (Bankr.E.D.Mich.1981). The question that is still unresolved is whether a party may legally obtain a security interest in a liquor license. On the theory that the license represents “intangible property”, as defined by U.C.C. § 9-106, the following cases hold that one may obtain a valid security interest in a liquor license: In re Matto’s, Inc., supra; Underground Flint, Inc. v. Viro, Inc., supra; In re McCormick, supra. On the theory that state law prohibits the taking of a security interest in a liquor license, and therefore holding that one may not lawfully obtain such a security interest in Michigan are the following eases: In re Beefeaters, Inc., 27 B.R. 848 (Bankr.W.D.Mich.1983); In re Rudy’s, Inc., supra; Yiannatji v. Bernie’s, Inc., 44 B.R. 296 (Bankr.E.D.Mich.1983). The point where they differ" }, { "docid": "18795651", "title": "", "text": "a mortgage to its proceeds, to be held pending the outcome of this proceeding, because the mortgagors paid the debt in full. For further example, Ethel Pliskow states in her affidavit that the mortgage assigned to her for 26330 Normandy, Franklin, Michigan was re-financed. If a new mortgage or note is demonstrated to be proceeds through re-financing, a constructive trust may attach that property. C. The Trustee’s Arguments Against Imposition of a Constructive Trust The trustee contends that the policies embodied in the Bankruptcy Code override any state law doctrine concerning constructive trusts. While this assertion has merit to the extent of a conflict, it does not preclude the imposition of a constructive trust where it would not frustrate the policies of the Bankruptcy Code. The trustee compares a constructive trust to an equitable lien, contending that a trustee’s rights under 11 U.S.C. § 544(a)(1) are superior to those of an equitable lien holder because an equitable lien is treated under the Uniform Commercial Code as an unperfected security interest. Starr v. Bruce Farley Corp., 612 F.2d 1197 (9th Cir.1980); Hassett v. Revlon, Inc., (In re OPM Leasing Services, Inc.), 28 B.R. 104, 120 (Bankr.S.D.N.Y.1982). The argument lacks merit. These cases apply only to equitable liens and do not extend to constructive trusts or to equitable remedies in general. Constructive trusts are enforced in bankruptcy, albeit with caution. E.g., Wisconsin v. Reese, (In re Kennedy & Cohen, Inc.), 612 F.2d 963 (5th Cir.1980), cert. denied, 449 U.S. 833, 101 S.Ct. 103, 66 L.Ed.2d 38 (1980); McAllester v. Aldridge, (In re Anderson), 30 B.R. 995 (M.D.Tenn. 1983); In re American Intern. Airways, 44 B.R. 143 (Bankr.E.D.Pa.1984); Kagan v. Martin, (In re Tufts Electronics, Inc.), 34 B.R. 455 (Bankr.D.Mass.1983); Travelers Insurance Co. v. Angus, 9 B.R. 769 (Bankr.D.Or.1981). Moreover, the imposition of a constructive trust means that the property is excluded from the bankruptcy estate. Under 11 U.S.C. § 541(d), such property becomes property of the estate only to the extent of the debtor’s legal title and not to the extent of any equitable interest which the debtor does not hold. Thus," }, { "docid": "18765067", "title": "", "text": "that follow the Court finds that Defendant’s security interest was subject to the filing requirements of Article 9 of the Uniform Commercial Code as adopted in the State of Florida. The Court also finds Defendant’s financing statement to be deficient on two grounds; first, it failed to sufficiently describe the collateral and second, it was seriously misleading. Finally, the Court finds that the defense of estoppel was not proven nor available to the Defendant. APPLICABILITY OF ARTICLE 9 Although the contracts which the Debtor collaterally assigned to the Defendant concern the sale of real property, an assignment of a contract right is an assignment of an interest in personal property. The controlling law of this circuit is set forth in the case of Matter of Equitable Development Corp., 617 F.2d 1152 (5th Cir.1980) where it was held that the right to receive payment under contracts for the sale of real property is personal property. “Security interests created by a contract (in the assignment), eminates from the rights and obligations of the executory contract between the vendor and vendee, and must be characterized as personal property....” Id. at 1156. See also Matter of D.J. Maltese, Inc., 42 B.R. 589 (Bkrtcy.E.D.Mich.1984); In re S.O.A.W. Enterprises, Inc., 32 B.R. 279 (Bkrtcy.W.D.Tex.1983); In re Columbia Pacific Mortgage, Inc., 22 B.R. 753 (Bkrtcy.W.D.Wash.1982); Matter of Equitable Development Corp., 20 U.C.C.Rep.Serv. 1349, (Bkrtcy.S.D.Fla.1976). The contracts in the instant ease are defined as “general intangibles” by the U.C.C. Matter of D.J. Maltese, Inc., supra. Accordingly, the Court holds that the contracts collaterally assigned to Defendant are subject to the filing requirements of Article 9 of the Uniform Commercial Code as adopted in Florida. SUFFICIENCY OF DEFENDANT’S FINANCING STATEMENT Having determined that Article 9 applies, the Court must determine whether the language in the Defendant’s financing statement is sufficiently descriptive enough to put third party creditors on notice that the Defendant had a security interest in a substantial number of the debtor’s contract receivables, “general intangibles.” The statutory standard for the sufficiency of the description of personal property collateral is whether the description reasonably identifies what is described." }, { "docid": "1193530", "title": "", "text": "In those jurisdictions the risk of recording error is shifted to the party who filed the mis-recorded document. See, e.g., In re Tressler, 771 F.2d 791 (3rd Cir.1985) (applying Pennsylvania law); First National Bank of Denver v. Turley, 705 F.2d 1024 (8th Cir.1983) (applying South Dakota law); In re DeSchamp, 44 B.R. 517 (Bankr.N.D.Iowa 1984); In re Corsica Enterprises, Inc., 40 B.R. 769 (Bankr.D.S.D.1984); In re Farris, 40 B.R. 58 (Bankr.M.D.Ala.1984); Richlands Nat. Bank v. Smith, 34 B.R. 749 (W.D.Va.1983); In re Grizaffi, 23 B.R. 137 (Bankr.D.Colo.1982); In re Georgia Steel, Inc., 25 B.R. 796 (Bankr.M.D.Ga.1982); General Motors Acceptance Corp. v. Hodge, 485 S.W.2d 894 (Ky.1972); see 9 Anderson Uniform Commercial Code, § 9-403:6. Many other states have not made such an exception. See e.g., In re Farnham, 57 B.R. 241 (Bankr.D.Vt.1986); In re Butler’s Tire & Battery Co., 17 U.C.C. Rep.Serv.1363 (Bankr.D.Ore.1975) aff'd 8 C.B.C. 790, 18 U.C.C.Rep.Serv. 1302 (D.Or.1976); Liberty National Bank & Trust Co. of Oklahoma City v. Garcia, 686 P.2d 303, 38 U.C.C.Rept.Serv. 1040 (Okla.App.1984); Ferguson v. Morgan, 282 N.C. 83, 191 S.E.2d 817 (1972). The prescribed procedure for perfecting a security interest in an automobile in Michigan is found in the Michigan Uniform Commercial Code and the Michigan Vehicle Code. Mich.Comp.Laws § 440.9302(3), (4); Mich.Stat.Ann. § 19.9302(3), (4) (hereinafter cited as Mich.U.C.C. §-) states: (3) The filing of a financing statement otherwise required by this article is not necessary or effective to perfect a security interest in property subject to: (b) the following statutes of this state: (i) Section 216 of Act No. 300 of the Public Acts of 1949, as amended, being section 257.216 of the Michigan Compiled Laws...\" (4) ... compliance with § 217 or 238 of Act No. 300 of the Public Acts of 1949, as amended, being §§ 257.217 and 257.-238 of the Michigan Compiled Laws ... is equivalent to the filing of a financing statement under this article and a security interest in property subject to the statute or treaty can be perfected only by compliance therewith except as provided in section 9103 on multiple state transactions. The “Official U.C.C." }, { "docid": "18793102", "title": "", "text": "Inc. v. Robinson Industries, Inc., 46 B.R. 466 (D.Mass.1985), that such proceedings are noncore matters. In researching this issue, we have uncovered but three (3) cases which state that bankruptcy courts are absolutely bound by decisions of the district court where they are sitting. In re Maisson, 57 B.R. 227, 229 (Bankr.E.D.Mich.1985); In re Investment Sales Diversified, Inc., 49 B.R. 837, 846 (Bankr.D.Minn.1985); and In re V-M Corp., 23 B.R. 952, 954-55 (Bankr.W.D.Mich.1982). Cf. In re Hubbard, 23 B.R. 671, 673-74 (Bankr.S.D.Ohio 1982) (bankruptcy court bound by only district courts in the Sub-division of the district, which review its decisions.) However, other courts have stated that bankruptcy courts must follow the decisions of district courts where they are sitting only insofar as required by the doctrine of stare decisis. See In re Bill Ridgway, Inc., 4 B.R. 351, 353 (Bankr.D.N.J.1980). Further, as Judge Norton stated in In re Henry, 38 B.R. 24, 17 (Bankr.N.D.Ga.1983), “[t]he doctrine of stare decisis ... is not an immutable principle.” Rather, although admittedly with great hesitation, bankruptcy courts have refused to follow decisions by other courts in its district on the basis of this principle. See In re Thompson, 59 B.R. 690, 694-95 (Bankr.W.D.Tex.1986) (bankruptcy court refuses to follow decision of Court of Appeals in its Circuit); and In re Riposo, 59 B.R. 563, 565-66 (Bankr.N.D.N.Y.1986) (bankruptcy judge refuses to follow decision of his predecessor). Muddying the issue of whether we are bound to follow Woloch is the presence of Franklin Computer and Alloy Metal Wire, both post-Woloch decisions by the Chief Bankrtupcy Judge in our district which were inconsistent with Woloch. In In re Brent-Piskell, 12 B.R. 352, 357 (Bankr.S.D.Cal.1981), the court, while not following the decision of a brother judge in that case, states: “As a matter of comity and professional courtesy, brother judges in the same district are accustomed to fol lowing each other’s decisions.” See also, e.g., Buna v. Pacific Far East Line, Inc., 441 F.Supp. 1360, 1365 (N.D.Cal.1977); and Eaton Lane & Cattle Co. v. Rocky Mountain Investments, 28 B.R. 890, 892 (Bankr.D.Colo.1983). Also notable is the presence of a" }, { "docid": "7654546", "title": "", "text": "the Bankruptcy Code. In re Matto’s, Inc., 9 B.R. 89, 7 B.C.D. 351, 4 C.B.C.2d 136 (Bankr.E.D.Mich.1981); Underground Flint, Inc. v. Viro, Inc., No. 81-40230 (E.D.Mich. June 30, 1982); see also In re McCormick, 26 B.R. 869 (Bankr.E.D.Mich.1983); In re Rudy’s, Inc., 23 B.R. 1 (Bankr.E.D.Mich.1981). The question that is still unresolved is whether a party may legally obtain a security interest in a liquor license. On the theory that the license represents “intangible property”, as defined by U.C.C. § 9-106, the following cases hold that one may obtain a valid security interest in a liquor license: In re Matto’s, Inc., supra; Underground Flint, Inc. v. Viro, Inc., supra; In re McCormick, supra. On the theory that state law prohibits the taking of a security interest in a liquor license, and therefore holding that one may not lawfully obtain such a security interest in Michigan are the following eases: In re Beefeaters, Inc., 27 B.R. 848 (Bankr.W.D.Mich.1983); In re Rudy’s, Inc., supra; Yiannatji v. Bernie’s, Inc., 44 B.R. 296 (Bankr.E.D.Mich.1983). The point where they differ is the effect of Section R436.1119(3) of the Michigan Administrative Code, commonly referred to as Rule 19 of the Michigan Liquor Control Commission. That rule states in pertinent part: “A security agreement between a buyer and a seller of a licensed retail business, or between a debtor and a secured party, shall not include the license or alcoholic liquor.” Each of the cases in the former group involved transactions which occurred prior to the formal adoption of Rule 19. Each of the cases in the latter group involved transactions which occurred after the adoption of Rule 19. The case at bar involves a transaction which occurred prior to March 15, 1978, the date of the adoption of Rule 19. Thus In re Rudy’s, Inc., In re Beefeaters, Inc., and Yiannatji v. Bernie’s, Inc., are distinguishable. In Underground Flint, Inc. v. Viro, Inc., and In re Matto’s, Inc., the sellers had failed to file financing statements to perfect their security interests in the debtors’ intangible property: the liquor licenses. The results were that the security interests" }, { "docid": "1155117", "title": "", "text": "bank failed to perfect an assignment of a construction contract. In holding that the tax lien was superior to that of the bank’s lien, the court stated: “Under the basic federal priority standard, ‘first in time is first in right’, a federal tax lien takes priority over a state-created lien unless the state lien is specific and perfected in the federal sense before the federal tax lien arises.” The tax liens were perfected when filed with the Secretary of State and Register of deeds in 1979 and 1980. If the lien of Bierman had been perfected in 1977, when created, it would have had priority over that of the U.S. In Paramount Finance Co. v. U.S., 379 F.2d 543 (6th Cir.1967) the taxpayer gave a security interest by a security agreement to a lender who furnished money to buy a tavern. This lien was perfected. Two years later a tax lien was filed by the Internal Revenue Service which later seized the liquor permit. The court held that the tax lien was invalid as to a perfected purchase money security interest. In Bogus v. American National Bank, 401 F.2d 458 (10th Cir.1968), even though the Wyoming statute provided that “no license shall be transferred or sold * * nor shall it be subject to attachment, garnishment or execution,” the court relied on the Wyoming Uniform Commercial Code which allowed for a security interest in intangibles, and held that a security agreement in a liquor license could be granted and, if perfected, the secured party’s lien would be superior to the interest of a trustee in bankruptcy. In a recent decision, In re Ratcliff Enterprises, Inc., 44 B.R. 778 (Bankr.E.D. Mich.1984) Judge Graves mentions on p. 779 that since 1981, seven decisions had been rendered by the United States Bankruptcy Courts in the State of Michigan on security interests in liquor licenses. His decision was the eighth and this makes the ninth. In In re Matto’s Inc., 9 B.R. 89 (Bankr.E.D.Mich.1981) Judge Brody found that a vendor of a liquor business retained a security interest in the assets including the liquor" }, { "docid": "18734303", "title": "", "text": "fact that the documents executed upon the sale of Appellant’s business to Debtors evidenced a clear intent by Appellant to preserve as great an interest in the licenses as Michigan law allowed. In reaching this conclusion, this Court recognizes that conflicting case law authority exists in this area. In its research, the Court found five cases on point, of which approximately half support the decision in this case. The five cases which the Court found are: Matter of Matto’s, Inc., 9 B.R. 89 (Bankr.E.D.Mich.1981); In Re Rudy’s Inc., 23 B.R. 1 (Bankr.E.D.Mich.1981); Matter of McCormick, 26 B.R. 869 (Bankr.E.D.Mich.1983); Matter of Beefeaters, Inc., 27 B.R. 848 (Bankr.E.D.Mich.1983); In Re Bernie’s, Inc., 44 B.R. 296 (Bankr.E.D.Mich.1983). In analyzing these cases, the Court believes that Matter of Matto’s, Inc., supra, is of limited value in that it failed to discuss the importance of Michigan’s prohibition against perfecting security interests in liquor licenses. In In Re Rudy’s Inc., supra, the Court held flatly that “Rule 19 obfuscates a lender’s security interest in a liquor license.” In Re Rudy’s Inc., 23 B.R. 1, 2 (Bankr.E.D.Mich.1981). Nevertheless, Rudy’s involved the priority of a Michigan tax lien and inasmuch as the state of Michigan holds an ultimate power of approval over license transfers through the MLCC, this decision does not disturb the result reached in Rudy’s. In the two recent cases of Matter of McCormick, supra, and Matter of Beefeaters, Inc., supra, Courts recognized the dilemma created by the conflict of Rule 19 and 11 U.S.C. § 544(a)(1). More importantly, these cases recognized the rights of creditors to have liquor licenses reassigned to them in bankruptcy proceedings. In the Matter of McCormick, however, the Court concluded that, prior to the enactment of Rule 19, it was in fact possible to perfect a security interest in a liquor license. Accordingly, because the McCormick court found that the plaintiff in that case had perfected a security interest in the liquor license, the court avoided any discussion of the impact of Rule 19. McCormick, 26 B.R. at 873-74. The McCormick court based its conclusion that it was possible to" } ]

[ { "docid": "10537254", "title": "", "text": "hereby GRANTED. The obvious question remaining is how to characterize the MGIC stock option claims. The common stockholders’ committee urges us to find that these claimants hold no more than “equity securities” as defined in 11 U.S.C. § 101(15): (A) share in a corporation, whether or not transferable or denominated “stock,” or similar security; (C) warrant or right, ..., to purchase, sell, or subscribe to a share, security, or interest of a kind specified in subpara-graph (A) ... of this paragraph. WMAC admits that the stock option portion of the plan consists of a five year right, vested in full from the date of the option, to purchase a fixed amount of Baldwin stock and therefore falls under § 101(15). (Ct.Doc. 14-8 at 2) This is our conclusion as well. We hold therefore that claims to exercise the stock option portion of the Plan (as opposed to the cash option right) are properly classified as equity security interests. The cash surrender rights are a different matter however. In exchange for the option holders’ forebearance from exercising their stock options prior to the acquisition of MGIC, Baldwin granted the option holders a guaranteed right to a cash payment in the future. As these rights mature and are exercised, the option holders become unsecured creditors of Baldwin. Accordingly, we find that the option holders (and WMAC as assignee) hold general unsecured claims against Baldwin for the amount of the cash payments to which they are entitled under the Plan. See, 11 U.S.C. § 101(4) and (11). Finally, Baldwin requests an order expunging, disallowing and denying each of the MGIC stock option claims listed on Exhibit 1 as “Duplicate MGIC Stock Option Claims” because they are duplicative of the corresponding claims listed on Exhibit 1 as surviving claims. This relief is GRANTED. For the foregoing reasons, debtor’s objections to the MGIC stock option claims are hereby GRANTED. IT IS SO ORDERED. .An unexpired option continues for six months after the death of an employee for exercise by his legal representative. An option holder’s rights also continue in full force and effect if employment" } ]

[ { "docid": "272277", "title": "", "text": "one. Congress did not-intend the definition of “equity security” to include “a security, such as a convertible debenture, that is convertible into equity security, but has not been converted.” S.Rep. No. 95-989, at 24, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5810; H.R.Rep. No. 95-595, at 311, 95th Cong., 1st Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6268. It follows then that Congress did not intend to exclude anything else from the definition of “equity security”, such as the right to sell/redeem stock or to demand repurchase of warrants, because it did not explicitly list any other restricted terms. The district court’s interpretation of § 101(16)(C), therefore, is the correct one based on the legislative history. This interpretation'adheres more closely to the plain language, of § 101(16)(C) by more accurately respecting the words of Congress. See Lamie v. United States Trustee, 540 U.S. 526, 124 S.Ct. 1023, 1031-32, 157 L.Ed.2d 1024 (2004). Accepting the district court’s interpretation also requires less alteration of § 101(16)(C) than does the bankruptcy court’s construction and does not lead to an absurd result as it is in accord with common bankruptcy practice. See id. We therefore reject the bankruptcy court’s interpretation and accept the district court’s reading of § 101(16)(C). Consequently, the Carrieri Group’s right to redeem its C-l Stock was an “equity security” because it is a right to sell a “security” or a “share in a corporation.” 11 U.S.C. §§ 101(16)(A) & (C) (2000). The district court’s ruling that the C-l Stock Rights were “equity securities” and not “claims” is affirmed. Similarly, the district court’s ruling that the Warrant Rights are “equity securities” is also affirmed. The Code defines “equity security” to expressly include the Warrants. 11 U.S.C. § 101(16)(C) (2000). Each of the Warrants contained a repurchase provision whereby the holder may demand repurchase of the warrant for $6.00 per share of C-2 or C-3 Preferred Stock “[a]t any time arid from time to time after March 19, 2002” for the C-2 and C-3 Warrants. 10 R. 1705, 1807. The bankruptcy court had determined that, consistent with its erroneous" }, { "docid": "5265695", "title": "", "text": "Bankruptcy Code. In this court’s view the Rule is not inconsistent with the Code and is as necessary to the proper administration of a Chapter 13 case under the Code as it was under Chapter XIII. See Pub.L. 95-598, § 405(d). Collier, 15th ed. • 501.02. . It should be noted that subsection (b) of Section 1322 contains optional provisions of Chapter 13 plans. The only mandatory provisions of Chapter 13 plans are found in subsection (a) of Section 1322. . Section 1322(b) provides: Subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; .. . . Paragraph (5) of Section 1322(b) provides: notwithstanding paragraph (2) of this subsection, [the plan may] provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; ... . It must be observed that many of the Chapter 13 plans reviewed by this Court, including the plan filed in this case, are exceedingly sketchy. Counsel and debtors are forewarned that, in the future, plans that come on for confirmation should contain more detail. See Sections 1322 and 1325 of the Code. . “Deemed allowed” means that the proof of claim constitutes prima facie evidence of the validity and amount of the claim and that the claim will be allowed unless a party in interest objects. Collier, 15th ed. 302.01 Senate Report No. 989, 95th Cong., 2d Sess. 62 (1978). House Report No. 595, 95th Cong., 1st Sess. 352 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. . Section 506(a) provides: (a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, ... is a secured claim to the extent of the value of" }, { "docid": "6754523", "title": "", "text": "with the absolute priority rule as codified in the Bankruptcy Code. The rule provides that, in order for a plan to be approved in the face of the refusal of a creditor class to accept it, the holder of any claim or interest junior to that of the dissenting class may not “receive or retain under the plan on account of such junior claim or interest any property.” 11 U.S.C. § 1129(b)(2)(B)(ii). The rule thus stated has three components: (1) the identification of junior claims or interests; (2) the identification of any property retained by the holders of such claims or interests; and (3) the determination whether the property is being retained “on account of’ a junior claim or interest. In re Wabash Valley Power Assoc., Inc., 72 F.3d 1305, 1312 (7th Cir.1995), cert. denied, - U.S. -, 117 S.Ct. 389, 136 L.Ed.2d 305 (1996). The term “interest” in this context means equity interest and includes options to purchase stock. See 7 L. King, Collier on Bankruptcy, ¶ 1129.04[4][a][A] at 1129-84 (15th ed. rev. 1996); In re Homestead Partners, Ltd., 197 B.R. 706, 712 (Bankr.N.D.Ga.1996). In the same vein, equity’s objection to confirmation requires the same analysis, for if management is receiving their stock options “on account of’ their prior interest, the plan would also unfairly discriminate against equity, thus violating section 1123(a)(4). The interests granted to management pursuant to the plan are contained within stock option agreements. Those interests will be granted on the effective date of the plan. As more fully described above, on the effective date, New Sassco management will receive an option to purchase 10% of the New Sassco common stock, 25% of which will immediately vest; the remainder will vest simply upon the expiration of time, or earlier, upon the death, disability, termination without cause, or resignation for good reason of the management participant. New Sassco’s non-vested options expire if management is terminated for cause. New Sassco management will also receive options if certain earnings targets are achieved. Also on the effective date, Reorganized Leslie Fay management will receive options to purchase 5% of the" }, { "docid": "272276", "title": "", "text": "857, 865 (Bankr.N.D.Ill. 1998) (stating that § 101(16) defines “equity security” as a “share in a corporation” and includes the right to purchase shares within the definition); In re E. ME Elec. Co-op, 121 B.R. 917, 928 (Bankr.D.Me. 1990) (stating that the definition of “equity security” includes “warrants or rights to purchase, sell or subscribe (emphasis added); Collier on BANKRUPTCY ¶ 101.16 (15th ed. 1993). A proper statutory construction, and a clearer way to read § 101(16)(C), would be to place the words “other than a right to convert” in parentheses, in italics (as the Debtor suggests), or at the end of the provision. Thus, § 101(16)(C) should be read as follows: (16) “equity security” means— (C) warrant or right (other than a right to convert) to purchase, sell, or subscribe to a share, security, or interest of a kind specified in subpara-graph (A) or (B) of this paragraph; Second, even assuming arguendo that § 101(16)(C) is ambiguous, looking briefly at the legislative history makes it clear that the district court’s interpretation is the correct one. Congress did not-intend the definition of “equity security” to include “a security, such as a convertible debenture, that is convertible into equity security, but has not been converted.” S.Rep. No. 95-989, at 24, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5810; H.R.Rep. No. 95-595, at 311, 95th Cong., 1st Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6268. It follows then that Congress did not intend to exclude anything else from the definition of “equity security”, such as the right to sell/redeem stock or to demand repurchase of warrants, because it did not explicitly list any other restricted terms. The district court’s interpretation of § 101(16)(C), therefore, is the correct one based on the legislative history. This interpretation'adheres more closely to the plain language, of § 101(16)(C) by more accurately respecting the words of Congress. See Lamie v. United States Trustee, 540 U.S. 526, 124 S.Ct. 1023, 1031-32, 157 L.Ed.2d 1024 (2004). Accepting the district court’s interpretation also requires less alteration of § 101(16)(C) than does the bankruptcy court’s construction and does" }, { "docid": "1075697", "title": "", "text": "legislative history of § 101(16) which states that “[t]he term does not include a security, such as a convertible debenture, that is convertible into equity security, but has not been converted.” S.REP. No. 989, 95th Cong., 2d Sess. 24 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5810. The notes to be issued may be subsequently exchanged for stock in the reorganized Debtor if the proposed plan is confirmed. On the other hand, if the plan is not confirmed, (1) the 8% and 13% notehold-ers will remain entitled to administrative priority distribution, or (2) to the extent that the proceeds from the 13% notes are not released from the escrow account pursuant to court order, those noteholders will be repaid with interest. The 8% and 13% notes, although convertible to stock if the plan is confirmed, are not included within the parameter of the definition of an “equity security” under the Bankruptcy Code. The court determines the 8% and 13% notes that the Debtor now proposes to issue are therefore “nonequity securities” as required by § 364(f). Summarizing, because the Debtor is not an underwriter, as defined by § 1145(b), and the 8% and 13% notes are not equity securities, as defined by § 101(16), the Debtor may issue both types of notes pursuant to § 364(f). Both the 8% and 13% notes are exempt from § 5 of the 1933 Act, the 1939 Act, and any state or local law requiring registration of securities. 3. Other Securities Law Considerations, a. Adequate Disclosure. A fundamental premise of the 1933 Act is that potential investors are entitled to adequate information to facilitate informed investment decisions. Morgan, supra, at 903 (citing Cohen, “Truth in Securities” Revisited, 79 HARV.L.REV. 1340 (1966)). Section 5 of the 1933 Act effectuates the adequate disclosure principle by requiring registration of securities and prospectus delivery. See 15 U.S.C. § 77e. Compliance with the 1933 Act for registration and prospectus delivery requirements is extremely burdensome and costly. See Mitchell, supra, at 103. The cost of complying with § 5 of the 1933 Act may be a deterrent to chapter 11 debtors" }, { "docid": "10185349", "title": "", "text": "purchase real property not a stock option. In the next case, Coordinated Financial Planning, the BAP dealt with a right of first refusal relating to real property. The BAP held that the right of first refusal was an executory contract which could be rejected by the trustee pursuant to 11 U.S.C. 365. 65 B.R. at 713. Again, the BAP offered no assistance in its holding and on the question of whether it should apply to stock options. The third case, Easebe Enterprises, was decided by the Ninth Circuit Court of Appeals. This case also dealt with an option to purchase real property. Following the BAP holdings in Rehbein and Coordinated Financial Planning, the Ninth Circuit held that realty option contracts were executory contracts. 900 F.2d at 1419. The Ninth Circuit also held that the agreement fell within Section 365(c)(2) of the Bankruptcy Code, which specifically deals with contracts to make a loan, extend debt financing or financial accommodations to or for the Debtor. Section 365(c)(2) does not appear applicable to the facts of this case. Each of the three cases cited either dealt with options to purchase real property or a right of first refusal relating to real property. An option contract relating to real property is not the same as the stock options at issue here. Bevins incorrectly assumes that every type of option is the same type of agreement and subject to the same prior legal interpretations. The Court finds and concludes that in this ease it is not bound by any prior holdings dealing with an option contract to purchase real property because of the distinct differences between option contracts and stock options. However, the Court’s inquiry does not end here. The Debtor claims the stock options are not executory contracts, but instead are equity interests canceled under Paragraph 3.7.2 of the confirmed Plan. Paragraph 3.7.2 defines Class 7.2 and the treatment to be accorded to class members under the confirmed Plan as follows: 3.7.2 Certain AWA Warrants, Options and other Equity Interests and Other Claims. This class consists of the following Claims and Equity Interests (except" }, { "docid": "6754548", "title": "", "text": "Supp. of Obj. (Jan. 14, 1997); Claimants' Supp. Obj. to Plan and Motion for an Independent Trustee (Feb. 13, 1997); and Claimants' Obj. to Supp.Discl.Statement (Mar. 14, 1997). . Included among the findings in the order of confirmation is to be one consistent with the debtors' representation regarding the retiree benefits. . In relevant part, the provision provides: Notwithstanding any otherwise applicable non-bankruptcy law, a plan shall — ... (4) provide the same treatment for each claim or interest of a particular class, unless the holder of a particular claim or interest agrees to a less favorable treatment of such particular claim or interest. 11 U.S.C. § 1123(a)(4). . Whereas the debtors’ responsive papers in support of confirmation argue that management, “however, [is] receiving stock options which vest only upon such entities attaining certain earnings targets set forth in the plan,” Debtors’ Respn. ¶ 34 at 21 (Feb. 17, 1997), an examination of the option contracts belies this assertion. . Whereas the stock options are subject to scrutiny under the fair and equitable test of section 1123(a)(4), the fact that equity and class 8 are to be eliminated does not otherwise raise the spec-tre of discrimination under section 1129(b)(1). The Code does not prohibit all types of discrimination between classes, only discrimination that is unfair. See 11 U.S.C. § 1129(b)(1); 7 L. King, Collier on Bankruptcy, ¶ 1129.04[3][a] at 1129-69 (15th ed. rev. 1996). The section 1129(b)(1) test boils down to whether the proposed discrimination between classes has a reasonable basis and is necessary for the reorganization. Collier on Bankruptcy, supra. As to the equity interests, the elimination is a necessary by-product of compliance with the absolute priority rule embodied in section 1129(b)(2). Equity is not permitted to receive or retain any interest until nonconsenting senior classes receive payment in full. See Case v. Los Angeles Lumber Co., 308 U.S. 106, 117, 60 S.Ct. 1, 8, 84 L.Ed. 110 (1939) (\"the stockholder’s interest in the property is subordinate to the rights of creditors....”). Because class 8 is deemed to vote against the plan and these debtors are insolvent, equity must" }, { "docid": "10185345", "title": "", "text": "options are executory contracts and that the rejection of the options gives rise to damages. 3. Paragraph 5.3 of the Plan states that any claim based on rejection of an executory contract must be evidenced by a proof of claim filed within 30 days after the effective date of the Plan or be forever barred. 4. The Confirmation Order entered by this Court on August 10, 1994 specifically found that the Plan did not discriminate unfairly, and was fair and equitable to classes of impaired equity interests. The Court confirmed the Plan over Class 7.2’s deemed objection. Neither Bevins nor any other member Class 7.2 objected to confirmation of the Plan. 5.Bevins filed a proof of claim pursuant to Paragraph 5.3 on September 22, 1994 on behalf of himself and the other pilots for damages relating to the treatment accorded to the employee incentive stock options under the confirmed Plan. Bevins additionally requests that the Court interpret the confirmed Plan. 1. The Nature of the Stock Options There are many types of options and option contracts. The options which are held by Bevins are stock options. The Plan treats the stock options in the same class with warrants and other equity interests. Bevins claims the stock options are not “equity securities,” but are executory contracts which were rejected under Paragraph 5.2 of the Plan. Bevins also claims the absolute priority rule is violated because he did not receive any value under the Plan for his stock options. The absolute priority rule states that the holder of an interest or claim that is junior to the interest or claim of another class will not receive or retain any property under the plan. 11 U.S.C. 1129(b)(2)(B)(ii); 11 U.S.C. 1129(b)(2)(C)(ii). The Debtor argues that Bevins’ stock options are treated in accordance with the most junior class in the Plan and the lack of distribution does not violate the absolute priority rule. Whether there is a violation of the absolute priority rule hinges on whether the stock options are equity interests or executory contracts. The Ninth Circuit has adopted the Countryman test to determine" }, { "docid": "10185352", "title": "", "text": "follows: (C) warrant or right, other than a right to convert, to purchase, sell, or subscribe to a share, security, or interest of a kind specified in subparagraph (A) or (B) of this paragraph; The legislative history reveals that only a right to convert is not included in the definition of “equity security.” See S.Rep. No. 989, 95th Cong.2d Sess. (1978), 1978 U.S.Code Cong. & Admin.News 5787; Collier on Bankruptcy 101.16 (15th ed. 1993). A right to purchase however, is within the definition provided in the Bankruptcy Code. Section 101(16)(A) specifies that a “share in a corporation” is an “equity security.” The stock options in this case were for the purchase of America West Airline common stock. The Court finds and concludes that the stock options which are the subject of Bevins’ proof of claim are equity securities as defined by 11 U.S.C. 101(16). See Matter of Baldwin-United Corp., 52 B.R. 549, 552 (Bankr.S.D.Ohio 1985). The Court further finds and concludes that the treatment under the confirmed Plan for the stock options is contained in Paragraph 3.7.2, that the stock options were canceled upon confirmation on August 10, 1994 and that the absolute priority rule is satisfied because the stock options are junior interests to the common stock, the preferred stock and all creditors. 2. The Effect of the Confirmed Plan on Bevins’ Claim The Debtor’s Plan of Reorganization was confirmed by this Court on August 10, 1994. Class 7.2 was deemed to reject the Plan. The Order granting confirmation stated that the Plan was being confirmed over this deemed rejection. It is undisputed that neither Bevins nor any other member of Class 7.2 filed an objection to the Plan or appeared at the confirmation hearing held on August 10,1994 to object to Class 7.2’s treatment under the Plan. It is also undisputed that neither Bevins nor any other party appealed the Order confirming the Plan. Be-vins is, in effect, seeking to appeal the confirmed Plan and asking this Court to review it on its merits. Questions regarding the propriety or legality of a confirmation order are proper appealable issues," }, { "docid": "6754522", "title": "", "text": "and that any future liability that should arise under 29 U.S.C. § 1362 shall not be affected in any way by the Debtors’ chapter 11 cases, including discharge. Thus, to the extent that the Debtors fail to fully fund the Retirement Flan, which the Debtors intend to do on the Effective Date, neither the Retirement Plan nor the Pension Benefit Guarantee Corporation will be precluded by confirmation of the Plan from commencing any action, or taking any other action, to collect, enforce, or recover from Reorganized Leslie Fay, its successors or their assets or properties, any rights or claims under ERISA or otherwise. Debtors’ Respn. ¶ 15 at 8-9. Based on the facts that the debtors are to fully fund the deficiency out of consummation cash and that they acknowledge that their liabilities for benefits are not discharged by confirmation, I find that the plan meets the requirement of section 1129(a)(13). C. Cram Down Under Section 1129(b) The most significant potential obstacle to confirmation of the Leslie Fay plan is the question of its compliance with the absolute priority rule as codified in the Bankruptcy Code. The rule provides that, in order for a plan to be approved in the face of the refusal of a creditor class to accept it, the holder of any claim or interest junior to that of the dissenting class may not “receive or retain under the plan on account of such junior claim or interest any property.” 11 U.S.C. § 1129(b)(2)(B)(ii). The rule thus stated has three components: (1) the identification of junior claims or interests; (2) the identification of any property retained by the holders of such claims or interests; and (3) the determination whether the property is being retained “on account of’ a junior claim or interest. In re Wabash Valley Power Assoc., Inc., 72 F.3d 1305, 1312 (7th Cir.1995), cert. denied, - U.S. -, 117 S.Ct. 389, 136 L.Ed.2d 305 (1996). The term “interest” in this context means equity interest and includes options to purchase stock. See 7 L. King, Collier on Bankruptcy, ¶ 1129.04[4][a][A] at 1129-84 (15th ed. rev. 1996);" }, { "docid": "10185357", "title": "", "text": "Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938); In re Heritage Hotel Partnership I, 160 B.R. at 377. This Court entered an Order confirming the Debtor’s Plan on August 10, 1994. Thus, the third element of res judicata is satisfied. The last element is whether the same cause of action is involved in both proceedings. The Court has already held, supra, that the issues raised by Bevins could have been and should have been properly raised during the confirmation process. Bevins is attempting to alter the treatment of some members of Class 7.2. The treatment of Class 7.2 was one of the subjects addressed in the Confirmation Order. At the hearing, Bevins’ counsel stated he had met with Be-vins and other pilots in July, 1994. This was prior to confirmation and any deadline to object to the Plan. It is clear that Bevins sat on his rights by not actively participating in the confirmation process and this Court will not revisit these confirmation issues and condone Bevins’ inaction at this late date. The Court on this record therefore finds and concludes that the elements of res judi-cata are satisfied and that Bevins’ pursuit of a cause of action based upon the proof of claim filed on September 22, 1994 based on the stock options is barred by this Court’s August 10, 1994 Order confirming the Plan. Additionally, the Court finds that the Plan has been substantially consummated at this time and that modification would be untimely. See 11 U.S.C. 1127. Accordingly, IT IS ORDERED granting Debtor’s Motion to Disallow Bevins’ Claim." }, { "docid": "10185344", "title": "", "text": "ORDER GRANTING DEBTOR’S MOTION TO DISALLOW BEVINS’ PROOF OF CLAIM ROBERT G. MOOREMAN, Bankruptcy Judge. This matter is before the Court pursuant to the Debtor’s Motion to Disallow Proof of Claim. William Brian Bevins, including the approximately 550 America West Airlines pilots who have assigned their claim to Mr. Bevins (collectively “Bevins”) to pursue, objects to the Debtor’s motion. A hearing was held March 22, 1995 on this matter after which the matter was taken under advisement. After due consideration of the pleadings, and the record herein, and under the present posture of the ease, the Court finds and concludes the following in making its decision. 1. The Debtor contends that under its confirmed Plan Bevins interest is classified as a Class 7.2 interest. Class 7.2 is the most junior class and contains the treatment for AWA Warrant, Options and Other Equity Interests. Under the Plan, all of these interests are canceled. 2. Paragraph 5.2 of the Plan states that to the extent stock options are executory contracts, they are rejected. Bevins believes the stock options are executory contracts and that the rejection of the options gives rise to damages. 3. Paragraph 5.3 of the Plan states that any claim based on rejection of an executory contract must be evidenced by a proof of claim filed within 30 days after the effective date of the Plan or be forever barred. 4. The Confirmation Order entered by this Court on August 10, 1994 specifically found that the Plan did not discriminate unfairly, and was fair and equitable to classes of impaired equity interests. The Court confirmed the Plan over Class 7.2’s deemed objection. Neither Bevins nor any other member Class 7.2 objected to confirmation of the Plan. 5.Bevins filed a proof of claim pursuant to Paragraph 5.3 on September 22, 1994 on behalf of himself and the other pilots for damages relating to the treatment accorded to the employee incentive stock options under the confirmed Plan. Bevins additionally requests that the Court interpret the confirmed Plan. 1. The Nature of the Stock Options There are many types of options and option" }, { "docid": "22348503", "title": "", "text": "The size of the new debt made the risk of the guarantees “substantial”, the court found. The risk also exceeded the value of the retained stock, because “given the history of Debtor and the various risks associated with its business”, the stock would have only “minimal” value. Beard and Parker thus would contribute more than they would receive, so the court allowed them to keep their stock. There is something unreal about this calculation. If the stock is worth less than the guarantees, why are Beard and Parker doing it? If the value of the stock is “minimal”, why does Bank object to letting Beard and Parker keep it? Is everyone acting inconsistently with self-interest, as the court’s findings imply? And why, if the business is likely to fail, making the value of the stock “minimal”, could the court confirm the plan of reorganization? Confirmation depends on a conclusion that the reorganized firm is likely to succeed, and not relapse into “liquidation, or the need for further financial reorganization”. 11 U.S.C. § 1129(a)(11). If, as the bankruptcy court found, the plan complies with this requirement, then the equity interest in the firm must be worth something — as Beard, Parker, and Bank all appear to believe. Stock is “property” for purposes of § 1129(b)(2)(B)(ii) even if the firm has a negative net worth, Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 208, 108 S.Ct. 963, 969, 99 L.Ed.2d 169 (1988). An option to purchase stock also is “property”. The bankruptcy judge gave Beard and Parker a no-cost option to buy stock, which they could exercise if they concluded that the shares were worth more than the risk created by the guarantees. Whether we characterize the stock or the option to buy it as the “property”, the transaction seems to run afoul of § 1129(b)(2)(B)(ii). for it means that although a class of unsecured creditors is not paid in full, a junior class (the stockholders) keeps some “property”. Only the “new value exception” to the absolute priority rule could support this outcome. Dicta in cases predating the 1978 Code said that" }, { "docid": "10185353", "title": "", "text": "Paragraph 3.7.2, that the stock options were canceled upon confirmation on August 10, 1994 and that the absolute priority rule is satisfied because the stock options are junior interests to the common stock, the preferred stock and all creditors. 2. The Effect of the Confirmed Plan on Bevins’ Claim The Debtor’s Plan of Reorganization was confirmed by this Court on August 10, 1994. Class 7.2 was deemed to reject the Plan. The Order granting confirmation stated that the Plan was being confirmed over this deemed rejection. It is undisputed that neither Bevins nor any other member of Class 7.2 filed an objection to the Plan or appeared at the confirmation hearing held on August 10,1994 to object to Class 7.2’s treatment under the Plan. It is also undisputed that neither Bevins nor any other party appealed the Order confirming the Plan. Be-vins is, in effect, seeking to appeal the confirmed Plan and asking this Court to review it on its merits. Questions regarding the propriety or legality of a confirmation order are proper appealable issues, but there was no timely appeal of the Confirmation Order and that avenue is now closed to Bevins. See Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1049 (5th Cir.1987). The issue before the Court is whether to disallow Bevins’ claim and not interpretation of the confirmed Plan. All parties to a confirmed Plan are bound by its terms. 11 U.S.C. 1141(a). Specifically, confirmation of a plan terminates all rights and interests of equity security holders, such as Bevins, provided for by the plan. 11 U.S.C. 1141(d)(1)(B). The doctrine of res judicata not only bars later proceedings on issues that were actually raised during the confirmation process, but also bars actions on issues that should have been or could have been raised during the confirmation process. Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938); Eubanks v. F.D.I.C., 977 F.2d 166, 171 (5th Cir.1992); In re Heritage Hotel Partnership I, 160 B.R. 374, 377 (9th Cir. BAP 1993). The arguments raised by Bevins are actually arguments that are proper to raise" }, { "docid": "10185346", "title": "", "text": "contracts. The options which are held by Bevins are stock options. The Plan treats the stock options in the same class with warrants and other equity interests. Bevins claims the stock options are not “equity securities,” but are executory contracts which were rejected under Paragraph 5.2 of the Plan. Bevins also claims the absolute priority rule is violated because he did not receive any value under the Plan for his stock options. The absolute priority rule states that the holder of an interest or claim that is junior to the interest or claim of another class will not receive or retain any property under the plan. 11 U.S.C. 1129(b)(2)(B)(ii); 11 U.S.C. 1129(b)(2)(C)(ii). The Debtor argues that Bevins’ stock options are treated in accordance with the most junior class in the Plan and the lack of distribution does not violate the absolute priority rule. Whether there is a violation of the absolute priority rule hinges on whether the stock options are equity interests or executory contracts. The Ninth Circuit has adopted the Countryman test to determine whether a contract is executory for purposes of the Bankruptcy Code. See In re Texscan, 976 F.2d 1269 (9th Cir.1992); In re Cochise College Park, Inc., 703 F.2d 1339 (9th Cir.1983). A contract is executory under the Countryman definition if both parties to the contract have material obligations that remain unperformed as of the petition date. In re Texscan, 976 F.2d at 1272. For the stock options to be executory contracts, both the Debtor and Bevins must have had unperformed material obligations relating to the stock options on the date of the petition. Without question, the Debtor had a material obligation to keep the option open. On the other hand, Bevins had no unperformed obligations, let alone material obligations, to the Debtor regarding the stock options. Bevins claims his unperformed material obligation was to continue working for the Debtor. This is not true, because Bevins received the stock options for work previously performed. After receiving the stock options, Bevins could exercise them, but there was no action required on his part or by any of" }, { "docid": "10185351", "title": "", "text": "to the extent they are included in Class 7.1): (i) AWA Warrants, Options, and Other Equity Interests, (ii) Stock Recission and Damage Claims, (iii) Subordinated Claims and (iv) all Claims, if any, arising from the cancellation or rejection (to the extent they constitute executory contracts) of AWA Warrants, Options and Other Equity Interests. Holders of such Claims and Equity Interests will not be entitled to receive or retain any property under the Plan on account of such Claims or Equity Interests, and pursuant to Section 1126(g) of the Bankruptcy Code, are deemed not to have accepted the Plan. Class 7.2 is impaired under the Plan. All AWA Warrants, Options and Other Equity Interests will be canceled, annulled and extinguished on the Effective Date. Under Paragraph 3.7.2, the stock options were canceled on the effective date of the confirmed Plan. The Debtor further argues that Be-vins claim under his stock options is treated as proscribed in Paragraph 3.7.2 because they qualify as equity interests under the Bankruptcy Code. Under Section 101(16)(C), “equity security” is defined as follows: (C) warrant or right, other than a right to convert, to purchase, sell, or subscribe to a share, security, or interest of a kind specified in subparagraph (A) or (B) of this paragraph; The legislative history reveals that only a right to convert is not included in the definition of “equity security.” See S.Rep. No. 989, 95th Cong.2d Sess. (1978), 1978 U.S.Code Cong. & Admin.News 5787; Collier on Bankruptcy 101.16 (15th ed. 1993). A right to purchase however, is within the definition provided in the Bankruptcy Code. Section 101(16)(A) specifies that a “share in a corporation” is an “equity security.” The stock options in this case were for the purchase of America West Airline common stock. The Court finds and concludes that the stock options which are the subject of Bevins’ proof of claim are equity securities as defined by 11 U.S.C. 101(16). See Matter of Baldwin-United Corp., 52 B.R. 549, 552 (Bankr.S.D.Ohio 1985). The Court further finds and concludes that the treatment under the confirmed Plan for the stock options is contained in" }, { "docid": "1075696", "title": "", "text": "notes are nonequity securities. Examples of nonequity securities include bonds, debentures, promissory notes, and certificates of indebtedness. 3 NORTON BANKRUPTCY LAW & PRACTICE § 57.12 (1991). These types of instruments are debt securities which document a loan of funds to a debtor. Id. Section 101(16) of the Bankruptcy Code defines an “equity security” as a: (A) share in a corporation, whether or not transferable or denominated “stock”, or similar security; (B) interest of a limited partner in a limited partnership; or (C) warrant or right, other than a right to convert, to purchase, sell, or subscribe to a share, security, or interest of a kind subparagraph (A) or (B) of this paragraph[.] 11 U.S.C. § 101(16) (emphasis added). A note is a security. Even though a note may be later converted to stock, such right to convert itself does not transform the note into an “equity security”. In effect, § 101(16) states just because a “security” contains “a right to convert” does not make it into an “equity security”. This construction is supported by the legislative history of § 101(16) which states that “[t]he term does not include a security, such as a convertible debenture, that is convertible into equity security, but has not been converted.” S.REP. No. 989, 95th Cong., 2d Sess. 24 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5810. The notes to be issued may be subsequently exchanged for stock in the reorganized Debtor if the proposed plan is confirmed. On the other hand, if the plan is not confirmed, (1) the 8% and 13% notehold-ers will remain entitled to administrative priority distribution, or (2) to the extent that the proceeds from the 13% notes are not released from the escrow account pursuant to court order, those noteholders will be repaid with interest. The 8% and 13% notes, although convertible to stock if the plan is confirmed, are not included within the parameter of the definition of an “equity security” under the Bankruptcy Code. The court determines the 8% and 13% notes that the Debtor now proposes to issue are therefore “nonequity securities” as required by § 364(f)." }, { "docid": "22461075", "title": "", "text": "1129-56 n. 29. It is the sale of the assets, regardless of the price at which they are sold, which alters the rights and leads to impairment. In the same vein, a dilution of stock, absent the infringement of preemptive rights, would not impair a class of shareholders. Compare Hearings on H.R. 31 and H.R. 32 Before the Sub-comm. on Civil and Constitutional Rights of the House Comm, on the Judiciary, 94th Cong., 2d Sess., Ser. No. 27, pt. 3, at 2195-2196 (1976). . Two amendments to Section 1124 demonstrate this aversion to valuation hearings. First, under Section 1124(3), an option to cash out claims using “property” or “securities” was eliminated because “determination of their value would require a valuation of the business being reorganized. Use of them to pay a creditor . . . without his consent may be done only under Section 1129(b) and only after valuation of the debtor.” H.Rep.No.95-595, 95th Cong., 1st Sess. 408 (1977). Only cash may be used under Section 1124(3) as enacted. Second, under Section 1124(3), an option to cash out interests by paying their “value” was also eliminated: “The effect of the House amendment is to permit an interest not to be impaired only if the interest has a fixed liquidation preference or redemption price. Therefore, a class of interests such as common stock, must either accept a plan under Section 1129(a)(8), or the plan must satisfy the requirements of Section 1129(b)(2)(C) in order for a plan to be confirmed.” 124 Cong.Rec. H11,103 (daily ed. September 28, 1978). Compare H.Rep.No.95-595, 95th Cong., 1st Sess. 408 (1977). See generally 5 Collier on Bankruptcy ¶ 1124.01 (15th ed. 1980). Section 1124(3)(A) may be an exception to the no-valuation rule where there is a dispute concerning the amount of a secured claim. This requires a valuation of the collateral. See 11 U.S.C. Section 506(a). Such a dispute would arise, however, where the debtor believes the creditor is undersecured and wants to cash him out for the amount of the lien rather than the debt. In most instances, when this occurs, the creditor can resort to" }, { "docid": "1874286", "title": "", "text": "the March 19, 2002, letters if, in fact, they otherwise would violate the automatic stay. The argument might be made that, in such an event, the quoted language would negate the demands made by the letters. . This restriction is intended to eliminate from the \"equity security” definition investment instruments such as convertible debentures. See S.Rep. No. 989, 95th Cong.2d Sess. (1978), 1978 U.S.Code Cong. & Admin.News 5810. . In support of its conclusion that the Carrieri Group’s right to compel the debtor’s purchase of the C-l shares did not constitute “equity security,” the bankruptcy court explained: Moreover, it appears that the right to sell stock is excluded from the Bankruptcy Code’s definition of equity security. Section 101(16)(C) provides that a \"warrant or right, other than a right to ... purchase or sell ... a share ... or security ... of a [corporation],\" is an equity security. 11 U.S.C. § 101(16)(C) (emphasis added). In re jobs.com, Inc., 283 B.R. at 213. . By way of explanation of its conclusion that the repurchase demand features of the C-2 and C-3 warrants did not come within the Bankruptcy Code's definition of \"equity security,” the bankruptcy court explained: This result is consistent with § 101(16)(C) of the Bankruptcy Code which defines \"equity security” to mean \"warrant or right, other than a right to ... sell ... a ... security ... of a ... [corporation].” 11 U.S.C. § 101(16)(C) (emphasis added). In re jobs.com, Inc., 283 B.R. at 219. . Appellants in this case do not have such claims independent of their preferred stock interests. Rather, their rights are the kind described by § 101(16)(C). The C-l right is a right to sell preferred stock; the C-2, C-3, and C-4 rights are rights to sell the respective warrants. The case is thus unlike In re Baldwin where certain option holders had a guaranteed right to cash payments and thus became unsecured creditors when those rights matured and were exercised. 52 B.R. 549 (Bankr.S.D.Ohio 1985)." }, { "docid": "10185350", "title": "", "text": "Each of the three cases cited either dealt with options to purchase real property or a right of first refusal relating to real property. An option contract relating to real property is not the same as the stock options at issue here. Bevins incorrectly assumes that every type of option is the same type of agreement and subject to the same prior legal interpretations. The Court finds and concludes that in this ease it is not bound by any prior holdings dealing with an option contract to purchase real property because of the distinct differences between option contracts and stock options. However, the Court’s inquiry does not end here. The Debtor claims the stock options are not executory contracts, but instead are equity interests canceled under Paragraph 3.7.2 of the confirmed Plan. Paragraph 3.7.2 defines Class 7.2 and the treatment to be accorded to class members under the confirmed Plan as follows: 3.7.2 Certain AWA Warrants, Options and other Equity Interests and Other Claims. This class consists of the following Claims and Equity Interests (except to the extent they are included in Class 7.1): (i) AWA Warrants, Options, and Other Equity Interests, (ii) Stock Recission and Damage Claims, (iii) Subordinated Claims and (iv) all Claims, if any, arising from the cancellation or rejection (to the extent they constitute executory contracts) of AWA Warrants, Options and Other Equity Interests. Holders of such Claims and Equity Interests will not be entitled to receive or retain any property under the Plan on account of such Claims or Equity Interests, and pursuant to Section 1126(g) of the Bankruptcy Code, are deemed not to have accepted the Plan. Class 7.2 is impaired under the Plan. All AWA Warrants, Options and Other Equity Interests will be canceled, annulled and extinguished on the Effective Date. Under Paragraph 3.7.2, the stock options were canceled on the effective date of the confirmed Plan. The Debtor further argues that Be-vins claim under his stock options is treated as proscribed in Paragraph 3.7.2 because they qualify as equity interests under the Bankruptcy Code. Under Section 101(16)(C), “equity security” is defined as" } ]

[ { "docid": "23045860", "title": "", "text": "DENMAN, Chief Judge. Beecher, a farmer debtor, appeals from orders of the district court entered in proceeding under § 75 of the Bankruptcy Act. The orders here for review are the order of December 30, 1947, approving the final report of the receiver, and the order of August 23, 1948, approving the supplemental final report of the receiver and ordering the receiver’s discharge. The appeals here involved arise out of a proceedings commenced July 31, 1939, when Beecher filed a petition for relief under § 75 sub. a to sub. r of the Bankruptcy Act. Failing to secure the assent of his creditors to an offer of composition, Beecher filed an amended petition under § 75 sub. s and was adjudicated a bankrupt on February 1, 1940, He remained in possession of his property under a stay and rental order later declared void by this court in Beecher v. Federal Land Bank, 9 Cir., 153 F.2d 982, 984, until July, 1943, when, because of appellant’s neglect of the property, a receiver was put in possession of the orchard property involved. The receiver’s possession was terminated and appellant restored to possession on May 6, 1946. Previous opinions of this court dealing with Beecher’s § 75 litigation are noted in the margin. Appellant contends that all acts of the receiver were void and that certain specific allowances are improper. To support his contention that all acts of the receiver were void, appellant, for the third time in this court, challenges the appointment of the receiver. ***In so far as appellant’s present attack is rested on the theory that the alleged defects in the appointment are jurisdictional, his contentions are without merit. We consider the appointment of the receiver res judicata. Appellant maintains that the costs and expenses of the receivership cannot be paid out of the earnings resulting from the receiver’s operation of the property. In the circumstances of this case, we are unable to agree. The receivership was made necessary because Beecher neglected the property — property of a type requiring constant care to preserve its value. In addition, the receiver’s" } ]

[ { "docid": "21441560", "title": "", "text": "(“CMTB”), obtained a preliminary judgment of 4,081,033,192 yen against the Debtor in the Tokyo District Court. The judgment and later-issued writs of enforcement provided that interest would accrue on the judgment at six percent per annum from May 11, 1993. Beecher, Ltd. (“Beecher”), a Gibraltar corporation, acquired the judgment on November 9, 2000. On January 3, 2002, Beecher registered the Japan judgment in Hawaii pursuant to Haw.Rev.Stat. ch. 658C, the Uniform Foreign Money-Judgments Recognition Act. Beecher promptly recorded the judgment in the appropriate state offices and thereby obtained a lien on the Debtor’s leasehold interest in the Hotel. Haw.Rev. Stat. §§ 636-3 and 501-102. When Beecher recorded the judgment in Hawaii, Waikiki First Finance Corp. and Waikiki S.F. Corp. (the ‘Waikiki Entities”) held first and second mortgages on the Hotel, respectively. In 2004, Beecher commenced an action in the First Circuit Court of the State of Hawaii to foreclose its judgment lien and obtain other relief. Beecher recorded a notice of pendency of action on August 4, 2004. During 2005, the state court made interlocutory rulings that the statute of limitations had run on Beecher’s judgment and that Beecher’s judgment and lien were not presently viable or enforceable. B. The Bankruptcy Case On November 10, 2005, before the state court entered a final judgment, Beecher and four other creditors filed an involuntary chapter 11 petition against the Debt- or. An order for relief was entered on February 1, 2006, with the Debtor’s consent. On February 7, 2006, Beecher removed the foreclosure proceeding to this court. The court remanded the proceeding to the state court on May 15, 2006, because the trial level proceedings in the state court were all but complete and it was more appropriate for the state courts, rather than the federal courts, to hear the appeal from the state court’s judgment. The remand order provides, however, that, “Nothing in this Order shall be deemed to dictate the treatment of Beecher’s disputed secured claim in this bankruptcy case while any appeals are pending.” (Docket No. 190, Case No. 06-90023.) This court’s subsequent order lifting the automatic stay to" }, { "docid": "21441561", "title": "", "text": "rulings that the statute of limitations had run on Beecher’s judgment and that Beecher’s judgment and lien were not presently viable or enforceable. B. The Bankruptcy Case On November 10, 2005, before the state court entered a final judgment, Beecher and four other creditors filed an involuntary chapter 11 petition against the Debt- or. An order for relief was entered on February 1, 2006, with the Debtor’s consent. On February 7, 2006, Beecher removed the foreclosure proceeding to this court. The court remanded the proceeding to the state court on May 15, 2006, because the trial level proceedings in the state court were all but complete and it was more appropriate for the state courts, rather than the federal courts, to hear the appeal from the state court’s judgment. The remand order provides, however, that, “Nothing in this Order shall be deemed to dictate the treatment of Beecher’s disputed secured claim in this bankruptcy case while any appeals are pending.” (Docket No. 190, Case No. 06-90023.) This court’s subsequent order lifting the automatic stay to allow the state court action to proceed contains a similar proviso. (Docket No. 374, Case No. 05-50011.) The state court entered final judgment in the foreclosure proceedings on June 23, 2006. Beecher’s appeal is pending before Hawaii’s appellate courts. On May 30, 2006, Beecher filed a proof of claim in the chapter 11 case asserting a secured claim in the amount of $73,035,470.81. The claim includes interest on the Japan judgment at six percent per annum from the date of the preliminary judgment of the Tokyo District Court on July 21, 1993, through the registration of the judgment in Hawaii on January 3, 2002, and interest at the Hawaii statutory rate of 10 percent per annum from January 3, 2002, through the chapter 11 petition date. Beecher asserts that its judgment claim is secured by the Hotel and by about $18,300,000 in various depository accounts in Tokyo which Beecher garnished in 2002. The Waikiki Entities filed proofs of claim asserting secured claims totaling $330 million. The Waikiki Entities contend that their claims are secured by" }, { "docid": "16155273", "title": "", "text": "DENMAN, Chief Judge. Beecher is seeking a ruling by this court on that which he terms “a jurisdictional point of law in section 75(s) [11 U.S.C.A. § 203(s) ] proceedings” which requires that all proceedings subsequent to an alleged tender of redemption be set aside as beyond the jurisdiction of the court. Although all but one of the appeals (No. 13,693) in which Beecher seeks this ruling have been dismissed, we shall consider the question at this point because of its importance to the protracted Beecher litigation. In 1939, Beecher, a farmer, found himself in financial difficulties and instituted proceedings under section 75(a-r) of the Bankruptcy Act. Unable to secure the assent of his creditors to an offer of composition, Beecher filed an amended petition under section 75 (s) of the Act and was adjudicated a bankrupt farmer-debtor on February 1, 1940. He remained in possession of his property under a stay and rental order later declared Void by this court until July, 1943, when, because of his neglect of the property, a receiver was put in possession of the orchard property involved. The receiver’s possession was terminated and appellant was restored to possession on May 6, 1946. On August 16, 1943, the Conciliation Commissioner, on Beecher’s motion, appraised the property at $9,170 for purposes of redemption. Beecher alleges that on August 4, 1947, he deposited $9,170.00 into court and claimed that he had redeemed the property. On November 30, 1951, upon request of the secured creditors, the district court re-appraised the property involved at a total value of $21,550 and directed that redemption could be effected by Beecher by the payment into court of this sum. Among the findings of fact and conclusions of law supporting this order was one that there were no funds in the registry of the court available to Beecher for the purposes of redemption. No payment pursuant to this order was made by Beecher during the ninety-day period or at any other time. A tender of redemption was made on February 27, 1952, by which Beecher sought to redeem the property with the $9,170" }, { "docid": "3102714", "title": "", "text": "$1,097.45 with interest at 8% from issuance and on a cost bill for $119.52, rendered in a state court action between Beecher and the creditor prior to the Sec. 75 proceedings. The district court approved the allowance of this claim with the modification that interest should stop on February 1, 1940, the date of the filing of the petition in bankruptcy, unless the estate were fully solvent after the allowance of all exemptions and the payment of all secured claims. Since the creditor waives any statutory lien which it may have acquired within four months of Beecher’s proceeding under Sec. 75, there is no error in the allowance of this claim. The Puget Sound Power & Light Co. claims for $817.22. The conciliation commissioner allowed the claim; and the district court affirmed. The appellant does not contest this allowance in his brief, and the order of the district court is affirmed. Beecher has vigorously contested the allowance of all claims on the ground that they may not be charged against income from the property during the time of bankruptcy administration. He argues that this income belongs to him as a part of his after-acquired estate. It is true that the farm-debtor remains in possession under Sec. 75, sub. s subject to the control of the court, but his possession is that of a trustee for the creditors. Beecher v. Federal Land Bank, 9 Cir., 153 F.2d 982. In both ordinary bankruptcy and in farmer-debtor cases the income earned from assets in the control of the bankruptcy court is generally for distribution to the creditors. Central States Life Ins. Co. v. Carlson, 10 Cir., 98 F.2d 102; cf. Tower Grove Bank & Trust Co. v. Weinstein, 8 Cir., 119 F.2d 120; In re Hotel St. James Co., 9 Cir., 65 F.2d 82; In re Thomas, 5 Cir., 36 F.2d 221. The chief exception to this rule in Sec. 75, sub. s bankruptcy is when the debtor is in possession as a rent-paying tenant. Reichert v. Federal Land Bank, 8 Cir., 139 F.2d 627. During that time, the rent is all that" }, { "docid": "3102712", "title": "", "text": "statute had not run when Beecher petitioned under Sec. 75, sub. s; and at that time, the bank promptly asserted in the bankruptcy court its status as a secured creditor. This was sufficient to preserve its lien. Cf. Ludowici Celadon Co. v. Potter Title & Trust Co., 3 Cir., 273 F. 1009; Lockhart v. Garden City Bank & Trust Co., 2 Cir., 116 F.2d 658. No error appearing, the order of the district • court as to this claim is affirmed, except insofar as it conflicts with our. decision on interest, post. The “supplemental” claim of the Leavenworth Bank for $519.12 with interest at 10%' from January 3, 1945, and the further sum of $931.34 with interest at 6% from March 13, 1945 is based on property taxes paid by the creditor. The district court approved the allowance of this claim by the conciliation commissioner. The appellant fails to designate any portion of the record which sustains his claim of error; and the order of the district court as to this claim is affirmed, except insofar as it • conflicts with our decision on interest, post. The claim of Chelan County was based on unpaid taxes and assessments upon Beecher’s property. By Washington statute, the amount of the claim was a lien on the assessed property of the debtor. The conciliation commissioner allowed this claim with interest until the date of payment; and the district court approved this order without modification. The appellant has pointed to no portion of the record which compels a complete reversal of this order, and the order is affirmed, except insofar as it conflicts with our decision on interest, post. The secured claim of Katherine C. Parker, assigned to A. C. Hinton, for $1,-926.76 with interest at 8% from September 9, 1939, appears to be uncontested except for a general objection to the payment of interest. The district court order affirming the allowance of this claim is affirmed, except insofar as it conflicts with our decision on interest, post. The remaining claims are unsecured. Citizens State Bank of Omak claims on Beecher’s promissory note for" }, { "docid": "3102709", "title": "", "text": "DENMAN, Chief Judge. This is an appeal by S. P. Beecher, a farm debtor, from an order of the district court, entered December 20, 1947, allowing creditors’ claims in Beecher’s proceedings under Sec. 75, sub. s of the Bankruptcy Act. Amount of Principal on the Claims. The \"original” claim of the Federal Land Bank of Spokane for $7,675.78, with interest at 6% from April 29, 1939, and the further sum of $647.42, with interest at 6% from July 7, 1939, is based on a sheriff’s certificate of sale to the creditor and taxes paid by the creditor. The sale was made on April 29, 1939, pursuant to a decree of foreclosure entered by a state court prior to Beecher’s proceeding under Sec. 75 of the Bankruptcy Act. The taxes paid July 7, 1939, were on the land purchased by the creditor at the foreclosure sale. The “supplemental” claim of the Federal Land Bank for $672.54, with interest at 6% from August 25, 1941, .is based upon their payment of taxes and assessments for 1940-41 on the property covered by the sheriff’s certificate of sale. The conciliation commissioner allowed both of these claims with interest and the district court approved this action, except that it modified the allowance of interest. Beecher’s attorney waived any objection to the principal amount of these claims and, no error appearing, the order as to these claims is approved, except as to interest which is discussed below in reference to all the secured claims. The “original” claim of the Leavenworth State Bank for $22,044.66, with interest of 8% as to $9,611.11 and of 6%' as to $12,433.55, was reduced by $531.71, modified as to interest and affirmed as modified by the district court. This claim was based upon a judgment against Beecher in a suit brought to recover on the mortgage security for notes executed by Beecher to the Leavenworth Bank. The judgment was rendered by the Superior Court of Chelan County, Washington, and was affirmed on appeal. Beecher does not contend that he failed to receive the face value of the notes when he executed" }, { "docid": "7504096", "title": "", "text": "DENMAN, Chief Judge. Beecher appeals from the order of the-court affirming the order of the Concilia-' tion Commissioner entered on June 25, 1947, fixing his rent pursuant to § 75, sub. s of the Bankruptcy Act. Appellees have not appealed from this order, and the question before us is whether it .has error prejudicial to Beecher. Beecher assigns several errors in the following provisions of the rent order: “From all the evidence admitted the Commissioner finds that the usual, customary rental of the property described in paragraph 1(a) hereof in the community where said property is located, based upon the rental value, net income and earning capacity of the property, is 40% of the net proceeds derived from the property each year to be paid to the Commissioner as rental.” $ * * * * * It is ordered that S. P. Beecher, debtor herein, pay for the use, occupancy and possession of the following property: [the orchards] during the period of 3 years beginning May 12, 1946, 40% of the net proceeds realized from the sale of all fruit or other crops raised and harvested on said property during each year of said term. “It is further ordered that 'net proceeds’ is the total sum realized from the sale of fruit or other crops raised on said property after first deducting all sums necessarily expended by the debtor to pay the actual costs of operating, maintaining and preserving the orchards thereon, including the usual and necessary costs of spraying, pruning, cultivating, fertilizing, thinning, and the actual and necessary costs of harvesting and marketing the fruit and other crops raised thereon.” A. Beecher claims error in that the net rent formula requires as a deduction from the receipts of sales of his orchards’ fruit, the expense of maintenance and preservation of the orchards, and that this constitutes the “upkeep” of the orchards which is required by § 75, sub. s (2) to be paid by the creditors. Undoubtedly the yearly pruning, spraying, cultivating, fertilizing and thinning, while in part - properly chargeable to operating expense, also contribute to the upkeep" }, { "docid": "7492124", "title": "", "text": "your return, income reported is increased by $4,639.16.” Since this income was received by Beecher in his fiduciary capacity, it is obvious that the deficiency, computed upon such fiduciary income but assessed to him in his capacity as an individual, is invalid. We express no opinion as to the validity of Beecher’s contentions that (a) the government had not complied with the requirements of Treasury Regulation 111, § 29.-274-2 that the taxpayer shall be notified in ■detail how the deficiency was computed; (b) the income should have been computed ■on an accrual rather than a cash basis; (c) no income accrued or was received for income tax purposes because of pending litigation, and (d) the purported return filed by Beecher was correct. The judgment is reversed with costs awarded to Beecher. The court is ordered to enter an order that the government take nothing by virtue of its claim but without prejudice to the right of the government, if any, to assess Beecher in his capacity as a fiduciary for any tax due the government and without prejudice to any defense Beecher may have to the validiy of such an assessment. . 11 U.S.C.A. § 203, sub. s. . This appeal arises out of the bankruptcy proceedings involved in Beecher v. Leavenworth State Bank, 9 Cir., 184 F.2d 498, 9 Cir., 184 F.2d 502, 9 Cir., 184 F.2d 504, and 9 Cir., F.2d .* Reference is made to those opinions, as well as the earlier Beecher litigation, see cases cited in Beecher v. Leavenworth State Bank, 9 Cir., 184 F.2d 498, note 3, for a more detailed account of appellant’s bankruptcy proceedings. Rehearing granted Oct. 28, 1950." }, { "docid": "23045870", "title": "", "text": "of the General Orders in Bankruptcy and Rule 52 of the Rules of Civil Procedure, 28 U.S.C.A., find the facts specially and state separately its conclusions of law thereon. See Perry v. Baumann, 9 Cir., 122 F.2d 409. That part of the order last mentioned dealing with a suit against the receiver is reversed and remanded to the district court with directions to find the facts specially, state separately its conclusions of law thereon, and direct 'the entry of an appropriate order. We think, however, that before this is done the district court may, in its discretion, receive additional evidence on the issues presented. There is no merit to the other exceptions taken by Beecher to the orders approving the receiver’s report. The provision in the order of August 23, 1948, discharging the receiver and exonerating his bond, is reversed; the receiver is not to be discharged until final disposition of the matters left open by this opinion. Beecher is liable for one-half the cost of these appeals, the balance being chargeable to appellees. . 11 U.S.C.A. § 203. . The circumstances necessitating the appointment of a receiver are described in Beecher v. Federal Land Bank, 9 Cir., 146 F.2d 934, 938. . Beecher v. Federal Land Bank of Spokane, 9 Cir., 143 F.2d 580, Id., 9 Cir., 146 F.2d 984, (2 cases), Id., 9 Cir., 146 F.2d 940, Id., 9 Cir., 146 F.2d 1000, Id., 9 Cir., 153 F.2d 982, certiorari denied 328 U.S. 869, 66 S.Ct. 1376, 90 L.Ed. 1639 and 328 U.S. 871, 66 S.Ct. 1376, 90 L.Ed. 1641, rehearing denied 329 U. S. 822, 67 S.Ct. 34, 91 L.Ed. 699; 9 Cir., 153 F.2d 987, certiorari denied 328 U.8. 871, 66 S.Ct. 1376, 90 L.Ed. 1641, rehearing denied 329 U.S. 819, 67 S.Ct. 28, 91 L.Ed. 697; Beecher v. Leavenworth State Bank, 9 Cir., 156 F.2d 220, Id., 9 Cir., 160 F.2d 294, Id., 9 Cir., 160 F.2d 296; Beecher v. Federal Land Bank of Spokane, 9 Cir., 166 F.2d 85. . See Beecher v. Federal Land Bank of Spokane, 9 Cir., 146 F.2d 934, Id.," }, { "docid": "21441584", "title": "", "text": "one group of creditors in any receivership without any reason or logic violates the fundamental and basic rule in receivership that ‘equality is equity.’ ”). The proportionality approach protects both junior liens from the senior creditor’s unbridled discretion and from each other, and provides for a neutral, fair, easily administered rule. VI. CONCLUSION The Trust has established as a matter of law that Beecher may recover interest on its domesticated judgment at the six percent rate ordered by the Japanese court. Both the Trust and Beecher are entitled to invoke (and have invoked) marshaling, and the surplus proceeds remaining after satisfaction of the Waikiki Entities’ senior liens shall be allocated between the Trust and Beecher in proportion to the values of the funds to which their respective hens attach. . Approximately $37,675,712 at the exchange rate in effect on that date. . Beecher also asserted other unsecured claims which this decision does not address. . On December 31, 2007, the U.S. District Court granted the Trust's motion for leave to appeal the interlocutory order dismissing Count 1 of the Counterclaim. The appeal does not divest this court of jurisdiction over the instant motion, which does not seek “a final adjudication of the substantial rights directly involved in the appeal.” Neaiy v. Padilla (In re Padilla), 222 F.3d 1184, 1190 (9th Cir.2000). The appeal concerns whether the Trust can avoid Beecher's judgment lien. For purposes of this motion, the court assumes, without deciding, that Beecher has a valid judgment lien. . The court heard the motion on January 25, 2008. Wayne Mau, Esq., Chuck C. Choi, Esq., Jeffrey C. Krause, Esq., and H. Alexander Fisch, Esq., appeared for the Trust; Sidney P. Levinson, Esq., and Caroline Walters, Esq., appeared for Beecher; Oscar Garza, Esq., appeared for the Waikiki Entities; Josiah M. Daniel III and Andrew Stewart, Esq., appeared for F4P1 Investments, LLC; and Michael A. Yoshida, Esq., appeared for the Resolution and Collection Corporation. . The dollar amount of the interest differential is disputed. This decision fixes the annual rate at which interest accrues; the calculation of the correct dollar amount" }, { "docid": "7492383", "title": "", "text": "from Beecher. Beecher recognized this, and claims that he was in doubt as to whether or not he should include depreciation in such an accounting. There is no reason for such doubt, for the rental order specifically describes the “net proceeds,” of which forty per cent is to be paid as rent for the benefit of creditors as “the total sum realized from the sale of crops after first deducting all sums necessarily expended by the debtor to pay the actual costs of operating, maintaining and preserving the orchards” to be rented by Beecher. Sums “expended” do not include depreciation. Beecher claims that he gave to the court on the day prior to the date of the order terminating the stay such a report as was required by the order of January 8, 1948. An examination of the report shows that it does not comply with the order of January 8, 1948, and that it was not, in effect, a delayed answer to the order to show cause why the stay should not be terminated. Beecher claims that the termination order, applying only to the orchards, is erroneous because the unsecured creditors are entitled to have the orchards operated as a going concern. Some of the unsecured creditors filed objections to the termination of the stay ultimately ordered. They have not appealed from the order terminating the stay, and Beecher is not in a position to complain. The order terminating the stay is affirmed. . 11 U.S.C.A. § 203, sub. s(2)." }, { "docid": "3102720", "title": "", "text": "of cutting off interest on tax claims at the date of bankruptcy is applicable to the supplemental claims involved here. There is just as much danger of eating up the bankrupt’s estate with interest on claims arising after the date of bankruptcy as with interest on claims arising before the date of bankruptcy. Consequently, the allowance of interest on these supplemental claims must be modified in the same manner as the other secured claims. As modified by this opinion, the order of the district court is affirmed. . 11 U.S.C.A. § 203, sub. s. For the history of the involved litigation of which this appeal is a part, see Beecher v. Federal Land Bank of Spokane, 9 Cir., 143 F.2d 580; Beecher v. Federal Land Bank of Spokane, 328 U.S. 869, 66 S.Ct. 1376, 90 L.Ed. 1639; Beecher v. Federal Land Bank of Spokane (two cases), 9 Cir., 146 F.2d 934; Beecher v. Federal Land Bank of Spokane, 9 Cir., 146 F.2d 940; Beecher v. Federal Land Bank of Spokane, 9 Cir., 153 F.2d 982; Beecher v. Federal Land Bank of Spokane, 9 Cir., 153 F.2d 987; Beecher v. Federal Land Bank of Spokane, 9 Cir., 146 F.2d 1000, Beecher v. Federal Land Bank of Spokane, 9 Cir., 166 F.2d 85; Beecher v. Leavenworth State Bank, 9 Cir., 156 F.2d 220; Beecher v. Leavenworth State Bank, 9 Cir., 160 F.2d 294; Beecher v. Leavenworth State Bank, 9 Cir., 160 F.2d 296; Beecher v. Leavenworth. State Bank, 9 Cir., 184 F.2d 498; Beecher v. Leavenworth State Bank, 9 Cir., 184 F.2d 502; Beecher v. Leavenworth State Bank, 9 Cir., 184 F.2d 504; Beecher v. United States, 9 Cir., 184 F.2d 506; Beecher v. Leavenworth State Bank, 9 Cir., 187 F.2d 448; In re Beecher, (two cases) 9 Cir., 187 F.2d 858; Beecher v. Leavenworth State Bank, 9 Cir., 187 F.2d 858; Beecher v. Leavenworth State Bank, 9 Cir., 187 F.2d 859; Beecher v. United States, 9 Cir., 187 F.2d 859; In re Beecher (two cases), 9 Cir., 189 F.2d 604; Beecher v. Leavenworth State Bank, 9 Cir., 189 F.2d 605; Beecher" }, { "docid": "23045863", "title": "", "text": "28, 1945. (b) Payment of federal income taxes for 1943, 1944 and 1943. The receiver paid federal income taxes for the years 1943, 1944 and 1945. Appellant seeks to surcharge the receiver with the amounts paid on the ground that as a matter of law the receiver had no authority to pay such taxes. The tax returns in question were prepared by a certified public accountant considered by the trial judge to be experienced in tax matters, the receiver was in possession of and operating'all of appellant's income-producing property, and it seems clear that the receiver acted in the best of faith in making such payments. In addition, we have previously had before us, Beecher v. Leavenworth State Bank, 9 Cir., 160 F.2d 296, appeals from the orders of May 23, 1945, which approved the Temporary Receiver’s -final report and accounting; also the receiver’s report and account from August 15, 1943, through February 28, 1945; and also the ’ receiver’s estimated costs of operation from March 1, 1945, through February 28, 1946, and authorizing the expenditure of funds. These orders authorized the receiver to pay the 1943 and 1944 federal income tax, and we affirmed them. While good faith and honesty will not alone protect a receiver who has made unauthorized payments, we think the circumstances surrounding- the .payments in question were such as to protect the receiver from surcharge. ■ Since the United States was not a party to the proceeding in Beecher v. Leavenworth State Bank, 9 Cir., 160 F.2d 296, or to the proceeding resulting in the present appeal, this decision denying a surcharge against the receiver is without prejudice to further attempts by the receiver or his successor in interest to secure a refund of such tax payments. (c) Fee to the Attorney for the receiver. The attorney for the receiver was allowed $1350 as compensation for professional services performed since July 3, 1943, the date the receiver was appointed. Until December 30, 1947, the attorney was employed without the order from the district court required by Order 44 of the General Orders in Bankruptcy, which" }, { "docid": "7492123", "title": "", "text": "of Internal Revenue recomputed the tax, assessed a deficiency, and filed a claim in the bankruptcy court for the amount of the deficiency. After two hearings the court entered its judgment ordering payment of the claim. It appears that the claim was filed for income claimed to have been received by Beecher personally since he was adjudicated a bankrupt and, at the argument in the court below, the government insisted that it was Beecher’s personal tax liability which was the basis for its claim. The deficiency assessment was against Beecher personally. The deficiency letter introduced by the government shows that the deficiency was computed as against a fiduciary “under the provisions of existing internal revenue laws applicable to bank ruptcies and receiverships” instead of the provisions applicable to his personal liability. It describes the income upon which the deficiency is assessed as “from sale of fruit of $14,669.32 * * * [less] deductible expenses against such gross income of $10,030.16, leaving a net taxable income of $4,639.16. Since you failed to include this income on your return, income reported is increased by $4,639.16.” Since this income was received by Beecher in his fiduciary capacity, it is obvious that the deficiency, computed upon such fiduciary income but assessed to him in his capacity as an individual, is invalid. We express no opinion as to the validity of Beecher’s contentions that (a) the government had not complied with the requirements of Treasury Regulation 111, § 29.-274-2 that the taxpayer shall be notified in ■detail how the deficiency was computed; (b) the income should have been computed ■on an accrual rather than a cash basis; (c) no income accrued or was received for income tax purposes because of pending litigation, and (d) the purported return filed by Beecher was correct. The judgment is reversed with costs awarded to Beecher. The court is ordered to enter an order that the government take nothing by virtue of its claim but without prejudice to the right of the government, if any, to assess Beecher in his capacity as a fiduciary for any tax due the government" }, { "docid": "3102719", "title": "", "text": "Bank, Katherine C. Parker, and Chelan County must be qualified by this phrase: “interest is allowed after said date to the extent that the same may be paid from the income of any securities pledged to the creditors as collateral, or to the extent that the estate is fully solvent after the allowance of exemptions and the payment of the principal amount of all claims.” Interest was also allowed on the supplemental claims of the Leavenworth State Bank and the Federal Land Bank for taxes paid by them on the property in which they had security rights. These claims arose after the date of bankruptcy and by paying them the creditors became subrogated to the rights of the taxing agencies against Beecher. The rights of these subrogees can rise no higher than their source and it is pertinent here to consider the effect of City of New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710. Although that case dealt with tax claims which arose before the date of bankruptcy, its principle of cutting off interest on tax claims at the date of bankruptcy is applicable to the supplemental claims involved here. There is just as much danger of eating up the bankrupt’s estate with interest on claims arising after the date of bankruptcy as with interest on claims arising before the date of bankruptcy. Consequently, the allowance of interest on these supplemental claims must be modified in the same manner as the other secured claims. As modified by this opinion, the order of the district court is affirmed. . 11 U.S.C.A. § 203, sub. s. For the history of the involved litigation of which this appeal is a part, see Beecher v. Federal Land Bank of Spokane, 9 Cir., 143 F.2d 580; Beecher v. Federal Land Bank of Spokane, 328 U.S. 869, 66 S.Ct. 1376, 90 L.Ed. 1639; Beecher v. Federal Land Bank of Spokane (two cases), 9 Cir., 146 F.2d 934; Beecher v. Federal Land Bank of Spokane, 9 Cir., 146 F.2d 940; Beecher v. Federal Land Bank of Spokane, 9 Cir., 153 F.2d 982;" }, { "docid": "2916203", "title": "", "text": "PER CURIAM. S'. P. Beecher, the appellant in the above numbered appeals, has presented to this court various motions in connection with those appeals. Appellant’s motion for authority to take such action in the federal court as is permitted by law to compel the Leavenworth Fruit and Cold Storage Company to accord to appellant the full benefit of his membership is dismissed. This court is not a court of original jurisdiction in bankruptcy matters and has no power to grant the reliei sought. 11 U.S.C.A. § 47; Beecher v. Fed eral Land Bank of Spokane, 9 Cir., 146 F.2d 934. Appellant’s remaining motions, except to the extent that they relate to the appeal from the order of the district court allowing claims and payment of taxes to Chelan County, are to be considered disposed of by our decisions in Nos. 12084A to F, inclusive; Nos. 12084H to J inclusive; and No. 12216, without prejudice, however, to any right appellant may have to present to the district court or the conciliation commissioner matters mentioned in the motions. 189 F.2d 604,605, 606,607. To the extent that appellant’s motions relate to his appeal from the order allowing claims and payment of taxes to Chelan County, jurisdiction is retained until the further order of this court." }, { "docid": "3102713", "title": "", "text": "insofar as it • conflicts with our decision on interest, post. The claim of Chelan County was based on unpaid taxes and assessments upon Beecher’s property. By Washington statute, the amount of the claim was a lien on the assessed property of the debtor. The conciliation commissioner allowed this claim with interest until the date of payment; and the district court approved this order without modification. The appellant has pointed to no portion of the record which compels a complete reversal of this order, and the order is affirmed, except insofar as it conflicts with our decision on interest, post. The secured claim of Katherine C. Parker, assigned to A. C. Hinton, for $1,-926.76 with interest at 8% from September 9, 1939, appears to be uncontested except for a general objection to the payment of interest. The district court order affirming the allowance of this claim is affirmed, except insofar as it conflicts with our decision on interest, post. The remaining claims are unsecured. Citizens State Bank of Omak claims on Beecher’s promissory note for $1,097.45 with interest at 8% from issuance and on a cost bill for $119.52, rendered in a state court action between Beecher and the creditor prior to the Sec. 75 proceedings. The district court approved the allowance of this claim with the modification that interest should stop on February 1, 1940, the date of the filing of the petition in bankruptcy, unless the estate were fully solvent after the allowance of all exemptions and the payment of all secured claims. Since the creditor waives any statutory lien which it may have acquired within four months of Beecher’s proceeding under Sec. 75, there is no error in the allowance of this claim. The Puget Sound Power & Light Co. claims for $817.22. The conciliation commissioner allowed the claim; and the district court affirmed. The appellant does not contest this allowance in his brief, and the order of the district court is affirmed. Beecher has vigorously contested the allowance of all claims on the ground that they may not be charged against income from the property during" }, { "docid": "7504100", "title": "", "text": "as to the usual and customary rental of the property for the part of the crop year after June 26, 1947. The order is set aside so far as concerns the rental for that crop year. The rent should be determined with reference to the factors of expenditure before and after June 26, 1947, and other relevant factors. D. Beecher next advances the contention that the rent order should have made provision for an allowance of living expenses to be charged as a cost of operation. We find no provision in the Act for such a charge. For performing labor he is entitled to compensation out of the crop sales in so far as it contributes to the crop product and out of the rent paid in so far as such labor contributes' to the upkeep of the property. Such compensation here well may exceed Beecher’s living expenses. The remaining contentions of appellant with regard to the validity of the rental order are without merit. We affirm the Conciliation Commissioner’s order as to the method of computing Beecher’s rental for any full year of his occupancy as renter. We hold that the three years’ rental occupancy begins on June 26, 1947, and order that the rental period is from that date, reversing the order in so far as it holds that it commence on May 12, 1946. • We further reverse' the order in' so far as it fixes the rent of the orchards for the part of the year prior to June 26, 1947, and remand the matter to the district court for the determining of the rent for that period. The costs are to be assessed against the appellees. . 11 U.S.O.A § 203, sub. s." }, { "docid": "14436442", "title": "", "text": "DENMAN, Circuit Judge. Appellant Beecher has appealed from several orders of the district court. Among them is an order of November 3, 1945, permitting the appellee to resume proceedings in the superior court of the State of Washington in foreclosure of appellee’s lien on the orchard and home of Beecher, a part of the bankruptcy estate, by allowing a sheriff’s sale of the property. We are of the opinion that the district court had no power to grant such an order during the pendency of the proceeding under Section 75, sub. s, of the Frazier-Lemke Act, 11 U.S.C.A. § 203, sub. s, at this stage of the proceedings. Sections (o) and (p) of that Act prohibit such action unless after hearing and report of the Conciliation Commissioner, which was not had. Bastian v. Erickson, 10 Cir., 114 F.2d 338; Schriever v. Oxford Bldg. & Loan Ass’n, 6 Cir., 116 F.2d 683. We reverse the order insofar as it permitted a sheriff’s sale. It appears that the sale was held, that appellee was the purchaser, and the sheriff’s deed delivered to it. We order that the district court exercise its jurisdiction over appellee to require it to restore the situation of the parties to that which existed prior to the making of the order. Beecher also moved to set aside an order of November 18, 1939, permitting the foreclosure proceeding in the state court to advance to the point of decree of foreclosure. The district court in an order of November 5, 1945, denied the motion. The order of November 18, 1939, has become final. The ground of the motion to set it aside is that it was beyond the jurisdiction of the court. In this Beecher errs. The order was voidable but not void and Beecher’s remedy was by appeal. Union Joint S. & L. Bank v. Byerly, 310 U.S. 1, 7, 60 S.Ct. 773, 84 L.Ed. 1041. We affirm the order of November 5, 1945, insofar as it concerns the motion to set aside the order of November 18, 1939. Thereafter the sheriff advertised the property for sale for" }, { "docid": "7492122", "title": "", "text": "DENMAN, Chief Judge. Beecher, a farmer who has invoked the relief provisions of § 75, sub. s, of the Bankruptcy Act 2*****, appeals from a judgment of the bankruptcy court awarding $802.17 to the Collector of Internal Revenue in payment of federal income tax, plus penalty and interest, for the fiscal year March 1, 1941, to February 27, 1942. The tax year involved was one subsequent to Beecher’s adjudication as a bankrupt under § 75, sub. s but, no valid stay order having been entered, Beecher v. Federal Land Bank, 9 Cir., 153 F.2d 982, sic prior to the commencement of the rent-paying tenancy of the farmer provided for in § 75, sub. s (2) of the Act. A farmer in possession of the property after adjudication under § 75, sub. s is, prior to his rent-paying tenancy, a fiduciary. See Beecher v. Federal Land Bank, supra, 153 F.2d at page 984. Beecher filed a delinquent personal income tax return for the period in question. From records on file in the bankruptcy court the Commissioner of Internal Revenue recomputed the tax, assessed a deficiency, and filed a claim in the bankruptcy court for the amount of the deficiency. After two hearings the court entered its judgment ordering payment of the claim. It appears that the claim was filed for income claimed to have been received by Beecher personally since he was adjudicated a bankrupt and, at the argument in the court below, the government insisted that it was Beecher’s personal tax liability which was the basis for its claim. The deficiency assessment was against Beecher personally. The deficiency letter introduced by the government shows that the deficiency was computed as against a fiduciary “under the provisions of existing internal revenue laws applicable to bank ruptcies and receiverships” instead of the provisions applicable to his personal liability. It describes the income upon which the deficiency is assessed as “from sale of fruit of $14,669.32 * * * [less] deductible expenses against such gross income of $10,030.16, leaving a net taxable income of $4,639.16. Since you failed to include this income on" } ]

[ { "docid": "8811347", "title": "", "text": "the administrator acted within the scope of that discretion. See Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996). If the reviewing court determines that the language of the plan confers discretion on the administrator to determine eligibility or to construe terms of the plan, then a court reviews the decision to deny benefits for abuse of discretion. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 111, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Ellis, 126 F.3d at 232; Haley, 77 F.3d at 89. This deferential standard of review requires that a reviewing court not disturb an administrator’s decision if it is reasonable, even if this Court would have reached a different conclusion. See Bruch, 489 U.S. at 115, 109 S.Ct. 948; Haley, 77 F.3d at 89. Initially we must determine de novo whether the Capital Plan’s terms confer discretionary authority on Paul Revere to make eligibility decisions. See Haley, 77 F.3d at 89; Ellis, 126 F.3d at 232. Because ERISA plans are contractual documents, although regulated, their interpretation is “governed by established principles of contract and trust law.” Haley, 77 F.3d at 88; see Bruch, 489 U.S. at 109-11, 109 S.Ct. 948. As with other contractual provisions, courts construe the plan’s terms without deferring to either party’s interpretation. Bruch, 489 U.S. at 112, 109 S.Ct. 948; see Wheeler v. Dynamic Eng’g Inc., 62 F.3d 634, 638 (4th Cir.1995) (stating that ERISA plans are interpreted “under ordinary principles of contract law”). This Court does not require specific phrases to trigger a particular standard of review. Rather, we examine the terms of the plan to determine if it vests in its administrators discretion either to settle disputed eligibility questions or construe doubtful provisions of the Plan. See de Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir.1989). We will find discretionary authority in the administrator if the plan’s language expressly creates discretionary authority. See Doe v. Group Hosp. & Med. Serv., 3 F.3d 80, 85 (4th Cir.1993) (applying abuse of discretion standard of review when the plan at issue gave “full power" } ]

[ { "docid": "20401536", "title": "", "text": "of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” The parties do not dispute that the Plan grants AIG this discretionary authority. The Plan provides, “The insurance company retains sole and absolute final discretion to determine eligibility for benefits, to construe the terms of the policy and to resolve any factual issues relevant to benefits.” Aplt. App. at 329. Under trust principles, a deferential standard of review is appropriate when trustees actually exercise a discretionary power “vested in them by the instrument under which they act.” Firestone, 489 U.S. at 111, 109 S.Ct. 948. Following Firestone, we made clear in Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 631 (10th Cir.2003), that “not only must the administrator be given discretion by the plan, but the administrator’s decision in a given case must be a valid exercise of that discretion.” Accord Jebian v. Hewlett Packard Co., 310 F.3d 1173, 1176-77 (9th Cir.2002); Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98, 109 (2d Cir.2005); Gritzer v. CBS, Inc., 275 F.3d 291, 296 (3rd Cir.2002); Matuszak v. Torrington Co., 927 F.2d 320, 322-23 (7th Cir.1991) (applying de novo review where administrator only offered “reasons” for denial during the course of litigation); Restatement (Second) of Trusts § 187, cmt. (h) (“[I]f the trustee without knowledge of or inquiry into the relevant circumstances and merely as a result of his arbitrary decision or whim exercises or fails to exercise a power, the court will interpose.”). The question before us in Gilbert-son was “whether a plan administrator with discretionary authority whose delay in deciding a claim results in its being ‘deemed denied’ is entitled to judicial deference.” Gilbertson, 328 F.3d at 631. We concluded that deference was not required, explaining: It follows that where the plan and applicable regulations place temporal limits on the administrator’s discretion and the administrator fails to render a final decision within those limits, the administrator’s “deemed denied” decision is" }, { "docid": "4385607", "title": "", "text": "withdrawn the lion’s share of his Savings Plan assets on October 21, 1997 rather than on March 2, 1999, when their value was substantially lower. He argues that under § 1132(a)(1)(B) he is therefore entitled to recover the difference between the valuations on those two dates. The district court rejected this claim, and we affirm. A denial of benefits challenged under § 1132(a)(1)(B) is “reviewed under a de novo standard unless the benefit plan gives the administrator ... discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When reviewing an administrative decision regarding benefits, then, a court must determine whether the plan’s language confers such discretion on the administrator, and if so, whether the administrator’s decision falls within the scope of the discretion conferred. Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996). If the administrator acted within the scope of discretion conferred on him by the plan, the decision is reviewed merely for abuse of discretion. Id. If the administrator did not act within the scope of such discretion, the decision is reviewed de novo. Bruch, 489 U.S. at 115, 109 S.Ct. 948. In resolving this initial question, “[w]e have not ... always required an explicit grant of discretionary authority. Rather, we have recognized that a plan’s terms can create discretion by implication.” Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 523 (4th Cir.2000). Such discretion can be inferred from the plain language of both the plan itself and the Summary Plan Description. See Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 124 (4th Cir.1994); see also Buce v. Allianz Life Ins. Co., 247 F.3d 1133, 1138, 1141 (11th Cir.2001). In United McGill Corp. v. Stinnett, 154 F.3d 168 (4th Cir.1998), for example, discretionary authority was found where a plan granted the administrator authority to “construe the terms of the Plan and resolve any disputes which may arise with regard to the rights of" }, { "docid": "22800393", "title": "", "text": "the Restatement (Second) of Trusts and other trust law authorities to apply “[tjrust principles.” Firestone, 489 U.S. at 110-11, 109 S.Ct. 948. Firestone establishes that “[a]s they do with contractual provisions, courts construe terms in trust agreements without deferring to either party’s interpretation.” Id. at 112, 109 S.Ct. 948. That means that except where the plan gives the trustee discretion to interpret the terms of its trust, courts review trust provisions de novo, which is to say they decide for themselves what a term of the trust means instead of deciding whether the plan administrator was reasonable in how it construed the term. “ ‘The extent of the duties and powers of a trustee is determined by the rules of law that are applicable to the situation, and not the rules that the trustee or his attorney believes to be applicable, and by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney.’ ” Firestone, 489 U.S. at 112, 109 S.Ct. 948 (quoting 3 W. Fratcher, Scott on Trusts § 201, at 221) (emphasis added by Firestone). Firestone holds that a deferential standard of review for actions by the trustee is “appropriate when the trustee exercises discretionary powers.” Id. at 111, 109 S.Ct. 948. Though the Court cites Restatement (Second) of Trusts § 187 for this proposition, the Court puts a slightly different gloss on the proposition than does the Restatement. The Restatement says that “exercise of a power is discretionary except to the extent to which its exercise is required by the terms of the trust or by the principles of law applicable to the duties of trustees.” Restatement (Second) of Trusts § 187 comment a (1959). Thus under the Restatement, in default of anything to the contrary, the trustee has discretion in the exercise of the powers the trust confers. But the Court holds in Firestone that “denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator" }, { "docid": "16879576", "title": "", "text": "determining whether Mr. Ross was totally disabled under the disability policy. We review the district court’s determination of this question of law de novo. 1. As an initial matter, we address the parties’ dispute regarding the standard of review that governs this inquiry. The Trust suggests, in its brief to this court, that the Board’s decision should be reviewed under the arbitrary and capricious standard. In contrast, Mr. Ross claims that the abuse of discretion standard applies. We have explained on prior occasions that the Supreme Court, in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), established that, “in interpreting benefits under an ERISA plan, a de novo standard of review is appropriate unless the plan documents give ‘the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Cozzie v. Metropolitan Life Ins. Co., 140 F.3d 1104, 1107 (7th Cir.1998) (quoting Firestone Tire, 489 U.S. at 115, 109 S.Ct. 948). The long-term disability plan at issue here clearly imparts discretionary authority to the plan administrator to interpret the terms of the plan. The plan provides in relevant part: The Plan Administrator shall have the right to interpret the terms and provisions of the Benefit Plan and to determine any and all questions arising under the Benefit Plan or in connection with the administration of the Benefit Plan, including, without limitation, the right to remedy or resolve possible ambiguities, inconsistencies, or omissions, by general rale or particular decision. R.87, Ex.6. When the administrator is given discretion to interpret the terms of the plan, the “extent of the deference given the administrator ‘determines the extent of judicial deference.’ ” Cozzie, 140 F.3d at 1107 (quoting Morton v. Smith, 91 F.3d 867, 870 (7th Cir.1996)). This is the case because Firestone Tire “did not establish a single standard for reviewing the discretionary decisionmaking of plan fiduciaries” but instead “presented a ‘smorgasbord of possibilities’ for standards of review.” Morton, 91 F.3d at 870. In Morton, this court differentiated between the arbitrary and capricious standard of" }, { "docid": "22372562", "title": "", "text": "or administrator discretionary or final authority to construe uncertain terms, the court review^] the employee’s claim as it would ... any other contract claim — by looking to the terms of the plan and other manifestations of the parties’ intent.” Id. at 112— 13,109 S.Ct. 948. Thus, we have held that in deciding whether a plan provision for benefits is prescriptive or discretionary, we review the Plan’s language de novo. See Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996). Similarly, in determining the scope of contractually conferred discretion and whether a fiduciary has acted within that scope, we act de novo. See id. When, however, a plan by its terms confers discretion on a fiduciary and the fiduciary acts within the scope of conferred discretion, we defer to the fiduciary in accordance with well-settled principles of trust law: “Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.” Firestone, 489 U.S. at 111, 109 S.Ct. 948 (quoting Restatement (Second) of Trusts § 187 (1959)). Thus, a trustee’s discretionary decision will not be disturbed if reasonable, even if the court itself would have reached a different conclusion. See id.; de Nobel v. Vitro Corp., 885 F.2d 1180, 1185-86 (4th Cir.1989). A survey of our cases decided after Firestone reveals a certain ambiguity about the appropriate standard of review of a fiduciary’s discretionary decision— whether it is “abuse of discretion” or “arbitrary and capricious” and whether the two standards are equivalent. In a number of decisions we stated expressly that we were not prepared to decide whether the abuse of discretion standard differs from the arbitrary and capricious standard. See Brogan v. Holland, 105 F.3d 158, 161 n. 3 (4th Cir .1997) (declining to resolve the issue because any difference between the two standards in the case at hand was inconsequential); Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 n. 4 (4th Cir.1995) (same); Sheppard & Enoch Pratt Hosp., Inc. v." }, { "docid": "22372561", "title": "", "text": "matter to the Plan’s Administrative Committee for reconsideration in light of its opinion. On August 4, 1998, the district court also awarded Booth $7,000 in attorneys fees. This appeal followed. II Because the standard of judicial review is dispositive in this case, we turn first to the proper standard for judicial review of a plan administrator’s decision to grant or deny benefits under an employee welfare benefit plan regulated by ERISA. Because ERISA does not specify the appropriate standard of judicial review of a fiduciary decision, courts are instructed to develop a federal common law, guided by principles of trust law. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109-11, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Thus, as a general proposition, ERISA plans, as contractual documents, see Wheeler v. Dynamic Eng’g, Inc., 62 F.3d 634, 638 (4th Cir.1995), are interpreted de novo by the courts, which conduct their review “without deferring to either party’s interpretation.” Firestone, 489 U.S. at 112, 109 S.Ct. 948. “If the plan [does] not give the employer or administrator discretionary or final authority to construe uncertain terms, the court review^] the employee’s claim as it would ... any other contract claim — by looking to the terms of the plan and other manifestations of the parties’ intent.” Id. at 112— 13,109 S.Ct. 948. Thus, we have held that in deciding whether a plan provision for benefits is prescriptive or discretionary, we review the Plan’s language de novo. See Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996). Similarly, in determining the scope of contractually conferred discretion and whether a fiduciary has acted within that scope, we act de novo. See id. When, however, a plan by its terms confers discretion on a fiduciary and the fiduciary acts within the scope of conferred discretion, we defer to the fiduciary in accordance with well-settled principles of trust law: “Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the" }, { "docid": "22800392", "title": "", "text": "Occidental, were entitled to severance pay under Firestone’s ERISA plan. Firestone interpreted the plan to mean that they were not. The Supreme Court granted certiorari in part to “address the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under ERISA.” Id. at 105, 109 S.Ct. 948. Firestone argued that because ERISA defined a fiduciary as one who “exercises any discretionary authority,” 29 U.S.C. § 1002(21)(A)(i), it could be inferred that, as a fiduciary, they had discretion and their decisions could be reviewed only for arbitrariness and capriciousness. A number of circuits had adopted the arbitrary and capricious standard. But the Supreme Court rejected it. It held that because there was “no evidence that under Firestone’s termination pay plan the administrator has the power to construe uncertain terms or that eligibility determinations are to be given deference,” judicial review had to proceed without any deference to Firestone’s determination. Firestone, 489 U.S. at 111, 109 S.Ct. 948. Noting that “ERISA abounds with the language and terminology of trust law,” the Court used the Restatement (Second) of Trusts and other trust law authorities to apply “[tjrust principles.” Firestone, 489 U.S. at 110-11, 109 S.Ct. 948. Firestone establishes that “[a]s they do with contractual provisions, courts construe terms in trust agreements without deferring to either party’s interpretation.” Id. at 112, 109 S.Ct. 948. That means that except where the plan gives the trustee discretion to interpret the terms of its trust, courts review trust provisions de novo, which is to say they decide for themselves what a term of the trust means instead of deciding whether the plan administrator was reasonable in how it construed the term. “ ‘The extent of the duties and powers of a trustee is determined by the rules of law that are applicable to the situation, and not the rules that the trustee or his attorney believes to be applicable, and by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney.’ ” Firestone, 489 U.S. at 112," }, { "docid": "13424183", "title": "", "text": "eligibility, “a district court may review the administrator’s determinations only for an abuse of discretion.” Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1471 (9th Cir.1993) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989)). This court reviews the district court’s application of this standard and the conclusion that Costco abused its discretion de novo. Id. In this ease the Plan Administrator is the employer. Therefore, this court “impose[s] a more stringent version of the abuse of discretion standard” to Costco’s decision to deny Winters health benefits. Id. at 1474 (internal quotation omitted). This court reviews de novo whether the plan’s terms are ambiguous. Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir.1993); Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 537 (9th Cir.), cert. denied, 498 U.S. 1013, 111 S.Ct. 581, 112 L.Ed.2d 587 (1990). III. DISCUSSION Costco makes two basic arguments on appeal. First, Costco argues that the district court applied the wrong standard to review the interpretation of the Plan by the Plan Administrator, and should have given deference to the Plan Administrator’s interpretation, rather than apply the doctrine of contra 'proferentem. Second, Costco argues that the district court’s interpretation of the Plan under contra proferentem was not only improper, but incomplete, because it did not address or consider Plan provisions concerning “covered charges.” Costco contends that while the district court purported to apply an abuse of discretion standard to the Plan Administrator’s denial decision, it actually did not accord the decision any deference, and instead substituted its own definition of “in vitro fertilization.” Section 14.9 of the Plan expressly grants absolute discretionary authority to the Plan Administrator to “interpret or construe all provisions of the Plan” and “construe disputed or seemingly inconsistent provisions of the Plan and to make all decisions regarding eligibility and/or entitlement to coverage or benefits.” This is sufficient to trigger the deferential abuse of discretion standard of review. See Firestone, 489 U.S. at 115, 109 S.Ct. at 956; Eley v. Boeing Co., 945 F.2d 276, 278" }, { "docid": "22404232", "title": "", "text": "permit Ellis to present her claim, there was no question that she had received a full and fair review. This appeal followed. II. Over the last few years, we have developed a well-settled framework for review of the denial of benefits under ERISA plans. Where a plaintiff is appealing the grant of summary judgment, we engage in a de novo review, applying the same standards that the district court employed. See Brogan v. Holland, 105 F.3d 158, 161 (4th Cir.1997). In cases where the benefit plan grants the administrator or fiduciary discretionary authority to determine eligibility or to construe the terms of the plan, the denial decision must be reviewed for abuse of discretion. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 111, 115, 109 S.Ct. 948, 954-55, 956-57, 103 L.Ed.2d 80 (1989); Brogan, 105 F.3d at 161; Bedrick v. Travelers Ins. Co., 93 F.3d 149, 152 (4th Cir.1996); Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 (4th Cir.1995); Doe v. Group Hospitalization & Medical Servs., 3 F.3d 80, 85 (4th Cir.1993). Under this deferential standard, the administrator or fiduciary’s decision will not be disturbed if it is reasonable, even if this court would have come to a different conclusion independently. See Bruch, 489 U.S. at 115, 109 S.Ct. at 954-55; Brogan, 105 F.3d at 161; Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996); Bernstein, 70 F.3d at 787; Fagan v. National Stabilization Agreement of Sheet Metal Indus. Trust Fund, 60 F.3d 175, 180 (4th Cir.1995); Doe, 3 F.3d at 85. Such a decision is reasonable if it is “the result of a deliberate, principled reasoning process and if it is supported by substantial evidence.” Brogan, 105 F.3d at 161 (quoting Bernstein, 70 F.3d at 788). As an initial matter, a reviewing court determines de novo whether the ERISA plan confers discretionary authority on the administrator or fiduciary and, if so, whether the administrator or fiduciary acted within that discretion. See Haley, 77 F.3d at 89. In the instant ease, there is really no question that MetLife possessed discretionary authority to determine" }, { "docid": "23434455", "title": "", "text": "de novo. Grupo Protexa, S.A. v. All Am. Marine Slip, 20 F.3d 1224, 1231 (3d Cir. 1994). We review a district court’s grant of summary judgment de novo, applying the same standard the district court applied. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.2007). We also review the legal interpretation of contractual language de novo. Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1254 (3d Cir. 1993). III. A. Standard of Review of LINA’s Benefits Denial The Supreme Court has held that “a denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). If the plan gives the administrator or fiduciary discretionary authority to make eligibility determinations, we review its decisions under an abuse-of-discretion (or arbitrary and capricious) standard. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); Doroshow v. Hartford Life & Accident Ins. Co., 574 F.3d 230, 233 (3d Cir.2009). “Whether a plan administrator’s exercise of power is mandatory or discretionary depends upon the terms of the plan.” Luby v. Teamsters Health, Welfare, & Pension Trust Funds, 944 F.2d 1176, 1180 (3d Cir.1991). There are no “magic words” determining the scope of judicial review of decisions to deny benefits, and discretionary powers may be granted expressly or implicitly. Id. However, when a plan is ambiguous, it is construed in favor of the insured. Heasley, 2 F.3d at 1258. “The plan administrator bears the burden of proving that the arbitrary and capricious standard of review applies.” Kinstler v. First Reliance Std. Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999). Under the abuse-of-discretion standard, we may overturn an administrator’s decision only if it is “without reason, unsupported by substantial evidence or erroneous as a matter of law.” Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir.2011) (quoting" }, { "docid": "17819578", "title": "", "text": "Supreme Court held that the standard of review for benefits claims under ERISA should “[follow] the pattern of trust law: presumptively de novo, but deferential when the instrument insulates the trustee’s decisions from searching review.” Sisters of the Third Order of St. Francis v. Swedish-American Group Health Benefit Trust, 901 F.2d 1369, 1371 (7th Cir.1990). Firestone observed that [t]rust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers.... A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable. Firestone, 489 U.S. at 111, 109 S.Ct. 948. Based on Firestone, this court reviews a denial of benefits allegedly owed under an ERISA plan, under a de novo standard unless the plan “gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115,109 S.Ct. 948. If the benefit plan confers such discretion on the plan administrator, then this court applies deferential review, assessing the denial of benefits under an arbitrary and capricious, or abuse of discretion, standard. Id. Accordingly, the court now looks to the language of the plan at issue to determine if it confers discretionary authority, and if so, the scope of that authority. As it happens, the Policy does not contain an express grant of discretion to the plan administrator: However, Section IV of the Policy, concerning'disability benefits, states: When the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a ■.physician, the Company will pay the insured a monthly benefit after the end of the elimination period. The benefit will be paid for the period of disability if the insured gives to the Company proof of continued: 1. disability; and 2. regular attendance of a physician. The proof must be given upon request and at the insured’s expense. (Def.’s Ex. A at 27.) Section VI of the Policy, containing general provisions, sets forth procedures for submitting notice and proof of claipis and lists the elements which" }, { "docid": "14465191", "title": "", "text": "correct standard of review to the Trustees’ decision to suspend benefits. The standard of review depends on the amount of discretion that plan documents afford the plan administrator, in this case the Trustees. See Johnson v. Allsteel, Inc., 259 F.3d 885, 889 (7th Cir.2001). A denial of benefits will be reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). If the plan confers discretionary authority, then a denial of benefits will be reviewed under an arbitrary and capricious standard. See Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir.2001). We have designated the following-phrase as safe harbor language that clearly gives the plan administrator broad discretionary power and thus ensures deferential review: “Benefits under this plan will be paid only if the plan administrator decides in his discretion that the applicant is entitled to them.” Herzberger v. Standard Ins. Co., 205 F.3d 327, 331 (7th Cir.2000). While this language ensures deferential review, that precise wording is not required. See id. (noting that “the courts have consistently held that there are no ‘magic words’ determining the scope of judicial review of decisions to deny benefits”). Here, Central States’ trust agreement contains numerous references to the Trustees’ broad discretion. For instance, Article V § 2 states that “Trustees are vested with discretionary and final authority in making all [plan-related] decisions, including Trustee decisions upon claims for benefits by participants and beneficiaries of the Pension Fund and other claimants, and including Trustee decisions construing plan documents of the Pension Fund,” and the plan makes clear that it incorporated the language of the trust agreement. See Pension Plan, Article YII § 7.01 (“[T]he Board of Trustees has authority to control and manage jointly the operation and administration of the Pension Fund and of this Pension Plan in accordance with the terms of the Trust Agreement and of this Pension Plan and amendments thereof...." }, { "docid": "22846123", "title": "", "text": "beneficiaries than before ERISA’s enactment, contravening ERISA’s goal of protecting the inter ests of Plan members and their beneficiaries. Firestone, 489 U.S. at 109-110, 109 S.Ct. at 953-954. When a plan does not grant an administrator discretion to interpret ambiguous plan terms, the Court held that an administrator’s denial of benefits would not be reviewed under an arbitrary or capricious standard. [A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard, unless the benefit plan gives the administrator authority to determine eligibility for benefits or to construe the terms of the plan. Firestone, 489 U.S. at 115, 109 S.Ct. at 956-957. Hence, we must first decide whether the terms of this Plan grant the Administrator discretion to act as a finder of facts to decide who Luby’s lawful beneficiary really was, thus warranting deference for his decision to pay the death benefit to Golosky. We conclude that the Plan neither expressly nor impliedly grants such discretion. A. Administrator Discretion Under the Plan Whether a plan administrator’s exercise of power is mandatory or discretionary depends upon the terms of the plan. Drawing from trust law principles, the Court in Firestone noted that the terms of the plan are construed without deferring to either party’s interpretation. 489 U.S. at 112, 109 S.Ct. at 955. “The terms of trusts created by written instruments are ‘determined by the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the settlor with respect to the trust is not inadmissable.’ ” Id. (quoting Restatement (Second) of Trusts § 4, comment d (1959)). Here the Fund admits that the terms of the Plan do not specifically grant the Plan Administrator authority to make beneficiary determinations. The Fund contends that the Plan, taken as a whole, impliedly grants the Administrator authority to do so. Diseretionarv powers mav be implied by a plan’s terms even if not granted expressly. See De Nobel v. Vitro Corp., 885 F.2d 1180, 1187 (4th Cir.1989) (no “magic words,” such as “discretion is granted ...,” need be" }, { "docid": "22404233", "title": "", "text": "Under this deferential standard, the administrator or fiduciary’s decision will not be disturbed if it is reasonable, even if this court would have come to a different conclusion independently. See Bruch, 489 U.S. at 115, 109 S.Ct. at 954-55; Brogan, 105 F.3d at 161; Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996); Bernstein, 70 F.3d at 787; Fagan v. National Stabilization Agreement of Sheet Metal Indus. Trust Fund, 60 F.3d 175, 180 (4th Cir.1995); Doe, 3 F.3d at 85. Such a decision is reasonable if it is “the result of a deliberate, principled reasoning process and if it is supported by substantial evidence.” Brogan, 105 F.3d at 161 (quoting Bernstein, 70 F.3d at 788). As an initial matter, a reviewing court determines de novo whether the ERISA plan confers discretionary authority on the administrator or fiduciary and, if so, whether the administrator or fiduciary acted within that discretion. See Haley, 77 F.3d at 89. In the instant ease, there is really no question that MetLife possessed discretionary authority to determine Ellis’s entitlement to benefits and that MetLife’s denial was plainly within that scope. The parties do not dispute this and the Plan’s language is crystal clear. See supra part I. (quoting Plan language). We must therefore review MetLife’s denial decision for an abuse of that discretion vested in MetLife. Ellis argues, however, that we should determine her eligibility for benefits de novo because MetLife, as both fiduciary of the Plan’s beneficiaries and the Plan’s insurer, suffers from a conflict of interest. Again, we have established a well-developed framework for considering such conflicts of interest in a court’s reviewing calculus. The Supreme Court has recognized that where a plan administrator or fiduciary is vested with discretionary authority and is “operating under a conflict of interest, that conflict must be weighed as a ‘factor[ ] in determining whether there is an abuse of discretion.’ ” Bruch, 489 U.S. at 115, 109 S.Ct. at 954-55 (quoting Restatement (Second) of Trusts § 187 cmt. d (1959)). Because ERISA plans are governed by trust principles, this factor is just one" }, { "docid": "4145923", "title": "", "text": "that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on MetLife’s motion for summary judgment, I must draw all reasonable inferences in favor of Dillard Sangster, the non-moving party. See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir.1998) (citing Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 842 (6th Cir.1997)). III. Analysis The threshold question is whether Met-Life had discretionary authority under the Ameritech Plan. The procedure to follow in addressing this is stated in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), in which the Supreme Court held that an ERISA plan administrator’s benefits decision is to be reviewed de novo unless the benefit plan gives the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. See id. at 115, 109 S.Ct. 948. In Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376 (6th Cir.1996), the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) interpreted Firestone to require that a benefit plan’s grant of discretionary authority to the administrator must be “express.” Id. at 380. Ameritech Plan’s grant of discretionary authority satisfies the Yeager requirement. The Plan states: “In carrying out their respective responsibilities under the Program, the insurance companies have full discretionary authority to interpret the terms of the Program and to determine eligibility for an entitlement to Program benefits in accordance with the terms of the Program.” (Plan at 20.) These clear terms make de novo review improper. Given the express grant of discretion, the proper standard for me to apply to MetLife’s decision to deny accidental death benefits is, according to Firestone, a deferential one based on trust principles. See 489 U.S. at 111, 109 S.Ct. 948 (“A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable”). Guided by Firestone, the Sixth Circuit has selected the arbitrary and capricious standard to test the reasonableness of decisions made" }, { "docid": "23083087", "title": "", "text": "§ 1132(e)(1), and we have jurisdiction pursuant to 28 U.S.C. § 1291. II. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that, when evaluating challenges to denials of benefits in actions brought under 29 U.S.C. § 1132(a)(1)(B), district courts are to review the plan administrator’s decision under a de novo standard of review, unless the plan grants discretionary authority to the administrator or fiduciary to determine eligibility for benefits or interpret the terms of the plan. The Court recognized that “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. 948 (internal quotation omitted). Prior to the Supreme Court’s recent decision in Glenn, we interpreted this language in Firestone to mean that courts should consider conflicts of interest affecting plan administration when formulating the standard of review. See Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 392 (3d Cir.2000). Accordingly, we adjusted the standard of review using a “sliding scale” in which the level of deference we accorded to a plan administrator would change depending on the conflict or conflicts of interest affecting plan administration. Id. In Glenn, the Supreme Court interpreted the relevant language in Firestone in a different way, holding that courts should continue to apply a deferential abuse-of-discretion standard of review in cases where a conflict of interest is present, but that courts should take the conflict into account not in formulating the standard of review, but in determining whether the administrator or fiduciary abused its discretion: We do not believe that Firestone’s statement implies a change in the standard of review, say, from deferential to de novo review. Trust law continues to apply a deferential standard of review to the discretionary decisionmaking of a conflicted trustee, while at the same time requiring the reviewing judge to take account of the conflict when determining whether the trustee, substantively" }, { "docid": "20401535", "title": "", "text": "de novo as plaintiffs urged. The court held that AIG’s interpretation of the term “hemiplegia” was reasonable, and that there was substantial evidence that Mr. Rasenack’s condition did not meet the policy’s definition. On appeal, Mr. Rasenack argues (1) the correct standard of review of the plan administrator’s decision is de novo and (2) the administrative record establishes that he suffers from hemiplegia as defined by the policy and is therefore eligible for benefits. II. We review de novo the “district court’s determination of the proper standard to apply in its review of an ERISA plan administrator’s decision.... ” DeGrado v. Jefferson Pilot Fin. Ins. Co., 451 F.3d 1161, 1167 (10th Cir.2006). ERISA authorizes a judicial action challenging an administrative denial of benefits but does not specify the standard of review that courts should apply. See 29 U.S.C. § 1132(a)(1)(B). Applying the principles of trust law, the Supreme Court resolved this question in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), holding that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” The parties do not dispute that the Plan grants AIG this discretionary authority. The Plan provides, “The insurance company retains sole and absolute final discretion to determine eligibility for benefits, to construe the terms of the policy and to resolve any factual issues relevant to benefits.” Aplt. App. at 329. Under trust principles, a deferential standard of review is appropriate when trustees actually exercise a discretionary power “vested in them by the instrument under which they act.” Firestone, 489 U.S. at 111, 109 S.Ct. 948. Following Firestone, we made clear in Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 631 (10th Cir.2003), that “not only must the administrator be given discretion by the plan, but the administrator’s decision in a given case must be a valid exercise of that discretion.” Accord Jebian v. Hewlett Packard Co.," }, { "docid": "22081713", "title": "", "text": "U.S.C. § 1132(a)(1)(B). In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court discussed the standard of review that courts should apply when an administrator’s decision to deny benefits is challenged under this section. In Bruch, the court of appeals had applied an “arbitrary and capricious” standard of review, but the Supreme Court reversed. It held that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. at 956. The Court reasoned that general trust law principles should govern the choice of a standard. Because a trustee’s decisions in carrying out his duties as defined by a trust agreement are accorded deferential treatment only when the instrument grants the trustee discretion, the Court concluded that deference to a plan administrator’s decisions would be appropriate only when the plan granted discretion to the administrator. Therefore, under Bruch, application of the highly deferential arbitrary and capricious standard of review is appropriate only when the plan grants the administrator authority to determine eligibility for benefits or to construe the terms of the plan. This circuit has interpreted Bruch to require that the plan’s grant of discretionary authority to the administrator be “express.” Perry v. Simplicity Eng’g, 900 F.2d 963, 965 (6th Cir.1990); see also Brown v. Ampco-Pittsburgh Corp., 876 F.2d 546, 550 (6th Cir.1989) (requiring that grant of discretion be “clear”). Therefore, in this case, we must examine the Plan language to determine whether the administrator is given such discretion. Defendant argues that the Plan’s requirement that a claimant submit “satisfactory proof of Total Disability to us” is a sufficient grant of discretion under Bruch to warrant application of the “arbitrary and capricious” standard of review. To support its position, defendant relies heavily on Miller v. Metropolitan Life Ins. Co., 925 F.2d 979 (6th Cir.1991). In Miller, the plaintiff asserted a claim for benefits, which the" }, { "docid": "16708745", "title": "", "text": "101. Because ERISA’s text does not directly resolve the matter, we looked to “principles of trust law” for guidance. Id., at 109, 111. We recognized that, under trust law, the proper standard of review of a trustee's decision depends on the language of the instrument creating the trust. See id., at 111-112. If the trust documents give the trustee “power to construe disputed or doubtful terms,... the trustee’s interpretation will not be disturbed if reasonable.” Id., at 111. Based on these considerations, we held that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Id., at 115. We expanded Firestone’s approach in Metropolitan Life Ins. Co. v. Glenn, 554 U. S. 105 (2008). In determining the proper standard of review when a plan administrator operates under a conflict of interest, we again looked to trust law, the terms of the plan at issue, and the principles of ERISA— plus, of course, our precedent in Firestone. See 554 U. S., at 110-116. We held that, when the terms of a plan grant discretionary authority to the plan administrator, a deferential standard of review remains appropriate even in the face of a conflict. See id., at 115-116. It is undisputed that, under Firestone and the terms of the Plan, the Plan Administrator here would normally be entitled to deference when interpreting the Plan. See 328 F. Supp. 2d, at 430-431 (observing that the Plan grants the Plan Administrator “broad discretion in making decisions relative to the Plan”). The Court of Appeals, however, crafted an exception to Firestone deference. Specifically, the Second Circuit held that a court need not apply a deferential standard “where the administrator ha[s] previously construed the same [plan] terms and we found such a construction to have violated ERISA.” 535 F. 3d, at 119. Under that view, the District Court here was entitled to reject a reasonable interpretation of the Plan offered by the Plan Administrator, solely" }, { "docid": "3196739", "title": "", "text": "of the plan or to construe unambiguous terms other than as written. See Kress v. Food Employers Labor Relations Ass’n, 391 F.3d 563, 569 (4th Cir.2004) (noting that courts are bound to enforce contractual provisions “as drafted”); Booth, 201 F.3d at 342 (listing the plan’s language as the first factor to consider in determining whether discretion is abused). Interpretive discretion only allows an administrator to resolve ambiguity. See Kress, 391 F.3d at 568. Thus, for instance, if a plan unambiguously provides 20 weeks of compensation as a severance benefit for an employee who has worked for the company for 10 years, the administrator abuses its discretion by reading the plan to provide 17 weeks of compensation. Even if the plan generally confers discretion on the administrator to interpret its terms, such discretion does not confer discretion to alter the plan’s terms or to read out unambiguous provisions. Firestone, 489 U.S. at 112, 109 S.Ct. 948 (noting that “courts construe terms in trust agreements without deferring to either party’s interpretation”); Kress, 391 F.3d at 567 (noting that “discretionary authority is not implicated” when the “terms of the plan itself are clear”); Davis v. Burlington Indus., Inc., 966 F.2d 890, 895 (4th Cir.1992) (“If the plan language is unambiguous, however, we would not defer to a contrary interpretation by the Board”). Yet when the plan’s terms are ambiguous in the sense that its language gives rise to at least two different but reasonable interpretations and when the plan confers discretion on the administrator to interpret the plan and resolve ambiguities, a court defers to the administrator’s interpretation by reviewing it only for abuse of discretion. See Firestone, 489 U.S. at 111, 109 S.Ct. 948; de Nobel, 885 F.2d at 1186. We review the district court’s determination of its standard for reviewing the plan administrator’s decision and its interpretation of the plan’s language de novo. IV In this case, the Plan confers broad discretionary authority on the administrator to interpret the Plan. Section 5.04(b) states that Agfa and the Administrative Committee “shall be authorized and have full discretion to interpret this Plan and" } ]

[ { "docid": "22107199", "title": "", "text": "the claims for which recovery was allowed under the bond included not only cartage and towage of material, but also claims for drawings and patterns- used by the contractor in making molds for castings which entered into the construction of the ship. In United States Fidelity Co. v. Bartlett, 231 U. S. 237, where the work contracted for was building a breakwater, recovery was allowed for all the labor at a quarry opened fifty miles away. This included,' as the record shows, the labor not only of men who stripped the earth to get at the stone and who removed the debris, but carpenters and blacksmiths who repaired the cars in which the stone was carried to the quarry dock for shipment; and who repaired the tracks upon which the cars moved. And the claims allowed included also the wages of stablemen who fed and drove the horses which moved the cars on those tracks. In Illinois Surety Co. v. John Davis Co., 244 U. S. 376, recovery was allowed not only for the rental of cars, track and other equipment used by the contractor in facilitating his work, but also the expense of loading this equipment and the freight paid thereon to transport it to the place where it was used. As shown by these cases, the act and the bonds given under it must be construed liberally for the protection of those who furnish labor or materials in the prosecution of public work. The Circuit Court of Appeals deemed immaterial the special circumstances under which the supplies were furnished and the findings of fact by the trial court that they were necessary to and wholly consumed in the prosecution of the work provided for in the'contract and bond. In our opinion these facts are not only material, but decisive. They establish the conditions essential to liability on the bond. The bare fact that the supplies were furnished to the contractor and were, consumed by workmen in its employ would have been immaterial. A boarding house might be conducted by the contractor (like some company stores concerning which States" } ]

[ { "docid": "22831661", "title": "", "text": "is no express finding to that effect by the district court. A determination as to whether there is a genuine issue of fact involves three related questions: (1) is “substantial completion” the proper test as to when the last of the labor is performed or materials supplied; (2) were any of the so-called “punch list” items performed and furnished on or after December 7, 1960, and if so, were they required to complete the subcontract of the plaintiff Austin; and (3) are plaintiffs bound by the notice given by the plaintiff Austin on December 14, 1960? The Miller Act “is entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects. * * * But such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds”. Clifford F. MacEvoy Co. v. U. S., 1944, 322 U.S. 102, 107, 64 S.Ct. 890, 88 L.Ed. 1163; United States v. Carter, 1956, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776; Apache Powder Co. v. Ashton Co., 9 Cir. 1959, 264 F.2d 417, 421. As noted supra, a subcontractor is required to give notice of his claim within 90 days from the date on which he performed the last labor or furnished or supplied the last material for which claim is made. He must file suit within one year from the same date. Appellees contend that the critical date is when the contract was “substantially performed”. Apparently, the district court adopted this test and found that the work was “substantially completed” on October 25, 1960. We do not find the phrases “substantially performed” or “substantially completed” used in any of the decided cases. A more accurate statement of the test to be applied is whether the work was performed and the material supplied as a “part of the original contract” or for the “purpose of correcting defects, or making repairs following in spection of the project”. See United States v. Gunnar I. Johnson & Son, Inc., 8 Cir. 1962, 310" }, { "docid": "9605125", "title": "", "text": "of two months, and $3,602 at the end of the job, the trucks to be used only on that job, and to be kept at lessee’s cost in good order and condition, ordinary wear and tear excepted. The sums to be paid aggregated the exact balance of the purchase price. Two of the payments were made; the third is sued for. The evidence is that such trucks for such work might he rented for $200 each per month, or $3,000 for the fifteen. The hauling was in fact completed in thirty-four days after the lease was made. The statute and the bond given under it speak of paying “persons supplying labor and materials in the prosecution of the work.” Labor is not here involved, but only materials. A strict construction was at first given the words by the lower courts, but a series of decisions by the Supreme Court has established a liberal construction as proper. Thus in U. S., to Use of Hill, v. American Surety Co, 200 U.S. 197, 26 S. Ct. 168, 50 L.Ed. 437, materials furnished to a subcontractor were held covered by the contractor’s bond. In like vein in Title Guaranty & Trust Co. v. Crane Co., 219 U.S. 24, 31 S.Ct. 140, 55 L.Ed. 72, the statute was held to cover the building of a vessel and to protect those who furnished cartage and towage and drawings and patterns for the work, though these did not go directly into the construction. Quarrying stone at a distance and hauling it to the work were held covered in United States Fidelity & Guaranty Co. v. U. S. for Benefit of Bartlett, 231 U.S. 237, 34 S.Ct. 88, 58 L.Ed. 200. Liberal construction was stressed in Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 37 S.Ct. 614, 61 L.Ed. 1206, and the renting of cars, track, and other equipment to be used in the work was held to be a furnishing of materials covered by the bond. In Brogan v. National Surety Co, 246 U.S. 257, 38 S.Ct. 250, 62 L.Ed. 703, L.R.A.1918D, 776, it" }, { "docid": "22831660", "title": "", "text": "law are unnecessary on decisions of motions” for summary judgment under Rule 56. We recognize, however, that findings of fact and conclusions of law are frequently used in granting motions for summary judgment. As suggested in Trowler v. Phillips, 9 Cir. 1958, 260 F.2d 924, 926, findings of fact, “while unnecessary”, sometimes “provide a handy summary”. On the other hand, “all too often a set of unnecessary findings of fact is the telltale flag that points the way to a discovery that summary judgment should not have been granted”. If the district court were permitted to weigh the evidence and resolve issues in making its findings of fact and conclusions of law, we could properly find from the evidence here that the findings and conclusions should be sustained. It is necessary to determine, however, whether viewing the evidence as a whole and the inferences to be di-awn therefrom in the light most favorable to the plaintiff it may be said that there is no genuine issue of fact, mindful also of the fact that there is no express finding to that effect by the district court. A determination as to whether there is a genuine issue of fact involves three related questions: (1) is “substantial completion” the proper test as to when the last of the labor is performed or materials supplied; (2) were any of the so-called “punch list” items performed and furnished on or after December 7, 1960, and if so, were they required to complete the subcontract of the plaintiff Austin; and (3) are plaintiffs bound by the notice given by the plaintiff Austin on December 14, 1960? The Miller Act “is entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects. * * * But such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds”. Clifford F. MacEvoy Co. v. U. S., 1944, 322 U.S. 102, 107, 64 S.Ct. 890, 88 L.Ed. 1163; United States v. Carter, 1956, 353 U.S. 210," }, { "docid": "16899968", "title": "", "text": "of the District under the Heard Act are applicable in construing the provisions of the District Code. The protection by bond of suppliers and laborers contributing to the construction of federal buildings flowed naturally from the impossibility of allowing the usual materialman’s lien on government property. It was and is to be liberally construed to effect its purpose to assure payment to suppliers of material and labor. In United States for Use of Hill v. American Surety Co., 200 U.S. 197, 202, 26 S.Ct. 168, 50 L.Ed. 437, where goods were furnished a subcontractor, the Supreme Court held the language applicable to them. It said: “Looking to the terms of this statute in its original form, and as amended in 1905, we find the same congressional purpose to require payment for material and labor which have been furnished for the construction of public works. * * There is no language in the statute nor in the bond which is therein authorized limiting the right of recovery to those who furnish material or labor directly to the contractor, but all persons supplying the contractor with labor or materials in the prosecution of the work provided for in the contract are to be protected. The source of the labor or material is not indicated or circumscribed. It is only required to be ‘supplied’ to the contractor in the prosecution of the work provided for. How supplied is not stated, and could only be known as the work advanced and the labor and material are furnished.” 200 U.S. at pages 203-204, 26 S.Ct. at page 170. In Brogan v. National Surety Co., 246 U.S. 257, 38 S.Ct. 250, 62 L.Ed. 703, the protection of the bond was declared for groceries furnished the contractor to feed the workers under their contract of employment. In Standard Accident Ins. Co. v. United States for Use and Benefit of Powell, 302 U.S. 442, 58 S.Ct. 314, 82 L.Ed. 350, the bond was held to cover freight charges. The Court said: “Certainly labor is required for loading freight on railroad cars, moving these over the road, and unloading" }, { "docid": "7031610", "title": "", "text": "to other Miller Act decisions for rules of general construction. Generally, “the Miller Act should receive a liberal construction to effectuate its protective purposes.” United States ex rel. Sherman v. Carter, 353 U.S. 210, 216, 77 S.Ct. 793, 796, 1 L.Ed.2d 776 (1957). The Act was intended to protect from non-payment those who furnish labor and materials in federal construction projects. Id. Yet, the authority to construe liberally the provisions of the Miller Act is not the authority to contravene the plain language of the statute. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944). Furthermore, we previously exempted from liberal construction the ninety-day limitation on notice provisions. See United States ex rel. Honeywell v. A & L Mechanical Contractors, 677 F.2d 383, 386 (4th Cir.1982); see also United States ex rel. John D. Ahern Co., Inc. v. J.F. White Contracting Co., 649 F.2d 29, 31 (1st Cir.1981) (the ninety-day period is a strict condition precedent); United States ex rel. General Dynamics Corp. v. Home Indemnity Co., 489 F.2d 1004, 1005 (7th Cir.1973) (distinguishing notice requirement from remedial rights of statute, which are to be liberally construed). Although Honeywell concerned a different notice issue, we held that “[sjtrict enforcement of [the notice] requirement is necessary_” 677 F.2d at 386. Given its plain meaning, the language “giving written notice to said contractor” requires receipt of the notice by the contractor. Mailing does not fully accomplish the condition to “giv[e] ... notice.” Such condition requires that the notice actually be “giv[en],” that is, put in the possession of the contractor. In other words, we hold that the statute’s language requires actually notifying the contractor. Had Congress chosen different language, we could have reached another outcome. For example, it seems that a statute providing a right of action “upon written notice” would not impose the same requirements on a subcontractor. In that case, mailing would satisfy the statutory condition. Similarly, a right of action granted “upon mailing written notice” would obviously require only mailing. Thus, the statute’s authors could easily have stated its directive as" }, { "docid": "139629", "title": "", "text": "building or public work of the United States,” must provide a payment bond “for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.” Section 270b(a) gives the party supplying labor and material to such a contractor the right to sue on the payment bond for nonpayment of the labor or material supplied. This right extends to those parties “having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor_” (emphasis added). Subsection (b) of § 270b goes on to provide that all suits under § 270b must be commenced within “one year after the day on which the last of the labor was performed or material was supplied....” B. Issues This case presents three issues: 1) Did Gulf States supply the equipment to a subcontractor or did it supply the equipment to another supplier, thereby falling outside the ambit of the Miller Act? 2) Did Gulf States institute its suit within one year after last supplying the Kamat-su dozer and Northwest 6 dragline, as prescribed by § 270b(b)? 3) Did Tway agree to pay the amounts Gulf States invoiced to Mr. Hoffman and Hoffman, Inc. on the dozer and the drag-line? We consider each issue in turn. 1. Mr. Hoffman: Subcontractor or Mate-rialman? To be a “subcontractor” and come within the protection of the Miller Act, a person must have a direct contractual relationship with either the prime contractor or a subcontractor of the prime contractor. J.W. Bateson Co. v. United States, 434 U.S. 586, 98 S.Ct. 873, 55 L.Ed.2d 50 (1978); United States use of Gold Bond Bldg. Products, Div. of Nat. Gypsum v. Blake Constr. Co., 820 F.2d 139 (5th Cir.1987). “Subcontractor”, however, does not include “ordinary laborers and materialmen.” Unlike a materialman, a subcontractor performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract. Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163 (1944). The" }, { "docid": "3185412", "title": "", "text": "preponderance of the evidence that the August 15 letter was received by Glenn-Stewart. Furthermore, the November 14 letter (PX 7) cannot be considered as satisfying the written notice requirement of the Miller Act because it was received after the statutory ninety day period. United States v. Federal Insurance Company, 452 F.2d 485, 487 (C.A.5, 1971) and United States v. H. S. Kaiser, Inc., 270 F.Supp. 215, 217 (E.D.Wis.1967). And since Excavation offered no other evidence of any written communications with the defendants within the ninety day period, Excavation has failed to establish that written notice was timely given to Glenn-Stewart which is a condition precedent to the right to maintain a Miller Act suit. Fleisher Co. v. United States, supra, 311 U.S. at 18, 61 S.Ct. 81. 4. The telephone communication in July 1972 between Mallory and Garner also failed to satisfy the statutory written notice requirement of the Miller Act. It is true that the Act is entitled to a liberal construction and application to give effect to the Congressional intent of protecting those whose labor and materials go into public projects. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 88 L.Ed. 1163 (1944). However, “such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds.” MacEvoy Co. at 107, 64 S.Ct. at 893. Accordingly, the Supreme Court has found that the Act provides a broad but not unlimited protection and one such limitation is that materialmen such as the use plaintiff here must give the “statutory notice” of their claim to bring suit on a payment bond. United States v. Carter, 353 U.S. 210, 217, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). Thus, after Fleisher courts have continued to interpret the statutory requirement of written notice as a condition precedent to bringing suit in spite of a general policy of giving the Act a liberal construction. For example, in United States v. Northwestern Engineering Co., 122 F.2d 600, 602 (C.A.8, 1941) the Court, after analyzing the above quoted language from Fleisher, concluded that is was unable" }, { "docid": "19698913", "title": "", "text": "cause of. action, and the scope and substance of recovery are governed by federal rather than state law. F. D, Rich, supra, 417 U.S. at 126-31, 94 S.Ct. 2157. “The Miller Act is ‘. . . highly remedial [and] entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects.’ MacEvoy, supra [Clifford F. MacEvoy Co. v. United States ex rel. Tomkins Co.], 322 U.S. [102] at 107, 64 S.Ct. [890] at 893 [88 L.Ed. 1163 (1944)].” F. D. Rich, supra, 417 U.S. at 124, 94 S.Ct. at 2162. Under the statute, use plaintiff is entitled to the “sum or sums justly due him.” By its terms, however, the Miller Act is limited to claims for “labor or material [furnished] in the prosecution of the work provided for in [the] contract ..” The issue thus becomes whether delay costs as alleged in this case are expenses for “labor or material” within the intendment of the statute. The Court holds that the Miller Act surety is liable to a subcontractor for increased costs actually incurred due to delay for labor or material, to the extent such delay is not attributable to the subcontractor. Several reasons support this conclusion. First, the claims asserted in this case are within the literal language of the statute, since the amounts sought are for out-of-pocket expenses for labor or materials that were furnished and used by the subcontractor in performing his contractual obligations. Recovery in the instant circumstances would also promote the underlying purpose of the Miller Act: to afford the subcontractor the financial protection of an action against the surety. To deny relief would remit the use plaintiff to his remedy for breach of contract, and it was the inadequacy of such a remedy in the context of federal construction projects that prompted the enactment of the Miller Act. Moreover, there is a public interest in the smooth completion of these Government projects which is promoted by reducing the possibility that delay will frustrate the governmental objective due to disputes" }, { "docid": "11391966", "title": "", "text": "of Farwell, Ozum, Kirk & Co. v. Shea-Adamsori Co., 21 F.Supp. 831 (D.Minn.1987) (all decided under the Heard Act.) In the Shea-Adamson case the scope of the bond included work done by a superintendent or foreman. “It may be true that the term ‘labor’ in this statute, as generally in statutes relating to mechanics’ liens, refers to physical labor rather than technical and professional skill and judgment, but an architect or other skilled man who actually superintends the work as it is done is by the weight of authority furnishing labor. * * * [Citation omitted.] It was so held under the federal statute where the superintendent did some manual labor * * *. [Citations omitted.]” American Surety Co. v. United States ex rel. Barrow Agee Laboratories Inc., supra, 76 F.2d at 68. The liberal construction given to the Heard Act is also to be given in cases arising under the Miller Act. See Mac Evoy v. United States for Use and Benefit of Calvin Tomkins Co., 322 U.S. 102, 107, 64 S.Ct. 890, 88 L.Ed. 1163 (1944) (dictum). “The courts have refrained from attempting an all-inclusive definition of [labor and] material furnished in the prosecution of the work.” United States for Use and Benefit of J. P. Byrne & Co., v. Fire Association of Philadelphia, 260 F.2d 541, 543-544 (2d Cir., 1958). The test developed by the courts is that the labor and materials must be furnished in the prosecution of the work. The Miller Act “does not require that the labor or material furnished be actually used or incorporated into the contract work.” Fourt v. United States for Use and Benefit of Westinghouse Electric Supply Co., 235 F.2d 433, 435 (10th Cir., 1956). But however broad the rule is, the coverage of the bond will not be extended to one who is one of the partners or joint venturers constituting the subcontractor. This was the rule under the Heard Act, Theobald-Jansen Electric Co. v. P. H. Meyer Co., 77 F.2d 27 (10th Cir., 1935); United States for Use and Benefit of Walker v. United States Fidelity & Guaranty" }, { "docid": "7031609", "title": "", "text": "contract, in respect of which a payment bond is furnished under section[ ] 270a ... and who has not been paid in full therefor ..., shall have the right to sue on such payment bond ...: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made.... 40 U.S.C. § 270b(a) (emphasis in original). The statute clearly requires timely notice as a condition precedent to the right to maintain suit on a payment bond. Our decision turns on the meaning of “giving written notice.” We can then determine if the properly given notice was timely. The issue presented here is one of first impression for our Court. We look to other Miller Act decisions for rules of general construction. Generally, “the Miller Act should receive a liberal construction to effectuate its protective purposes.” United States ex rel. Sherman v. Carter, 353 U.S. 210, 216, 77 S.Ct. 793, 796, 1 L.Ed.2d 776 (1957). The Act was intended to protect from non-payment those who furnish labor and materials in federal construction projects. Id. Yet, the authority to construe liberally the provisions of the Miller Act is not the authority to contravene the plain language of the statute. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944). Furthermore, we previously exempted from liberal construction the ninety-day limitation on notice provisions. See United States ex rel. Honeywell v. A & L Mechanical Contractors, 677 F.2d 383, 386 (4th Cir.1982); see also United States ex rel. John D. Ahern Co., Inc. v. J.F. White Contracting Co., 649 F.2d 29, 31 (1st Cir.1981) (the ninety-day period is a strict condition precedent); United States ex rel. General Dynamics Corp. v. Home Indemnity Co.," }, { "docid": "15252919", "title": "", "text": "Ordinarily, the availability of a mechanic’s lien to a subcontractor provides security. Because a mechanic’s lien, however, cannot attach to government property, an alternative system of security had to be created. That is what Congress achieved in enacting the Miller Act. It placed subcontractors to government contractors on substantially equal footing with subcontractors to private contractors. See, eg., F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 121-22, 94 S.Ct. 2157, 2161, 40 L.Ed.2d 703, 709 (1974); United States ex rel. Mariana v. Piracci Construction Co., Inc., 405 F.Supp. 904, 906 (D.D.C.1975); United States ex rel. Otis Elevator Co. v. Piracci Construction Co., Inc., 405 F.Supp. 908, 909 (D.D.C.1975). In this case, SEB is seeking recovery for the value of services and materials that it provided. To that extent, its claim falls squarely within the terms of the Act. The possible complication lies in the fact that delay damages, which SEB seeks, represent the value of material and services provided at the particular time they were provided, as opposed to the time the parties initially expected them to be provided. That aspect of the claim, however, does not defeat SEB’s action on the bond. As the Supreme Court has stated, the Miller Act is “highly remedial in nature .... [and] entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects.” Clifford F. MacEvoy Co. v. United States ex rel. Calvin-Tomkin’s Co., 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944). As we read the Act, a surety is liable for the value of material and services provided at the time they were provided, and hence, the surety is liable for delay damages. This interpretation is supported by cases decided under the Miller Act that allow quantum meruit recovery against a surety. In those cases the value of services rendered is calculated as “the amount for which such services could have been purchased from one in the plaintiff’s position at the time and place" }, { "docid": "9941254", "title": "", "text": "materialmen or subcontractors; the latter are specifically covered by the statute. In such instances, the Solicitor often cites cases involving suits on statutory bonds executed pursuant to the Heard Act, 28 Stat. 278, and its successor, the Miller Act, 40 U.S.C. § 270a et seq. This has been done because the Davis-Bacon Act at 40 U.S.C. § 276a-2 specifically gives the employee who has not received the statutory wage, an action on the bonds. We have found none of such cases which deal specifically with the status of the employee of an independent trucking firm whose work is limited to the delivery of commercial building material to the site. However, the following statement from the opinion of the Supreme Court in Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163 (1944) is often quoted: “* * * But under the more technical meaning, as established by usage in the building trades, a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen.” Defendant relies on this language and argues that since the contracts required plaintiff to furnish all plant, materials and labor, for the completion of the work, Glover was plaintiff’s subcontractor and his employees were therefore covered by the Davis-Bacon Act and the Eight-Hour Laws. But defendant concedes that neither the supplier’s truck drivers nor the drivers employed by independent trucking firms under contract with the supplier, is covered by the statutes. If defendant’s view is accepted without limitation, the drivers mentioned would be covered, as would all the employees of materialmen. Such a result would be clearly contrary to the intention of Congress. In reviewing the opinions of the Solicitor of the Department of Labor, it is not altogether clear whether materialmen are excluded from statutory coverage because they are specifically excluded by the regulations or statute, or because they are not subcontractors who perform a specific portion of the work called for in the prime contract, or possibly because" }, { "docid": "5459507", "title": "", "text": "22 gives them no such right of interpleader. The amount of the payment bond fixes the extent of their liability to persons having claims for labor and materials supplied the subcontractor, and that amount is admittedly well in excess of what is required to satisfy such claims in full. The claims are not therefore, adverse to each other; the claimants are not seeking to recover the same thing or amount. * * * It is likewise of no significance that the counterclaimants will be subjected to several suits arising out of the same transaction. Rule 22 does not purport to give a defendant severally liable to different claimants the right to interplead all such claimants in an action by less than all— solely because the several liabilities have a common origin — where the interests of such claimants do not, by adverseness to each other, expose him to the danger of double or multiple liability for the same thing or amount.” The present case admittedly differs from Olson in that here we have a chain of subcontractors or materialmen. But the language quoted indicates strongly that that decision was based on the amount of the bonds exceeding the amounts claimed. If that was the basis, the differences in the factual situations are not significant. Liability of the prime contractor, whether under the Miller Act or under state equivalents such as the Maryland statute involved here, is created by the statute. Fleisher Engineering & Constr. Co. v. United States, 311 U.S. 15, 17, 61 S.Ct. 81, 85 L.Ed. 12. The bond required is for the purpose of protecting subcontractors and materialmen on public projects where they have no lien on the work done. Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 104, 105, 64 S.Ct. 890, 88 L.Ed. 1163. The statute fixes both the fact and the amount of this liability without regard to the precise terms in which a particular bond is worded. For this reason Hughes’ attempt to show that the Maryland Court of Appeals, in Women’s Hospital for use of Robert S. Green v. Fid. &" }, { "docid": "13412599", "title": "", "text": "¡y due him. This Act, like its predecessor the Heard Act, 40 U.S.C.A. §§ 270, 270a note, has been consistently given a liberal interpretation since it is remedial in character and evidences an intent in Congress to protect those whose labor and material have contributed to the prosecution of the worfe Accordingly, the Heard Act was held to include not only those who furnish labor or material to the prime contractor but those who furnish them to the subcontractor; and this interpretation finds expression in § 270b of the Miller Act which in terms confers the right to bring suit not only upon materialmen, laborers and subcontractors who deal directly with the prime contractor, but also upon materialmen, laborers and sub-subcontractors who, lacking express or implied contractual relationship with the prime contractor, have direct contractual relationship with a subcontractor. See MacEvoy v. United States, 322 U.S. 102, 107, 108, 64 S.Ct. 890, 88 L.Ed. 1163. We conclude that A.R.M. falls within the terms of the statute as one who furnishes labor and material in the prosecution of the work provided for in the contract and that the statute gives rise to a contract implied in law which imposes upon Ross the duty to make compensation. The judgment in case No. 5416 will be Affirmed. No. 5415. M.B.S. brought suit under the Miller Act against Ross and the Surety and A.R.M. to recover under its contract with Ross and also to recover for additional work outside the scope of the contract; and Ross asserted certain counter-claims in the suit. The claim of M.B.S. is made up of the sum of $395,000 representing the contract price and $45,630.09 for additional work and extras, or a total of $440,630.09. Against this sum payments of $211,035.50 and back charges due Ross of $7,640.91 were conceded, or a total of $218,676.41, making the net claim of M.B.S. $221,953.-68. Ross conceded that there was due M.B.S. on the contract price and additions the sum of $420,307.69, but claimed deductions from the contract price for certain items of the 'work eliminated in the sum of $5,764.46, and" }, { "docid": "22682817", "title": "", "text": "or did perform any part of the work on the construction project. Nor is it disputed that MacEvoy paid Miller in full for the materials. Within ninety days from the date on which Tomkins furnished the last of the materials to Miller, Tomkins gave written notice to MacEvoy and the surety of the existence and amount of Tomkins’ claim for materials furnished to Miller. Tomkins as use-plaintiff then instituted this action against MacEvoy and the surety on the payment bond. The District Court granted petitioners’ motion to dismiss the complaint for failure to state a claim against them. 49 F. Supp. 81. The Circuit Court of Appeals reversed the judgment. 137 F. 2d 565. We granted certiorari because of a novel and important question presented under the Miller Act. 320 U. S. 733. Specifically the issue is whether under the Miller Act a person supplying materials to a materialman of a Government contractor and to whom an unpaid balance is due from the materialman can recover on the payment bond executed by the contractor. We hold that he cannot. The Heard Act, which was the predecessor of the Miller Act, required Government contractors to execute penal bonds for the benefit of “all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract.” We consistently applied a liberal construction to that statute, noting that it was remedial in nature and that it clearly evidenced “the intention of Congress to protect those whose labor or material has contributed to the prosecution of the work.” United States v. American Surety Co., 200 U. S. 197, 204. See also Mankin v. United States, 215 U. S. 533; U. S. Fidelity & Guaranty Co. v. Bartlett, 231 U. S. 237; Brogan v. National Surety Co., 246 U. S. 257; Fleischmann Construction Co. v. United States, 270 U. S. 349; Standard Accident Insurance Co. v. United States, 302 U. S. 442. We accordingly held that the phrase “all persons supplying [the contractor] . . . with labor and materials” included not only those furnishing labor and" }, { "docid": "11391965", "title": "", "text": "of the bond provides: “A claimant is defined as one having a direct contract with the Principal or with a subcontractor of the Principal who has furnished labor, material, or both, in the prosecution of the work provided for in the Contract and who has not been paid in full therefor. Labor and material are construed to include, but are not limited to, that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the contract.” As a general rule, the courts tend to give a very broad construction to the class of people entitled to protection under these bonds. See Standard Accident Insurance Co. v. United States for Use and Benefit of Powell, 302 U.S. 442, 58 S.Ct. 314, 82 L. Ed. 350 (1938); Brogan v. National Surety Bank, 246 U.S. 257, 38 S.Ct. 250, 62 L.Ed. 703 (1918); American Surety Co. of N. Y. v. United States ex rel. Barrow Agee Laboratories, Inc., 76 F.2d 67 (5th Cir., 1935); United States for Use and Benefit of Farwell, Ozum, Kirk & Co. v. Shea-Adamsori Co., 21 F.Supp. 831 (D.Minn.1987) (all decided under the Heard Act.) In the Shea-Adamson case the scope of the bond included work done by a superintendent or foreman. “It may be true that the term ‘labor’ in this statute, as generally in statutes relating to mechanics’ liens, refers to physical labor rather than technical and professional skill and judgment, but an architect or other skilled man who actually superintends the work as it is done is by the weight of authority furnishing labor. * * * [Citation omitted.] It was so held under the federal statute where the superintendent did some manual labor * * *. [Citations omitted.]” American Surety Co. v. United States ex rel. Barrow Agee Laboratories Inc., supra, 76 F.2d at 68. The liberal construction given to the Heard Act is also to be given in cases arising under the Miller Act. See Mac Evoy v. United States for Use and Benefit of Calvin Tomkins Co., 322 U.S. 102, 107, 64 S.Ct. 890, 88" }, { "docid": "139630", "title": "", "text": "one year after last supplying the Kamat-su dozer and Northwest 6 dragline, as prescribed by § 270b(b)? 3) Did Tway agree to pay the amounts Gulf States invoiced to Mr. Hoffman and Hoffman, Inc. on the dozer and the drag-line? We consider each issue in turn. 1. Mr. Hoffman: Subcontractor or Mate-rialman? To be a “subcontractor” and come within the protection of the Miller Act, a person must have a direct contractual relationship with either the prime contractor or a subcontractor of the prime contractor. J.W. Bateson Co. v. United States, 434 U.S. 586, 98 S.Ct. 873, 55 L.Ed.2d 50 (1978); United States use of Gold Bond Bldg. Products, Div. of Nat. Gypsum v. Blake Constr. Co., 820 F.2d 139 (5th Cir.1987). “Subcontractor”, however, does not include “ordinary laborers and materialmen.” Unlike a materialman, a subcontractor performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract. Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163 (1944). The distinction between a “subcontractor” and a “materialman” turns on the substantiality and importance of the relationship between the middle party and the prime contractor. Only a middle party who has taken responsibility for a large and definable part of the construction project is a “subcontractor.” Otherwise, he is a “ma-terialman.” (hereafter, “supplier”) Id.; F.D. Rich Co., Inc. v. United States, 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974); Aetna Casualty & Surety Co. v. United States, 382 F.2d 615, 617 (5th Cir.1967). 2. The Dozer Contract A review of the Dozer Contract, denominated “Sub-Contract,” between Tway and Mr. Hoffman indicates in paragraph one that Mr. Hoffman agrees to furnish fully operated dozers as needed at $42.00 per operating hour. The dozers were to be furnished for the construction of the “East Atachafalaya Basin Protection Levee.” Contrary to Gulf States’ contention, when we determine whether a contract is a “subcontract” within the meaning of the Miller Act, our findings are not controlled by the contract’s label, or the labels the parties fashion for themselves," }, { "docid": "19698912", "title": "", "text": "time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him . 40 U.S.C. § 270b(a) (1970). The purpose of this statute has been explained by the Supreme Court: Section 270a(a)(2) of the Miller Act establishes the general requirement of a payment bond to protect those who supply labor or materials to a contractor on a federal project. Ordinarily, a supplier of labor or materials on a private construction project can secure a mechanic’s lien against the improved property under state law. But a lien cannot attach to government property ., so suppliers on government projects are deprived of their usual security interest. The Miller Act was intended to provide an alternative remedy to protect the rights of these suppliers. F. D. Rich Co. v. United States for the use of Industrial Lumber Co., Inc., 417 U.S. 116, 121-22, 94 S.Ct. 2157, 2161, 40 L.Ed.2d 703 (1974). Although enacted as a replacement for state lien law, the Miller Act provides a federal cause of. action, and the scope and substance of recovery are governed by federal rather than state law. F. D, Rich, supra, 417 U.S. at 126-31, 94 S.Ct. 2157. “The Miller Act is ‘. . . highly remedial [and] entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects.’ MacEvoy, supra [Clifford F. MacEvoy Co. v. United States ex rel. Tomkins Co.], 322 U.S. [102] at 107, 64 S.Ct. [890] at 893 [88 L.Ed. 1163 (1944)].” F. D. Rich, supra, 417 U.S. at 124, 94 S.Ct. at 2162. Under the statute, use plaintiff is entitled to the “sum or sums justly due him.” By its terms, however, the Miller Act is limited to claims for “labor or material [furnished] in the prosecution of the work provided for in [the] contract ..” The issue thus becomes whether delay costs as alleged in this case are expenses for “labor or material” within the intendment of the statute. The Court holds that" }, { "docid": "5459508", "title": "", "text": "of subcontractors or materialmen. But the language quoted indicates strongly that that decision was based on the amount of the bonds exceeding the amounts claimed. If that was the basis, the differences in the factual situations are not significant. Liability of the prime contractor, whether under the Miller Act or under state equivalents such as the Maryland statute involved here, is created by the statute. Fleisher Engineering & Constr. Co. v. United States, 311 U.S. 15, 17, 61 S.Ct. 81, 85 L.Ed. 12. The bond required is for the purpose of protecting subcontractors and materialmen on public projects where they have no lien on the work done. Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 104, 105, 64 S.Ct. 890, 88 L.Ed. 1163. The statute fixes both the fact and the amount of this liability without regard to the precise terms in which a particular bond is worded. For this reason Hughes’ attempt to show that the Maryland Court of Appeals, in Women’s Hospital for use of Robert S. Green v. Fid. & Guar. Co., 177 Md. 615, 11 A.2d 457, 128 A.L.R. 931 (where the wording of the bond apparently closely paralleled that in the present case) would not hold the principal liable for the debt of a subcontractor to a materialman is not pertinent. Moreover, it is not important whether or not a Maryland court would be guided by Judge Thomsen’s opinion in United States v. Blount, Brothers Construction Co., D.C., 168 F.Supp. 407 (which involved the somewhat different Miller Act) by holding that Article 90, § 11 would not extend- its protection as far down as Tolerton. These questions have nothing to do with the essential nature of the fund involved here or with the appropriateness of interpleader of these claimants. The interpleader is intended to prevent multiple payments to multiple claimants, each of which payments is in the full amount of what actually is but a single liability. Here, however, the statute in question acknowledges the possibility of not merely a single liability, but a multiple liability; its purpose is to guarantee payments by" }, { "docid": "13412598", "title": "", "text": "the name of a quasi contract. In the first place as quasi contractual obligations are imposed by the law for the purpose of bringing about justice without reference to the intention of the parties, the only apparent restriction upon the power of the law to create such obligations is that they must be of such a sort as would have been appropriately enforced under common-law procedure by a contractual action. * * *”. See also § 91D; G. T. Fogle & Co. v. United States, 4 Cir., 135 F.2d 117, 120; Restatement, Contracts, § 5. In the instant case these general principles find support in the positive provisions of the Miller Act, 40 U.S.C.A. §§ 270a and 270b which provide that every person who has furnished labor or materials in the prosecution of a Government contract, for which a payment bond must be furnished, and has not been paid in full, shall have the right to sue on the payment bond and to prosecute the action to final execution and judgment for the sum just ¡y due him. This Act, like its predecessor the Heard Act, 40 U.S.C.A. §§ 270, 270a note, has been consistently given a liberal interpretation since it is remedial in character and evidences an intent in Congress to protect those whose labor and material have contributed to the prosecution of the worfe Accordingly, the Heard Act was held to include not only those who furnish labor or material to the prime contractor but those who furnish them to the subcontractor; and this interpretation finds expression in § 270b of the Miller Act which in terms confers the right to bring suit not only upon materialmen, laborers and subcontractors who deal directly with the prime contractor, but also upon materialmen, laborers and sub-subcontractors who, lacking express or implied contractual relationship with the prime contractor, have direct contractual relationship with a subcontractor. See MacEvoy v. United States, 322 U.S. 102, 107, 108, 64 S.Ct. 890, 88 L.Ed. 1163. We conclude that A.R.M. falls within the terms of the statute as one who furnishes labor and material in the" } ]

[ { "docid": "17915273", "title": "", "text": "PER CURIAM: Appellees have filed a motion to dismiss this appeal on the ground that it is interlocutory in nature and therefore not within the jurisdiction of the court. The motion is opposed by appellants. We grant the motion to dismiss. In Myers v. Feigelman, 455 F.2d 596, 59 CCPA 834 (1972), this court reversed the decision of the Board of Patent Interferences and remanded the case to the board for consideration of the suppression and concealment issue which had been properly before the board, but had not been resolved. Remand was “to allow the board to make a fully focused inquiry into this difficult question.” Appellants filed a motion with the board asking for a reopening of the testimony period. This appeal is on the denial of that motion by the board. Appellants urge that the board’s refusal to reopen the testimony period constitutes a failure to comply with the court’s mandate. That position is devoid of merit. The court only required the board to resolve the issue it had not ruled on previously. The court’s opinion does not suggest that appellants were entitled to introduce additional evidence into the record. There is no indication that appellants were to be placed in a better position than they would have been in had the board resolved the issue earlier, as it could have, on the record before it. We agree with appellees that this appeal does not arise out of a final decision of the board. See Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 59 CCPA _ (1972). The appeal is accordingly dismissed. It is so ordered." } ]

[ { "docid": "17829809", "title": "", "text": "appeal to this Court from any ‘decision’ of the Commissioner and the omission of any reference to tins right from the Trademark Rules of Practice (Trademark Rule 2.145 (a)) does not deprive the applicant of that right.” Selecting the words of the statute relied on, they are An applicant for registration of a mark * * * who is dissatisfied with the decision of the Comissioner * * * may appeal to the Court of Customs and Patent Appeals * * *. Appellant says it is such an applicant, that it is dissatisfied, and that what it is dissatisfied with is decisions of the Commissioner. The Patent Office says “the decision” does not mean any decision the Commissioner makes in a trademark matter, reminding us of the classic distinction between appealable and petitionable matters, which is observed in both the patent and trademark examining operations of the Patent Office, and of the myriad of “decisions” on various interlocutory and administrative questions which must be made by the Commissioner in connection with trademark applications which are petitionable under Rule 2.146 and certainly not appealable to this court, The Seamless Rubber Co. v. Ethicon, Inc., 46 CCPA 950, 268 F. 2d 231, 122 USPQ 391 (1959), notwithstanding section 21. For that matter, not every “decision” of the board is ap-pealable under section 21. It must be “a dispositive decision in which a right has been adjudicated.” U. S. Treasury v. Synthetic Plastics Co., 52 CCPA 967, 341 F. 2d 157, 144 USPQ 429 (1965). In that case we dismissed an appeal from the board’s decision on appellant’s motion to strike portions of an answer to an opposition and pointed out that it was not such a “decision” as is appealable. Reviewing the history of intramural appeals in trademark cases from times prior to Public Law 85-609, enacted August 8, 1958, when the Trademark Trial and Appeal Board was created to take over certain review functions then handled by the Commissioner, the solicitor correctly points out that section 21 refers, not to amy decision the Commissioner makes but to limited decisions, left with" }, { "docid": "3845476", "title": "", "text": "1946 to all goods listed in the application. The board then said: * * * In the same vein, the Board has on a number of occasions held that the identification of goods in an application involved in an opposition proceeding may not be amended in the absence of opposer’s consent thereto since opposer is entitled as a matter of right to a determination of the issues set forth in the pleadings, including the identification of goods in applicant’s application as published in the Official Gazette for opposition purposes. See, for example: Cool-Ray, Inc. v. Eye Care, Inc., 183 USPQ 618 (TT&A Bd., 1974), and Economics Laboratory, Inc. v. Estee Lauder Inc., 183 USPQ 443 (TT&A Bd., 1974). The board held res judicata inapplicable on the view that “under the existing decisional law” Hardigg was bound in the first opposition by its description of goods and “thus could not obtain a determination of the issue of likelihood of confusion based on the asserted actual nature of its goods,” and that the present question of likelihood of confusion is thus one “which neither was nor could have been litigated in the prior opposition.” Accordingly, the board granted Hardigg’s motion, in effect striking paragraph 8 (res judicata) from the notice, and denied Toro’s motion for summary judgment. Opposer’s motion to suspend was granted in view of Trademark Rule 2.117, 37 CFR 2.117. Issue The dispositive issue is whether the board erred in holding res judicata inapplicable. OPINION Jurisdiction Confessing inability to find authorities in point, Hardigg nonetheless expresses “doubt” concerning the jurisdiction of this court to entertain the present appeal. We hold jurisdiction present. In Knickerbocker Toy Co., Inc. v. Faultless Starch Co., 467 F.2d 501, 59 CCPA 1300 (1972), citing Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), we looked to whether the goal of judicial economy would be truly served by allowance of the appeal and whether the cause left unadjudicated was sufficiently distinct from the claim stricken. Those questions being answered in the affirmative, we affirmed the action of the board" }, { "docid": "12062944", "title": "", "text": "been used to secure priority over Christman. . 5 USPQ2d 1985 (TTAB 1985). . Appellant repeatedly makes reference to a \"world economy” and considers Christman to be the remote junior user of the mark. Although Person's did adopt the mark in Japan prior to Christman's use in United States commerce, the use in Japan cannot be relied upon to acquire U.S. trademark rights. Christman is the senior user as that term is defined under U.S. trademark law. . 5 USPQ2d at 1988. . See 2 J. McCarthy, Trademarks and Unfair Competition § 26:4 (2d ed. 1984); Restatement of Torts § 732 comment a (1938). . Cf. Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1565, 4 USPQ2d 1793, 1798 (Fed.Cir.1987). . Sweats Fashions, 833 F.2d at 1565, 4 USPQ2d at 1798; Selfway, Inc. v. Travelers Petroleum, Inc., 579 F.2d 75, 79, 198 USPQ 271, 275 (CCPA 1978). . See, e.g., Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332, 123 USPQ 357 (N.Y.Sup.Ct.1959); Mother's Restaurants, Inc. v. Mother's Other Kitchen, Inc., 218 USPQ 1046 (TTAB 1983). . See Davidoff Extension, S.A. v. Davidoff Int'l., 221 USPQ 465 (S.D.Fla.1983). . See Bulk Mfg. Co. v. Schoenbach Prod. Co., 208 USPQ 664, 667-68 (S.D.N.Y.1980). . Selfway, 579 F.2d at 79, 198 USPQ at 275. . Paris Convention for the Protection of Industrial Property, July 14, 1967, 21 U.S.T. 1628, T.I.A.S. No. 6923. . See Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 509, 175 USPQ 417, 423, 59 CCPA 1300 (CCPA 1972). . Wallpaper Mfrs., Ltd. v. Crown Wallcovering Corp., 680 F.2d 755, 767, 214 USPQ 327, 336 (CCPA 1982). . Fed.R.Civ.P. 56 is made applicable to proceedings before the Board by 37 C.F.R. § 2.116(a) (1987). . Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). . 15 U.S.C. § 1127. . Cerveceria Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021, 1023, 13 USPQ2d 1307, 1309-10 (Fed.Cir.1989). . Wallpaper Mfrs., 680 F.2d at 759, 214 USPQ at 329. . 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141" }, { "docid": "1501314", "title": "", "text": "by the board, there has been “only a short period of time in which both parties have concurrently enjoyed commercial success in their operations.” The statutory test is likelihood of confusion, not actual confusion. In re Bissett-Berman Corp., supra. Taxation of Printing Costs Appellant has moved to assess printing costs against appellee for pages 206-221 of the transcript of record. Those pages relate to a motion to stay proceedings in the Patent and Trademark Office pending the outcome of appellee’s declaratory judgment action against appellant in a federal district court. Appellee argues that its allegations of noninfringement in that action and appellant’s responses thereto are “relevant” to the issues presented to this court. Although it is true that any findings made by a district court concerning likelihood of confusion between the marks of these parties would be relevant, the mere allegations by appellee in its complaint are not probative of any fact relevant to the disposition of this appeal. Accordingly, the motion to tax printing costs is granted. The decision of the board is reversed. REVERSED . The notice of appeal states that appellant “hereby serves notice under 35 U.S.C. §§ 141 and 142 of its appeal.” Appellant’s brief reiterates this error. Title 35 pertains to patents, and sections 141 and 142 pertain to appeals to this court in patent cases. However, we construe the appeal as though filed pursuant to 15 U.S.C. § 1071(a), which governs appeals to this court in trademark cases. See Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 59 CCPA 1300, 175 USPQ 417 (1972). . Registration No. 958,278, issued May 1, 1973. . In re E. I. du Pont De Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). . In du Pont, supra note 3, the parties had entered into a legally binding agreement to limit their sales of products under the same mark to discrete, noncompetitive markets. . Such a fact, as a matter of common knowledge, is appropriate for judicial notice. See In re Knapp-Monarch Co., 296 F.2d 230, 49 CCPA 779, 132 USPQ 6 (1961); McCormick’s" }, { "docid": "3373353", "title": "", "text": "action failed to specify who was the prior inventor, as requested by the examiner, and since that failure was not inadvertent, the application became abandoned for failure to prosecute by virtue of 35 U.S.C. § 133 and 37 CFR 1.135. The petition before us followed. OPINION The threshold question is whether this court has the power to issue the requested writs, as distinguished from the question of whether the court, in'* its discretion, should exercise that power. Cf. La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); Reddy v. Dann, 529 F.2d 1347, 188 U.S.P.Q. 644 (CCPA 1976). The solicitor’s position is that this court lacks such power since it has no jurisdiction, by appeal or otherwise, to review a decision by the Commissioner holding an application abandoned. However, under 28 U.S.C. § 1651(a), the All Writs Act, this court has the power to issue all writs necessary or appropriate “in aid of” its appellate jurisdiction. Loshbough v. Allen, 404 F.2d 1400, 56 CCPA 913, 160 U.S.P.Q. 204 (1969). Since the All Writs Act is not an independent grant of appellate jurisdiction, the appellate jurisdiction for which the writs are “in aid of” must have some other basis. See Roche v. Evaporated Milk Ass’n, supra, 319 U.S. at 23-26, 63 S.Ct. 938; Goodbar v. Banner, No. 79-555, 599 F.2d 431 (Cust. & Pat.App.1979); Formica Corp. v. Lefkowitz, 590 F.2d 915, 200 U.S.P.Q. 641 (CCPA 1979). While it is generally true that this court does not have appellate jurisdiction to review decisions of the Commissioner in patent matters, In re Wiechert, 370 F.2d 927, 54 CCPA 957, 152 U.S.P.Q. 247 (1967), except indirectly with respect to decisions on matters which are ancillary to priority in an interference, see Godtfredsen v. Banner, No. 79-514, 598 F.2d 589 (Cust. & Pat.App. 1979), and Duffy v. Tegtmeyer, 489 F.2d 745, 180 U.S.P.Q. 317 (CCPA 1974), the court clearly has the power to issue writs under the All Writs Act in aid of" }, { "docid": "18563449", "title": "", "text": "is so fundamental to the litigation that both policy and common sense would dictate that [the Court should] assume jurisdiction under the rule of Gillespie v. U.S. Steel Corp., 379 U.S. 148 [85 S.Ct. 308, 13 L.Ed.2d 199].” Gillespie illustrates an exception to finality that has on occasion been used by this Court, Tenneco Resins, Inc. v. Reeves Bros., Inc., 736 F.2d 1508, 222 USPQ 276 (Fed.Cir.1984), and its predecessor, Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 175 USPQ 417 (CCPA 1972). It focuses on whether the order in question is distinct from the remaining allegations and on whether judicial economy will be served. Gillespie, however, is to be very rarely used. As stated in Cabot, 788 F.2d at 1544, “there is no warrant here for applying the Gillespie rationale beyond the unique facts of that case.” Accord Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n. 30, 98 S.Ct. 2454, 2462 n. 30, 57 L.Ed.2d 351 (“If Gillespie were extended beyond the unique facts of that case, § 1291 would be stripped of all significance.”). As in Cabot, there is no warrant here to apply Gillespie. In dismissing this appeal, we are not unaware of this Court’s recent decisions in Dewey Electronics Corp. v. United States, 803 F.2d 650 (1986) and Teller Environmental Systems, Inc. v. United States, 802 F.2d 1385 (1986). Dewey appealed from an order of the Armed Services Board of Contract Appeals (Board) finding the government not liable on four claims of equitable adjustment, pricing of certain items, and interest, but liable on five other claims. The Board remanded the five claims to the contracting officer to determine quantum. The government argued that the order was non-final because of the remanded claims. This Court decided that the Board made a final decision on the four claims that were the subject of the appeal and that the appeal should not be deferred pending resolution of quantum on the other five claims. In Dewey it was determined that the statute granted the Board jurisdiction to review decisions of contracting officers and that, because only" }, { "docid": "6451593", "title": "", "text": "actively promoted with the mark (“AIRCO”) sought to be registered. 570 F.2d at 942. . We are not convinced by WF’s argument that the district court ignored its evidence at trial regarding the similarity of these two exhibits. We have already noted the self-serving nature of James Love’s testimony. Furthermore, his testimony on this point was elementary and redundant. As noted by the district court, the similarity of the exhibits is “fairly obvious.” R.T. 138. . If we did not now avoid the invalidity issue, we would probably hold it barred. The practice of the Board at the time of the opposition proceeding in this case was to require invalidity of the opposer’s registration to be raised in a compulsory counterclaim. See Scovill Mfg. Co. v. Stocko Metallwarenfabriken Henkels und Sohn KG, 188 U.S.P.Q. 24 (TTAB 1975); Delta Tire Corp. v. Sports Car Club, Inc., 185 U.S.P.Q. 443 (TTAB 1975); Kajita v. Walter Kidde & Co., 185 U.S.P.Q. 436 (TTAB 1975); Textron Inc. v. Gillette Co., 180 U.S.P.Q. 152 (TTAB 1973); Outdoor Sports Industries, Inc. v. Joseph & Feiss Co., 177 U.S.P.Q. 535 (TTAB 1972). Though the Board’s analysis of its own rules was later questioned in Thuron Industries, Inc. v. Conard-Pyle Co., 579 F.2d 633 (CCPA 1978), these rules have since been amended to state clearly the compulsory counterclaim policy. See 46 Fed.Reg. 6,934-40 (1981) (codified at 37 C.F.R. §§ 2.106(b) & 2.114(b) (1981)). The policy underlying the practice is a good one, to avoid proliferation of proceedings where the continued existence of the opposer’s registration is inextricably involved with the applicant’s right to obtain'a registration. See 46 Fed.Reg. at 6,935-36. WF has presented no evidence tending to excuse its failure to raise invalidity before the Board, e.g., that it did not know of the alleged ground for invalidity during proceedings before the Board." }, { "docid": "1501315", "title": "", "text": "REVERSED . The notice of appeal states that appellant “hereby serves notice under 35 U.S.C. §§ 141 and 142 of its appeal.” Appellant’s brief reiterates this error. Title 35 pertains to patents, and sections 141 and 142 pertain to appeals to this court in patent cases. However, we construe the appeal as though filed pursuant to 15 U.S.C. § 1071(a), which governs appeals to this court in trademark cases. See Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 59 CCPA 1300, 175 USPQ 417 (1972). . Registration No. 958,278, issued May 1, 1973. . In re E. I. du Pont De Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). . In du Pont, supra note 3, the parties had entered into a legally binding agreement to limit their sales of products under the same mark to discrete, noncompetitive markets. . Such a fact, as a matter of common knowledge, is appropriate for judicial notice. See In re Knapp-Monarch Co., 296 F.2d 230, 49 CCPA 779, 132 USPQ 6 (1961); McCormick’s Handbook on the Law of Evidence § 329 (2d ed. 1972). . Midland Coops., Inc. v. Midland Int’l Corp., 421 F.2d 754, 57 CCPA 932, 164 USPQ 579 (1970)." }, { "docid": "7587978", "title": "", "text": "413. The second approach views the question as one of trademark capacity. If the asserted trademark is incapable of identifying and distinguishing applicant’s goods from those of others, registration has been jointly refused on the basis of the preamble to section 2 and for failure to meet the definition of a trademark under section 45: The term “trademark” includes any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify and distinguish his goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown. 15 U.S.C. § 1127. A common descriptive name is not a trademark and is not capable of distinguishing an applicant’s goods. In re Helena Rubinstein, Inc., 410 F.2d 438, 161 USPQ 606 (CCPA 1969); Cummins Engine Co., Inc. v. Continental Motors Corp., 359 F.2d 892, 149 USPQ 559 (CCPA 1966); Clairol, Inc. v. Roux Distributing Co., Inc., 280 F.2d 863, 126 USPQ 397 (CCPA 1960). A mark that is merely descriptive, but not the common name of the goods, can nevertheless be registered on the Principal Register if it has become distinctive in terms of section 2(f). See, e.g., In re Seats, Inc., 757 F.2d 274, 225 USPQ 364 (Fed.Cir.1985). However, “[wjhere it appears from the evidence that registrability of the term is precluded under sections 45 and 2, inquiry under sections 2(e) and 2(f) is not necessary.” In re G.D. Searle & Co., 360 F.2d 650, 656, 149 USPQ 619, 624 (CCPA 1966). B. Whether a term is a common descriptive name is a question of fact. Dan Robbins & Assocs., Inc. v. Questor Corp., 599 F.2d 1009, 1014, 202 U.S.P.Q. 100, 105 (CCPA 1979). The descriptiveness of the term is determined from the viewpoint of the relevant purchasing public. In re Abcor Development Corp., 588 F.2d 811, 814, 200 U.S.P.Q. 215, 218 (CCPA 1978); In re Andes Candies Inc., 478 F.2d 1264, 1266, 178 U.S.P.Q. 156, 157 (CCPA 1973). Evidence of the public’s understanding of the term may be obtained" }, { "docid": "11889246", "title": "", "text": "confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected.” At 25, 63 S.Ct. 938. This being the law, we think that the fact that there has yet been no decision on priority and, consequently, no appeal therefrom, goes more correctly to the question whether we ought to exercise jurisdiction in such a case as this because the issuance of a writ of mandamus would be necessary or appropriate in aid of our jurisdiction and agreeable to the usages and principles of law. The appropriate question, therefore, is whether such a writ is necessary or appropriate in aid of our jurisdiction and whether, under the permissive language of the All Writs Act, the court deems it desirable and proper to issue the writ of mandamus. As respects the latter, it is clear that it is an extraordinary remedy to be issued in exceptional circumstances and, in a case involving a discretionary action, only where there has been a clear abuse of discretion. See, e. g., Howes Leather Co. v. LaBuy, 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). The solicitor, in his opposition to the petition, notes that “in patent matters, this court has no jurisdiction to review decisions by. the Commissioner of Patents,” such as those here. See Sundback v. Blair, 47 F.2d 378, 18 CCPA 1016 (1931). It seems clear, however, that this court does have jurisdiction to review decisions of the Commissioner of Patents on questions which are “ancillary to priority” in the context of an interference, Vandenberg v. Reynolds, 242 F.2d 761, 44 CCPA 873 (1957), and after remand 268 F.2d 744, 46 CCPA 938 (1959). See also Myers v. Feigelman, 455 F.2d 596, 59 CCPA 834 (1972), and Norton v. Curtiss, 433 F.2d 779, 57 CCPA 1384 (1970). Often Commissioner's decisions are passed on by the board at final hearing and become reviewable on appeal. That is" }, { "docid": "8023813", "title": "", "text": "mark for use on certain novelty items supports this conclusion. Further, appellee’s vice president testified that requests have been received by appellee for licenses to utilize its mark MONOPOLY on T-shirts (as well as other novelty clothing), and that it has acted against unauthorized use on such goods. We conclude that use of the mark MONOPOLY on novelty T-shirts would be likely to cause confusion with appellee and that appellant’s broad description of goods includes such items. Appellant’s argument that it does not intend to make this type of use of the mark MONOPOLY is irrelevant. The question of the likelihood of confusion must be based upon a consideration of appellant’s goods as described in the application. Feed Service Corp. v. FS Services, Inc., 58 CCPA 708, 432 F.2d 478, 167 USPQ 407 (1970); Ford Motor Co. v. Ford, 59 CCPA 1124, 462 F.2d 1405, 174 USPQ 456 (1972). Further, the description must be construed most favorably to the opposing prior user. CTS Corp. v. Cronstoms Mfg. Inc., 515 F.2d 780, 185 USPQ 773 (CCPA 1975). Design features associated with appellant’s mark, or appellant’s asserted restriction of sales to an exclusive boutique in Tuxedo Park, New York, are considerations similarly irrelevant to the question of registrability of appellant’s mark when such limitations are not inherent in marketing of the goods or specifically set forth as limitations in the application. The Wella Corp. v. California Concept Corp., 558 F.2d 1019, 194 USPQ 419 (CCPA 1977); Sheraton Corp. of America v. Sheffield Watch, Inc., 480 F.2d 1400, 178 USPQ 468 (CCPA 1973); Norton Co. v. Bear Mfg. Co., 58 CCPA 981, 438 F.2d 620, 169 USPQ 44 (1971). Here, appellant seeks to register the word MONOPOLY as its mark without any restrictions reflecting the facts in its actual use which it argues on this appeal prevent likelihood of confusion. We cannot take such facts into consideration unless set forth in its application. Toro Co. v. Hardigg Industries, Inc., 549 F.2d 785, 790, 193 USPQ 149, 155 (CCPA 1977). Finally, appellant asserts that the board ignored “a record which indicates appellee’s specific lack" }, { "docid": "3845478", "title": "", "text": "in striking claims to copyright infringement and unfair competition from a petitioner/opposer’s cancellation and opposition pleadings and reversed its action in striking other claims. As we recognized in Knickerbocker and more recently in SCOA Industries, Inc. v. Kennedy & Cohen, Inc., 530 F.2d 953, 189 USPQ 15 (Cust. & Pat.App.1976), the general proposition is that this court does not have jurisdiction over appeals from interlocutory orders of the board, or over a board decision striking some but not all of a party’s pleadings, or, as sometimes expressed, over decisions not “final.” United States Treasury v. Synthetic Plastics Co., 341 F.2d 157, 52 CCPA 967 (1965); Seamless Rubber Co. v. Ethicon, Inc., 268 F.2d 231, 46 CCPA 950 (1959); and Master, Warden, etc. v. Sheffield Steel Corp., 215 F.2d 285, 42 CCPA 726 (1954). In the present case, however, an early decision on res judicata would advance the goal of judicial economy, and the res judicata claim is, in our view, sufficiently distinct from the issue of likelihood of confusion to warrant the present appeal. Like the situation in SCOA, proceedings have been suspended in the PTO. Hence a ruling by us on the propriety of the board’s summary judgment decisions would not promote justice by cutting off delay. Our ruling would, however, avoid the continuing pendency and possible conduct of an unnecessary and burdensome proceeding in the PTO. To force the same parties, even potentially, through a complete trial in a second proceeding involving the same marks and issues would be to nullify the judicial economy residing in our decision on the earlier appeal and defeat the goal of finality of litigation sought by the doctrine of res judicata. More importantly, unlike the situation in SCOA but like that in Knickerbocker, the res judicata issue is distinct and separate from the remaining issues in the notice of opposition. Indeed, in granting a motion by Toro to defer decision on the motion to suspend, pending determination of the motions for summary judgment, the board described the res judicata motions as “any outstanding motionfs] which may be dispositive of the case.” A" }, { "docid": "11889243", "title": "", "text": "solicitor and Barnes et al. further argue that we lack jurisdiction to review decisions of the Commissioner of Patents, which we are here being asked to do. In re Wiechert, 370 F.2d 927, 938, 54 CCPA 957, 969 (1967), is cited to support that proposition. Furthermore, it is pointed out, the decisions involved here are merely interlocutory and this and other courts have in many cases ruled that mandamus is not proper where the ruling is merely interlocutory. The Patent Office cites Tenney v. Nordmeyer, 94 F.2d 396, 25 CCPA 851, 36 CCPA 346 (1938). Barnes et al. cite In re Borg, 392 F.2d 642, 55 CCPA 1021 (1968); Loshbough, supra; Anderson v. Watson, 103 U.S. App.D.C. 99, 254 F.2d 956 (1958); Phillips Petroleum Co. v. Brenner, 260 F.Supp. 45 (D.C.D.C.1966); Doyle v. Brenner, 127 U.S.App.D.C. 283, 383 F.2d 210 (1967); Conversion Chemical Corp. v. Gottschalk, 341 F.Supp. 754 (D.C. Conn.1972); and Klein v. Commissioner, 474 F.2d 821 (4th Cir. 1973). OPINION With respect to the threshold question whether, under the present circumstances, this court can issue a writ of mandamus under the All Writs Act, in aid of its jurisdiction, we do not agree with respondents that we are without jurisdiction at this juncture merely because no appeal has been taken to this court from a final decision on priority by the Board of Patent Interferences. See FTC v. Dean Foods Co., 384 U.S. 597, 603, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966); Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). Cf. Matsushita Electric Industrial Co. v. The U. S. Treasury Dept., 67 Cust.Ct. 328, C.D. 4292 (1971), affirmed, 485 F.2d 1402, 60 CCPA 85 (1972). The answer to respondents’ main contention is well stated in summary fashion in the following quotation from FTC v. Dean, 384 U.S. at page 603, 86 S.Ct. at page 1742: The All Writs Act, 28 U.S.C. § 1651(a), empowers the federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The exercise" }, { "docid": "11889247", "title": "", "text": "where there has been a clear abuse of discretion. See, e. g., Howes Leather Co. v. LaBuy, 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). The solicitor, in his opposition to the petition, notes that “in patent matters, this court has no jurisdiction to review decisions by. the Commissioner of Patents,” such as those here. See Sundback v. Blair, 47 F.2d 378, 18 CCPA 1016 (1931). It seems clear, however, that this court does have jurisdiction to review decisions of the Commissioner of Patents on questions which are “ancillary to priority” in the context of an interference, Vandenberg v. Reynolds, 242 F.2d 761, 44 CCPA 873 (1957), and after remand 268 F.2d 744, 46 CCPA 938 (1959). See also Myers v. Feigelman, 455 F.2d 596, 59 CCPA 834 (1972), and Norton v. Curtiss, 433 F.2d 779, 57 CCPA 1384 (1970). Often Commissioner's decisions are passed on by the board at final hearing and become reviewable on appeal. That is likely to be the case here when the motion, which the chairman of the board, acting for the Commissioner, deferred to final hearing, is decided by the board. This question has been deemed ancillary to priority. See Crane v. Grier, 71 F.2d 180, 21 CCPA 1163 (1934); Briggs v. Kaisling, 288 F. 254, 53 App.D.C. 48 (1923); Lemp v. Randall, 33 App.D.C. 430, 1909 C.D. 455 (1909); Manny v. Garlick, 135 F.2d 757, 30 CCPA 1008 (1943). It appears that the decision here deferring to final hearing the motion of Preziosi to delete Barnes as an inventor assumed that the issues involved were ancillary to priority and would thus be reviewable by this court on appeal. However, while the issue involved here is one which we might have • jurisdiction to decide in the context of our review of a decision of the Board of Patent Interferences on priority, it does not seem either necessary or appropriate in aid of such jurisdiction to issue such a writ at this stage of the interference proceeding, at" }, { "docid": "3845477", "title": "", "text": "of confusion is thus one “which neither was nor could have been litigated in the prior opposition.” Accordingly, the board granted Hardigg’s motion, in effect striking paragraph 8 (res judicata) from the notice, and denied Toro’s motion for summary judgment. Opposer’s motion to suspend was granted in view of Trademark Rule 2.117, 37 CFR 2.117. Issue The dispositive issue is whether the board erred in holding res judicata inapplicable. OPINION Jurisdiction Confessing inability to find authorities in point, Hardigg nonetheless expresses “doubt” concerning the jurisdiction of this court to entertain the present appeal. We hold jurisdiction present. In Knickerbocker Toy Co., Inc. v. Faultless Starch Co., 467 F.2d 501, 59 CCPA 1300 (1972), citing Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), we looked to whether the goal of judicial economy would be truly served by allowance of the appeal and whether the cause left unadjudicated was sufficiently distinct from the claim stricken. Those questions being answered in the affirmative, we affirmed the action of the board in striking claims to copyright infringement and unfair competition from a petitioner/opposer’s cancellation and opposition pleadings and reversed its action in striking other claims. As we recognized in Knickerbocker and more recently in SCOA Industries, Inc. v. Kennedy & Cohen, Inc., 530 F.2d 953, 189 USPQ 15 (Cust. & Pat.App.1976), the general proposition is that this court does not have jurisdiction over appeals from interlocutory orders of the board, or over a board decision striking some but not all of a party’s pleadings, or, as sometimes expressed, over decisions not “final.” United States Treasury v. Synthetic Plastics Co., 341 F.2d 157, 52 CCPA 967 (1965); Seamless Rubber Co. v. Ethicon, Inc., 268 F.2d 231, 46 CCPA 950 (1959); and Master, Warden, etc. v. Sheffield Steel Corp., 215 F.2d 285, 42 CCPA 726 (1954). In the present case, however, an early decision on res judicata would advance the goal of judicial economy, and the res judicata claim is, in our view, sufficiently distinct from the issue of likelihood of confusion to warrant the present appeal. Like" }, { "docid": "17829810", "title": "", "text": "petitionable under Rule 2.146 and certainly not appealable to this court, The Seamless Rubber Co. v. Ethicon, Inc., 46 CCPA 950, 268 F. 2d 231, 122 USPQ 391 (1959), notwithstanding section 21. For that matter, not every “decision” of the board is ap-pealable under section 21. It must be “a dispositive decision in which a right has been adjudicated.” U. S. Treasury v. Synthetic Plastics Co., 52 CCPA 967, 341 F. 2d 157, 144 USPQ 429 (1965). In that case we dismissed an appeal from the board’s decision on appellant’s motion to strike portions of an answer to an opposition and pointed out that it was not such a “decision” as is appealable. Reviewing the history of intramural appeals in trademark cases from times prior to Public Law 85-609, enacted August 8, 1958, when the Trademark Trial and Appeal Board was created to take over certain review functions then handled by the Commissioner, the solicitor correctly points out that section 21 refers, not to amy decision the Commissioner makes but to limited decisions, left with the Commissioner upon creation of the board, in two specific categories. These are: (1) holding insufficient an affidavit under section 8 (15 USC 1058); and (2) holding incomplete or defective an application for renewal under section 9 (15 USC 1059). Because these matters remained to be decided by the Commissioner, rather than the board, it was necessary for section 21 to refer both to decisions of the Commissioner and decisions of the board in providing for appellate review. We agree with the Patent Office that this was never intended to open up any Commissioner’s decision to such review. The solicitor also points to Rule 2.145, adopted in implementation and interpretation of section 21, which, like many other rules, expresses the Patent Office understanding of what the practice under-statutory sections is intended to be. This rule makes it explicit that appeals to this court lie from decisions of the Commissioner only in the two categories of cases above mentioned, decisions of the Commissioner on section 8 affidavits and renewal applications under section 9. This rule has" }, { "docid": "15616073", "title": "", "text": "Chemical Co., 59 CCPA 1120, 463 F.2d 1122, 174 USPQ 458 (1972). The same general statement is applicable to cancellation proceedings. The purpose in requiring standing is to prevent litigation where there is no real controversy between the parties, where a plaintiff, petitioner or opposer, is no more than an intermeddler. Congress, however, has specified a broad class who must be deemed proper litigants. Thus, this court has found standing based on widely diverse interests: 1. importation of petitioner’s products deterred by a registration, Plastilite Corp. v. Kassnar Imports, 508 F.2d 824, 184 USPQ 348 (CCPA 1975). 2. use of copyrighted appearance of doll, Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 175 USPQ 417 (CCPA 1972). 3. pecuniary interest of trade association, Tanners' Council of America, Inc. v. Gary Industries, Inc., 58 CCPA 1201, 440 F.2d 1404, 169 USPQ 608 (1971). 4. prior registration but not priority in use, King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). 5. protection of subsidiary’s mark, Universal Oil Products Co. v. Rexall Drug & Chemical Co., supra. 6. descriptive use of term in registered mark, Golomb v. Wadsworth, 592 F.2d 1184, 201 USPQ 200 (CCPA); cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979). 7. advertising emphasis of American origin, Singer Manufacturing Co. v. Bir-ginal-Bigsby Corp., 50 CCPA 1380, 319 F.2d 273, 138 USPQ 63 (1963). In Norac, petitioner proved by testimony, inter alia, that it had extensively used OXY as a trademark for certain chemical compositions. The next inquiry should have been whether its belief of likelihood of confusion with the registered mark OXY and various marks incorporating OXY for a line of products of the registrant was not wholly without merit. The error of the board in its earlier cases had been in requiring proof of a legal conclusion, likelihood of confusion,' rather than directing its inquiry to whether a petitioner established facts which showed that it had a legitimate personal interest. Had the appropriate inquiry been made in Norac, petitioner would have had standing, not because of" }, { "docid": "3373354", "title": "", "text": "its appellate jurisdiction. Loshbough v. Allen, 404 F.2d 1400, 56 CCPA 913, 160 U.S.P.Q. 204 (1969). Since the All Writs Act is not an independent grant of appellate jurisdiction, the appellate jurisdiction for which the writs are “in aid of” must have some other basis. See Roche v. Evaporated Milk Ass’n, supra, 319 U.S. at 23-26, 63 S.Ct. 938; Goodbar v. Banner, No. 79-555, 599 F.2d 431 (Cust. & Pat.App.1979); Formica Corp. v. Lefkowitz, 590 F.2d 915, 200 U.S.P.Q. 641 (CCPA 1979). While it is generally true that this court does not have appellate jurisdiction to review decisions of the Commissioner in patent matters, In re Wiechert, 370 F.2d 927, 54 CCPA 957, 152 U.S.P.Q. 247 (1967), except indirectly with respect to decisions on matters which are ancillary to priority in an interference, see Godtfredsen v. Banner, No. 79-514, 598 F.2d 589 (Cust. & Pat.App. 1979), and Duffy v. Tegtmeyer, 489 F.2d 745, 180 U.S.P.Q. 317 (CCPA 1974), the court clearly has the power to issue writs under the All Writs Act in aid of its prospective appellate jurisdiction in the face of action by the Commissioner or those acting under his authority that would frustrate such prospective appellate jurisdiction. See Roche v. Evaporated Milk Ass’n, supra, 319 U.S. at 25-26, 63 S.Ct. 938; McClellan v. Carland, 217 U.S. 268, 280, 30 S.Ct. 501, 54 L.Ed. 762 (1910); National Farmers’ Organization, Inc. v. Oliver, 530 F.2d 815, 816-17 (8th Cir. 1976); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 82-3, 439 F.2d 584, 592-93 (1971). As developed hereinafter, the ruling of abandonment by the Deputy Assistant Commissioner was such an action in that it prevented an appeal of the examiner’s action to the Board of Appeals from whose decision an appeal might be taken to this court. As related above, the examiner requested, under threat of abandonment of the application, that petitioners state which inventive entity, petitioners or Pagliaro et al., “is the prior inventor of the subject matter [of allegedly conflicting claims],” and that petitioners’ assignee limit the claims of the other application accordingly. 37 CFR 1.78(c) sets" }, { "docid": "15616072", "title": "", "text": "sham, we agree with appellant that the board’s analysis would place the burden on the respondent and is, thus, in error. The facts regarding standing, we hold, are part of a petitioner’s case and must be affirmatively proved. Accordingly, appellee is not entitled to standing solely because of the allegations in its petition. What Constitutes Standing No absolute test can be laid down for what must be proved to establish standing as a petitioner in a cancellation proceeding or as an opposer in an opposition. The starting point is the statute. Congress has defined the class in section 14 as “any person who believes he is or will be damaged by the registration.” (Emphasis added.) In construing comparable language of section 13, this court stated in Federated Foods, Inc. v. Ft. Howard Paper Co., 544 F.2d 1098, 1101, 192 USPQ 24, 27 (CCPA 1976): A party has standing to oppose within the meaning of § 13 if that party can demonstrate a real interest in the proceeding. Universal Oil Products Co. v. Rexall Drug and Chemical Co., 59 CCPA 1120, 463 F.2d 1122, 174 USPQ 458 (1972). The same general statement is applicable to cancellation proceedings. The purpose in requiring standing is to prevent litigation where there is no real controversy between the parties, where a plaintiff, petitioner or opposer, is no more than an intermeddler. Congress, however, has specified a broad class who must be deemed proper litigants. Thus, this court has found standing based on widely diverse interests: 1. importation of petitioner’s products deterred by a registration, Plastilite Corp. v. Kassnar Imports, 508 F.2d 824, 184 USPQ 348 (CCPA 1975). 2. use of copyrighted appearance of doll, Knickerbocker Toy Co. v. Faultless Starch Co., 467 F.2d 501, 175 USPQ 417 (CCPA 1972). 3. pecuniary interest of trade association, Tanners' Council of America, Inc. v. Gary Industries, Inc., 58 CCPA 1201, 440 F.2d 1404, 169 USPQ 608 (1971). 4. prior registration but not priority in use, King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). 5. protection of subsidiary’s mark, Universal Oil" }, { "docid": "8023814", "title": "", "text": "1975). Design features associated with appellant’s mark, or appellant’s asserted restriction of sales to an exclusive boutique in Tuxedo Park, New York, are considerations similarly irrelevant to the question of registrability of appellant’s mark when such limitations are not inherent in marketing of the goods or specifically set forth as limitations in the application. The Wella Corp. v. California Concept Corp., 558 F.2d 1019, 194 USPQ 419 (CCPA 1977); Sheraton Corp. of America v. Sheffield Watch, Inc., 480 F.2d 1400, 178 USPQ 468 (CCPA 1973); Norton Co. v. Bear Mfg. Co., 58 CCPA 981, 438 F.2d 620, 169 USPQ 44 (1971). Here, appellant seeks to register the word MONOPOLY as its mark without any restrictions reflecting the facts in its actual use which it argues on this appeal prevent likelihood of confusion. We cannot take such facts into consideration unless set forth in its application. Toro Co. v. Hardigg Industries, Inc., 549 F.2d 785, 790, 193 USPQ 149, 155 (CCPA 1977). Finally, appellant asserts that the board ignored “a record which indicates appellee’s specific lack of interest in collateral exploitation of its own ‘famous mark’.” Lack of present intent to expand use of one’s mark is not an overriding consideration. American Drill Bushing Co. v. Rockwell Mfg. Co., 52 CCPA 1173,342 F.2d 1019,145 USPQ 144 (1965). We are unpersuaded that appellee’s private intent would affect .public reaction to seeing the mark used in the manner discussed above. Accordingly, we affirm the opposition for the reasons indicated. AFFIRMED. . Application Serial No. 431,254, filed July 31, 1972, claiming first use on or about July 26, 1972. . Registration No. 326,723, issued July 30, 1935, and Registration No. 338,834, issued September 15, 1936. . We do not agree that the majority below relied solely on taking judicial notice of a common trade practice, as argued by appellant. The board stated, “This practice is borne out by the evidence in the instant case.” We agree. In any event, “collateral product” use is a matter of textbook discussion (see J. Gilson, Trademark Protection and Practice § 5.05[10] (1980)) and frequent commentary (see Grimes &" } ]

[ { "docid": "22275156", "title": "", "text": "been under a lot of pressure and stress. The district court was therefore on notice that Damon’s state of mind could be a factor at any Rule 11 hearing. Cole and this case are much the same. For whatever reason, both district courts (there and here) erroneously dropped the subject of medication after the defendants disclosed recent drug use. Finally, our decision is not inconsistent with Truglio, a case in which we emphasized the need for a searching Rule 11 inquiry. See Truglio, 493 F.2d at 579. Specifically, there is nothing in Tmglio that is inconsistent with our admonition that once a district court is advised in a Rule 11 hearing that the defendant is taking medication that could affect his mental functions, the court should pursue the subject with the defendant and counsel to determine whether the defendant is competent to plead. That failure to follow up in Damon’s case requires us to order a remand for the inquiry we discuss above. REMANDED . According to medical records filed by Damon pro se, he was prescribed two drugs, Desyrel and Ativan. These records were not filed in district court until well after Damon’s plea hearing and the denial of his motion to vacate his plea. Specifically, they were filed in connection with a (denied) motion to correct or modify the record that was made after the notice of appeal. Additional medical records are included in the pro se supplemental appendix Damon filed in this court. . \"We generally review de novo the adequacy of a guilty plea, but in the Rule 11 context, violations are evaluated under a harmless error standard.” United States v. Goins, 51 F.3d 400, 402 (4th Cir.1995) (citations omitted). The government suggests that Damon is, in effect, challenging the district court’s denial of his motion to vacate his plea. We review the denial of such a motion for abuse of discretion. United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir.1996). Although our analysis focuses on the underlying defects in the plea hearing, we believe those defects were sufficiently serious that the district court erred" } ]

[ { "docid": "22882241", "title": "", "text": "sentenced pursuant to § 841(b)(1)(C), which generally provides no mandatory minimum sentence. In sum, while the district court in its discretion could have sentenced Gonzalez to a twenty-year term of incarceration pursuant to § 841(b)(1)(C), unless a jury found or Gonzalez admitted the charged statutory drug quantity, the court was not required to sentence him to that term pursuant to § 841(b)(1)(A), nor was its departure discretion curbed by that mandatory minimum. C. Gonzalez’s Plea to a § 84.1(b)(1)(A) Offense Cannot Be Deemed Knowing, Voluntary, or Sufficient 1. The Rule 11(b)(1)(C) Defect Although district courts enjoy considerable discretion in ruling on motions to withdraw guilty pleas, this court has, nevertheless, required withdrawal to be granted when a defendant was not provided with the “mix of information” required by Rule 11 unless, of course, the error can be deemed harmless because it would not have affected the defendant’s decision to plead guilty. United States v. Harrington, 354 F.3d at 183-84; see also Fed.R.Crim.P. 11(h) (“A variance from the requirements of this rule is harmless error if it does not affect substantial rights.”). In Harrington, a defendant who, like Gonzalez, pleaded guilty before Apprendi/Thomas to federal drug charges, was told by the court that he faced a mandatory minimum sentence of twenty years and a maximum sentence of life imprisonment, although the drug quantity specified in § 841(b)(1)(A) for this sentencing range was neither pleaded in the indictment nor explicitly admitted by the defendant in the course of his plea allocution. See 354 F.3d at 180, 181, 184. Finding the defendant to have been misinformed as to the applicable minimum and maximum sentences in his case, see id. at 184 (“[U]nder Apprendi, the actual sentence range on the two counts to which [defendant] pled guilty was zero-to-thirty years’ imprisonment.”), this court ruled that the defendant’s plea violated Fed.R.Crim.P. 11(b)(1)(H) (requiring court to “inform the defendant of, and determine that the defendant understands ... any maximum possible penalty, including imprisonment”), and 11(b)(1)(I) (stating same requirement with respect to “any mandatory minimum penalty”), and that the error could not be deemed harmless, see id." }, { "docid": "22042119", "title": "", "text": "hearing, Goins’ counsel recommended that the court sentence Goins “within the guideline range of 33-41 months.” It was the government’s position, however, that “the guideline range is 60 months because that’s the statutory minimum, and we would ask that he be sentenced to 60 months in jail.” The government’s reference to the mandatory minimum sentence at the sentencing hearing is the only oral reference to the mandatory minimum prior to the court’s imposition of the sentence. The only document mentioning the mandatory minimum sentence of five years was the presentence report, prepared February 22,1994, almost three months after the plea had been accepted. Despite conceding that the judge faded to inform Goins of the statutory mandatory minimum, the government argues that the error was harmless. II. We generally review de novo the adequacy of a guilty plea. United States v. Good, 25 F.3d 218, 219 (4th Cir.1994), but in the Rule 11 context, violations are evaluated under a harmless error standard. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992). Specifically, a court may vacate a conviction made pursuant to a plea “only if the trial court’s violations of Rule 11 affected the defendant’s substantial rights.” DeFusco, 949 F.2d at 117; Fed. Rule Crim. P. 11(h) and Advisory Committee’s Note to 1983 Amendment. The court must determine “whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty.” United States v. Johnson, 1 F.3d 296, 302 (5th Cir.1993) (en banc). See also DeFusco, 949 F.2d at 116 (“In reviewing the adequacy of compliance with Rule 11, this Court should accord deference to the trial court’s decision as to how best to conduct the mandated colloquy with the defendant”). Although the Fourth Circuit has addressed violations of Rule 11(c)(1), it never has addressed specifically a court’s failure to inform the defendant of the statutorily-defined mandatory minimum sentence. In United States v. Good, 25 F.3d 218, 221 (4th Cir.1994) (following United States v. Williams, 977 F.2d 866," }, { "docid": "491241", "title": "", "text": "alia, “a court to inform the defendant of, and ensure that the defendant understands, the maximum possible penalty that he faces prior to accepting his guilty plea.” United States v. Westcott, 159 F.3d 107, 112 (2d Cir.1998) (citing Fed.R.Crim.P. 11(c)(1); United States v. Renaud, 999 F.2d 622, 624 (2d Cir.1993)). Following Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, a Rule 11 violation occurs where a defendant is provided with a “mix of information” that inaccurately sets forth “the nature of the charge to which a plea is offered, the mandatory minimum penalty provided by law ... and the maximum possible penalty provided by law.” United States v. Gutierrez Rodriguez, 288 F.3d 472, 476 (2d Cir.2002) (internal quotation marks omitted; alteration in original); see also id. at 475-76 (recognizing that any Rule 11 violation that occurred prior to the Apprendi decision would, when the case came up on direct appeal, still be subject to Appren-di ). However, Rule 11 also provides, inter alia, that “[a] variance from the requirements of this rule is harmless error if it does not affect substantial rights.” Fed. R.Crim.P. 11(h). Rule 11(h) “was enacted to make clear that guilty pleas should not be overturned, even on direct appeal, when there has been a minor and technical violation of Rule 11 which amounts to harmless error.” Westcott, 159 F.3d at 112 (citing United States v. Ferrara, 954 F.2d 103, 106 (2d Cir.1992) (internal quotation marks omitted)); see also United States v. Basket, 82 F.3d 44, 48-49 (2d Cir.1996). In United States v. Westcott, 159 F.3d at 112, this Court articulated the test to determine in what circumstances a variance from Rule 11 would call for a vacatur of a guilty plea and in what circumstances such a variance would constitute harmless error. The Westcott test focused on the effect that any misinformation given to a defendant would reasonably have had on his or her decision-making. For example, if a defendant would have been induced to plead guilty to avoid a high minimum sentence specified by a sentencing court in violation of" }, { "docid": "7175199", "title": "", "text": "to make its own findings, supported by a preponderance of the evidence, regarding Fleming’s offenses for sentencing purposes. See United States v. Montgomery, 262 F.3d 233, 249 (4th Cir.2001). Here, given that the government presented evidence that Fleming murdered Jackson to avenge another TTP member, the district court properly considered the murder relevant (i.e., part of the same eoursé of conduct or common scheme or plan). Thus, we conclude that the district court did not clearly err in determining that Fleming’s combined offense level was 43, the level corresponding to murder. B. When the district court sentenced Fleming, 21 U.S.C. § 841(b)(1)(A) provided that the penalty for distribution of or conspiracy to distribute fifty grams or more of cocaine was imprisonment for a minimum of ten years and a maximum of life. The statute also provided, however, for a sentence enhancement increasing the mandatory minimum to twenty years if the defendant had a “prior conviction for a felony drug offense.” A “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State ... that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Here, Fleming’s presentencing report indicates that he was sentenced to two years’ imprisonment with eighteen months’ probation for a Maryland drug violation. Accordingly, the district court enhanced Fleming’s sentence range to a minimum of twenty years’ imprisonment and a maximum of life. Citing our recent decision in United States v. Alston, 611 F.3d 219 (4th Cir. 2010), Fleming contends that the district court erred in applying the enhancement because the Maryland conviction on which it relied derived from an Alford plea. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (permitting a defendant to enter a plea of guilty without acknowledging culpability for the charged conduct). We review this pure question of law de novo. United States v. Burgess, 478 F.3d 658, 661 (4th Cir.2007), and find that Alston fails to apply here. In" }, { "docid": "1823594", "title": "", "text": "KANNE, Circuit Judge. Petitioner Percell Dansberry pled guilty to murder and related charges in Illinois state court. During Dansberry’s plea colloquy, the trial court, in violation of his constitutional rights, erroneously admonished him about the mandatory minimum sentence he faced. Dansberry petitioned for a writ of habeas corpus under 28 U.S.C. • § 2254, arguing that the state court’s error requires automatic reversal of his conviction and a chance to re-plead. The district court denied Dansberry’s petition because it found that the error was harmless.. We affirm. I. Background The Supreme Court held in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), that the Constitution prohibits a court from accepting a criminal’s defendant’s guilty plea “without an affirmative showing that it was intelligent and voluntary.” Id. at 242, 89 S.Ct. 1709. The Court demanded “the utmost solicitude” to ensure that the defendant “has a full understanding of what the plea connotes and of its .consequences.” Id. at 243-44, 89 S.Ct. 1709. A few years later, the Court reiterated in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), that the defendant must be “fully aware of the direct consequences” of his plea, id. at 755, 90 S.Ct. 1463 (citation omitted), including the “permissible range of sentences,” Boykin, 395 U.S. at 244 n. 7, 89 S.Ct. 1709 (citation omitted). The federal courts and many states responded to Boykin by adopting or modifying procedural rules designed to ensure compliance with due process when accepting guilty pleas. The federal system adopted a more robust Federal Rule of Criminal Procedure 11, and Illinois adopted Supreme Court Rule 402. See United States v. Wagner, 996 F.2d 906, 913 (7th Cir.1993) (recognizing that the new Rule 11 “codified the requirements of Boykin\"); People v. Burt, 168 Ill.2d 49, 212 Ill.Dec. 893, 658 N.E.2d 375, 382 (1995) (“Rule 402 was adopted to insure compliance with these due process requirements.”). In this case, the state trial court admonished Dansberry, as required by due process and Illinois Supreme Court Rule 402, before accepting his guilty plea. But the court" }, { "docid": "23331853", "title": "", "text": "address each argument in turn. 1. Whether Powell Entered the Plea Voluntarily and Intelligently Fed.R.Crim.P. 11 was formulated to ensure that a defendant’s guilty plea represents a voluntary and intelligent decision to waive fundamental protections. See North Carolina v. Alford, 400 U.S. 25, 30, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Accordingly, under Fed. R.Crim.P. 11(c) “[bjefore accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... the maximum possible penalty provided by law, including the effect of any ... supervised release term.” It is undisputed that Powell was misinformed about the length of supervised release that he could receive. Nevertheless, not all Rule 11 errors invalidate a guilty plea. Fed.R.Crim.P. 11(h), entitled “Harmless Error,” provides that “[a]ny variance from the procedures required by [Rule 11] which does not affect substantial rights shall be disregarded.” Accordingly, we must determine if the misinformation here affected Powell’s substantial rights. Every circuit court of appeals that has considered a case involving a defendant who is misinformed as to the maximum term of supervised release, but who re ceives a sentence with a combined term of imprisonment and supervised release that is less than the maximum possible penalty has concluded that the misinformation constituted harmless error. See United States v. Raineri, 42 F.3d 36 (1st Cir.1994); United States v. Andrades, 169 F.3d 131 (2d Cir.1999); United States v. Gracia, 983 F.2d 625 (5th Cir.1993); United States v. Fuentes-Mendoza, 56 F.3d 1113 (9th Cir.1995); United States v. Barry, 895 F.2d 702 (10th Cir.1990). Perhaps because of this seemingly uniform approach, the government urges us to adopt a blanket rule that “a failure to explain a supervised release term at a Rule 11 hearing is harmless error if the term of incarceration imposed, combined with the term of supervised release imposed, is less than the maximum sentence [the defendant was aware of].” Government’s br. at 15. However, we do not think that a" }, { "docid": "2793824", "title": "", "text": "of the contentions raised in this appeal. Although there was no on-the-record colloquy at the taking of the plea, we have previously held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) will not be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Rundle, 423 F.2d 55 (3 Cir. 1970). In United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), we held that the relator has the burden of showing that his guilty plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Our independent review of the records of the degree of guilt hearing and the two evidentiary hearings convinces us that appellant did not meet this burden. The Supreme Court has recently ruled that a competently counseled defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for heabeas corpus. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, appellant’s trial counsel testified that appellant did not tell him his confession was coerced. And both the state court and the district court, after separate evidentiary hearings, found no coercion. The record indicates that the Pennsylvania felony-murder rule was explained to appellant by his counsel and suggests that appellant was induced to plead guilty because of assurances that the maximum sentence would be life imprisonment. This inflicts no constitutional infirmities upon the proceedings. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); North Carolina v. Alford, 400 U.S. 25 91 S.Ct. 160, 27 L.Ed.2d 162 (November 23, 1970). The judgment of the district court will be affirmed. . The district court applied the standard in effect at the time of the hearing which imposed upon the Commonwealth the burden of proving the voluntary nature of a guilty plea, United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3 Cir. 1968);" }, { "docid": "22688330", "title": "", "text": "the district court, the violation of Rule 11(c)(1) is subject to plain error review. United States v. Martinez, 277 F.3d 617 (4th Cir.2002). The district court’s non-compliance with Rule 11(c)(1) satisfies the first two prongs of plain error review; thus, we turn to whether the error affected General’s substantial rights. Id. In United States v. Goins, 51 F.3d 400, 402 (4th Cir.1995), we established an analytical framework for evaluating whether the district court’s failure to advise the defendant of a statutory mandatory minimum affected the defendant’s substantial rights: The court must first ascertain what the defendant actually knows when he pleads guilty on the basis of an affirmative indication in the record. Second, the court must decide what information would have been added to the defendant’s knowledge by compliance with Rule 11. Finally, the court must determine how the additional or corrected information would have likely affected the defendant’s decision. Id.- Applying this framework to General’s claim, had the district court recited the mandatory minimum during the plea hearing, it simply would have corroborated information already available to General in his plea agreement. When explaining the firearm count, the plea agreement sets forth “the charge, code section, elements, and applicable penalties” and plainly states as follows: “Minimum term of imprisonment: Five years.” (J.A. at 17-18.) Thus, the plea agreement provides, in unambiguous and simple terms, all of the information that would have been provided by the district court’s compliance with Rule 11(c)(1). Cf. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.1991) (holding that a Rule 11 violation does not affect substantial rights if the defendant obtains the omitted information from the plea agreement). Importantly, General does not contend that he did not understand the statutory mandatory minimum sentence as provided in the plea agreement and, therefore, that the district court’s recitation of the mandatory minimum would have aided his understanding of the mandatory minimum. Instead, General asserts that the plea agreement does not cure the district court’s error because the information in the plea agreement was incomplete, in that it did not advise him that his sentence for" }, { "docid": "22688329", "title": "", "text": "we rejected an identical claim in United States v. Pratt, 239 F.3d 640, 648 (4th Cir.2001). Accordingly, we affirm General’s supervised release term. IV. General argues that the district court committed reversible error by failing to advise him during the plea colloquy about the five year mandatory minimum sentence applicable to his firearm charge. See 18 U.S.C.A. § 924(c) (West 2000) (providing a five year mandatory minimum for carrying a firearm during and in relation to a drug trafficking offense). As General notes, the district court advised General of the statutory máximums for each count but did not advise him of the statutory mandatory mínimums for his firearm offense. Rule 11(c)(1) requires the district court to inform the defendant of a statutory mandatory minimum sentence before accepting a guilty plea. Fed.R.Crim.P. 11(c)(1) (“Before accepting a plea of guilty ... the court must ... inform the defendant of, and determine that the defendant understands ... the mandatory minimum penalty provided by law....”). Because General did not seek withdrawal of his guilty plea on this ground in the district court, the violation of Rule 11(c)(1) is subject to plain error review. United States v. Martinez, 277 F.3d 617 (4th Cir.2002). The district court’s non-compliance with Rule 11(c)(1) satisfies the first two prongs of plain error review; thus, we turn to whether the error affected General’s substantial rights. Id. In United States v. Goins, 51 F.3d 400, 402 (4th Cir.1995), we established an analytical framework for evaluating whether the district court’s failure to advise the defendant of a statutory mandatory minimum affected the defendant’s substantial rights: The court must first ascertain what the defendant actually knows when he pleads guilty on the basis of an affirmative indication in the record. Second, the court must decide what information would have been added to the defendant’s knowledge by compliance with Rule 11. Finally, the court must determine how the additional or corrected information would have likely affected the defendant’s decision. Id.- Applying this framework to General’s claim, had the district court recited the mandatory minimum during the plea hearing, it simply would have corroborated information" }, { "docid": "23331852", "title": "", "text": "basis for its ruling. 34 F.3d at 205. Accordingly, we will remand so that the district court can clarify its rejection of Powell’s motion for a downward departure. B. Powell’s Sentence Powell’s supervised release presents a more difficult question. Powell contends that he is entitled to specific performance of the plea agreement or, in the alternative, withdrawal of his guilty plea. As noted above, Powell’s written plea agreement expressly stated that the court could not impose more than three years of supervised release. Similarly, the Assistant United States Attorney informed Powell that he was not exposed to more. than three years of supervised release at the Rule 11 change of plea hearing, and that statement was never corrected by the court. However, Powell’s sentence included a five year term of supervised release as allowed, under 18 U.S.C. § 924. Powell therefore argues that he did not voluntarily and intelligently change his plea, and that the government breached its “promise” that he would not be exposed to more than three years of supervised release. We Will address each argument in turn. 1. Whether Powell Entered the Plea Voluntarily and Intelligently Fed.R.Crim.P. 11 was formulated to ensure that a defendant’s guilty plea represents a voluntary and intelligent decision to waive fundamental protections. See North Carolina v. Alford, 400 U.S. 25, 30, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Accordingly, under Fed. R.Crim.P. 11(c) “[bjefore accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... the maximum possible penalty provided by law, including the effect of any ... supervised release term.” It is undisputed that Powell was misinformed about the length of supervised release that he could receive. Nevertheless, not all Rule 11 errors invalidate a guilty plea. Fed.R.Crim.P. 11(h), entitled “Harmless Error,” provides that “[a]ny variance from the procedures required by [Rule 11] which does not affect substantial rights shall be disregarded.” Accordingly, we must determine if the misinformation" }, { "docid": "22674068", "title": "", "text": "his potential sentence; (2) that the court failed to properly inform him of the elements of the conspiracy charge; (3) that the court failed to inform him that, if it rejected the Government’s sentencing recommendation, he could not withdraw his guilty pleas; and (4) that the court did not determine the existence of a factual basis for his guilty pleas. We review each of these allegations in turn. 1. Martinez’s first contention, that the court incorrectly informed him of the permissible sentence for the conspiracy charge in Count One, is, in light of the post-plea decision of the Court in Apprendi, a meritorious one. Under Rule 11(c)(1), the district court is obliged to inform the defendant of any mandatory minimum penalty and the maximum possible penalty provided by law for the charged offense. For conspiring under § 846 to violate § 841(b)(1)(C), we now know, in light of the trilogy of Apprendi, Promise, and Cotton, that Martinez faced no mandatory minimum sentence and that he faced a maximum potential sentence of twenty years’ imprisonment. Consistent with the plea agreement, however, the district court incorrectly informed Martinez, prior to Apprendi, that he faced a mandatory minimum sentence of ten years’ imprisonment and a maximum possible sentence of life. In these circumstances, this advice to Martinez on his potential sentence on Count One was incorrect. Therefore, error was committed in this respect. 2. Martinez’s second contention with respect to his Rule 11 plea proceeding, that he was not properly informed of the elements of the conspiracy charge, is without merit. Before accepting a guilty plea, “a trial court, through colloquy with the defendant, must inform the defendant of, and determine that he understands, the nature of the charge(s) to which the plea is offered.” United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.1991) (citing Fed. R.Crim.P. 11(c)(1)). Although a judge has wide discretion in deciding how to ensure the defendant’s understanding, it is essential that the defendant “receive notice of the true nature of the charge rather than a rote recitation of the elements of the offense.” Id. at 117 (citing" }, { "docid": "15416089", "title": "", "text": "court determines that he is no longer sexually dangerous. Id. § 4248(d) — (e). A “sexually dangerous person” is defined as a person who (1) “has engaged or attempted to engage in sexually violent conduct or child molestation” and (2) “is sexually dangerous to others” in that he “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” . Id. § 4247(a) (5) — (6). DISCUSSION I. Due Process Requirements for Guilty Pleas “It is a settled principle of federal constitutional law that a guilty plea violates due process and is therefore invalid if not entered voluntarily and intelligently.” Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir.2005) (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). A district court may not accept a guilty plea “without an affirmative showing that it was intelligent and voluntary.” Boykin, 395 U.S. at 242, 89 S.Ct. 1709. Rule 11 sets forth certain requirements of the district court’s plea allocution to assist the court with “making the constitutionally required determination that a defendant’s guilty plea is truly voluntary.” McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). To abide by Rule 11, the district court must advise the defendant of the right to plead not guilty, the rights waived by pleading guilty, and other specific consequences of pleading guilty, such as the maximum penalties he faces, “including imprisonment, fine, and term of supervised release.” Fed.R.Crim.P. 11(b)(1); Zhang v. United States, 506 F.3d 162, 168 (2d Cir.2007) (“Rule 11 sets forth requirements for a plea allocution and is designed to ensure that a defendant’s plea of guilty is a voluntary and intelligent choice.... ” (internal quotation marks omitted)). However, any “variance from the requirements of [Rule 11] is harmless error if it does not affect substantial rights.” Fed.R.Crim.P. 11(h). Rule 11 violations that are not objected to at" }, { "docid": "22042121", "title": "", "text": "871 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993), and DeFusco, 949 F.2d at 119, (4th Cir.1991)), we held that Rule 11(c)(1) does not require a district court to advise the defendant about the applicable guideline range before accepting a guilty plea. We emphasized, however, that Rule 11(e)(1) does require that the court “clearly advise a defendant of the statutory maximum and mandatory minimum.” Good, 25 F.3d at 223. Although DeFusco did not address a district court’s failure to inform the defendant of the mandatory minimum sentence, the ease provides insight into how this court has dealt with Rule 11 violations. In DeFusco, the defendant argued that the trial court violated Rule 11 by failing to explain the nature of the charges against him and the elements of each offense. 949 F.2d at 117. On appeal, we noted that the defendant had read both the information and the plea agreement, had reviewed both documents and the elements of each offense with his attorney, and had discussed potential defenses with counsel. Id. Under these circumstances, we found that the trial court did not abuse its discretion in “relying on DeFusco’s review of the plea' agreement and criminal information with his attorney, and his verbal statements in open court that he understood the nature of the charges against him.” Id. Other circuits that have specifically addressed violations of Rule ll’s mandatory minimum requirement have likewise found harmless error in those cases in which the defendant knew of the mandatory minimum, despite the court’s failure to mention it during the Rule 11 colloquy. United States v. Johnson, 1 F.3d 296, (5th Cir.1993) (en banc); United States v. Young, 927 F.2d 1060, 1062 (8th Cir.1991), cert. denied, 502 U.S. 943, 112 S.Ct. 384, 116 L.Ed.2d 334 (1991). In reviewing the defendant’s plea, the courts have focused upon three main elements. The court must first ascertain what the defendant actually knows when he pleads guilty on the basis of an affirmative indication in the record. Second, the court must decide what information would have been added to the defendant’s" }, { "docid": "22589656", "title": "", "text": "v. Alabama, 827 F.2d 1469, 1473 (11th Cir.1987) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). A 1975 amendment to Rule 11 made clear, however, that under the Rule the defendant need only “be informed of ... two sentencing consequences: ‘the mandatory minimum penalty provided by law ... and the maximum possible penalty provided by law.’ ” Hunter v. Fogg, 616 F.2d 55, 60 (2d Cir.1980). Thus, it was enough that the district court herein informed appellant of the minimum and maximum sentences which he faced — Rule 11 required no more. The statutory minimum and maximum sentences for the offense of conviction mark the boundaries within which the Guidelines sentence must fall. See Weich, Plea Agreements, Mandatory Minimum Penalties and the Guidelines, 1 Fed.Sent.Rep. 266, 267-69 & n. 2 (1988). The district court was not required to calculate and explain the Guidelines sentence to the appellant before accepting the plea, for, once appellant was informed of the possible consequences enumerated in the Rule — the maximum and the minimum sentences — the requisites of Rule 11 were met, see Hunter, 616 F.2d at 60, and the plea should not be vacated, cf. Lewis v. United States, 601 F.2d 1100, 1101 (9th Cir.1979) (court need not inform the defendant of the probability of his receiving one sentence or another); Paradiso v. United States, 482 F.2d 409, 415 (3d Cir.1973) (Rule 11 does not require that the defendant be informed of the actual sentence he will receive). But cf. Breyer, supra, at 30 n. 144 (suggesting that Rule 11(c)(1) may require court to await the presentence report so as to fully explain to defendant the consequences of his plea under the Guidelines). As noted, the purpose of Rule 11 is to ensure that a guilty plea represents a voluntary and intelligent choice for the defendant. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed. 2d 162 (1970). While it might be desirable if each defendant, at the time of tendering a guilty plea, were fully cognizant of his likely" }, { "docid": "23182138", "title": "", "text": "plain error. United States v. Tisdale, 248 F.3d 964, 975 (10th Cir.2001). A defendant’s guilty plea must be knowing, voluntary, and intelligent. United States v. Libretti, 38 F.3d 523, 529 (10th Cir.1994); Fed.R.Crim.P. 11. To enter a plea that is knowing and voluntary, the defendant must have “a full understanding of what the plea connotes and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant need not understand every collateral consequence of the plea, but need only understand its direct consequences. Wall v. United States, 500 F.2d 38, 39 (10th Cir.1974) (per curiam). Consequences of a guilty plea unrelated to the length and nature of the federal sentence are not direct consequences. United States v. Jackson, 627 F.2d 883, 884 (8th Cir.1980) (per curiam) (citing Wall, 500 F.2d at 39). A consecutive sentence does not affect the length or nature of the federal sentence, even though it increases the total length of the defendant’s incarceration. United States v. Hernandez, 234 F.3d 252, 256-57 (5th Cir.2000) (per curiam). Thus, the consecutive nature of a sentence is not a direct consequence about which the defendant must be advised. Wall, 500 F.2d at 39 (“[T]he fact that service of the federal sentences would follow the previously imposed state sentence was not a definite ‘practical consequence of the plea’ within the meaning of Rule 11.”); Williams v. United States, 500 F.2d 42, 44 (10th Cir.1974). For this reason, the district court’s failure to inform Hurlich about the possibility of a consecutive sentence did not prevent him from entering his plea knowingly and voluntarily. Lastly, Hurlich argues that the lack of notice violates his due process rights based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The constitutional Apprendi rule, however, applies only if the sentence imposed exceeds the statutory maximum for the offense of conviction. United States v. Combs, 267 F.3d 1167, 1181 (10th Cir.2001); United States v. Eaton, 260 F.3d 1232, 1239 (10th Cir.2001). Hurlich was sentenced to ten years, the maximum sentence allowed under 18" }, { "docid": "22682646", "title": "", "text": "any error in this case, it would not “seriously affect the fairness, integrity or public reputation of judicial proceedings.” There is no question as to Benton’s guilt, and the district court reviewed de novo all of Benton’s claims concerning his plea proceedings. Moreover, Benton himself consented to the magistrate judge presiding over his plea. Thus, Benton has not presented the sort of “exceptional circumstances” that would lead this court to overlook his failure to raise his objection before the district court. United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936). V. Benton next claims that his plea was not knowing and voluntary. Benton raised this claim with the district court before his sentencing, and the district court rejected it, finding that Benton had not presented a fair and just reason to withdraw his plea. We review the district court’s decision for abuse of discretion. See United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.2000). Rule 11(b)(1) of the Federal Rules of Criminal Procedure states that, for a court to accept a plea, it must inform the defendant of, inter• alia, “the nature of each charge to which the defendant is pleading” and “any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed.R.Crim.P. 11(b)(1)(G) & (H). Benton argues that the court in this case failed to meet both of these requirements. First, Benton claims that he was never made aware of the elements of the conspiracy charge to which he pled or “the concept of vicarious liability for drugs trafficked during the conspiracy.” Brief of Appellant at 20. Second, Benton contends that he was informed “that the maximum term of supervised release was five years,” despite the fact that Benton faced a mandatory minimum of ten years supervised release. Id. at 20-21. We find Benton’s arguments to be without merit. First, Benton was clearly informed of the nature of the conspiracy charge to which he pled. As Benton recognizes, this court’s decision in United States v. DeFusco, 949 F.2d 114 (4th Cir.1991), establishes the standard under which we evaluate a court’s" }, { "docid": "22138090", "title": "", "text": "plea was voluntarily and knowingly made by the accused. The Supreme Court affirmed on the basis that the guilty pleas were both “voluntary” and “intelligent,” citing Boykin. Nowhere in Brady was anything said by the Court to indicate that specific articulation of the three constitutional rights set forth in Boykin was required when the plea was entered, the Court stating in footnote 4 (397 U.S. at 747, 90 S.Ct. at 1468) that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understanding^ and voluntarily.” To the same effect as the holding in Brady, see Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), decided the same day. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), decided the year after Boykin, the Supreme Court said in determining the validity of guilty pleas that “[t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); . . .” Id., 400 U.S. at 31, 91 S.Ct. at 164. The Supreme Court declined to vacate Alford’s guilty plea because the record in the post-conviction state court hearing “confirmed that Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty. Since the record in this ease affirmatively indicates that Alford was aware of the consequences of his plea of guilty and of the rights waived by the plea, no issues of substance under Boykin v. Alabama (citation omitted), would be presented even if that case was held applicable to the events here in question.” Id., 400 U.S. at 29 n. 3, 91 S.Ct. at 163. We note that the Court’s decision was predicated on evidence received at the post-conviction hearing. As in Brady and Parker, there is no indication that any" }, { "docid": "22042120", "title": "", "text": "997, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992). Specifically, a court may vacate a conviction made pursuant to a plea “only if the trial court’s violations of Rule 11 affected the defendant’s substantial rights.” DeFusco, 949 F.2d at 117; Fed. Rule Crim. P. 11(h) and Advisory Committee’s Note to 1983 Amendment. The court must determine “whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty.” United States v. Johnson, 1 F.3d 296, 302 (5th Cir.1993) (en banc). See also DeFusco, 949 F.2d at 116 (“In reviewing the adequacy of compliance with Rule 11, this Court should accord deference to the trial court’s decision as to how best to conduct the mandated colloquy with the defendant”). Although the Fourth Circuit has addressed violations of Rule 11(c)(1), it never has addressed specifically a court’s failure to inform the defendant of the statutorily-defined mandatory minimum sentence. In United States v. Good, 25 F.3d 218, 221 (4th Cir.1994) (following United States v. Williams, 977 F.2d 866, 871 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993), and DeFusco, 949 F.2d at 119, (4th Cir.1991)), we held that Rule 11(c)(1) does not require a district court to advise the defendant about the applicable guideline range before accepting a guilty plea. We emphasized, however, that Rule 11(e)(1) does require that the court “clearly advise a defendant of the statutory maximum and mandatory minimum.” Good, 25 F.3d at 223. Although DeFusco did not address a district court’s failure to inform the defendant of the mandatory minimum sentence, the ease provides insight into how this court has dealt with Rule 11 violations. In DeFusco, the defendant argued that the trial court violated Rule 11 by failing to explain the nature of the charges against him and the elements of each offense. 949 F.2d at 117. On appeal, we noted that the defendant had read both the information and the plea agreement, had reviewed both documents and the elements of each offense with his attorney, and had discussed potential defenses with" }, { "docid": "11040564", "title": "", "text": "F.2d 1484, 1486 (7th Cir.1990). A guilty plea, however, is valid only if it is made voluntarily, knowingly and intelligently. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Moreover, a guilty plea must have a factual basis and the defendant must admit to that basis. United States v. Frye, 738 F.2d 196, 199 (7th Cir.1984). The defendant must also understand “the law in relation to the facts.\" McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). A valid guilty plea should therefore reflect “a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). This court, in determining the constitutionality of a guilty plea, may look “beyond the transcript of the plea hearing to all the surrounding facts and circumstances.” Marx v. United States, 930 F.2d 1246, 1250 (7th Cir.1991) (quoting Haase v. United States, 800 F.2d 123, 127 (7th Cir.1986)). The Constitution “does not prescribe any formula for the creation of that knowledge” required to support a guilty plea. Wildes, 910 F.2d at 1486. The voluntariness of a guilty plea, however, must be established in the record; waiver of the important constitutional rights surrendered upon such a plea “cannot [be] presume[d] ... from a silent record.” Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1712. The waived rights need not be explained fully during a guilty plea proceeding to comply with the constitution, but a court must at least apprise defendants of their “right to plead guilty and that, if they plead guilty, they waive the right to trial.” United States v. Henry, 933 F.2d 553, 559 (7th Cir.1991) (holding that the constitutional minimum requirements are set forth in the Supreme Court’s proposed amendment to Fed.R.Crim.P. 11, H.R.Rep. No. 94-247, 94th Cong. 1st Sess. 21-22 (1975), reprinted in 1975 U.S.Code Cong. & Admin.News 674, 693-94). Stewart’s guilty plea was governed by Illinois Supreme Court" }, { "docid": "22042118", "title": "", "text": "Vacated and remanded by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge MURNAGHAN and Senior Judge PHILLIPS joined. OPINION ERVIN, Chief Judge: On December 6, 1993, Terry Goins pled guilty to distributing five grams of crack cocaine under 21 U.S.C. § 841(a)(1), pursuant to a written plea agreement. He was sentenced on March 16, 1994 to five years imprisonment, the mandatory minimum sentence under 21 U.S.C. § 841(b)(l)(B)(iii). On appeal, Goins argues that the district court’s failure to inform him of the mandatory minimum sentence during the plea colloquy required by Federal Rule of Criminal Procedure 11(c)(1) constituted a substantial violation of his rights, resulting in reversible error. We agree, and for the reasons stated below, vacate the plea and remand for further proceedings consistent with this opinion. I. During Goins’ plea proceeding on December 6, 1993, neither the judge, prosecutor, nor defense attorney mentioned the mandatory minimum sentence. The mandatory minimum sentence was also not mentioned in either the plea agreement or the indictment. On March 16, 1994, during the sentencing hearing, Goins’ counsel recommended that the court sentence Goins “within the guideline range of 33-41 months.” It was the government’s position, however, that “the guideline range is 60 months because that’s the statutory minimum, and we would ask that he be sentenced to 60 months in jail.” The government’s reference to the mandatory minimum sentence at the sentencing hearing is the only oral reference to the mandatory minimum prior to the court’s imposition of the sentence. The only document mentioning the mandatory minimum sentence of five years was the presentence report, prepared February 22,1994, almost three months after the plea had been accepted. Despite conceding that the judge faded to inform Goins of the statutory mandatory minimum, the government argues that the error was harmless. II. We generally review de novo the adequacy of a guilty plea. United States v. Good, 25 F.3d 218, 219 (4th Cir.1994), but in the Rule 11 context, violations are evaluated under a harmless error standard. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.1991), cert. denied, 503 U.S." } ]

[ { "docid": "7285834", "title": "", "text": "v. Monarch Life Insurance Co., 487 F.Supp. 1299 (E.D.Pa.1980). We do not believe that the Brakeman holding should apply to a claims-made policy. None of the considerations leading to the holding in that case are present here. First, the court in Brakeman found that automobile drivers could not bargain over the substance of the notice provision in their policies because the provisions are “uniformly found in liability insurance policies.” 472 Pa. at 73, 371 A.2d at 196. Here, on the other hand, the plaintiff city could have bargained for an occurrence policy in which notice would not have been of the essence of the contract, or it could have obtained a policy with an extended discovery period providing coverage for claims made during the policy period and reported to the company during the extended discovery period. See Gulf Insurance Co., supra, and cases cited therein. Second, the court in Brakeman was concerned that accepting the insurer’s argument there concerning the late notice would work a forfeiture because the insured would be denied the coverage he had paid for in premiums. 472 Pa. at 73, 371 A.2d at 196-97. In the instant case, accepting the insurer's argument would not involve a forfeiture since the insured has paid a lower premium for coverage that is retrospective only. To find for the defendant insurer here would give the plaintiffs exactly what they had bargained for and not less. Finally, the court in Brakeman concluded that if an insurer could not show prejudice from a late notice, the purpose of the notice provision in an occurrence policy, to give the insurer time to investigate the claim for defense or settlement, would not have been frustrated. Id. at 74-75, 371 A.2d at 197. In a claims-made policy, the provision requiring notice before the end of the policy period serves a different purpose. It provides a certain date after which an insurer knows that it no longer is liable under the policy, and accordingly, allows the insurer to more accurately fix its reserves for future liabilities and compute premiums with greater certainty. See Gulf Insurance Co.," } ]

[ { "docid": "16329978", "title": "", "text": "first made when Speak-man received the summons and complaint by mail in November 1985 — before the Syndicates’ policies took effect. Finally, the Court found that the Exchange simply had acted as an agent for disclosed principals in the transaction, and was thus not liable on the contracts for insurance. Accordingly, the Esmailzadehs’ motion to file a supplemental complaint was denied. This appeal followed. II. Turning first to the District Court’s refusal to apply Reliance to the claims-made policy issued by Pacific, we note that this Court ordinarily gives great weight to a local district court’s interpretations of state law, see Barber-Greene Co. v. National City Bank of Minneapolis, 816 F.2d 1267, 1270 (8th Cir.1987). We conclude that the distinction between “occurrence” policies and “claims-made” policies drawn by the District Court in this case is a sound one, amply supported by persuasive authorities. Claims-made policies (sometimes called “discovery” policies) are those under which coverage is provided if the error or omission is discovered and brought to the insurer’s attention during the term of the policy. 7A J. Appleman, Insurance Law & Practice § 4504.01, at 312-13 (Berdal ed. 1979 & Supp.1988). Under an occurrence policy, coverage is provided if the negligent act or omission occurred within the term of the policy, even if the term has since expired. Id. Because the reporting requirement helps to define the scope of coverage under a claims-made policy, several courts have held that excusing a delay in notice beyond the policy period would alter a basic term of the insurance contract. See, e.g., City of Harrisburg v. International Surplus Lines Ins. Co., 596 F.Supp. 954, 960-62 (M.D.Pa.1984) (notice provision in claims-made policy serves materially different purpose from that in occurrence policy; claims-made coverage exists under Pennsylvania law only when claim is timely reported), aff'd, 770 F.2d 1067 (3d Cir.1985) Zuckerman v. National Union Fire Ins. Co., 100 N.J. 304, 322-24, 495 A.2d 395, 405-06 (1985) (extension of notice period in claims-made policy creates unbargained-for expansion of coverage); Gulf Ins. Co. v. Dolan, Fertig & Curtis, 433 So.2d 512, 515 (Fla.1983) (extending reporting time for" }, { "docid": "7285830", "title": "", "text": "with Brakeman, the insured should prevail. Indeed, superficially, the rationale of Brakeman should apply with even greater force to a claims-made policy since a claims-made insurer has agreed to indemnify the insured for liability potentially arising years after the occurrence giving rise to the claim. Such an insurer should understand that a claim may be brought to its attention, despite the best efforts of the insured, years after the occurrence giving rise to the claim. After careful consideration of the differing purposes underlying the issuance of occurrence policies and claims-made policies, however, we conclude that the notice provision of a claims-made policy serves a materially different purpose from one in an occurrence policy. The notice provision of a claims-made policy is just as important to coverage as the requirement that the claim be asserted during the policy period. If the insured does not give notice within the contractually required time period, in the instant case “during the policy period,” there is simply no coverage under the policy- The reasoning of the court in Gulf Insurance Co. v. Dolan, Fertig and Curtis, 433 So.2d 512 (Fla.1983), cited by defendant, is persuasive in this regard. In Gulf, the respondent law firm had contracted with the petitioner, Gulf, for a claims-made insurance policy for the period November 20, 1978 to November 20, 1979. For coverage to apply the claim had to be made against the law firm, and notice had to be given to the insurer, during the policy period. On November 19, 1979, the firm received written notice of a malpractice claim a client intended to bring against it. The firm notified Gulf in writing of the claim on February 12, 1980 after first unsuccessfully seeking coverage from the carrier insuring it after Gulfs policy expired. Gulf denied coverage because it had not been notified of the claim within the policy period. The District Court of Appeals, despite the contractual language to the contrary, held that “there should be a reasonable time after the policy period expires for reporting claims that are discovered late in the policy period, even though the time" }, { "docid": "15796066", "title": "", "text": "accurately fix its reserves for future liabilities and compute premiums with greater certainty.” Id. at 962. In light of the different purposes underlying the issuance of these two types of policies, the City of Harrisburg court concluded that a claims-made insurer need not show prejudice in order to enforce a notice provision. Id. Similarly, this court finds that enforceability of the prior knowledge exclusion in a claims-made policy does not depend on whether the insurer was prejudiced by the insured’s untimely notice of a potential claim. The prior knowledge exclusion allows the insurer to more accurately assess risks and calculate the premiums for its insureds. To require the insurer to show that it was prejudiced by the insured’s belated disclosure of a fore seeable potential claim would not only vary the risks assumed by the insurer but would also re-write the claims-made policy. Such a requirement would also create the moral hazard that an insured may not fully disclose, or even take measures to apprise himself of, potential claims and instead take the risk that an insurer would be unable to show prejudice. The court declines to so radically alter the nature of the claims-made insurance policy. Nor can the Ehrgood Plaintiffs successfully argue that the notice provided in August 1997 was timely because the 1997-1998 policy was a renewal policy. The first page of the policy contains a section entitled “Declarations” which clearly states as follows: “Policy Period: From April 01, 1997 to April 01, 1998.” (CompLEx. C.) Both of the two earlier policies also similarly set out the policy period. (Id. Exs. A, B.) Each of the three policies issued to the Ehrgood Plaintiffs over the course of the years 1995 to 1998 has a different policy number. The premiums for each policy also varied. Moreover, the detailed information required by the policy renewal applications and claim information supplement forms clearly evinces an intent to create three separate policies, as opposed to one continuous policy. Finally, the court finds unpersuasive the Ehrgood Plaintiffs’ contention that the pri- or knowledge exclusion permits coverage for “innocent insureds.” To support this" }, { "docid": "10482104", "title": "", "text": "the notice provision. The policy at issue is a “claims-made” policy, as opposed to an “occurrence” policy. Other district courts interpreting Pennsylvania law, one of which was affirmed by our Court of Appeals for the Third Circuit, have held that the Brakeman prejudice requirement is inapplicable to claims-made policies. Employers Reinsurance Corp. v. Sarris, 746 F.Supp. 560 (E.D.Pa.1990); City of Harrisburg v. International Surplus Lines Insurance Co., 596 F.Supp. 954 (M.D.Pa.1984), affirmed, 770 F.2d 1067 (1985). In Employers Reinsurance, Judge Van Antwerpen reasoned: Like the insurer in the instant case, the insurer in City of Harrisburg was confronted with a demand for coverage for a claim known before the expiration of the policy period but not reported until after its expiration. As in the case at bar, the plaintiffs argued that the insurer had to show prejudice from the late notice before it could deny coverage. The City of Harrisburg court, however, noted that Brakeman had been decided in the context of an “occurrence” policy rather than a “claims made” policy. Of the difference between these two types of policies, the court said: Both policies are intended to insure during a specific period of time against liability arising from the conduct of the insured. One type of policy, the occurrence policy, keys upon when that conduct occurs. If it occurs during the policy period, the insurer has a duty to indemnify and defend the insured regardless of when the claim against the insured is made. Conversely, the other type of policy, the claims-made policy, keys upon when the claim is asserted against the insured. If it is made against the insured during the policy period, the insurer has to perform under the contract regardless of when the conduct giving rise to the claim occurred. The court in City of Harrisburg found this distinction of critical importance in deciding whether the Brakeman rule should be applied. It cited with approval to a Florida Supreme Court case, Gulf Insurance Co. v. Dolan, Fertig and Curtis, 433 So.2d 512 (Fla.1983), which refused to compel an insurer to extend coverage to a legal malpractice" }, { "docid": "14790269", "title": "", "text": "an “occurrence” policy requires a departure from the ordinary application of the notice-prejudice rule. A claims made policy generally provides coverage only for claims made and actually reported to the insured during the period specified in the policy. Occurrence policies cover the insured for any subsequent claim arising out of an occurrence that took place during the period specified in the policy. Under a claims made policy, even if events occur during the policy period which might give rise to valid claims, there is no coverage if claims or potential claims for those occurrences are not made and reported to the insurer during the period specified in the policy. E.g., Pacific Indemnity Co. v. Imperial Cas. & Indemnity Co., 176 Cal.App.3d 622, 626 & n. 1, 222 Cal.Rptr. 115 (1986). Claims made policies are required to have a number of safeguards for consumers, including conspicuous language as to their terms. Cal.Ins.Code Section 11580.01. Under the terms of this Policy, claims for which the insured seeks coverage must have been reported to the insurer within 60 days after the expiration date of the policy. Defendants contend that the issue of whether the notice-prejudice rule applies to claims made policies has yet to be decided by the California courts. This appears to be true. A number of cases, applying the law of other jurisdictions, use the fundamental distinction between claims made policies and occurrence policies to militate against application of the notice-prejudice rule. E.g., City of Harrisburg v. Int’l Surplus Lines Ins. Co., 596 F.Supp. 954, 960-61 (M.D.Pa.1984) (“The notice provision of a claims made policy is just as important to coverage as the requirement that the claim be asserted during the policy period. If the insured does not give notice during the contractually required time period ... there is simply no coverage under the policy.”). An insurer may limit policy coverage in plain and conspicuous language and thereby limit the risk it undertakes to assume. Fireman’s Fund Ins. Co. v. Fibreboard Corp., 182 Cal.App.3d 462, 466, 227 Cal.Rptr. 203 (1986). Any limitations placed on a policy, however, must conform to the" }, { "docid": "17597551", "title": "", "text": "under an insurance policy because an insured’s compliance with the notice provision of an insurance policy operates as a condition precedent for coverage. Late notice serves as a complete defense to liability, regardless of whether the insurer was prejudiced by the delay. Security Mut. Ins. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76, 78 (1972). The principles established by Security Mutual and similar cases have been extended to claims involving excess insurance policies. The purposes of notice provisions are equally applicable to both primary and excess insurers. Prompt notice serves an “important function ... in furnishing even an excess carrier with an opportunity to participate in settlement discussions at a time when its input is most likely to be meaningful.” Am. Home Assurance Co. v. Int’l Ins. Co., 90 N.Y.2d 433, 661 N.Y.S.2d 584, 684 N.E.2d 14, 17 (1997). However, while excess insurers have most of the rights and obligations of primary insurers, there is one essential distinction between them. Unlike primary insurers, excess insurers’ “coverage does not immediately attach after an occurrence, but rather attaches only after the primary coverage for the occurrence is exhausted.” Id. As noted above, DKM’s excess insurance policy with TIG dictates that, in the event of an occurrence which may result in a claim, or when a claim is made or a suit is brought, the insured must see to it that notice is provided to TIG “as soon as practicable.” App. 1211 a. Furthermore, in the event of claim or suit, the policy requires the insured to “[immediately send U.S. copies of any demands, notices, summons or legal papers received in connection with the claim or SUIT.” Id. In a case of excess insurance, the Second Circuit, applying New York law, has observed that a notice provision similar to the one found in TIG’s policy, which required notification to the excess insurer in the event of an occurrence, claim or suit, “obviously” does not require the “insured to give notice of suits that do not implicate the [excess] insurer’s policy.” Maryland Cas. Co. v. W.R. Grace & Co., 128" }, { "docid": "15796064", "title": "", "text": "1995-1996 policy, taken with 1996-1997 and 1997-1998 renewal policies, operates to create one continuous policy from the years 1995 to 1998; and (4) even if the 1997-1998 policy precludes coverage for Daniel Ehrgood, his co-insureds, Thomas A. Ehrgood and John D. Enck, are exempt from the policy’s exclusions and entitled to coverage as “innocent insureds.” The court finds each of these arguments unpersuasive. The prior knowledge exclusion at issue here does not include a bad faith requirement. Indeed, the Ehrgood Plaintiffs fail to point to any language indicating that the prior knowledge exclusion applies only to intentionally undisclosed claims. To the contrary, the plain language of the exclusion applies to any potential claim of which any insured “knew or could have reasonably foreseen.” Turning to the Ehrgood Plaintiffs’ second argument, the court observes that the 1997-1998 policy is a “claims-made and reported” policy, as it states on the front page of the policy. (See CompI.Ex. C.) The distinction between “claims-made” and “occurrence” policies was explained in City of Harrisburg v. International Smplus Lines Ins. Co. as follows: Both policies are intended to insure during a specified period of time against liability arising from the conduct of the insured. One type of policy, the occurrence policy, keys upon when that conduct occurs. If it occurs during the policy period, the insurer has a duty to indemnify and defend the insured regardless of when that claim against the insured is made. Conversely, the other type of policy, the claims-made policy, keys upon when the claim is assei*ted against the insured. If it is made against the insured during the policy period, the insurer has to perform under the contract regardless of when the conduct giving rise to the claim occurred. 596 F.Supp. 954, 960 (M.D.Pa.1984), aff'd without opinion, 770 F.2d 1067 (3d Cir.1985). The court went to explain that whereas the notice provision in an occurrence policy allows the insurer time to investigate, defend, or settle the claim, the notice provision in a claims-made policy provides the insurer with a date certain on which its liability expires, allowing the insurer to “more" }, { "docid": "1453174", "title": "", "text": "that fact creates inherent ambiguity in their meaning or makes the policy ambiguous. Courts give undefined contract terms their common meaning. 692 F.Supp. at 291. The terms “claim” and “notice” are standard terms, and Plaintiffs have not demonstrated any confusion concerning their meaning. Accordingly, the contract is not ambiguous. Plaintiffs’ third major argument is that their failure to timely notify the Company of the claim made is excusable. They argue that they had no knowledge of the claim by the end of the policy, and therefore, could not possibly have timely notified the Company of the claim. We find that even if we excused Bala from the notification requirements, it is still not covered by the policy. The policy expressly is' limited to claims “first made during the policy period” or within the sixty-day extension period. Policy at § 1 & § 8, ¶ 13. Accordingly, .because Thornton’s claim was not made within the life of the policy, her claim is not covered by it. Plaintiffs’ last argument is that in Pennsylvania, a court must .find that an insurance company has been prejudiced before it can deny coverage based on failure to notify. This doctrine stems from Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977). That case held that with an automobile liability occurrence policy, failure to timely notify the insurance company of the occurrence giving rise to coverage was not fatal if the insurance company was not prejudiced by the delayed notification. Id. at 76-77, 371 A.2d at 198. To date, no Pennsylvania appellate court has addressed the issue of whether Brakeman applies to a claims-made policy. The federal courts have, however. In 1984, the Middle District of Pennsylvania held that an occurrence policy and a claims-made policy were materially different, and held that the considerations that influenced the Pennsylvania Supreme Court in Brakeman did not exist in a claims-made policy. City of Harrisburg v. International Surplus Lines Ins. Co., 596 F.Supp. 954 (M.D.Pa.1984), aff'd 770 F.2d 1067 (3d Cir.1985). Accordingly, it held that an insurance company need not show prejudice when there has been" }, { "docid": "1453175", "title": "", "text": ".find that an insurance company has been prejudiced before it can deny coverage based on failure to notify. This doctrine stems from Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977). That case held that with an automobile liability occurrence policy, failure to timely notify the insurance company of the occurrence giving rise to coverage was not fatal if the insurance company was not prejudiced by the delayed notification. Id. at 76-77, 371 A.2d at 198. To date, no Pennsylvania appellate court has addressed the issue of whether Brakeman applies to a claims-made policy. The federal courts have, however. In 1984, the Middle District of Pennsylvania held that an occurrence policy and a claims-made policy were materially different, and held that the considerations that influenced the Pennsylvania Supreme Court in Brakeman did not exist in a claims-made policy. City of Harrisburg v. International Surplus Lines Ins. Co., 596 F.Supp. 954 (M.D.Pa.1984), aff'd 770 F.2d 1067 (3d Cir.1985). Accordingly, it held that an insurance company need not show prejudice when there has been a failure to comply with notice provisions in a claims-made policy. Id. at 962. Since then, that reasoning has been adopted in this District. Clemente v. Home Ins. Co., 791 F.Supp. 118, 120 (E.D.Pa.1992) aff'd, 981 F.2d 1246 (3rd Cir.1992); Employers Reins. Corp. v. Sarris; 746 F.Supp. 560, 564 (E.D.Pa.1990). Plaintiff argues that because a Pennsylvania appellate court has not ruled on this question, that we should extend Brakeman to apply to claims-made policies. Plaintiff also attempts to distinguish the federal cases from this case on the ground that in those cases the policy holders all knew of the claims during the policy period, but did not timely report them. This factual distinction does not persuade this Court to depart from the reasoning of its brethren. Whether the policy holders in the other federal cases had notice of a claim does not lessen the fact that claims-made policies are very different from occurrence policies, which warrants different treatment by the courts. City of Harrisburg, 596 F.Supp. at 961. Accordingly, we do not apply Brakeman to" }, { "docid": "21611166", "title": "", "text": "The district court stated, and we agree, that the “ ‘as soon as practicable’ notice provision is intended to protect the insurer from prejudice due to delayed notification of claims covered by the insurance policy.” The “as soon as practicable” language is intended to preclude an insured who has knowledge of a claim near the beginning of the policy period, from waiting many months until near the end of the policy period to notify the insurer of the existence of the claim, when such delay would cause prejudice to the insurer. It does not excuse, modify, or render ambiguous the claim reporting requirement that is recited in paragraph I as a condition of coverage. The Pacific policy coverage language is written in plain, unambiguous language and clearly states that a claim must be made and reported within the policy period. It is exactly this aspect of a claims made policy that distinguishes it from an occurrence policy. Claims made policies, unlike occurrence policies, are designed to limit liability to a fixed period of time. To allow coverage beyond that period would be to grant the insured more coverage than he bargained for and paid for, and to require the insurer to provide coverage for risks not assumed. We hold, therefore, that the Pacific claims made policy issued to Strip covers claims that were made and reported between August 2, 1984 and August 2, 1985. It is undisputed that the July 25,1985 claim against Strip was not reported to Pacific’s agent until August 19, 1985. Under these circumstances, Pacific is not liable to Strip for a defense or indemnity for the July 25th claim. Although the district court employed a slightly different rationale in concluding that Strip had not complied with the reporting requirements of the Pacific policy, we may affirm the judgment of the district court on grounds other than those stated by the district court. Russ’ Kwik Car Wash v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir.1985). B. Pacific v. Law Firm On April 15,1986, the United States filed a second amended complaint against the Law Firm" }, { "docid": "7285833", "title": "", "text": "of the policy itself, but by looking at the benefits sought by each party when they contract for a claims-made policy rather than an occurrence one. Because a claims-made insurer’s liability does not extend beyond the end of a specific term, the court stated that the “insurer can establish his reserves without having to consider the possibilities of inflation beyond the policy period, upward-spiralling jury awards, or later changes in the definition and application of negligence.” Id. at 516 (quoting Comment, The “Claims Made” Dilemma In Professional Liability Insurance, 22 U.C.L.A.L. Rev. 925, 928 (1975)). In return for this certainty, an insured pays a lesser premium, id. at 516; see also Detroit Automobile Inter-Insurance Exchange v. Leonard Underwriters, Inc., 117 Mich.App. 300, 323 N.W.2d 679 (1982), and receives broader coverage than under an occurrence policy because conduct occurring before the policy term is covered. Comment, supra, 22 U.C.L.A.L.Rev. at 929. Under these circumstances, in the absence of Pennsylvania Appellate authority on point, we can only predict how the Pennsylvania Supreme Court would hold. See Mazzula v. Monarch Life Insurance Co., 487 F.Supp. 1299 (E.D.Pa.1980). We do not believe that the Brakeman holding should apply to a claims-made policy. None of the considerations leading to the holding in that case are present here. First, the court in Brakeman found that automobile drivers could not bargain over the substance of the notice provision in their policies because the provisions are “uniformly found in liability insurance policies.” 472 Pa. at 73, 371 A.2d at 196. Here, on the other hand, the plaintiff city could have bargained for an occurrence policy in which notice would not have been of the essence of the contract, or it could have obtained a policy with an extended discovery period providing coverage for claims made during the policy period and reported to the company during the extended discovery period. See Gulf Insurance Co., supra, and cases cited therein. Second, the court in Brakeman was concerned that accepting the insurer’s argument there concerning the late notice would work a forfeiture because the insured would be denied the coverage he" }, { "docid": "17597550", "title": "", "text": "that, viewing the facts in the light most favorable to plaintiff, TIG was not timely notified of the underlying accident and/or lawsuit. It is undisputed that DKM notified Aon the very day it learned plaintiff had filed a lawsuit. However, for reasons that are unclear, Aon never notified TIG, as it was required to do. Therefore, DKM is not entitled to coverage under its policy with TIG. App. 15a. A. New York Law on Late Notice Notice provisions in insurance contracts serve important policy purposes. They “enable insurers to make a timely investigation of relevant events and exercise early control over a claim,” which may assist the parties in reaching settlement before litigation. Furthermore, timely notice allows insurers “to establish more accurate renewal premiums and maintain adequate reserves.” Commercial Union Ins. v. Int’l Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). A leading New York Court of Appeals decision addressing late notice provisions in insurance contracts holds that the failure to give timely notice alleviates an insurer of its obligation to provide coverage under an insurance policy because an insured’s compliance with the notice provision of an insurance policy operates as a condition precedent for coverage. Late notice serves as a complete defense to liability, regardless of whether the insurer was prejudiced by the delay. Security Mut. Ins. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76, 78 (1972). The principles established by Security Mutual and similar cases have been extended to claims involving excess insurance policies. The purposes of notice provisions are equally applicable to both primary and excess insurers. Prompt notice serves an “important function ... in furnishing even an excess carrier with an opportunity to participate in settlement discussions at a time when its input is most likely to be meaningful.” Am. Home Assurance Co. v. Int’l Ins. Co., 90 N.Y.2d 433, 661 N.Y.S.2d 584, 684 N.E.2d 14, 17 (1997). However, while excess insurers have most of the rights and obligations of primary insurers, there is one essential distinction between them. Unlike primary insurers, excess insurers’ “coverage does not immediately attach after" }, { "docid": "11110017", "title": "", "text": "and McKEE, Circuit Judges. . Tonkovic, which can be analyzed in terms of an illusory promise, is relevant here because Bensa-lem Township's policy is a “claims-made\" policy. As such, it limits coverage to claims filed within the policy's term. Standard Venetian Blind involved an \"occurrence-made\" policy which provided coverage for any covered event that occurred during the policy term, without regard to when the claim was made. See American Cas. Co. of Reading, Pennsylvania v. Continisio, 17 F.3d 62, 68 (3d Cir.1994) (discussing differences between claims- and occurrence-made policies). Claims-made policies allow the insurer to make a more precise calculation of premiums based upon the costs of the risks assumed, a calculation that is difficult, if not impossible, in an occurrence-made policy where the insurer is faced with tin unlimited \"tail” of potential liability extending beyond the policy period. In a claims-made policy, however, limitation of coverage to claims filed within the policy term can sometimes interact with broad exclusions like those present here to defeat the \"reasonable expectations” of the insured or perhaps, in some cases, make the promised coverage illusory. See Tonkovic, 513 Pa. 445, 521 A.2d 920; Worldwide Underwriters Ins. Co. v. Brady, 973 F.2d 192 (3d Cir.1992). Pennsylvania’s exceptions to the plain language rule of Standard Venetian Blind seek to balance the relative advantages an insurance company has in underwriting claims-made policies with the insured's reasonable expectations of coverage. See Zuckerman v. National Union Fire Ins. Co., 100 N.J. 304, 495 A.2d 395 (1985) (for an excellent discussion of the discrete issues presented by claims and occurrence made policies). Still, if insurance is to serve its basic purpose of splitting economic loss that would be catastrophic to a single insured among a group of persons facing similar risks, exclusion of coverage for losses that a particular insured is more or less certain to suffer is necessary. For who, as it was once said, would not give up a peppercorn in exchange for a pound and who, no matter how well endowed with pounds, could long continue such an exchange? The exclusions in question here may be" }, { "docid": "22508927", "title": "", "text": "the materiality of a breach is the extent to which the nonbreaching party will be deprived of the benefit that it could have reasonably anticipated from full performance.\" The Court reviewed the distinctions between occurrence and claims-made policies, as well as the different purposes underlying the different kinds of notice requirements. It held that even if \"Prodigy did not give notice 'as soon as practicable,' AESIC was not denied the benefit of the claims-made nature of its policy as it could not 'close its books' on the policy until ninety days after the discovery period expired.\" The Texas Supreme Court decided Financial Industries Corp. v. XL Specialty Insurance Co. , on the same day it decided Prodigy , and the cases involved similar questions. The Court adopted its reasoning from Prodigy , and held that an insurer must show prejudice to deny payment on a claims-made policy when the insurer's denial stems from the insured's failure to comply with a prompt-notice provision of a claims-made management liability insurance policy. \"Recognizing that, for the insurer, the inherent benefit of a claims-made policy is the insurer's ability 'to close its books on a policy at its expiration and thus to attain a level of predictability unattainable under standard occurrence policies,' \" the Court held that \"FIC gave notice of the claim ... before XL could 'close its books' on the policy\" and since \"XL was not denied the benefit of the claims-made nature of its policy, it could not deny coverage based on FIC's immaterial breach of the policy's prompt-notice provision.\" 2. Fifth Circuit Decisions Defendant relies on two Fifth Circuit cases, Matador Petroleum Corp. v. St. Paul Surplus Lines Ins. Co. and Starr Indemnity & Liability Co. v. SGS Petroleum Service Corp. , decided in the oil and gas context where the insurance policies at issue included pollution endorsements. In each case, the Fifth Circuit concluded that the insurer need not demonstrate prejudice to deny coverage based on the insured's failure to comply with a notice provision of the pollution endorsement. a. Matador Petroleum Corp. v. St. Paul Surplus Lines Ins." }, { "docid": "14790270", "title": "", "text": "days after the expiration date of the policy. Defendants contend that the issue of whether the notice-prejudice rule applies to claims made policies has yet to be decided by the California courts. This appears to be true. A number of cases, applying the law of other jurisdictions, use the fundamental distinction between claims made policies and occurrence policies to militate against application of the notice-prejudice rule. E.g., City of Harrisburg v. Int’l Surplus Lines Ins. Co., 596 F.Supp. 954, 960-61 (M.D.Pa.1984) (“The notice provision of a claims made policy is just as important to coverage as the requirement that the claim be asserted during the policy period. If the insured does not give notice during the contractually required time period ... there is simply no coverage under the policy.”). An insurer may limit policy coverage in plain and conspicuous language and thereby limit the risk it undertakes to assume. Fireman’s Fund Ins. Co. v. Fibreboard Corp., 182 Cal.App.3d 462, 466, 227 Cal.Rptr. 203 (1986). Any limitations placed on a policy, however, must conform to the law and public policy and are subject to careful judicial scrutiny. Lumberman’s Mut. Cas. Co. v. Wyman, 64 Cal.App.3d 252, 259, 134 Cal.Rptr. 318 (1976). Defendants also cite authority from various other jurisdictions that have considered and upheld the reporting requirements of claims made policies. E.g., City of Harrisburg, 596 F.Supp. at 960-61; Graman v. Continental Cas. Co., 87 Ill.App.3d 896, 42 Ill.Dec. 772, 775-777, 409 N.E.2d 387, 390-92 (1980); Gulf Ins. Co. v. Dolan, Fertig & Curtis, 433 So.2d 512, 514-15 (Fla.1983); Zuckerman v. Nat. Union Fire Ins. Co., 100 N.J. 304, 495 A.2d 395, 399-400 (1985). In each of the state court cases cited above, the lower court had applied the respective jurisdiction’s version of the notice-prejudice rule; in each case the state appellate court reversed, upholding a strict construction of the reporting requirement and refusing to rewrite the contract between the parties. According to defendants, this authority from other jurisdictions, combined with a number of public policy reasons favoring claims made type insurance policies , would lead the California Supreme Court to" }, { "docid": "7285829", "title": "", "text": "appears to be a reasonable assumption. Both policies are intended to insure during a specific period of time against liability arising from the conduct of the insured. One type of policy, the occurrence policy, keys upon when that conduct occurs. If it occurs during the policy period, the insurer has a duty to indemnify and defend the insured regardless of when the claim against the insured is made. Conversely, the other type of policy, the claims-made policy, keys upon when the claim is asserted against the insured. If it is made against the insured during the policy period, the insurer has to perform under the contract regardless of when the conduct giving rise to the claim occurred. Thus, it would seem that notice provisions in both types of policies should serve the same role and merely protect the insurer by giving it adequate time to investigate and prepare the insured’s defense. When the insurer cannot show prejudice to its investigation of the claim, as long as there is coverage otherwise under the policy, in accord with Brakeman, the insured should prevail. Indeed, superficially, the rationale of Brakeman should apply with even greater force to a claims-made policy since a claims-made insurer has agreed to indemnify the insured for liability potentially arising years after the occurrence giving rise to the claim. Such an insurer should understand that a claim may be brought to its attention, despite the best efforts of the insured, years after the occurrence giving rise to the claim. After careful consideration of the differing purposes underlying the issuance of occurrence policies and claims-made policies, however, we conclude that the notice provision of a claims-made policy serves a materially different purpose from one in an occurrence policy. The notice provision of a claims-made policy is just as important to coverage as the requirement that the claim be asserted during the policy period. If the insured does not give notice within the contractually required time period, in the instant case “during the policy period,” there is simply no coverage under the policy- The reasoning of the court in Gulf Insurance" }, { "docid": "16329979", "title": "", "text": "7A J. Appleman, Insurance Law & Practice § 4504.01, at 312-13 (Berdal ed. 1979 & Supp.1988). Under an occurrence policy, coverage is provided if the negligent act or omission occurred within the term of the policy, even if the term has since expired. Id. Because the reporting requirement helps to define the scope of coverage under a claims-made policy, several courts have held that excusing a delay in notice beyond the policy period would alter a basic term of the insurance contract. See, e.g., City of Harrisburg v. International Surplus Lines Ins. Co., 596 F.Supp. 954, 960-62 (M.D.Pa.1984) (notice provision in claims-made policy serves materially different purpose from that in occurrence policy; claims-made coverage exists under Pennsylvania law only when claim is timely reported), aff'd, 770 F.2d 1067 (3d Cir.1985) Zuckerman v. National Union Fire Ins. Co., 100 N.J. 304, 322-24, 495 A.2d 395, 405-06 (1985) (extension of notice period in claims-made policy creates unbargained-for expansion of coverage); Gulf Ins. Co. v. Dolan, Fertig & Curtis, 433 So.2d 512, 515 (Fla.1983) (extending reporting time for claims-made policy negates one of its distinguishing characteristics); but see Sherlock v. Perry, 605 F.Supp. 1001, 1004-05 (E.D.Mich.1985) (if notice given within reasonable time, and insurer suffers no prejudice by delay, coverage under claims-made policy exists under Michigan law). Further, the Esmailzadehs have presented no convincing reason to disturb the District Court’s assessment of Minnesota public policy. The distinction thus drawn by the District Court is not based on mere semantics. In the Reliance case, the requirement that the insured give prompt notice was merely one of the promises made by the parties to a bilateral contract. It was not part of the policy provision describing the scope of coverage, nor was it phrased as a condition of coverage. Accordingly, the Reliance court was entirely justified in attaching no consequence to the insured’s breach of the promise, in circumstances where the breach caused no damage to the insurer, the other party to the contract. Here, however, the very description of the risk covered included the requirement that claims be both made and reported within the" }, { "docid": "10482103", "title": "", "text": "settlement or a judgment. This fact does not distinguish Metal Bank from the instant case. The Court recognizes that today legal fees can often be more financially burdensome than the judgments which the fees are incurred to avoid. In the Connecticut litigation, for example, Mr. Clemente’s claim expenses are well over three times the entire amount of money that changed hands pursuant to the settlement of that litigation. Furthermore, the fact that the Company was Mr. Clemente’s primary rather than excess insurer, and therefore had a greater interest in controlling its insured’s defense, is also a factor that supports a finding of prejudice. See Trustees of Univ. Of Pa. v. Lexington Insurance Co., 815 F.2d 890, 898 (3d Cir.1987). As a result, the Court concludes that the Company was prejudiced by Mr. Clemente’s breach of the notice provision of the policy, and therefore is entitled to summary judgment on the basis of that provision. Moreover, the character of the policy also supports this Court’s granting the Company’s Motion for Summary Judgment on the basis of the notice provision. The policy at issue is a “claims-made” policy, as opposed to an “occurrence” policy. Other district courts interpreting Pennsylvania law, one of which was affirmed by our Court of Appeals for the Third Circuit, have held that the Brakeman prejudice requirement is inapplicable to claims-made policies. Employers Reinsurance Corp. v. Sarris, 746 F.Supp. 560 (E.D.Pa.1990); City of Harrisburg v. International Surplus Lines Insurance Co., 596 F.Supp. 954 (M.D.Pa.1984), affirmed, 770 F.2d 1067 (1985). In Employers Reinsurance, Judge Van Antwerpen reasoned: Like the insurer in the instant case, the insurer in City of Harrisburg was confronted with a demand for coverage for a claim known before the expiration of the policy period but not reported until after its expiration. As in the case at bar, the plaintiffs argued that the insurer had to show prejudice from the late notice before it could deny coverage. The City of Harrisburg court, however, noted that Brakeman had been decided in the context of an “occurrence” policy rather than a “claims made” policy. Of the difference between" }, { "docid": "15796065", "title": "", "text": "as follows: Both policies are intended to insure during a specified period of time against liability arising from the conduct of the insured. One type of policy, the occurrence policy, keys upon when that conduct occurs. If it occurs during the policy period, the insurer has a duty to indemnify and defend the insured regardless of when that claim against the insured is made. Conversely, the other type of policy, the claims-made policy, keys upon when the claim is assei*ted against the insured. If it is made against the insured during the policy period, the insurer has to perform under the contract regardless of when the conduct giving rise to the claim occurred. 596 F.Supp. 954, 960 (M.D.Pa.1984), aff'd without opinion, 770 F.2d 1067 (3d Cir.1985). The court went to explain that whereas the notice provision in an occurrence policy allows the insurer time to investigate, defend, or settle the claim, the notice provision in a claims-made policy provides the insurer with a date certain on which its liability expires, allowing the insurer to “more accurately fix its reserves for future liabilities and compute premiums with greater certainty.” Id. at 962. In light of the different purposes underlying the issuance of these two types of policies, the City of Harrisburg court concluded that a claims-made insurer need not show prejudice in order to enforce a notice provision. Id. Similarly, this court finds that enforceability of the prior knowledge exclusion in a claims-made policy does not depend on whether the insurer was prejudiced by the insured’s untimely notice of a potential claim. The prior knowledge exclusion allows the insurer to more accurately assess risks and calculate the premiums for its insureds. To require the insurer to show that it was prejudiced by the insured’s belated disclosure of a fore seeable potential claim would not only vary the risks assumed by the insurer but would also re-write the claims-made policy. Such a requirement would also create the moral hazard that an insured may not fully disclose, or even take measures to apprise himself of, potential claims and instead take the risk that" }, { "docid": "23597009", "title": "", "text": "the insured to compel the insurer to bear the costs of defense in the underlying action. See Christiania Gen. Ins. Corp. v. Great American Ins. Co., 979 F.2d 268, 275 (2d Cir.1992); Utica Mut. Ins. v. Firemen’s Fund Ins. Cos., 748 F.2d 118, 121 (2d Cir.1984). Indeed, under New York law, “[a]bsent a valid excuse” the insured’s failure to provide notice “vitiates coverage.” E.g., In re Allcity Ins. Go. and Jimenez, 576 N.Y.S.2d 87, 88, 78 N.Y.2d 1054, 1055, 581 N.E.2d 1342, 1343 (1991). As this court has previously observed, notification provisions advance several important policies: They enable insurers to make a timely investigation of relevant events and exercise early control over a claim. Early control may lead to a settlement before litigation and enable insurers to take steps to eliminate the risk of similar occurrences in the future. When insurers have timely notice of relevant occurrences, they can establish more accurate renewal premiums and maintain adequate reserves. Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). While this court offered this observation in the context of a dispute over compliance with a notiee-of-oceurrence provision, the considerations, particularly the concerns over an insurer’s capacity to conduct litigation and settlement negotiations, apply equally to notice-of-claim provisions. NYMU’s argument presents the question whether failure to comply with a policy’s notice requirements also constitutes a complete defense to a fourth-party complaint by a successive insurer against a previous insurer for contribution to the costs of the insured’s defense. Although we have found no New York cases directly on point, a comparison of cases involving disputes between insureds and insurers with eases involving disputes between co-insurers and cases involving disputes between parties to a reinsurance contract allow us to predict with reasonable certainty the result that the New York Court of Appeals would reach were it presented with this issue. See Travelers, 14 F.3d at 119. At least one New York court has held that an insurer may seek contribution from a co-insurer notwithstanding the insured’s failure to give prompt notice to the co-insurer where the insurer" } ]

[ { "docid": "18167601", "title": "", "text": "(1959), the Supreme Court held only that a person could not be convicted and separately sentenced for both stealing and receiving the same goods because to do so would be to unlawfully “pyramid penalties.” See United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023,1027 n.15, 47 L.Ed.2d 222 (1976). Where a defendant is charged only with receiving stolen goods, there is no danger of the multiplication of punishment. Anderson next argues that the conspiracy count should have been dismissed because the conspiracy proven was to steal or sell the stolen property, not to receive and possess it as charged in the indictment. This argument rests on two grounds: first, that there was insufficient evidence for conviction of conspiracy to receive and possess; and, second, that even if a conspiracy to receive and possess was proven, the proof of conspiracies in addition to the one charged caused a fatal variance in pleading and proof which required dismissal of the conspiracy charge. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Viewing the evidence in the light most favorable to the government, United States v. Green, 525 F.2d 386, 393 (8th Cir. 1975), the jury could reasonably infer the existence of a preexisting scheme or plan to possess or receive stolen property from Anderson’s participation in the theft of the sets. See United States v. Overshon, 494 F.2d 894, 895-896 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974); Castle v. United States, 238 F.2d 131, 135 (8th Cir. 1956). Cf. United States v. Cordo, 186 F.2d 144, 146 (2nd Cir.), cert. denied sub nom., Minkoff v. United States, 340 U.S. 952, 71 S.Ct. 572, 95 L.Ed. 686 (1951). Even if the evidence tended to establish separate conspiracies in addition to the one charged, we fail to see how Anderson has been prejudiced. The test for reversible error, where two conspiracies have been established instead of one, is not whether such a variance exists but whether" } ]

[ { "docid": "4321897", "title": "", "text": "statute, is closely related to the offense of conspiracy set forth in 18 U.S.C. § 371. United States v. Donahue, supra at 1135; Isaacs v. United States, supra at 725. There are, however, differences between a substantive violation of the mail fraud statute and a conspiracy to violate the statute. Because of the differences, it is not necessarily inconsistent that a person be found guilty on the substantive counts but not on the conspiracy count. Cf. United States v. West, 549 F.2d 545, 553 (8th Cir.), cert. denied, 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 806 (1977). We must, however, carefully examine the strength of the evidence with respect to each of the substantive counts in order to insure that the appellants’ convictions on the substantive counts are sufficiently supported and are not merely the result of evidence introduced with respect to the conspiracy count. Cf. United States v. Anthony, 565 F.2d 533, 538-539 (8th Cir. 1977). In order to establish a violation of 18 U.S.C. § 1341, the government must prove the existence of a scheme to defraud and the mailing of a letter for the purpose of executing the scheme. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Cady, 567 F.2d 771, 773 (8th Cir. 1977); United States v. Brown, 540 F.2d 364, 373 (8th Cir. 1976). Since the term “scheme” as used in § 1341, connotes some degree of planning by the perpetrator of the mail fraud, it is essential that the government establish an intent to defraud. United States v. Nance, 502 F.2d 615, 618 (8th Cir. 1974), cert. denied, 420 U.S, 926, 95 S.Ct. 1123, 43 L.Ed.2d 396 (1975). While the government must establish beyond a reasonable doubt that the appellants acted with an intent to defraud, United States v. Williams, 545 F.2d 47, 50 n. 2 (8th Cir. 1976), direct evidence of intent is not required. United States v. Arnold, 543 F.2d 1224, 1225 (8th Cir. 1976), cert. denied, 429 U.S. 1051, 97 S.Ct. 765, 50 L.Ed.2d 768 (1977). The requisite intent may" }, { "docid": "22298896", "title": "", "text": "defendant case in which the evidence against individual defendants is either quantitatively or qualitatively equivalent. A defendant is not entitled to severance merely because the evidence against a co-defendant is more damaging than the evidence against him. United States v. De Larosa, 450 F.2d 1057,1065 (3d Cir. 1971), cert. denied, 405 U.S. 927, 92 S.Ct. 978, 30 L.Ed.2d 800 (1972). Severance becomes necessary where the proof is such that a jury could not be expected to compartmentalize the evidence as it relates to separate defendants. United States v. De Larosa, supra at 1065. A review of the record does not persuade us that this situation existed in the present case. Jackson was charged with a greater number of substantive offenses than were his co-defendants. Because the Government undertook to establish his complicity by showing his participation in this greater number of offenses, there was necessarily more evidence adduced against Jackson than against his co-defendants. The presentation of more evidence applicable to one defendant than to his co-defendants is simply a fact of life in multiple defendant cases. The greater amount of evidence introduced against Jackson here was not far more damaging than the evidence relating to his co-defendants, but only more from a quantitative standpoint. The quantitative inequality of evidence adduced provides no ground for a severance. Nor does the record support a finding that the evidence presented at trial was of such a nature that the jury could not compartmentalize it to the particular defendant or defendants to whom it was applicable. The cases cited by defendants in support of this contention are largely inapposite, for they involve the peculiar circumstance, not present here, where evidence at a joint trial shows that two or more groups of individuals have participated in a number of separate and distinct conspiracies. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Butler, 494 F.2d 1246 (10th Cir. 1974); United States v. Varelli, 407 F.2d 735 (7th Cir. 1969). The Government’s method of presenting its evidence, discussed below, served to carefully delineate separate events and occurrences" }, { "docid": "12156060", "title": "", "text": "the government’s proof demonstrated the existence of several independent schemes, rather than the single, unitary scheme charged in the indictment. They contend that this constituted a prejudicial variance between the indicted offenses and the proof at trial. See, e. g., Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Although the indictment in this case charges a multi-party mail and wire fraud instead of a conspiracy, we may still rely on the principles governing variance in conspiracy cases. See United States v. Serlin, 538 F.2d 737, 746 (7th Cir. 1976); Friedman v. United States, 347 F.2d 697, 708 (8th Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965). We have held in conspiracy cases that the existence of a unitary scheme matching that charged in the indictment is a question for the jury. United States v. Thomas, 586 F.2d 123, 132 (9th Cir. 1978). We apply the same rule here. Thus, if the jury could rationally have found that Stewart, Lutz, White, and Zitek engaged in a unitary mail or wire fraud scheme, there is no prejudicial variance. See, e. g., id. at 131-32; United States v. Perry, 550 F.2d 524, 531 (9th Cir.), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 228, 434 U.S. 827, 98 S.Ct. 104, 54 L.Ed.2d 85 (1977). We think there was ample evidence before the jury to support a finding that the defendants were engaged in a common scheme. The defendants particularly complain about the introduction of evidence relating to Nation-Wide’s use of outside brokers, such as Underhill Associates and Citation Mortgage. But the involvement of these brokers materially aided the overall scheme by convincing clients that their loan packages were being aggressively marketed and referred to potential lenders. Clients were directed to keep Nation-Wide personnel advised of their subsequent dealings with these brokers. The impression given was that the referral was an important aspect of Nation-Wide’s comprehensive funding strategy, and a significant step toward attaining funding. This false impression reinforced and perpetuated the defendants’ previous misrepresentations. The defendants urge similar prejudicial variance" }, { "docid": "23383352", "title": "", "text": "the point of its admission. It helped to show circumstantially Peveto’s connection to the van. We find no error in its admission. B. Failure to Prove a Single Conspiracy Each of the defendants argue that the government failed to prove a single conspiracy and instead offered proof either of multiple conspiracies or of various uncharged acts. Count four of the indictment alleges a single conspiracy between all four co-defendants to “manufacture, possess with intent to destribute, and possess with intent to manufacture amphetamine/methamphetamine_” I R. 2. In Kotteakos v. United States, 328 U.S. 750, 771-774, 66 S.Ct. 1239, 1251-1252, 90 L.Ed. 1557 (1946) the Court held that the defendants’ substantial rights were violated where the government charged only one conspiracy, but presented proof of multiple conspiracies. See also United States v. Butler, 494 F.2d 1246, 1254-1257 (10th Cir.1973). The Court recognized that guilt “remains individual and personal, even as respects conspiracies.” Kotteakos, 328 U.S. at 772, 66 S.Ct. at 1251. The defendant has a “right not to be tried en masse for the conglomeration of distinct and separate offenses committed by others.... ” Id. at 775, 66 S.Ct. at 1252-1253. We emphasize initially that “whether the evidence was sufficient to establish a single conspiracy is a question of fact for the jury to decide, [footnote omitted]” United States v. Record, 873 F.2d 1363, 1366 (10th Cir.1989) (citing United States v. Dickey, 736 F.2d 571, 581 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985)). To find “a single conspiracy, the jury must be convinced beyond a reasonable doubt that the alleged cocon-spirators possessed a common, illicit goal.” Dickey, 736 F.2d at 582 (citing United States v. Petersen, 611 F.2d 1313, 1326-1327 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2986, 64 L.Ed.2d 854 (1980)). Proof of separate transactions does not necessarily establish multiple conspiracies. Id. Rather, it must be determined “whether such activities constituted essential and integral steps toward the realization of a common, illicit goal.” United States v. Brewer, 630 F.2d 795, 799-800 (10th Cir.1980) (citing Petersen, 611 F.2d at 1326-1327). Before examining" }, { "docid": "4321891", "title": "", "text": "46 L.Ed.2d 124 (1975). See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Jackson, 549 F.2d 517, 529-530 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977); United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). We have carefully reviewed the record with these principles in mind and have concluded that there is insufficient evidence to support the appellants’ convictions on the conspiracy count, but that there is sufficient evidence to support Greene’s convictions on Counts II, III, IV, V, VI, VIII and X; Julia Greene’s conviction on Count X; and Fuel’s conviction on Count VII. A. Conspiracy Count. The indictment charged, and the government’s position both at trial and on appeal, has been that the appellants were involved in a single conspiracy, over a thirty-three-month period, to defraud insurance companies. The evidence does not support this position. To prove the existence of a conspiracy, the government must establish the existence of an agreement between at least two conspirators to effect the object of the conspiracy, United States v. Jackson, supra at 530; United States v. Skillman, 442 F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971), and that at least one overt act was committed in furtherance of the conspiracy. United States v. Donahue, 539 F.2d 1131, 1135 (8th Cir. 1976); Isaacs v. United States, 301 F.2d 706, 725 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). To convict an individual of conspiracy, it is not necessary for the government to prove that the individual knew all of the conspirators or was aware of all of the details of the conspiracy, but it is necessary to establish that the individual knowingly contributed to the furtherance of the conspiracy. United States v. Jones, 545 F.2d 1112, 1115 (8th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Hester, 465 F.2d" }, { "docid": "4321894", "title": "", "text": "evidence from which to infer the existence of such an agreement. Initially, we note that it is difficult to understand how an agreement to defraud could exist that would only come into play at the happening of a fortuitous event— that is, the occurrence of an automobile accident or a burglary. Even if this hurdle is crossed, however, we are faced with the fact that the government also failed to establish that either Fuel or Julia Greene was aware that medical reports submitted on their behalf, or on behalf of others involved in the same accident, were fraudulent, or that either of them knew that other documentation submitted with respect to automobile accident claims by Greene on his own behalf was fraudulent. While there is evidence to convict Fuel and Julia Greene on substantive counts of mail fraud in connection with respect to their individual burglary claims, there is no evidence of any knowledge or connection with the burglary claims of Greene. In sum, the evidence shows that a number of related individuals, including the appellants, submitted a series of questionable insurance claims. That is not enough to satisfy the government’s burden of proof and to sustain the jury’s verdict. Guilt may not be inferred from “mere association.” United States v. Graham, 548 F.2d 1302, 1312 (8th Cir. 1977); United States v. Frol, 518 F.2d 1134, 1137 (8th Cir. 1975). In order to sustain a criminal conviction, we must be convinced that the evidence does more than merely raise a suspicion or possibility of guilt. United States v. Blunk, 561 F.2d 111, 116 (8th Cir. 1977); United States v. Jones, supra at 1115. As we have held “[sjurmise cannot be permitted in a criminal case.” Id. The evidence presented by the government is simply insufficient to establish beyond a reasonable doubt that the appellants knowingly engaged in a single overall conspiracy to defraud insurance companies. Wé can understand how the jury arrived at the result it did on the conspiracy count. A large chart, which has been duplicated and is attached hereto (Government’s Exhibit No. 163), was prepared by the" }, { "docid": "4321926", "title": "", "text": "United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The trial court concluded that Fuel’s admissions were voluntary and were made with full knowledge of her constitutional rights. . The government did establish by inference that Greene knew the medical records were fraudulent by establishing that Greene himself had written on the patient card submitted on behalf of his niece. . Nor do we feel that the government established the existence of separate conspiracies as to the submission of the accident and the burglary claims. There is not sufficient evidence to convince a fair minded jury beyond a reasonable doubt that Fuel or Julia Greene participated in either conspiracy. Thus, we need not consider this case in light of the test for fatal variance established in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and its progeny. See, e. g., United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977); United States v. Butler, 494 F.2d 1246 (10th Cir. 1974); United States v. Varelli, 407 F.2d 735 (7th Cir. 1969). . Unlike conspiracy, a scheme to commit mail fraud may be conceived and executed by one person. United States v. Donahue, 539 F.2d 1131, 1135 (8th Cir. 1976); Isaacs v. United States, 301 F.2d 706, 725 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). Second, when a person is charged with a substantive violation of § 1341 * * * it is not necessary for the government to prove that he intended to use the mails * * * in furtherance of his fraudulent scheme; it is sufficient if they were in fact used; but where the charge is conspiracy to violate [§ 1341], the government must also show that the scheme contemplated the use of the medium in question. Isaacs v. United States, supra, and Blue v. United States, 138 F.2d 351 (6th Cir. 1943), cert. denied, 322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570 (1944). United States v. Donahue, supra at 1135. . Greene also contends that there was no evidence to" }, { "docid": "23482692", "title": "", "text": "or fraudulent representation” under the mail fraud statute involves, among other things, “the concealment of material facts”). This materiality aspect is appropriately submitted to the jury as one component of the larger factual question as to the existence of fraud and a scheme to defraud. Cf. Restatement (Second) of Torts § 538 comment e (1977) (noting that materiality as a component of the tort of fraud is a question for the jury). We feel this result is not inconsistent with our holding as to the proper decision-maker of materiality under § 1001 because, on this level of essential elements of the charged offense, the ultimate determination does not “turn[ ] on an interpretation of substantive law” (raising a question of law for the court), Abadi, 706 F.2d at 180, but is predominantly a question of fact as to the existence of fraud and a scheme to defraud. The trial court properly submitted this narrow, subordinate aspect of materiality to the jury in its instructions as to wire fraud. See VI R., Doc. 146, at Instruction No. 13. Accordingly, we find no error in the trial court’s treatment of the question of materiality under § 1343. F. Single Versus Multiple Conspiracy Daily and Figge argue that their convictions cannot stand because there was a fatal variance between the indictment, which alleged a single, multi-faceted conspiracy, and the proof at trial, which established the existence of multiple conspiracies. See generally Kotteakos v. United States, 328 U.S. 750, 758, 765-66, 66 S.Ct. 1239, 1244, 1248-49, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). They also say that the trial court erred in declining to give their multiple-conspiracy instruction. We hold these arguments are without merit. 1. Variance At the outset, it is important to clarify the nature of the inquiry. The basic issue is whether, viewed in the light most favorable to the government, there was sufficient evidence upon which a reasonable jury could find the existence of a single conspiracy beyond a reasonable doubt. See United States v. Dickey, 736" }, { "docid": "3840330", "title": "", "text": "defraud ABP’s creditors, including GECC, and with using the mails and wires to further and carry out the scheme. The district court concluded that the evidence was insufficient to prove appellants’ guilt beyond a reasonable doubt on a number of the counts. But such action does not constitute a fatal variance between the indictment and the proof. Indeed, we fail to perceive any prejudice to appellants resulting from their acquittal on a substantial number of counts which were related solely to certain segments of the scheme to defraud. See F.R.Cr.P. 52. Ill We also reject appellant West’s contention that the findings and judgments of the court are inconsistent, contrary to law, and that a reversal is therefore required. West’s argument, to the extent that it is independent of his contention that the evidence was insufficient to sustain his conviction, is that a finding of no conspiracy mandates a finding of not guilty of the substantive counts. He relies upon United States v. Maybury, 274 F.2d 899 (2d Cir. 1960), where, under the facts presented, Judges Friendly and Lumbard were of _the view that in a judge-tried ease, the rule generally allowing inconsistencies in a jury verdict should not prevail. But, ef. United States v. Dovico, 329 F.2d 52 (2d Cir. 1964); United States v. Robinson, 320 F.2d 880 (2d Cir. 1963). We reject West’s claim. As we have recently pointed out in United States v. Donahue, 539 F.2d 1131 (8th Cir. 1976): In Isaacs v. United States, 301 F.2d 706, 725 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962), this court said that the substantive offenses proscribed by the mail fraud and wire fraud statutes are closely related to the offense of conspiracy described in 18 U.S.C. § 371. There are, however, differences between a substantive violation of one of the statutes in question and a conspiracy to violate it. 539 F.2d at 1135. The fact that the court found appellant West guilty of certain of the substantive counts but not of the conspiracy count does not mean necessarily that the verdicts are inconsistent," }, { "docid": "1416461", "title": "", "text": "scheme may be analyzed as a conspiracy. United States v. Camiel, 519 F.Supp. 1238, 1241 n.7 (E.D.Pa.1981). Further, case law indicates that the precepts governing variance in conspiracy cases apply equally to multi-defendant mail fraud prosecutions. United States v. Rodgers, 624 F.2d 1303, 1307 (5th Cir. 1980), cert. denied, 450 U.S. 917, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981). Finally, we note that in a conspiracy case, the determination of whether there is a variance sufficient to justify a trial judge’s reversal of a jury conviction is controlled by the teachings of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In Kotteakos, thirty-two defendants were charged with participating in a single general conspiracy to obtain fraudulent government loans. At trial, the government proved the existence of at least eight conspiracies rather than the unitary scheme charged in the indictment. A jury convicted the defendants, and the court of appeals affirmed. In its argument before the Supreme Court, the government conceded the existence of variance, 328 U.S. at 756, 66 S.Ct. at 1243, but claimed that no rights of the defendants had been prejudiced. The Court disagreed and reversed. It held that the defendants had a substantial right “not to be tried en masse for the conglomeration of distinct and separate offenses committed by others .... ” Id. at 775, 66 S.Ct. at 1252. Although Kotteakos does not expressly provide a methodology to gauge the correctness of a trial judge’s reversal of a jury conviction in a mail fraud scheme case, we agree with the court below that Kotteakos impliedly establishes a two-pronged test which any such reversal must satisfy: (1) there must be a variance between the indictment and the proof, and (2) the variance must prejudice some substantial right of the defendant. 519 F.Supp. at 1242. A. First, the government argues that there was sufficient evidence to support a jury verdict of guilty on the mail fraud charges and that the trial judge’s ruling on variance was error. We disagree. Our standard of review in addressing this issue is whether “there is substantial" }, { "docid": "4321893", "title": "", "text": "1125, 1127 (8th Cir. 1972); Nassif v. United States, 370 F.2d 147, 152 (8th Cir. 1966). In this case, the government simply failed to establish the existence of an agreement between the appellants to defraud insurance companies. In so holding, we recognize that an agreement need not be express or formal, United States v. Jackson, supra at 531, and that it may be established by circumstantial evidence. Id.; United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974). Here, the government produced no statement or admission of the appellants which would indicate a common plan or agreement. Nor did the government establish facts and circumstances from which the existence of an agreement could be inferred. The government failed to establish that the alleged automobile accidents and burglaries either were “staged” or nonexistent. Thus, a conspiracy to defraud could only be proved by establishing that the appellants agreed to submit fraudulent documentation in support of any claim which might arise. We find insufficient evidence from which to infer the existence of such an agreement. Initially, we note that it is difficult to understand how an agreement to defraud could exist that would only come into play at the happening of a fortuitous event— that is, the occurrence of an automobile accident or a burglary. Even if this hurdle is crossed, however, we are faced with the fact that the government also failed to establish that either Fuel or Julia Greene was aware that medical reports submitted on their behalf, or on behalf of others involved in the same accident, were fraudulent, or that either of them knew that other documentation submitted with respect to automobile accident claims by Greene on his own behalf was fraudulent. While there is evidence to convict Fuel and Julia Greene on substantive counts of mail fraud in connection with respect to their individual burglary claims, there is no evidence of any knowledge or connection with the burglary claims of Greene. In sum, the evidence shows that a number of related individuals, including the" }, { "docid": "3346929", "title": "", "text": "counts. We disagree. Contrary to appellants’ contention this case does not fall within the teachings of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) and United States v. Goss, 329 F.2d 180 (4th Cir.1964). The Kotteakos Court dealt with disconnected conspiracies having no common object. This record convincingly rebuts any basis for applying the Kotteakos rule to this ease. The Goss Court decided the Government had failed to prove one indispensable ingredient of a conspiracy- — -that the accused persons have a common aim. Here, the record cogently demonstrates the presence of that vital element. As shown above, the proscribed activities encompassed large scale and widespread operations. The defendants, Paustian, Taylor and Bradley, provided a market for the stamps and other loot. Others, including Miller, did the burglarizing and were the source of the purloined property. The issue here was considered at length in Isaacs v. United States, 301 F.2d 706 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). We recognized the firmly entrenched principle that a fraudulent scheme and conspiracy may be and usually is established by circumstantial evidence, id. 301 F.2d at 724, and on the authority of Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, reiterated that “participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a ‘development and a collocation of circumstances’.” We further stated that where the evidence affords satisfactory proof that a conspiracy has been formed, “but slight evidence connecting a defendant therewith may still be substantial, and if so, sufficient.” 301 F.2d at 725. See also Cave v. United States, 390 F.2d 58, 69 (8th Cir.), cert. denied, 392 U.S. 906, 88 S.Ct. 2059, 20 L.Ed.2d 1365 (1968). This court has also recognized that a conspiracy is not necessarily born full grown and often expands by successive stages. See Nassif v. United States, 370 F.2d 147, 152 (8th Cir.1966). It has long been the law that a conspiracy count may properly be" }, { "docid": "4321925", "title": "", "text": "count. The sentences of imprisonment were suspended and they were each placed on probation for three years. Greene was given a two-year sentence of imprisonment on Count II. He was also given two-year sentences of imprisonment on each of the remaining counts with which he was convicted, but these sentences were suspended and Greene was given a three-year term of probation to run consecutively to the term of imprisonment. . Fuel did not waive her motion for a judgment of acquittal at the close of the government’s case by presenting evidence as the evidence did not add to the government’s case-in-chief. Ce-phus v. United States, 117 U.S.App.D.C. 15, 19, 324 F.2d 893, 897 (1963). . The government indicated in its opening statement that it would prove by Fuel’s own admission that she was not involved in two of the automobile accidents for which she submitted claims. However, the trial court refused to permit the government to introduce Fuel’s written admissions because of a possible denial of the appellant’s constitutional right of confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The trial court concluded that Fuel’s admissions were voluntary and were made with full knowledge of her constitutional rights. . The government did establish by inference that Greene knew the medical records were fraudulent by establishing that Greene himself had written on the patient card submitted on behalf of his niece. . Nor do we feel that the government established the existence of separate conspiracies as to the submission of the accident and the burglary claims. There is not sufficient evidence to convince a fair minded jury beyond a reasonable doubt that Fuel or Julia Greene participated in either conspiracy. Thus, we need not consider this case in light of the test for fatal variance established in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and its progeny. See, e. g., United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977); United States v. Butler, 494 F.2d 1246 (10th Cir. 1974); United States v. Varelli, 407 F.2d" }, { "docid": "4321892", "title": "", "text": "must establish the existence of an agreement between at least two conspirators to effect the object of the conspiracy, United States v. Jackson, supra at 530; United States v. Skillman, 442 F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971), and that at least one overt act was committed in furtherance of the conspiracy. United States v. Donahue, 539 F.2d 1131, 1135 (8th Cir. 1976); Isaacs v. United States, 301 F.2d 706, 725 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). To convict an individual of conspiracy, it is not necessary for the government to prove that the individual knew all of the conspirators or was aware of all of the details of the conspiracy, but it is necessary to establish that the individual knowingly contributed to the furtherance of the conspiracy. United States v. Jones, 545 F.2d 1112, 1115 (8th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Hester, 465 F.2d 1125, 1127 (8th Cir. 1972); Nassif v. United States, 370 F.2d 147, 152 (8th Cir. 1966). In this case, the government simply failed to establish the existence of an agreement between the appellants to defraud insurance companies. In so holding, we recognize that an agreement need not be express or formal, United States v. Jackson, supra at 531, and that it may be established by circumstantial evidence. Id.; United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974). Here, the government produced no statement or admission of the appellants which would indicate a common plan or agreement. Nor did the government establish facts and circumstances from which the existence of an agreement could be inferred. The government failed to establish that the alleged automobile accidents and burglaries either were “staged” or nonexistent. Thus, a conspiracy to defraud could only be proved by establishing that the appellants agreed to submit fraudulent documentation in support of any claim which might arise. We find insufficient" }, { "docid": "12370785", "title": "", "text": "patterned on the former, and the two are in pari materia. The mail fraud statute prohibits the use of the mails in furtherance of a fraudulent scheme, and the wire fraud statute prohibits the use of communications media, such as the radio, television, telephones and telegraph lines, in interstate or foreign commerce in furtherance of such a scheme. In Isaacs v. United States, 301 F.2d 706, 725 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962), this court said that the substantive offenses proscribed by the mail fraud and wire fraud statutes are closely related to the offense of conspiracy described in 18 U.S.C. § 371. There are, however, differences between a substantive violation of one of the statutes in question and a conspiracy to violate it. To start with, in order to constitute a conspiracy there must be at least two conspirators, and at least one overt act must be committed in furtherance of the conspiracy. In the second place, where a person is charged with a substantive violation of § 1341 or § 1343 it is not necessary for the government to prove that he intended to use the mails or other communications media in furtherance of his fraudulent scheme; it is sufficient if they were in fact used; but, where the charge is conspiracy to violate one of the statutes, the government must also show that the scheme contemplated the use of the medium in question. Isaacs v. United States, supra, and Blue v. United States, 138 F.2d 351 (6th Cir. 1943), cert. denied, 322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570 (1944). See also Fisher v. United States, 324 F.2d 775 (8th Cir. 1963), cert. denied, 377 U.S. 999, 84 S.Ct. 1935, 12 L.Ed.2d 1049 (1964). Blue v. United States, supra, was cited by this court with approval in both the Isaacs case and the Fisher case, supra. In Blue the court said, 138 F.2d at 360: Conspiracy to commit a crime is a different offense from the crime which is the object of the conspiracy. The conspiracy may be" }, { "docid": "22989457", "title": "", "text": "however, that the mental state required for a conspiracy conviction is no greater than that necessary to commit the underlying substantive offense. United States v. Zarattini, 552 F.2d 753, 760 (7th Cir. 1977); United States v. Mauro, 501 F.2d 45 (2d Cir. 1974). In its baldest terms, 18 U.S.C. § 371 makes it a crime for two or more persons to conspire to commit any offense against the United States. It is well established that the essence of the crime of conspiracy is an agreement to commit such an offense. See, e. g., United States v. Donner, 497 F.2d 184 (7th Cir. 1974), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 641; United States v. Greer, 467 F.2d 1064 (7th Cir. 1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1364, 35 L.Ed.2d 590; United States v. Fellabaum, 408 F.2d 220 (7th Cir. 1969), cert. denied, 396 U.S. 858, 90 S.Ct. 125, 24 L.Ed.2d 109; United States v. Varelli, 407 F.2d 735 (7th Cir. 1969). As indicated previously, proof of the offense of mail fraud requires a showing of a scheme to defraud and a mailing which was caused by a schemer for purposes of executing the scheme. In a mail fraud prosecution, there is no need to prove the intent of the defendant to use the mails. United States v. Tenenbaum, 327 F.2d 210 (7th Cir. 1964), cert. denied, 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 177 (1964). It is sufficient to show that the mailings were in furtherance of the scheme, and were caused by the defendants. Hence, culpability for conspiracy to commit the offense of mail fraud requires only that one agree with others to commit the acts which constitute the substantive offense of mail fraud, i. e. one must agree to participate in a scheme to defraud in which the reasonably foreseeable use of the mails in furtherance of the scheme is caused by a co-schemer/co-conspirator. We find no basis for the contention that the government must show that the mail fraud conspirators agreed to commit the forbidden acts with knowledge that the conspiracy" }, { "docid": "4321927", "title": "", "text": "735 (7th Cir. 1969). . Unlike conspiracy, a scheme to commit mail fraud may be conceived and executed by one person. United States v. Donahue, 539 F.2d 1131, 1135 (8th Cir. 1976); Isaacs v. United States, 301 F.2d 706, 725 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). Second, when a person is charged with a substantive violation of § 1341 * * * it is not necessary for the government to prove that he intended to use the mails * * * in furtherance of his fraudulent scheme; it is sufficient if they were in fact used; but where the charge is conspiracy to violate [§ 1341], the government must also show that the scheme contemplated the use of the medium in question. Isaacs v. United States, supra, and Blue v. United States, 138 F.2d 351 (6th Cir. 1943), cert. denied, 322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570 (1944). United States v. Donahue, supra at 1135. . Greene also contends that there was no evidence to show that Amoco’s personnel records were necessarily accurate. However, he offered no evidence at trial that the records were inaccurate. In reaching its verdict, the jury concluded that the records were accurate. We do not disturb that finding here. . None of the appellants were charged with respect to claims submitted in connection with the December 11, 1974, accident. Greene received $2,450, Julia Greene received $1,400 and Fuel received $1,450 from American Family. . Greene’s landlord testified that a door window had been broken and that there was some evidence that a burglary might have occurred. . The appellants do not contest their initial joinder under Fed.R.Crim.P. 8. This Court has held that, [i]t is permissible and also customary to join a conspiracy count with separate substantive counts, Pegram v. United States, 361 F.2d 820, 821 (8th Cir. 1966); 1 C. Wright, Federal Practice and Procedure § 144, at 330 (1969), even though some of the alleged co-conspirators are not charged in the substantive counts. United States v. Leach, 429 F.2d 956, 960 (8th Cir." }, { "docid": "5641515", "title": "", "text": "or business propriety which inhibited the discovery of the real facts at an early stage. These mailings contributed substantially to the success of the entire scheme. United States v. Chason, 451 F.2d 301, 303 (2d Cir. 1971); Adams v. United States, 312 F.2d 137, 140 (5th Cir. 1963). The defendants’ last technical attack on the indictment is that the counts alleging that the defendants caused to be mailed certain items were improper. Nei ther the case law nor the evidence presented supports the defendants on this point. The Supreme Court addressed this question in Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954), stating: “Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used.” The record shows use of business reply cards, which were pre-addressed and postage paid, and loan payment books. Thus it was reasonably foreseeable that the mails would be used in the ordinary course of business. IV. THE SINGLE SCHEME ALLEGED IN THE INDICTMENT WAS ESTABLISHED AT TRIAL. Relying on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), defendant Phillips claims that the government’s evidence did not establish a single scheme but, rather, established two separate schemes to defraud by Cardet and MLC thus creating a fatal variance requiring reversal. In Kotteakos, thirty-two persons were indicted for a single conspiracy to induce various financial institutions to make loans which would then be insured by the Federal Housing Administration. The loans were solicited on the basis of fraudulent information. Nineteen persons went to trial, and seven were convicted. The government was forced to admit that the evidence proved eight or more conspiracies by different groups of conspirators, which had little or no connection with each other. Contrasting those facts with the record in this case, it becomes clear that Kotteakos has no real application. Here there were direct connections between the MLC defendants" }, { "docid": "1953722", "title": "", "text": "the evidence may nevertheless show that separate conspiracies were involved and that no one combination embraced the objectives of the others. United States v. Butler, 494 F.2d 1246, 1255 (10th Cir.); United States v. Wilshire Oil Co. of Texas, 427 F.2d 969, 976-77 (10th Cir.), cert. denied 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59; United States v. Varelli, 407 F.2d 735, 742 (7th Cir.), see also Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. The trial court found that the defendants had “failed to establish that the agreement alleged in the Texas Indictment is the same agreement upon which the government is prosecuting in this case.” We are satisfied that this finding is supported by the record and not clearly erroneous. Villano v. United States, 310 F.2d 680, 684 (10th Cir.). It is undisputed that the burden of establishing the double jeopardy defense was on the defendants. United States v. Wilshire Oil Co. of Texas, 427 F.2d at 976 n. 12. The defendants’ proof about the conspiracies was not sufficient to establish a “connecting link between the two.” (Id. at 977). The mere fact that the same parties are charged with being members of two conspiracies, and that both conspiracies concerned transactions in the same items and overlapped in time, does not establish that the two conspiracies are the same. United States v. Barzie, 433 F.2d 984 (2d Cir.), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324. We have considered the remaining arguments of defendants but find them to be without merit and feel that no further discussion is required. Conclusion The Government filed a motion for summary affirmance in accordance with Rule 8 of this Court. We ordered a response by the appellant-defendants. Defendants have responded and have filed a thorough brief fully arguing their appeal. We have expedited the appeal as suggested in Abney v. United States, supra, 431 U.S. 651, 664 n. 9, 97 S.Ct. 2034. On consideration of the Government’s motion, the defendants’ response and brief, the record and the trial court’s memorandum opinion we are" }, { "docid": "22920535", "title": "", "text": "members of the single conspiracy, the proof, in fact, disclosed multiple conspiracies, thus resulting in a variance, substantially prejudicing their rights and requiring reversal under the authority of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Appellants’ concerns, of course, center around the keystone of our criminal justice system that “[g]uilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application.” Id. at 772, 66 S.Ct. at 1252. While the issue presented is not unique, it is, nevertheless, always an area of concern where numerous defendants, multiple transactions, and various degrees of participation are found in a single case. See: United States v. Butler, 494 F.2d 1246 (10th Cir. 1974). Due to the continuing importance of this concept, we deem it important to review many of the traditional legal precepts applied by the courts relating to concerted criminal activity. Our starting point is the seminal case of Kotteakos v. United States, supra. The facts of Kotteakos are critical to an understanding of its holding. In that case, the indictment charged a single conspiracy. The Government’s evidence, however, established the existence of eight separate conspiracies with only one common element. That common element was the participation of one Simon Brown in each of the conspiracies. Although each of the conspiracies had similar illegal objects, i. e., obtaining government loans by fraudulent representations, none of the participants, other than Brown, had any knowledge of, nor did they aid in, or profit from the other conspiracies. By reason of the existence of this unique factual situation, the Court drew an analogy to that of a wheel. Thus, Brown constituted the “hub” while each of the eight separate conspiracies were but “spokes” of the “wheel”. Inasmuch as the Government failed to prove any connection between the independent conspiracies, notwithstanding that all dealt with Brown as their agent, the “rim of the wheel to enclose the spokes” was not complete and the existence of a single conspiracy was not established. Recognizing the potential for prejudice involved in trying several defendants together" } ]

[ { "docid": "4525628", "title": "", "text": "100 S.Ct. at 1380. The Government has not carried its burden of proving that any exception to the Fourth Amendment’s warrant requirement applies. We therefore hold that the police officers’ community caretaking responsibilities did not, under these circumstances, permit them to enter McGough’s apartment without a warrant and without his consent. We also conclude that the good faith exception to the exclusionary rule is not applicable in this case. The exclusionary rule operates to prevent the government from using evidence seized as the result of an illegal search in a subsequent criminal prosecution. United States v. Martin, 297 F.3d 1308, 1312 (11th Cir.2002). The Supreme Court, however, in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) articulated a good faith exception to the exclusionary rule. The Court held that “the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” 468 U.S. at 900, 104 S.Ct. at 3409. Since the purpose of the exclusion ary rule is to deter unlawful police misconduct, when officers engage in an “objectively reasonable law enforcement activity” and act in good faith and in reliance on a search warrant from a judge, the Leon good faith exception applies. Martin, 297 F.3d at 1313 (citing Leon, 468 U.S. at 919-20, 104 S.Ct. 3405, 82 L.Ed.2d 677). In this case, it was not an “objectively reasonable law enforcement activity” but rather the officers’ unlawful entry into McGough’s apartment that led to Officer Brock’s request for a search warrant. In such a situation, “the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal dwelling.” United States v. Meixner, 128 F.Supp.2d 1070, 1078 (E.D.Mich.2001); see also United States v. Wanless, 882 F.2d 1459, 1466 (9th Cir.1989) (noting that “good faith exception does not apply where a search warrant is issued on the" } ]

[ { "docid": "194258", "title": "", "text": "of his mail-drops, there of course would have been probable cause. But because of the absence of probable cause, it is necessary to decide whether the officers acted in reasonable reliance on the validity of a search warrant issued by a detached and neutral magistrate. We rely here on the analysis provided in Leon, 468 U.S. 897, 104 S.Ct. 3405, where the Supreme Court adopted a good faith exception to the exclusionary rule. The Court held that: In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Leon, 468 U.S. at 926, 104 S.Ct. at 3422. In adopting this good faith exception, the Court reasoned that when an officer has in good faith relied on a neutral magistrate’s seemingly valid warrant, the exclusion of the resulting evidence would not further the deterrence purpose of the exclusionary rule. 468 U.S. at 920-921, 104 S.Ct. at 3419. It was even thought that the creation of such an exception “may well increase the care with which magistrates scrutinize warrant applications.” Id. at 917-918 and n. 4, 104 S.Ct. at 3410 n. 4. Brown has never claimed that Detective Sandlin was either dishonest or reckless in preparing his affidavit. He does assert, however, that the warrant was so facially deficient that the executing officer could not presume it to be valid. Attempting to apply the two-part test defined in United States v. Klein, 565 F.2d 183, 188 (1st Cir.1977), a case decided prior to Gates and Leon, he contends first that the affidavit did not indicate that contraband might be present, so that the warrant was completely devoid of probable cause, and second, that the warrant’s language was too general to provide the detectives with criteria for distinguishing the contraband from the rest of his possessions. Brown also argues that Judge Cordingley was merely a “rubber stamp” magistrate who abandoned her neutral and detached role. We deal with each" }, { "docid": "194257", "title": "", "text": "the “totality of the circumstances” test of Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 257 (1983), (1) the officers executing the warrant had an objectively reasonable good faith belief that the warrant was based on probable cause and valid, (2) the warrant did describe the items to be seized with sufficient particularity, and (3) Judge Cordingley did not act as a mere “rubber stamp” for the police officers. II. We do not dispute both the defendant’s argument and the district court’s conclusion that the totality of the circumstances in this case did not establish a substantial basis for concluding that probable cause existed to search the second address. For example, as the district judge noted, neither search warrant affidavit showed how the police knew that the Westminster apartment was truly one of Brown’s addresses. Also there was a paucity of information suggesting that a search of the Westminster address would uncover evidence of wrongdoing. If the affidavit had shown that this address was truly Brown’s and had been one of his mail-drops, there of course would have been probable cause. But because of the absence of probable cause, it is necessary to decide whether the officers acted in reasonable reliance on the validity of a search warrant issued by a detached and neutral magistrate. We rely here on the analysis provided in Leon, 468 U.S. 897, 104 S.Ct. 3405, where the Supreme Court adopted a good faith exception to the exclusionary rule. The Court held that: In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Leon, 468 U.S. at 926, 104 S.Ct. at 3422. In adopting this good faith exception, the Court reasoned that when an officer has in good faith relied on a neutral magistrate’s seemingly valid warrant, the exclusion of the resulting evidence would not further the deterrence purpose of the exclusionary rule. 468 U.S. at" }, { "docid": "16176361", "title": "", "text": "(8th Cir.1993). For the reasons already indicated, however, we think that the circumstances of our case provide sufficient evidence of this nexus, even without the occurrence of the condition. We think that the discovery of drugs on Mr. Tellez shortly after leaving his home in response to an order placed by a customer certainly contributes to a finding of probable cause, but was not necessary to uphold the warrant. We note in passing that Mr. Tellez has correctly pointed out that several of the facts recited by the government in its brief occurred after the warrant had issued, and were therefore irrelevant to the determination of whether, “based on facts existing when the warrant is issued ... there is probable cause to believe [that] the contraband ... will be [at the place to be searched] ... when the warrant is executed.” Loy, 191 F.3d at 365. This point notwithstanding, however, we think that the facts set forth in the affidavit provided sufficient grounds for the magistrate to find that a fair probability existed that narcotics would be found in Mr. Tellez’s home. III. It seems to us, moreover, that even if we found that the search warrant was not supported by probable cause, the evidence would still be admissible under the good-faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Under Leon, 468 U.S. at 926, 104 S.Ct. 3405, the exclusionary rule will not bar evidence obtained pursuant to an invalid search warrant unless the magistrate who issued the warrant abandoned his or her neutral and detached role in issuing it, or unless “the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” In this case, we see no indication that the magistrate abandoned his neutral and detached role in issuing the warrant. Although Mr. Tellez quibbles with some of the inferences drawn in the affidavit supporting the warrant application, moreover, we see no reason to think that the officers were dishonest" }, { "docid": "23252881", "title": "", "text": "district judge based upon affidavits and/or testimony received during a suppression hearing, and apply the de novo standard of review to the federal court’s ultimate legal conclusion of whether a law enforcement officer reasonably relied upon a subsequently invalidated search warrant. See United States v. Spry, 190 F.3d 829, 834-35 (7th Cir.1999); United States v. Adames, 56 F.3d 737, 747 (7th Cir.1995). III. A. The issue is whether,the trial court committed error when it denied the motion to suppress the evidence seized. Unless “the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth,” we will suppress evidence obtained pursuant to a facially valid warrant issued by a neutral, detached magistrate only if: (1) the warrant is later invalidated; and (2) the police could not have relied in objective good faith upon the neutral and detached magistrate’s decision to issue the warrant. See Leon, 468 U.S. at 914, 923, 104 S.Ct. 3405. When there is a genuine dispute about whether a police officer could have reasonably relied in good faith upon a state judge’s decision to issue a search warrant, reviewing courts are encouraged to consider this threshold question first: Did the affidavit provide the magistrate with a “substantial basis” to rule that there was probable cause? Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). If the question is answered in the affirmative, then it follows that the officer’s actions were reasonable. On the other hand, if this question is answered in the negative, then we must ascertain the answer to the question: Could the officer have reasonably believed that the facts set forth in the affidavit were sufficient to support a magistrate’s finding of probable cause? See United States v. Leon, 468 U.S. 897, 920-24, 104 S.Ct. 3405,, 82 L.Ed.2d 677 (1984); see also United States v. Danhauer, 229 F.3d 1002, 1005-07 (10th Cir.2000); United States v. Dahlman, 13 F.3d 1391, 1397-98 (10th Cir.1993). By resolving the issue of" }, { "docid": "15895816", "title": "", "text": "seized pursuant to a search warrant, and when a warrant has been issued, suppression is appropriate only in limited circumstances: In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Leon, 468 U.S. at 926, 104 S.Ct. 3405. Pitts and Alexander have not argued that the magistrate abandoned her detached and neutral role in issuing the warrant at issue here. See United States v. Pless, 982 F.2d 1118, 1126 (7th Cir.1992). Nor have they alleged that the postal inspector was dishonest or reckless in preparing the affidavit that supported the warrant. Indeed, they point to no errors in the affidavit at all. The only question that remains is whether a reasonably well-trained officer executing the warrant would have known that the search was illegal despite the magistrate’s authorization. Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405; Pless, 982 F.2d at 1126. At most, Pitts and Alexander allege (and the district court agreed) that the package was detained for an unreasonable amount of time before the warrant was obtained. This would be the only arguable basis for their claim that the officer executing the warrant should have known the search of the package was illegal despite the magistrate’s authorization. The magistrate issuing the warrant was aware of the delay and was apparently untroubled by it. R. 17, Ex. 5. We have previously upheld as reasonable a detention of letters over a weekend for the purpose of subjecting them to a canine sniff test. United States v. Mayomi, 873 F.2d 1049, 1054 (7th Cir.1989). The Supreme Court has emphasized that the significant Fourth Amendment interest is in the privacy of the mail. Van Leeuwen, 397 U.S. at 253, 90 S.Ct. 1029. Here, as in Van Leeuwen, the privacy was not disturbed or invaded until the approval of the magistrate was obtained. Id. Although the length of time of the detention of the package is an" }, { "docid": "16176362", "title": "", "text": "would be found in Mr. Tellez’s home. III. It seems to us, moreover, that even if we found that the search warrant was not supported by probable cause, the evidence would still be admissible under the good-faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Under Leon, 468 U.S. at 926, 104 S.Ct. 3405, the exclusionary rule will not bar evidence obtained pursuant to an invalid search warrant unless the magistrate who issued the warrant abandoned his or her neutral and detached role in issuing it, or unless “the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” In this case, we see no indication that the magistrate abandoned his neutral and detached role in issuing the warrant. Although Mr. Tellez quibbles with some of the inferences drawn in the affidavit supporting the warrant application, moreover, we see no reason to think that the officers were dishonest or reckless in preparing the affidavit. Finally, even if we agreed with Mr. Tellez that there was insufficient evidence of a nexus between his home and the contraband, which we do not, we still would not find that the warrant application was so deficient that the good-faith exception could not apply. In our view, the facts known to the officers clearly supported an objectively reasonable belief in the existence of probable cause. IV. For the reasons stated herein, we affirm the district court’s denial of Mr. Tellez’s motion to suppress. . The Honorable H. Franklin Waters, United States District Judge for the Western District of Arkansas." }, { "docid": "11279247", "title": "", "text": "magistrate may have improperly determined which factors he could rely on in determining probable [cause] is not a matter that can be laid at the officers’ feet. Nor should they be charged with the responsibility of second-guessing such legal determinations. We now turn to the question of whether the officers satisfied the good faith requirement. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court established the good faith exception to the exclusionary rule. The Supreme Court held that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id. at 922, 104 S.Ct. at 3420. Nevertheless, the Court found that an “officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Id. at 922-23, 104 S.Ct. at 3420-21 (citations and footnotes omitted). The Leon Court also outlined four situations in which an officer’s reliance on a search warrant would not be reasonable: (1) the magistrate was misled by information in an affidavit that the officer knew was false or would have known was false except for the officer’s reckless disregard of the truth; (2) the magistrate wholly abandoned his detached and neutral judicial role; (3) the warrant was based on an affidavit that was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4)the warrant was so facially deficient, by failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid. Id. at 923, 104 S.Ct. at 3421; see United States v. Clutchette, 24 F.3d 577, 581 (4th Cir.1994). Under Leon, the proper test of an officer’s good faith is “whether a reasonably well trained officer would have known that the search was illegal despite" }, { "docid": "19108303", "title": "", "text": "probable cause, this contention does not need to be reached. IV. GOOD FAITH EXCEPTION This leads to the last straw to be grasped by the Government in an effort to avoid suppression of the damning evidence found at 7150 N. Lakeside Drive, the “good faith” reliance on the warrant’s validity, an exception to the warrant requirement of the Fourth Amendment recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Under the good faith doctrine, “evidence recovered during the execution of a facially-valid search warrant that is later invalidated by the courts is not always subject to suppression.” United States v. Sleet, 54 F.3d 303, 307 (7th Cir.1995). The good faith doctrine does not apply if: (1) the magistrate issuing the warrant abandoned his detached and neutral role; (2) the officers were dishonest or reckless in preparing the affidavit for probable cause; (3) the affidavit is “so lacking in indicia of probable cause” that an officer’s belief in its existence is entirely unreasonable; or (4) the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923-26, 104 S.Ct. 3405. McNeal maintains only that the affidavit was so lacking in indicia of probable cause that reliance on it was objectively unreasonable. The Government maintains in essence that the officers executing the warrant reasonably relied on its validity merely because Judge Bolden had issued the warrant. The Government is correct that ordinarily, the existence of a warrant is sufficient to establish good faith in conducting the search. See Leon, 468 U.S. at 921, 104 S.Ct. 3405 (“In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination”). But in extraordinary cases, the affidavit supporting a search warrant is so lacking in indicia of probable cause that no reasonable officer could rely in good faith on the magistrate’s issuance of the warrant. This is just such an extraordinary case. On numerous occasions, the Seventh Circuit has upheld search warrants under the good faith doctrine and, as the analysis which follows shows, none" }, { "docid": "22464746", "title": "", "text": "L.Ed.2d 667 (1978). The exclusionary rule, as it is known, is “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). One exception to this exclusionary rule is the Leon good faith exception. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), stands for the principle that courts generally should not render inadmissible evidence obtained by police officers acting in reasonable reliance upon a search warrant that is ultimately found to be unsupported by probable cause. The Leon good faith exception applies in all but four limited sets of circumstances. Id. at 923, 104 S.Ct. 3405. The four sets of circumstances are as follows: , (1) where “the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or -would have known was false except for his reckless disregard of the truth”; (2) “where the issuing magistrate wholly abandoned his judicial role in the manner condemned in” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); (3) where the affidavit supporting the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) where, depending upon the circumstances of the particular case, a warrant is “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Id. (internal quotation marks omitted). The Leon good faith exception requires suppression “only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Id. at 926, 104 S.Ct. 3405. The purpose of the exclusionary rule is to deter unlawful police misconduct; therefore, when officers engage in “objectively reasonable law enforcement activity” and have acted in good faith when obtaining a search warrant from a" }, { "docid": "15574766", "title": "", "text": "a finding whether the Webster County magistrate had a substantial basis for deciding that probable cause existed to search Riedesel’s trailer. The district court adopted the magistrate judge’s report, which stated that the first search warrant may not have been supported by probable cause. The district court, however, also adopted the magistrate judge’s conclusion that the items seized during the first search of the trailer should not be suppressed because the police officers had relied on the sufficiency of the warrant in good faith. See United States v. Leon, 468 U.S. 897, 920-21, 104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984). In Leon, the Supreme Court held that evidence obtained pursuant to an ultimately invalidated search warrant should not be excluded where the officers executed the warrant with an objectively reasonable reliance on the magistrate’s determination of probable cause. 468 U.S. at 922, 104 S.Ct. at 3420; see also United States v. Simpkins, 914 F.2d 1054, 1057 (8th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 997, 112 L.Ed.2d 1081 (1991); United States v. White, 890 F.2d 1413, 1419 (8th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). The Court recognized four situations in which the executing officers could not reasonably rely on the warrant and suppression therefore remained an appropriate remedy: (1) where the issuing judicial officer was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) where the issuing officer “wholly abandoned his judicial role;” (3) where the affidavit supporting the warrant contained so few indicia of probable cause “as to render official belief in its existence entirely unreasonable;” and (4) where the warrant itself is sc facially deficient that no executing officer could reasonably presume it to be valid. Leon, 468 U.S. at 923, 104 S.Ct. at 3421 (citations omitted); see also Simpkins, 914 F.2d at 1057. In this case, Riedesel’s only possible challenge to the officers’ reliance on the warrant arises from a claim that the affidavit was so lacking in indicia of probable" }, { "docid": "222975", "title": "", "text": "affidavit. Even if, arguendo, we were to second-guess the magistrate, “the fruits of this search” would be admissible under the good faith exception of United States v. Leon, 468 U.S. 897, 922-24, 104 S.Ct. 3405, 3420-21, 82 L.Ed.2d 677 (1984), and United States v. Peden, 891 F.2d 514, 519 (5th Cir.1989). In Leon the Court stated, In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. 468 U.S. at 926, 104 S.Ct. at 3422. As the government indicates in this case, the various officers went to great lengths to determine the names and addresses of all the parties to this drug trafficking operation. Moreover, as the facts indicate, they carefully planned and monitored the controlled delivery to determine that the cocaine was actually accepted before they sought a search warrant. The facts also do not reflect any recklessness or dishonesty in the preparation of the affidavit. Although a part of the affidavit relied upon information supplied by a confidential source, the bulk of the evidence presented included information obtained from the controlled delivery of the cocaine-filled package and from testimony by an officer concerning the drug-selling record of one of the scheme’s participants. Even if the affidavit lacked probable cause, evidence obtained by law enforcement agents acting in objectively reasonable, good faith reliance upon a search warrant issued by a neutral magistrate is admissible. Id. There is no indication here that the affidavit contained false statements or that the magistrate abandoned his neutral function. Similarly, the agent could not have had any objectively reasonable doubt as to the existence of probable cause. Thus, it appears that the officers reasonably relied upon a facially valid warrant issued by a neutral magistrate. The fruits of the search of Wylie’s home and automobile, therefore, are not subject to the exclusionary rule. See id. IV. A. Wylie also contends that the court erred in permitting a rebuttal witness, Jeri" }, { "docid": "8108612", "title": "", "text": "U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Courts generally find probable cause where there is at least some degree of corroboration as well as some indicia of reliability. United States v. Lalor, 996 F.2d 1578 (4th Cir.1993). The fruits of an improperly issued warrant are not necessarily poisonous. The Supreme Court established the “good faith” exception to the exclusionary rule in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which can save the admissibility of evidence discovered through the execution of a faulty search warrant. The Supreme Court in Leon succinctly set forth the parameters of the exception: We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion ... Nevertheless, the officer’s rebanee on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued. Leon, 468 U.S. at 922-23, 104 S.Ct. 3405 (citations and footnotes omitted). The Fourth Circuit has summarized the four situations where an officer’s reliance on a search warrant would not be reasonable: (1) the magistrate was misled by information in the affidavit that the officer “knew was false or would have known was false except for his reckless disregard of the truth”; (2) the magistrate “wholly abandoned his judicial role ... ”; (3) the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) “depending on the circumstances of the particular case, a warrant may be so facially deficient ... that the officers cannot reasonably presume it to be valid.” United States v. Clutchette, 24 F.3d 577, 581 (4th Cir.1994) (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405). The Fourth Circuit has thus adopted a two-step analysis in reviewing either a district court’s grant or denial of a motion to suppress: (1) whether the" }, { "docid": "5983193", "title": "", "text": "Under Leon, suppression of evidence “is inappropriate when an officer executes a search in objectively reasonable rebanee on a warrant’s authority.” United States v. Williams, 3 F.3d 69, 74 (3d Cir.1993). The Supreme Court developed the exclusionary rule to deter unlawful police conduct. Leon, 468 U.S. at 906, 104 S.Ct. 3405. However, where law enforcement officers act in the “objectively reasonable belief that their conduct d[oes] not violate the Fourth Amendment,” “the marginal or nonexistent [deterrent] benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id. at 918, 922, 104 S.Ct. 3405. Therefore, if an officer has obtained a warrant and executed it in good faith, “there is no police illegality and thus nothing to deter.” Id. at 921, 104 S.Ct. 3405. To determine the applicability of the good faith exception to the exclusionary rule, we ask “whether a reasonably well trained officer would have known that • the search was illegal despite the magistrate’s authorization.” United States v. Loy, 191 F.3d 360, 367 (3d Cir.1999) quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405. The fact that an officer executes a search pursuant to a warrant typically “suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception.” United States v. Hodge, 246 F.3d 301, 308 (3d Cir.2001) citing Leon, 468 U.S. at 922, 104 S.Ct. 3405. Nevertheless, we have identified four narrow situations in which an officer’s reliance on a warrant is not reasonable: (1) when the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) when the magistrate judge abandoned his judicial role and failed to perform his neutral and detached function; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;” or (4) when the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized. Id. quoting Williams," }, { "docid": "22884899", "title": "", "text": "at 1057. “[A] ‘grudging or negative attitude by reviewing courts toward warrants’ is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Id. (quoting Ventresca, 380 U.S. at 108, 85 S.Ct. 741). This preference for warrants further persuades us to hold that the magistrate judge had a substantial basis for finding probable cause. III. Good Faith Exception Even if a substantial basis for finding probable cause were lacking, however, the evidence obtained through the search would be admissible under the good faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984). A. The District Court found that the good faith exception did not apply in this case because Abraham’s affidavit was so deficient as to render reliance on it unreasonable. We exercise plenary review over the District Court’s conclusion. See Loy, 191 F.3d at 367 n. 5; United States v. Williams, 3 F.3d 69, 71 n. 2 (1993). B. The good faith exception instructs that suppression of evidence “is inappropriate when an officer executes a search in objectively reasonable reliance on a warrant’s authority.” Williams, 3 F.3d at 74. “The test for whether the good faith exception applies is Whether a reasonably well trained officer would have known that the search was illegal despite the magistrate! judge’s] authorization.’ ” Loy, 191 F.3d at 367 (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405). The mere existence of a warrant typically suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception. Leon, 468 U.S. at 922, 104 S.Ct. 3405; Williams, 3 F.3d at 74. Yet there are situations in which an officer’s reliance on a warrant would not be reasonable and would not trigger the exception. Leon, 468 U.S. at 922-23, 104 S.Ct. 3405. Our Court has identified four such situations: (1) [when] the magistrate [judge] issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) [when] the magistrate [judge] abandoned his judicial role and failed to perform his neutral and detached function;" }, { "docid": "15895815", "title": "", "text": "82 L.Ed.2d 677 (1984). Second, the defendants in this case abandoned the package at issue and thus lost their right to object to the government’s resultant search. We part company with our concurring colleague because we do not agree that the expectation of privacy in mailing a package using fictitious names for the sender and addressee is not the sort of interest that society is willing to recognize as reasonable. A. Sealed packages sent through the mail are entitled to full protection under the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (“Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable”); United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970) (first class mail, such as letters and sealed packages, is protected from inspection except in the manner provided by the Fourth Amendment). The evidence here was seized pursuant to a search warrant, and when a warrant has been issued, suppression is appropriate only in limited circumstances: In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Leon, 468 U.S. at 926, 104 S.Ct. 3405. Pitts and Alexander have not argued that the magistrate abandoned her detached and neutral role in issuing the warrant at issue here. See United States v. Pless, 982 F.2d 1118, 1126 (7th Cir.1992). Nor have they alleged that the postal inspector was dishonest or reckless in preparing the affidavit that supported the warrant. Indeed, they point to no errors in the affidavit at all. The only question that remains is whether a reasonably well-trained officer executing the warrant would have known that the search was illegal despite the magistrate’s authorization. Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405; Pless, 982" }, { "docid": "21818617", "title": "", "text": "argument, the government points to United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Under Leon, evidence obtained from a search conducted “in objectively reasonable reliance on a subsequently invalidated search warrant” need not always be excluded. See id. at 922, 104 S.Ct. 3405. Although the existence of a warrant issued by a magistrate will usually establish this form of good faith, “in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Id. at 922-23, 104 S.Ct. 3405 (footnote omitted). The Leon court provided examples of four such circumstances: (1) “if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth,” id. at 923, 104 S.Ct. 3405 (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)); (2) “where the issuing magistrate wholly abandoned his judicial role,” id.; (3) when an affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” id. (quoting Brown v. Illinois, 422 U.S. 590, 610-611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)); and (4) when, “depending on the circumstances of the particular case, a warrant [is] so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Id. We review the application of the good-faith exception de novo. See United States v. Baez, 744 F.3d 30, 33 (1st Cir. 2014). Here, we have a circumstance not expressly addressed in Leon: the warrant affidavit forthrightly discloses facts that establish probable cause, but one of the facts essential to establishing probable cause (the result of the key turn) was obtained as a result of an unconstitutional search. We encountered a very similar circumstance in United States v. Diehl, 276 F.3d 32 (1st Cir. 2002). In Diehl, the defendant sought suppression of evidence “seized pursuant" }, { "docid": "22238442", "title": "", "text": "warrant was overbroad, another legal challenge. Defendant did not contest any facts, nor did he offer previously unheard facts. Simply put, Defendant did not agree with the magistrate’s legal decision based on the facts. This type of disagreement is not resolved through an evidentia-ry hearing. As a result, the district court did not err in its decision not to grant an evidentiary hearing. h. Good Faith Execution of a Search Warrant Even if a search warrant is defective, the Court will not suppress evidence seized pursuant to such warrant if the seizure was based on reasonable, good faith reliance on the warrant. United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005) (citing United States v. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The Supreme Court explained the mechanics of the good faith exception: [0]ur good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization. In making this determination, all of the circumstances — including whether the warrant application had previously been rejected by a different magistrate — may be considered. Leon, 468 U.S. at 922-23 n. 23, 104 S.Ct. 3405. The rationale behind the exception is that the exclusionary rule is meant to deter unlawful police conduct. See supra. This policy of deterrence is not served by the exclusion of evidence seized in good faith by the police. Leon, 468 U.S. at 918-19, 104 S.Ct. 3405. On the other hand, the good faith exception does not apply in the following specific circumstances: “1) the supporting affidavit contained knowing or reckless falsity; 2) the issuing magistrate wholly abandoned his or her judicial role; 3) the affidavit is ‘so lacking in probable cause as to render official belief in its existence entirely unreasonable;’ or 4) where the officer’s reliance on the warrant was neither in good faith nor objectively reasonable.” Frazier, 423 F.3d at 533 (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405). With respect to the additional violations contained in the affidavit but not on the face" }, { "docid": "12425996", "title": "", "text": "person to believe that a search of Otero’s apartment would uncover evidence of a crime. See Peck, 317 F.3d at 755-56. Moreover, even if probable cause was lacking, Otero has failed to meet his burden of demonstrating that the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should not apply here. In Leon, the Supreme Court held that evidence seized pursuant to a subsequently invalidated search warrant need not be suppressed if the officers relied in good faith on the magistrate judge’s issuance of the warrant. Leon, 468 U.S. at 924, 104 S.Ct. 3430. An officer’s decision to obtain a warrant is prima facie evidence that he or she was acting in good faith. United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir.2005). A defendant can rebut the presumption of good faith only by showing that the judge issuing the warrant abandoned his/her detached and neutral role, the officers were dishonest or reckless in preparing the affidavit, or the warrant was so lacking in probable cause as to render the officer’s belief in its existence entirely unreasonable. Peck, 317 F.3d at 757; Leon, 468 U.S. at 923, 104 S.Ct. 3430. Otero does not suggest that the magistrate judge simply rubber-stamped the application in issuing the search warrant. Instead, he argues that Carlton could not have harbored an objectively reasonable belief that there was probable cause to search Otero’s residence. In support of this argument, Otero contends that Carlton acted recklessly in preparing an affidavit containing inconsistent statements. We disagree with Otero’s contention that Woods’ pre-arrest and post-arrest statements are contradictory. Although Woods told Carlton that he would not travel to Wisconsin to deliver the cocaine due to his November 16 run-in with the Kenosha police, he did not tell Carlton that he would never travel to Ke-nosha for any reason. Woods’ pre-arrest statements did not preclude the possibility of him traveling to Kenosha the morning of November 19 to pick up cocaine from Otero, and, after his arrest, that is precisely what Woods told Carlton he had done. Carlton had" }, { "docid": "6982415", "title": "", "text": "based upon the totality of the circumstances, that there was probable cause for the search. Accordingly, the defendants’ motions to suppress were properly denied. United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993) (“A district court’s ‘denial of a motion to suppress will be affirmed on appeal if proper for any reasonf,]’ even one not relied upon by the court.”) (quoting United States v. Barrett, 890 F.2d 855, 860 (6th Cir.1989) (superseded by statute)). Moreover, even if there was not probable cause for the issuance of the warrant, the fruits of the search would have been admissible under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the United States Supreme Court held that the Fourth Amendment exclusionary rule should not be used to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a neutral and detached magistrate that is later found to be invalid. Id. The Supreme Court provided the following guideline for determining whether evidence seized through an invalid warrant should be excluded: In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Id. at 926,104 S.Ct. 3405. In this case, there is no evidence that the state court judge abandoned his detached or neutral role or that Detective Hope was dishonest or reckless in preparing the affidavit. Nor is there reason to believe that a reasonably well trained police officer would not have believed that there was probable cause to search the home. Detective Hope received information about drug-related activities at 1241 Poplar Street from a confidential informant he had known for five months and who had provided reliable information in the past. Unlike the officer in Allen, Detective Hope corroborated the informant’s tip prior to seeking a warrant by arranging for two controlled purchases from the address. Detective Hope included most of this information" }, { "docid": "8108613", "title": "", "text": "grounds for believing that the warrant was properly issued. Leon, 468 U.S. at 922-23, 104 S.Ct. 3405 (citations and footnotes omitted). The Fourth Circuit has summarized the four situations where an officer’s reliance on a search warrant would not be reasonable: (1) the magistrate was misled by information in the affidavit that the officer “knew was false or would have known was false except for his reckless disregard of the truth”; (2) the magistrate “wholly abandoned his judicial role ... ”; (3) the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) “depending on the circumstances of the particular case, a warrant may be so facially deficient ... that the officers cannot reasonably presume it to be valid.” United States v. Clutchette, 24 F.3d 577, 581 (4th Cir.1994) (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405). The Fourth Circuit has thus adopted a two-step analysis in reviewing either a district court’s grant or denial of a motion to suppress: (1) whether the “good faith” exception to the exclusionary rule, as enunciated in United States v. Leon and its progeny, applies to this case; and (2) whether a neutral and detached magistrate issued the search warrant, which contains a particular description of the place to be searched and things to be seized, based upon probable cause and supported by oath. Clutchette, 24 F.3d at 579. See also United States v. Bynum, 293 F.3d 192 (4th Cir.2002) (proceeding directly to a determination of good faith under Leon prior to addressing probable cause). This Court adopts the Fourth Circuit’s analysis and will look first to the “good faith” exception and, if this exception is inapplicable, then to a determination of whether or not there was probable cause to support the warrant. III. The Court held a hearing on the present motion on February 3, 2003. As a result of oral argument, the Court granted the United States additional time to file a supplemental response and granted the Defendant additional time thereafter to file a supplemental reply. These supplemental memoranda both" } ]

[ { "docid": "5624300", "title": "", "text": "is to reduce the scope of § 605 to exclusion of the exact words heard through forbidden interceptions, allowing these interceptions every derivative use that they may serve. Such a reading of § 605 would largely stultify the policy which compelled our decision in Nardone v. United States, supra. That decision was not the product of a merely meticulous reading of technical language. It was the translation into practicality of broad considerations of morality and public well-being. This Court found that the logically relevant proof which Congress had outlawed, it outlawed because ‘inconsistent with ethical standards and destructive of personal liberty.’ 302 US 379, 384, 58 S Ct 275, 277, 82 L ed 314, 317. To forbid the direct use of methods thus characterized but to put no curb on their full indirect use would only invite the very methods deemed ‘inconsistent with ethical standards and destructive of personal liberty.’ What was said in a different context in Silverthorne Lumber Co. v. United States, 251 US 385, 392, 40 S Ct 182, 183, 64 L ed 319, 321, 24 ALR 1426, is pertinent here: ‘The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all.’ See Gouled v. United States, 255 US 298, 307, 41 S Ct 261, 264, 65 L ed 647. A decent respect for the policy of Congress must save us from imputing to it a self-defeating, if not disingenuous purpose.’ The Court in that case went on to state that the burden was on the accused, in the first instance, to prove to the trial court’s satisfaction that wire tapping was unlawfully employed. Once that was established, the accused was to be afforded the opportunity to prove that a substantial portion of the ease against him was the fruit of the poisoned tree. The Government could, of course, establish that its proof had an independent origin. In United States v. Coplon, 88 F Supp 921, the trial judge proceeded with" } ]

[ { "docid": "17568921", "title": "", "text": "any confession made by a prisoner while within the exclusive jurisdiction of the juvenile court. Id. The circuit court found that Harrison had been within the exclusive jurisdiction of the juvenile court from the moment he committed his crime until the juvenile court waived jurisdiction. Id. at 227. As a result, the D.C. Circuit remanded for a new trial. Id. at 229. Because it could no longer rely on Harrison’s out-of-court confessions, the government introduced portions of Harrison’s testimony from the earlier trial during its case-in-chief. Harrison v. United States (“Harrison II”), 387 F.2d 203, 208 (D.C.Cir.1967), rev’d on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). The D.C. Circuit held that reading Harrison’s prior trial testimony into the record did not violate his rights. In particular, it concluded that the “fruit of the poisonous tree” doctrine was not applicable because the relationship between the erroneous admission of the jailhouse confes sions and Harrison’s subsequent trial testimony was so attenuated as to dissipate any taint. Id. at 209-10. The Supreme Court reversed. It held that “the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby — the fruit of the poisonous tree, to invoke a time-worn metaphor.” Harrison, 392 U.S. at 222, 88 S.Ct. 2008. The Supreme Court relied on the general rule concerning the fruit of the poisonous tree doctrine articulated in Silverthone Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). It stated that the “ ‘essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.’ ” Harrison, 392 U.S. at 222, 88 S.Ct. 2008 (quoting Silverthorne, 251 U.S. at 392, 40 S.Ct. 182). The Court held that if Harrison had testified “in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” Id." }, { "docid": "11679949", "title": "", "text": "to be ''incriminating.” In Miranda, however, the Court admonished us not to try to discern \"degrees of incrimination/' noting that the Constitution \"protects the individual from being compelled to incriminate himself in any manner....” 384 U.S. at 476, 86 S.Ct. 1602. “[N]o distinction may be drawn between inculpatory statements and statements alleged to be merely 'exculpatory.' If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution.\" Id. at 477, 86 S.Ct. 1602 (internal quotation marks omitted); see also Rhode Island v. Innis, 446 U.S. 291, 301 n. 5, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (\"By 'incriminating response' we refer to any response-whether inculpatory or exculpatory-that the prosecution may seek to introduce at trial.”). . The roots of the doctrine requiring courts to suppress evidence as the tainted \"fruit” of unlawful governmental conduct can be traced to Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). In that case, the Supreme Court extended the exclusionary rule to apply not only to evidence obtained as a result of illegal conduct, but also to other incriminating evidence derived from the primary evidence. See id. at 392, 40 S.Ct. 182 (\"The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.’’) (emphasis added). The Court recast this holding in its more enduring form, the \"fruit of the poisonous tree” doctrine, in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). There, the Court explained that when examining the admissibility of evidence obtained subsequent to illegal government conduct, courts must examine \"whether, granting establishment of the primary illegality” (i.e., the \"poisonous tree”), the evidence has been discovered “by exploitation of that illegality” (i.e., the \"fruit” of the tree), or instead \"by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488, 83 S.Ct. 407 (citation omitted). If evidence is found to be the" }, { "docid": "21851777", "title": "", "text": "obtained as the result of illegality. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). In the case before us a more appropriate simile than the “fruit of the poisonous tree” (Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)), is, perhaps, that of a tree nourished by both pure and polluted waters. In this circuit the tendency has been to find any appreciable pollution sufficient to taint the fruit. See United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962). If the evidence is discovered as a result of both legal and illegal leads, it is inadmissible. It does not matter that the legal lead would itself probably have sufficed to uncover the evidence. As the Court of Appeals for this circuit declared, it is not sufficient for the government to show that “in the normal course of events it might have discovered the questioned evidence without an illegal search”: “a showing that the government had sufficient independent information available so that in the normal course of events it might have discovered the questioned evidence without an illegal search cannot excuse the illegality or cure tainted matter. Such a rule would relax the protection of the right of privacy in the very cases in which, by the government’s own admission, there is no reason for an unlawful search. The better the government’s case against an individual, the freer it would be to invade his privacy. We cannot accept such a result. The test must be one of actualities, not possibilities.” United States v. Paroutian, 299 F.2d 486, 489 (2d Cir. 1962). See also Pitler, “The Fruit of the Poisonous Tree” Revisited and Shepardized, 56 Calif.L.Rev. 579, 624-30 (1968) (“The logic of the ‘inevitable discovery’ . . . collides with the fundamental purpose of the exclusionary rule”); Note, Fruit of the Poisonous Tree Doctrine — A plea for Relevant Criteria, 115 U. of Pa.L.Rev. 1136, 1143 (1967) (defendant need not show that police “would not have discovered the challenged evidence ‘but for’ the illegal police conduct”)." }, { "docid": "12657219", "title": "", "text": "a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge obtained by the Government’s own wrong cannot be used by it in the way proposed.” And again, in the Nardone case, the court said (308 U.S. p. 341, 60 S.Ct. p. 268): “The burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction that wiretapping was unlawfully employed. Once that is established — as was plainly done here — the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.” In his opinion and order denying motion of defendant to suppress, the District Judge aptly quoted from United States v. Paroutian, (2d Cir.), 299 F.2d 486, 489: “An unlawful search taints all evidence obtained at the search or through leads uncovered by the search. This rule, however, extends only to facts which were actually discovered by a process initiated by the unlawful act. If information which could have emerged from an unlawful search in fact stems from an independent source, the evidence is admissible. Silverthorne Lumber Co. v. United States, supra, 251 U.S. 885, 891-392, 40 S.Ct. 182, 64 L.Ed. 319; United States v. Sheba Bracelets, Inc., 2 Cir., 248 F.2d 134, certiorari denied 355 U.S. 904, 78 S.Ct. 330, 2 L.Ed.2d 259.” We are satisfied that defendant’s motion to suppress evidence was properly overruled. As to the question raised by defendant’s counsel, “Was the evidence presented by the United States sufficient to prove guilt beyond a reasonable doubt?”, we feel no hesitancy in answering" }, { "docid": "22270059", "title": "", "text": "necessary nor appropriate to discuss by analogy distinctions suggested to be applicable to the Fourth Amendment. Section 605 contains an express, absolute prohibition against the divulgence of intercepted communications. Nardone v. United States, 302 U. S. 379, 382. This case is but another example of the use of wiretapping that was so clearly condemned under other circumstances in the second Nardone decision: “To forbid the direct use of [these] methods . . . but to put no curb on their full indirect use would only invite the very methods deemed ‘inconsistent with ethical standards and destructive of personal liberty.’ What was said in a different context in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392, is pertinent here: ‘The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.’ ” The above principle has for its purpose enhancement of the proper administration of criminal justice. To impute to the statute anything less would give it “a self-defeating, if not disingenuous purpose.” Nardone v. United States, 308 U. S. 338, 340-341. II. As an alternative argument to support the judgment below, respondent urges that the interception and divul-gence in this case were no violation of Section 605 because the wiretap was placed by state agents acting in accordance with the law of New York. The Constitution and statutes of the State of New York provide that an ex parte order authorizing a wiretap may be issued by judges of a certain rank upon the oath or affirmation of certain officials that there is reasonable ground to believe evidence of a crime may be obtained and which identifies the telephone line and the persons who are to be affected thereby. It is undisputed that an order pursuant to that law was issued in this case and that it was executed according to state law. Respondent does not urge that, constitutionally speaking, Congress is without power to forbid such wiretapping even in the face" }, { "docid": "20843477", "title": "", "text": "doctrine that the ‘fruits’ of illegally obtained evidence cannot be used to convict the defendant is complex and elusive. There are many unsettled questions under it.” (Page 230, 88 S.Ct. page 2014) A review of the literature and case law on the doctrine leads one to the belief that Justice White’s comment was, at the least, an understatement. The “fruit” and the “poisonous tree” depend for nourishment upon the soil of the exclusionary rule. This “ground” rule itself, however, has been subjected to probing examination in recent years, sprouting speculation that the maxim’s claimed beneficial results have failed to ripen into reality. See dissenting opinion of The Chief Justice in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chic.L.Rev. 665 (1970). The justification for the exclusionary rule rests on the questionable theory that it deters unlawful police conduct and on the premise that the loss of otherwise valid evidence is not too high a price to pay when the Government relies on its own illegal conduct for successful prosecutions. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L. Ed. 319 (1920) in speaking of an illegal seizure, Mr. Justice Holmes said: “The essence of a provision forbidding the acquisition of evidence in a eer tain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” (Page 392, 40 S.Ct. page 183) That Justice Holmes recognized that this was not to be an all inclusive statement is evident from the following sentence where he said: “Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” (Page 392, 40 S.Ct. page 183) In understanding the rationale of this case, also, it is" }, { "docid": "17754464", "title": "", "text": "of the fruits of an invasion of constitutional rights. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Many cases deal with the question of admissibility of evidence where, with respect to a single defendant, there is a taint of illegality, but also an independent valid authorization for the seizure of the evidence. For example, where a coerced confession provides the initial lead in the case, its taint with respect to subsequently discovered evidence can be overcome where the discovery of the further evidence is through the use of independent sources rather than through the exploitation of the primary illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Thus, the fact of an invasion of the defendant’s constitutional rights does not require exclusion of the evidence where the evidence sought to be introduced is not the “fruit of the poisonous tree”. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), the seminal case on the “fruits” doctrine, after noting that: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall be used before the Court but that it shall not be used at all.” 251 U.S. at 392, 40 S.Ct. at 183, 64 L.Ed. at 321; the Court added: “Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” Id. Similarly, where the causal connection between the illegally obtained evidence and the proposed proof is sufficiently attenuated, even absent an independent source the proof has been held admissible under the doctrine of “attenuation”. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed.2d 207 (1939). Again, the invasion of a constitutional right does not require the exclusionary sanction where the connection between the constitutional infringement and the" }, { "docid": "15208085", "title": "", "text": "first issue which must be addressed is whether the physical evidence found as a result of a coerced confession must be excluded under the fruit of the poisoned tree doctrine. The precise question has not yet been definitively answered by the Supreme Court. However, the rationale of the cases applying the doctrine leads inevitably to the conclusion that physical evidence obtained as a result of a coerced confession is inadmissible. The reasoning was expressed by Mr. Justice Holmes in Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, in explaining why the Government could not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. ... If knowledge of them is gained from an independent source, they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” (251 U.S. at 392, 40 S.Ct. at 183. ) The same rationale was used in Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, holding that inculpatory statements obtained by an entry in violation of the Fourth Amendment must be excluded as the fruit of the illegal entry. “[Vjerbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion. . . . Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers [citation omitted], or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained [citation omitted], the danger in relaxing the exclusionary rules in the case of verbal" }, { "docid": "19790350", "title": "", "text": "the arresting agent and introduced no other competent evidence to rebut this testimony. In addition, Mr. Mahon’s testimony regarding these events was less than clear. In particular, it was ambiguous as to whether Mr. Mahon was in the car when the alleged search occurred or whether he had previously been removed. It is possible that a search of the cardboard box at this juncture might have been justifiable as a search incident to a lawful arrest. However, on this record, I prefer not to decide whether, in fact, a search occurred and, if so, whether it was a valid one. A decision on these questions is not necessary. For even if both these issues were resolved in the defendants’ favor, their claim would yet fail. The FBI reached the same checkwriter on Sunday by means of a search warrant, which I have held to be valid, and the prior glimpse, if there was one, did not taint this subsequent search and seizure. When the Supreme Court first announced the “fruit of the poisonous tree” doctrine in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), the articulation of that doctrine contained a qualification frequently referred to as the “independent source” rule. Justice Holmes there wrote: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become secret and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed. 251 U.S. at 392, 40 S.Ct. at 183 (1920). Forty-three years later, in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), Justice Brennan, writing for the Court, restated the independent source rule as follows: We need not hold that all evidence is “fruit of" }, { "docid": "8988398", "title": "", "text": "court did not err in holding that the Midwest leads were obtained independently of the searches. The two lead cards disclosed that the address of Midwest, a dealer in scrap metal, was the same as the address of a business in which defendant was known to have an interest (the Downtowner), and that Altex, a seller of scrap metal, sent a letter to another business in which defendant had an interest (Gallagher’s). It is reasonable to conclude that these two leads were logically tied together by the revenue agents, before the searches took place, to link Altex with Midwest and thus provide an important step in the investigation. Therefore, although the evidence obtained in the illegal searches would have led to the same link between Altex and Midwest which in turn led to the other evidence, some of which was admitted into evidence at trial, the initial lead was obtained independently of and prior to the search. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426 (1920), Mr. Justice Holmes, speaking for the Court, stated the policy behind the Fourth Amendment: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it * * *.” 251 U.S. at 392, 40 S.Ct. at 183. In Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), the Supreme Court cogently held: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether," }, { "docid": "15208084", "title": "", "text": "American authorities, would have violated the Fourth Amendment. Applying Stonehill, however, the district court held that the foreign “silver platter” doctrine applied, and the evidence was accordingly admissible. If the question were open in this Circuit, I would adopt the reasoning of Judge Browning, dissenting in Stonehill. (405 F.2d at 747, et seq.) The motion to suppress the canister attached to the Santa Mercedes presents very different issues from suppression of the other physical evidence. The district court never reached the question whether the finding of the canister was the product of confessions made to the DEA agents or to Peruvian authorities, because it held that the statements to the DEA agents were voluntary and the silver platter doctrine applied to insulate the search of the Santa Mercedes from illegal confessions obtained by the Peruvians as well as from the illegal searches conducted by the Peruvian authorities. For the same reasons, the district court did not consider the question whether the canister should have been suppressed as the fruit of the “poisoned tree” confessions. The first issue which must be addressed is whether the physical evidence found as a result of a coerced confession must be excluded under the fruit of the poisoned tree doctrine. The precise question has not yet been definitively answered by the Supreme Court. However, the rationale of the cases applying the doctrine leads inevitably to the conclusion that physical evidence obtained as a result of a coerced confession is inadmissible. The reasoning was expressed by Mr. Justice Holmes in Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, in explaining why the Government could not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. ... If knowledge of them is gained from an independent source, they may be proved like any" }, { "docid": "4388783", "title": "", "text": "are unreasonable, and the seized evidence must be excluded. This case is essentially like McGinnis v. United States, 1 Cir., 227 F.2d 598, 603, which held that “A federal agent cannot participate in an unlawful search, and then on the basis of what he observed in the course of that search, and on that basis alone, go to a United States Commissioner and swear out a search warrant. Such a search warrant, and the evidence procured in the course of a search thereunder, would be merely the illegal product of a previous unlawful search * * This ease is also essentially like Fraternal Order of Eagles, No. 778, Johnstown, Pa. v. United States, 3 Cir., 57 F.2d 93, where evidence obtained by use of a warrant was excluded because the information on which the warrant was based had been obtained by fraud. “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319. The “fruit of the poisonous tree” is not acceptable evidence. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307. The public interest in discouraging entrapment to commit crime would be poorly served if only the first fruit of entrapment were excluded. The court found appellant guilty as. charged and imposed concurrent sentences of ten years on all counts. In my opinion his conviction on all counts, should be reversed." }, { "docid": "17568922", "title": "", "text": "reversed. It held that “the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby — the fruit of the poisonous tree, to invoke a time-worn metaphor.” Harrison, 392 U.S. at 222, 88 S.Ct. 2008. The Supreme Court relied on the general rule concerning the fruit of the poisonous tree doctrine articulated in Silverthone Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). It stated that the “ ‘essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.’ ” Harrison, 392 U.S. at 222, 88 S.Ct. 2008 (quoting Silverthorne, 251 U.S. at 392, 40 S.Ct. 182). The Court held that if Harrison had testified “in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” Id. at 223, 88 S.Ct. 2008. The Court placed the burden on the government to show that its illegal action did not induce Harrison’s testimony, and found the government had not met that burden. Id. at 225, 88 S.Ct. 2008. B. Harrison Applies to the States In evaluating the validity of Mr. Lujan’s convictions, the California Court of Appeal conducted a harmful error analysis that considered Mr. Lujan’s trial testimony as independent evidence of his guilt. In reviewing Mr. Lujan’s federal habeas petition, the district court concluded that this analysis resulted in a decision that was contrary to the clearly established federal law of Harrison. Respondent appeals this determination. Respondent argues that, because the Supreme Court’s decision in Harrison does not interpret any provision of federal law applicable to the States, Harrison is not clearly established federal law entitling Petitioner to federal habeas relief. See 28 U.S.C. § 2254(d)(1). In Harrison, the confessions were illegally procured according to rules applicable only to federal prosecutions. For this reason, Respondent argues that “Harrison was of non-constitutional dimension applicable" }, { "docid": "22171726", "title": "", "text": "poisonous tree” and hence inadmissible. Since the preliminary hearing in this case leaves no doubt that the testimony of Messman and Garrow was the forbidden fruit, it should not have been admitted. ,The only possible differentiation between this case and the second Nardone case is that, here, petitioners were not parties to the illegally intercepted messages, but that? calls for no difference in legal result. While the sender can render interception, divulgence, or use lawful by his consent, it is a complete non sequitur to conclude that he alone has standing to object to the admission of evidence obtained in violation of § 605. To say that petitioners have no standing to object to the testimony of Messman and Garrow because they were not parties to the inter cepted messages used to secure that testimony, is to ignore the governing factor that controlled our decision in the second Nardone case, namely, that to permit the use of evidence so obtained would defeat or substantially impair the underlying policy and purpose of § 605. It is immaterial, for the object to be served by that section, whether objection is made by the one sending the communication or by another who is prejudiced by its use. The rule that evidence obtained by a violation of § 605 is inadmissible is not a remedy for the sender; it is the obedient answer to the Congressional command that society shall not be plagued with such practices as wire-tapping. Lower federal court cases to the effect that only the victim of a search and seizure contravening the Fourth Amendment can object to the evidence thereby obtained do not offer a proper analogy. Not only are those decisions hard to square with statements by Mr. Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392, but, even assuming their soundness, sufficient difference in scope exists between § 605 and the Fourth Amendment to render analogy unsafe. Thus § 605 forbids all interception, divulgence, or use by any person without the consent of the sender, while the Fourth Amendment bans only unreasonable searches" }, { "docid": "15784251", "title": "", "text": "“fruit of the poisonous tree” — secondary evidence derived from the illegally seized evidence itself. Wong Sun v. United States, supra; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). See 18 U.S.C. § 2518(10)(a) (authorizing the suppression of any unlawfully intercepted wire or oral communication and the evidence derived therefrom). However, as Justice Brennan observed in Wong Sun, [w]e need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” 371 U.S. at 487-88, 83 S.Ct. at 417, quoting Maguire, Evidence of Guilt 221 (1959). Thus, once a defendant demonstrates that the Government discovered evidence through an illegal search and seizure, the court must exclude it unless the Government satisfies one of two exceptions: First, the connection between the lawless conduct of the police and the discovery of the challenged evidence may “become so attenuated as to dissipate the taint.” Nardone v. United States, 1934, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307. See Williams v. United States, 5th Cir. 1967, 382 F.2d 48. . . . The second means for “purging the taint” is discovering the same evidence from an “independent source.” Silver-thorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319. See, e. g., Agius v. United States, 5th Cir. 1969, 413 F.2d 915. United States v. Castellana, 5 Cir., 1974, 488 F.2d 65, 67, rev’d on other grounds, 5 Cir., 1974, 500 F.2d 325 (en banc). See Wong Sun v. United States, supra, 371 U.S. at 487, 83 S.Ct. at 417; Note, Fruit of the Poisonous Tree — A Plea for Relevant Criteria, 115 U.Pa.L.Rev. 1136, 1137-38 (1967). The evidence which defendants contest" }, { "docid": "20784855", "title": "", "text": "outside. He drove the automobile several hundred feet when he was stopped by narcotics agents at the airport gate. He was immediately arrested and one of the agents opened both the trunk and the suitcases. The agents did not have an arrest or search warrant. Clements had cause to search the baggage because of Thompson’s message and the odor emanating from the suitcases. When Clements talked to Thompson at the airport there was no mention that one suitcase had been previously searched. In no way then can Clements’ search be labeled a “fruit” of Thompson’s search. Clements’ search was independent of Thompson’s search. The Supreme Court in Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, laid down the rule; regarding the admissibility of evidence acquired from an independent source: “ . . . The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, . . . .” See also Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. In discussion of the meaning of the “fruit of the poisonous tree doctrine,” the Court in Wong Sun v. United States, 1962, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, stated: “ . . . We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of" }, { "docid": "15784250", "title": "", "text": "Fruit of the Poisonous Tree” Revisited and Shepardized, 56 Calif. L.Rev. 579, 646 (1968). As Justice Stewart pointed out in Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960): The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it. Accord, Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Under the exclusionary rule, evidence obtained in violation of the fourth amendment cannot be used in a criminal trial against the victim of the illegal search and seizure. The Constitution does not require this remedy; it is a doctrine of judicial design. Excluded evidence oftentimes is quite reliable and the “most probative information bearing on the guilt or innocence of the defendant.” Stone v. Powell, supra, 428 U.S. at 490, 96 S.Ct. at 3050. Nonetheless, the rule’s prohibition applies to such direct evidence as well as to “fruit of the poisonous tree” — secondary evidence derived from the illegally seized evidence itself. Wong Sun v. United States, supra; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). See 18 U.S.C. § 2518(10)(a) (authorizing the suppression of any unlawfully intercepted wire or oral communication and the evidence derived therefrom). However, as Justice Brennan observed in Wong Sun, [w]e need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” 371 U.S. at 487-88, 83 S.Ct. at 417, quoting Maguire, Evidence of Guilt 221 (1959). Thus, once a defendant demonstrates that the Government discovered evidence through an illegal search and seizure, the" }, { "docid": "19790351", "title": "", "text": "in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), the articulation of that doctrine contained a qualification frequently referred to as the “independent source” rule. Justice Holmes there wrote: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become secret and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed. 251 U.S. at 392, 40 S.Ct. at 183 (1920). Forty-three years later, in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), Justice Brennan, writing for the Court, restated the independent source rule as follows: We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality the evidence to which instant objection is made has been come at by the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” 371 U.S. at 487-488, 83 S.Ct. at 417. This is a case for application of the independent source rule. The check-writing machine was “come at” by means of a search warrant supported by an affidavit of Agent Lundgren. That affidavit contains no reference to anything observed in the Oldsmobile at the time of Mr. Mahon's arrest. No information contained in the affidavit has been shown to have been acquired as a result of any inspection which may have been made at that time. Indeed, the record affirmatively establishes that all of the information contained in the affidavit was secured from wholly independent sources specified therein (i. e.," }, { "docid": "5612236", "title": "", "text": "the alibi on the defendants, as we held in Smith v. Smith, 5 Cir., 1971, 454 F.2d 572. However, the instant case was tried in 1966, some five years before the decision in Smith v. Smith, supra. We have subsequently held that decision does not apply to trials conducted before December 14, 1968. Bassett v. Smith, 5 Cir., 1972, 464 F.2d 347. The second point (iv) requiring our attention is petitioners Gissendanner and Choice claim that their identification in the lineup was — to once again put scars on an overworked cliche — the “fruit of the poisonous tree” since their identities were learned initially through the ultimately suppressed confession of Smalley. Thus, they claim that had he not implicated them, they would not have been in the lineup and their participation in the crime uncovered. At first blush, this is a beguiling argument which might seem to flow from the Supreme Court’s holding in Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. In that case, the Court stated: Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the “fruit” of official illegality than the more common tangible fruits of the unwarranted intrusion. 371 U.S. at 485-486, 83 S.Ct. at 416, 9 L.Ed.2d at 454 (footnote by the Court omitted). The holding in Wong Sun stemmed in part from an earlier holding in Silverthorne Lumber Co. v. United States, 1919, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. The Court’s rationale for excluding tainted evidence was: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government’s own wrong cannot" }, { "docid": "4662854", "title": "", "text": "Starks, 28 CMR 476; and Department of the Army Pamphlet No. 27-172, Military Justice, Evidence, pages 354, et seq (1961). In accordance with these authorities, the president should have ruled the letters were illegally seized. Secondly, there is no doubt that the evidence strongly presents the question whether the confession re-suited from the officers’ use of the missives. Thus, Gray testified they referred to the letters during Askew’s interview and expressed the view that such contributed materially to the questioning. So also did the accused who testified at length to the agents’ tactics and the fact that, conformably to the information thus obtained, his interrogators dwelt upon the need to have his wife questioned. A question was therefore presented for the fact finders concerning whether accused’s statement was the fruit of the poisonous tree. United States v Haynes, 9 USCMA 792, 27 CMR 60; Silverthorne Lumber Co. v United States, 251 US 385, 64 L ed 319, 40 S Ct 182 (1920); Coplon v United States, 191 F2d 749 (CA DC Cir) (1951). As was stated by Mr. Justice Holmes in the Silverthorne case, supra, at page 392: “. . . The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.” Intertwined with and growing out of the foregoing is the so-called “half-guarantee” allegedly made to the accused that, if he confessed his guilt, it would most probably be unnecessary to have his wife questioned by civilian police officers. As early as 1952, this Court pointed out that, in order to be admissible in evidence, a “confession must be the product of free choice — of a will not encumbered or burdened by threats, promises, inducements, or physical or mental abuse.” United States v Colbert, 2 USCMA 3, 6 CMR 3, at page 7. See also United States v Monge, 1 USCMA 95, 2 CMR 1; United States v Josey, 3 USCMA 767, 14 CMR 185; and United States v Acfalle, 12 USCMA" } ]

[ { "docid": "23159436", "title": "", "text": "and dismissed plaintiff’s Title VII claim as barred by res judicata. Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend shall be freely granted “when justice so requires.” This liberality of pleading or freedom of amendment, however, is limited when there is “undue delay, bad faith or dilatory motive” on the part of the moving party, and “undue prejudice to the opposing party.... ” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Although the grant or denial of leave to amend is within the discretion of the district court, a decision “without any justifying reason” may be an “abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Id. The burden of the parties, in requesting or resisting the amendment of pleadings, was noted in Advocat v. Nexus Industries, Inc., 497 F.Supp. 328, 331 (D.Del.1980), in which the Court observed that: As a practical matter, however, any delay in asserting an affirmative defense for a significant period of time will almost invariably result in some “prejudice” to the nonmoving party.... [T]he proper standard is one that balances the length of the delay against the resulting prejudice .... [T]he longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice. Clearly, whether a motion to amend should be granted or denied must depend upon the sound judicial discretion of the trial court. Except when required by the demands of justice in the particular case, appellate courts almost invariably defer to the discretion exercised by the trial court. On appeal, the question is whether the discretion reposed in the trial court has been abused. See Norbeck v. Davenport Community School District, 545 F.2d 63, 70 (8th Cir.1976), cert. denied, 431 U.S. 917, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977). An indication of the test to be applied in determining whether the trial court has abused its discretion, in allowing leave to amend, is contained in Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th" } ]

[ { "docid": "5919648", "title": "", "text": "Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). As a matter of law, justice requires leave to amend when the moving party has “at least colorable grounds” for the proposed amendment. S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing Dev. Fund Co., 608 F.2d 28, 42 (2d Cir. 1979). The Supreme Court has recognized that this freedom of amendment is limited when there is undue prejudice to the opposing party. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Alternatively, a motion to amend must be denied if there is “undue delay, bad faith or dilatory motive” on the part of the moving party. Foman, 371 U.S. at 182, 83 S.Ct. at 230. Mere delay, however, is an insufficient basis to deny a motion to amend absent a concomitant showing of undue prejudice or bad faith. See Madison Fund, Inc. v. Denison Mines Ltd., 90 F.R.D. 89, 92 (S.D.N.Y.1981); International Bank v. Price Waterhouse & Co., 85 F.R.D. 140, 142 (S.D.N.Y.1980). Of course, the grant or denial of leave to amend is ultimately within the sound judicial discretion of the district court. Foman, 371 U.S. at 182, 83 S.Ct. at 230. It is clear that the proposed third amended complaint contains no new factual allegations. Thus, this is not a situation where the proposed amendment alleges an entirely new set of operative facts. On the contrary, the proposed amended complaint merely adds a punitive damages claim against Lehman Brothers. Nevertheless, courts have consistently denied leave to amend to add a claim of punitive damages where the motion was filed after the close of discovery and would necessitate extensive discovery directed toward the willfulness of defendant’s conduct. See, e.g., Knapp v. Whitaker, 757 F.2d 827, 849 (7th Cir.), cert. denied, appeal dismissed, 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 (1985); Leroy v. Hartford Steam Boiler Inspection" }, { "docid": "23028500", "title": "", "text": "522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Rule 12 of the Rules Governing Section 2255 Proceedings states, “If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules ... and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate.” The Rules Governing Section 2255 do not specify a procedure for amending motions. Therefore courts have typically' applied Federal Rule of Civil Procedure 15 to the amendment of a § 2255 motion. See Rogers v. United States, 180 F.3d 349, 352 n. 3 (1st Cir.1999); see also United States v. Duffus, 174 F.3d 333, 336 (3d Cir.), cert. denied, — U.S. -, 120 S.Ct. 163, 145 L.Ed.2d 138 (1999). Rule 15(a) provides, “A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Under Rule 15(a) leave to amend shall be given freely, absent bad faith, undue prejudice to the opposing party, or futility of amendment. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir.1980); see also Perkins v. Silverstein, 939 F.2d 463, 471-72 (7th Cir.1991) (plaintiffs right to amend as a matter of course is not absolute). Where the statute of limitations bars a cause of action, amendment may be futile and therefore can be denied. See, e.g., Keller v. Prince George’s County, 923 F.2d 30, 33 (4th Cir.1991); accord Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir.1988). When proposed claims in an amendment are barred by the statute of limitations, Rule 15(c) provides for the relation back of amendments to the original pleading under certain circumstances. Relation back is permitted when “the claim or defense asserted in the" }, { "docid": "14978574", "title": "", "text": "of defenses” (Generale Bank v. Wassel, 779 F.Supp. at 317; see e.g., Thornock v. Kinderhill Corp., 749 F.Supp. 513, 519 [S.D.N.Y.1990]; Midwest Corp. v. Global Cable, Inc., 688 F.Supp. 872, 875 [S.D.N.Y.1988]). In Wassel, Judge Leisure ultimately held that fraudulent inducement defense raised by the defendant contradicted the waiver of defenses in an Estoppel Letter signed by the defendant, and found that “even if there are disputed issues of fact on these matters, the controlling law dictates that these issues are not material, and do not preclude a grant of summary judgment” (779 F.Supp. at 320). In light of the foregoing, the Court finds that even accepting the possibility of disputed facts in these circumstances, the defendants’ counterclaim does not raise a material issue of fact or defense which would defeat the plaintiffs motion for summary judgment dismissing the counterclaim. C. Leave to Amend Federal Rule of Civil Procedure 15(a) provides that “leave [to amend a plead ing] shall be freely given when justice so requires.” (See also Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 287 [2d Cir.1974].) Only “undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... [or] futility of the amendment” will serve to prevent an amendment prior to trial (see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227,-, 9 L.Ed.2d 222 [1962]; accord Reiter’s Beer Distributors, Inc. v. Christian Schmidt Brewing Co., 657 F.Supp. 136, 141 [E.D.N.Y.1987]; see also Health-Chem Corp. v. Baker, 915 F.2d 805 [2d Cir.1990]). The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial (see Panzella v. Skou, 471 F.Supp. 303, 305 [S.D.N.Y.1979]), and “[u]nless a proposed amendment is clearly frivolous or legally insufficient on its face, the substantive merits of a claim or defense should not be considered on a motion to amend” (Lerman v. Chuckleberry Pub., Inc., 544 F.Supp. 966, 968 [S.D.N.Y.1982], rev’d on other grounds sub nom., 745 F.2d 123 [2d Cir.1984], cert. denied, 471 U.S." }, { "docid": "14467512", "title": "", "text": "that this practice was appropriate. See Block, 988 F.2d at 350-51. Thus, to determine whether the defense of failure to satisfy a condition precedent should be considered by the Court on this motion for summary judgment, the Court first considers the City’s motion to amend the pleadings pursuant to Rule 15(a). A. Amendment of the Pleadings Federal Rule of Civil Procedure 15(a) states, in pertinent part, that “a party may amend the party’s pleading only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice requires.” It is well-established that this section is to be interpreted liberally, and that leave to amend should be granted “when the moving party has at least colorable grounds for the proposed amendment.” Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 734 F.Supp. 1071, 1078 (S.D.N.Y.1990) (citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Hous. Dev. Fund Co., Inc., 608 F.2d 28, 42 (2d Cir.1979)). As the Second circuit has often explained, [rjeasons for a proper denial of leave to amend include undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party. Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend. State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)); see also Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987). Thus, “it is rare that such leave should be denied”. Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991) (citation omitted). Van-Tulco contends that the City should not be permitted to amend its pleading to assert the defense of failure to satisfy a condition precedent on the ground that any such defense would violate the “spirit and intent” of the June 15, 1993 Stipulation and Order between the parties. This stipulation between Van-Tulco and" }, { "docid": "22438542", "title": "", "text": "of the project to meet the cost limitations set forth in V.I.Code Ann. tit. 29 § 191n; and (3) failure of the Department of Housing and Urban Renewal to make an authorized transfer of land to Rich. Appellant argues that the Government waived all illegality defenses except inadequate prior appropriations which was specifically pleaded in response to Rich’s objections about the vagueness of the Government’s illegality defense. Rich also argues that when the court permitted the Government to amend and then clarify its Fourth Affirmative Defense, no other illegality defenses could be pleaded and that absent a request for further leave to amend, the court improperly treated the Government’s opening statement on defenses as amendments to the answer. B. The Standard for Amendment Leave to amend pleadings out of time under Rule 15(a) of the Federal Rules of Civil Procedure is generally at the discretion of the trial court, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), Zenith Radio Corporation v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 745, 802, 28 L.Ed.2d 77 (1971), and “[c]ourts have shown a strong liberality . . . in allowing amendments under Rule 15(a),” 3 Moore’s Federal Practice 115.08(2) at 15-59 (2d ed. 1980), (footnote omitted), which specifically states that leave to amend “shall be freely given when justice so requires.” In Foman v. Davis the Supreme Court observed: Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such an undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought should, as the rules require, be “freely given.” Of" }, { "docid": "16844531", "title": "", "text": "designed to cure the deficiencies of the earlier pleading and to incorporate information gleaned from subsequent discovery. {See Declaration of Donald E. Engel, Esq., dated October 30, 1984.) Plaintiff has opposed the motion as to the first two affirmative defenses, the third through ninth counterclaims, and part of the first counterclaim. For the reasons that follow, Scholz’ motion is granted in all respects. B. Discussion 1. The Applicable Standard Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading “shall be freely given when jus tice so requires.” The United States Supreme Court has instructed that: this mandate is to be heeded____ If the underlying facts or circumstances relied upon by the party may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory notice on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —leave should, as the rules require, be “freely given.” Foman v. Davis, 371 U.S. 178,182, 83 S.Ct. 227, 230, 9 L.Ed. 222 (1962). In interpreting this requirement, the Second Circuit has held that if the [movant] has at least colorable grounds for relief, justice does so require unless the plaintiff is guilty of undue delay or bad faith or unless permission to amend would unduly prejudice the opposing party. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, [230] 9 L.Ed. 222 (1962); Clay v. Martin, 509 F.2d 109,113 (2d Cir.1975). S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing Development Fund Co., 608 F.2d 28, 42 (2d Cir.1979) (hereinafter “Silberblatt v. East Harlem Development Fund ”). In opposing the motion by Scholz, plaintiff relies upon the asserted absence of “colorable grounds” for the proposed amendments. (See Plaintiff’s Memorandum in Opposition at 2.) In short, plaintiff asserts that “the amendments would not serve any purpose.” Kaster v." }, { "docid": "18509352", "title": "", "text": "to do so, many such courts choose to apply Rule 7015 by analogy. See, e.g., In re AM International Inc., 67 B.R. 79, 81 (N.D.Ill.1986); see also In re Calisoff, 94 B.R. 1002, 1004 n. 2 (Bankr.N.D.Ill.1988). Second, the district court applied Rule 7015 and both parties agree that this Court should apply Rule 7015 as well. For these reasons, we apply Bankruptcy Rule 7015, and through it, Federal Rule of Civil Procedure 15. Federal Rule of Civil Procedure 15(a) provides that “a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Rule 15 favors liberal amendment of pleadings in order to insure consideration of claims on their merits. But while leave to amend should generally be granted, courts have noted that it is inappropriate in some circumstances. Amendola v. Bayer, 907 F.2d 760, 764 (7th Cir.1990) (affirming denial of leave to amend claim where 1) litigant was aware of the facts underlying the claim before the filing deadline and presented no excuse for failing to raise the claim earlier, 2) opposing party would be unduly prejudiced, and 3) delay would impair the public interest in prompt resolution of disputes). As the Supreme Court stated in Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962): If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave should, as the rules require, be “freely given.” Id.) see also, Eades v. Thompson, 823 F.2d 1055, 1062-1063 (7th Cir.1987). In this case, both the bankruptcy court and the district court agree that" }, { "docid": "3969008", "title": "", "text": "the amendment should be permitted unless the plaintiff has acted in bad faith, is guilty of undue delay, or if permission to amend would unduly prejudice the defendant. Foman v. Davis, 371 U.S. 178, 179, 83 S.Ct. 227, 228, 9 L.Ed.2d 222 (1962); Ryder Energy Distrib. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984). In the present case Chase does not contend that it would be unduly prejudiced or that Williams seeks to amend in bad faith to cause undue delay. Moreover, the discussion below indicates that Williams’ Second Amended Complaint provides a color-able claim under § 1981, and therefore Williams’ motion to file a Second Amended Complaint meets the Rule 15(a) requirements. B. Statute of Limitations Requirements According to Chase, Williams' Second Amended Complaint is futile in that it contains allegations that are barred by the applicable statute of limitations. Chase failed to raise this defense in its Answer and may thus have waived its opportunity to raise the defense. See Wade v. Orange County Sheriff's Office, 844 F.2d 951, 955 (2d Cir.1988); Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1155 (2d Cir.1968). Nonetheless, it would be futile to consider this defense waived when Chase would be permitted to amend its answer to include the defense pursuant to the Rule 15 liberal policy favoring a “decision on the merits, rather than on pleadings or technicalities,” Ragin v. Macklowe, 126 F.R.D. 475, 476 (S.D.N.Y.1989) (quoting CBS, Inc. v. Ahern, 108 F.R.D. 14, 18 n. 4 (S.D.N.Y.1985)). The statute of limitations defense is considered raised, even though it is not pleaded, on this motion for dismissal. See Ippolito-Lutz, Inc. v. Harris, 473 F.Supp. 255, 260 (S.D.N.Y.1979), citing Quigley v. Hawthorne Lumber Co., 264 F.Supp. 214, 220 (S.D.N.Y.1967). Generally, claims arising under § 1981 are subject to a three-year statute of limitations. Tuckett v. Police Dept. of New York, 708 F.Supp. 77, 78 (S.D.N.Y.1989); Grub v. Broadcast Music, Inc., 699 F.Supp. 382, 384 (E.D.N.Y.1987). Where discriminatory activities are allegedly continuous in nature, courts may assert jurisdiction over allegations that occurred before the statute of limitations period as long" }, { "docid": "8931677", "title": "", "text": "Discussion Pursuant to Fed.R.Civ.P. 15(a) which is made applicable hereto by Bankruptcy Rule 7015(a), a party made amend its answer only “by leave of court or by written consent of the adverse party” if a responsive pleading has been filed or if no responsive pleading is permitted, 20 days after the original pleading is served. However, Fed.R.Civ.P. 15(a) provides that “leave shall be freely given when justice so requires.” Furthermore, [i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should as the rules require, be “freely given.” In re Cohen, 98 B.R. 179, 181 (Bkrtcy.S.D.N.Y.1989) (quoting Foman v. Davis, 371 U.S. 178, 182-83, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (citation omitted). The defendants are seeking to amend their answer after three years following the filing of their original answer in 1986. However, mere delay is an insufficient ground for denying a motion to amend. Boyle v. Texasgulf Aviation, Inc., 696 F.Supp. 951, 956 (S.D.N.Y.1988), aff'd, 875 F.2d 307 (2d Cir.1989). Since filing the original pleadings, there has been no pretrial activity by either side. There has been no discovery sought or given and the trial date has been continually adjourned by stipulation of the parties. Moreover, the first proposed amended affirmative defenses, those of res judicata and collateral estoppel, arise out of the recent District Court decision by Judge Conboy. More importantly, the plaintiff has failed to demonstrate any prejudice which would inure to him by the proposed amendment or any bad faith on the part of the defendants in proposing the amendment. Rather, the plaintiff has placed the chicken before the egg by arguing the underlying merits of the proposed amendments. It is well established that a court should not consider the substantive merits of a claim or defense unless the proposed amendment is clearly frivolous or legally insufficient on its" }, { "docid": "22122393", "title": "", "text": "“utterly failed to meet their burden to set forth admissible evidence supporting these claims or otherwise demonstrating that a genuine issue of material fact exists for trial.” Id. at 426 & n. 8. Final judgment was entered July 14, 1998. II Although res judicata is an affirmative defense that should be raised in the defendant’s answer, the district court has the discretion to entertain the defense when it is raised in a motion for summary judgment, by construing the motion as one to amend the defendant’s answer. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993). We review the district court’s decision to grant a party leave to amend for abuse of discretion. Tokio Marine and Fire Ins. Co. v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir. 1986). Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend a party’s pleading “shall be freely given when justice so requires.” Fed. R.Civ.Proc. 15. The Rule reflects two of the most important principles behind the Federal Rules: pleadings are to serve the limited role of providing the opposing party with notice of the claim or defense to be litigated, see Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and “mere technicalities” should not prevent cases from being decided on the merits, see Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). See also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1471 (2d ed.1990). Thus, absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility, Rule 15’s mandate must be obeyed. Foman, 371 U.S. at 182, 83 S.Ct. 227. The circumstances surrounding the untimely assertion of res judicata were clarified during oral argument before Judge Rakoff. ’ After a personnel changeover in the Office of the Corporation Counsel, ten of the twelve cases were assigned to lawyers who had not worked on the Seabrook action and were unaware of" }, { "docid": "4272071", "title": "", "text": "thirty-four affirmative defenses, the statute of limitations was not one of them. Pottsgrove argues that its motion to amend should be evaluated under Federal Rule of Civil Procedure 15(a), which provides that “leave shall be freely given [for a party to amend its pleading] when justice so requires.” “In the absence of substantial or undue prejudice, denial [of a motion to amend] must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment.” Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing of V.I., Inc., 663 F.2d 419, 425 (3d Cir.1981) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Thus, under Rule 15(a), the burden is on the party opposing the amendment to show prejudice, bad faith, undue delay, or futility. Plaintiff, however, argues that, because the deadline for filing motions to amend specified in the Court’s pretrial scheduling order had passed, Pottsgrove’s motion to amend must be evaluated under the stricter standard specified in Federal Rule of Civil Procedure 16(b). Under Rule 16(b), once a scheduling order has been entered, “good cause” must be shown by the party seeking to modify the order. According to the advisory committee notes to the 1983 amendments to the Federal Rules, Rule 16(b) was intended to “assure!] that at some point both the parties and the pleadings will be fixed, by setting a time within which joinder of parties shall be completed and the pleadings amended.” Thus, under Rule 16(b), the burden is on the party seeking the amendment to show “good cause.” Although the Third Circuit has not explicitly addressed this tension between Rule 15(a) and Rule 16(b), seven circuit courts have. See Riofrio Anda v. Ralston Purina, Co., 959 F.2d 1149, 1154-55 (1st Cir.1992); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000); S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA 315 F.3d 533, 536 (5th Cir.2003); Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.2003); In re Milk Prods. Antitrust Litig., 195" }, { "docid": "5167111", "title": "", "text": "Eric Cianchette, submitted with Appellants’ objection to the motion for summary judgment, raises a genuine issue of material fact. See Maine Partners’ Response and Objection (Volume II, No. 8). The affidavit contains averments supporting two purported affirmative defenses which Appellants sought to add to their Answer by means of a Motion to Amend Pleadings. The Bankruptcy Court denied Appellants’ Motion to Amend, thereby making the allegations in the affidavit moot. The affidavit can be relevant to material facts in this litigation, therefore, only if the Bankruptcy Court erred when it denied Appellants’ motion to amend their pleadings. Appellants attempted to amend their pleadings on November 9, 1989 to include two purported affirmative defenses to their liability on the debt obligation: (1) “negligent entrustment” of loan proceeds; and (2) negligent supervision of the construction loan. Federal Rule of Civil Procedure 15(a) requires that leave to amend pleadings be “freely given when justice so requires.” Fed.R.Civ.P. 15(a). While liberal, this policy does not amount to an unlimited right of amendment. Granting leave is a matter of the trial court’s informed discretion. Diotima Shipping Corp. v. Chase, Leavitt & Co., 102 F.R.D. 532, 534 (D.Me.1984). The Supreme Court has set forth the criteria for exercising that discretion: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave should, as the rules require, be freely granted. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (quoted in Diotima Shipping, 102 F.R.D. at 534). Mere delay is not sufficient to justify denying a motion to amend; however, the mov-ant bears the burden of showing some valid reason for his neglect and delay where a considerable amount of time has elapsed between the filing of the complaint and the motion to amend. Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15, 20 (1st Cir.1979)." }, { "docid": "13851997", "title": "", "text": "the complaint. IV. The defendants likewise seek to amend their pleadings. They contend that the plaintiffs were required to exhaust their administrative remedies under the Prisoner Litigation Reform Act prior to filing suit, see 42 U.S.C. § 1997e(a), and because the defendants failed to raise that defense earlier in the litigation, they seek leave to amend their answer so they can raise it now. They also wish to plead the PLRA’s limitation on damages, see 42 U.S.C. § 1997e(e), as an affirmative defense. Under Federal Rule of Civil Procedure 15(a), a party may amend its pleadings at this stage of the proceedings only after obtaining leave of court. Although the Rule provides that “leave of court shall be freely granted when justice so requires,” leave may be denied on the basis of undue delay, bad faith by the moving party, repeated failure to cure defects by previously-allowed amendments, futility of the proposed new claim, or undue prejudice to the opposite party. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Duggins v. Steak & Shake, Inc., 195 F.3d 828, 834 (6th Cir.1999); Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir.1997). “Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted.” Wade v. Knoxville Util. Bd., 259 F.3d 452, 458-59 (6th Cir.2001). The Rule does not establish a deadline within which a party must file a motion to amend. See Lloyd v. United Liquors Corp., 203 F.2d 789, 793 (6th Cir.1953) (reviewing a district court’s denial of a motion to amend after the entry of summary judgment). However, the party seeking to amend should “act with due diligence if it wants to take advantage of the Rule’s liberality.” Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 306 (6th Cir.2000). Thus, where “amendment is sought at a late stage in the litigation, there is an increased burden to show justification for failing to move earlier.” Wade, 259 F.3d at 459. Courts are especially inclined to deny a motion brought under Rule 15 “if the moving" }, { "docid": "16953055", "title": "", "text": "defendants’ motions plaintiffs seek leave to assert, in defense of the note counterclaims and third-party claims against SMC, various defenses, most of which have previously been raised affirmatively by the plaintiffs in their complaint. Defendants oppose that motion largely on the basis of futility, arguing that the defenses which the plain tiffs seek to add are facially lacking in merit. Motions for leave to amend are governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides, in pertinent part, that “leave shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). Under Rule 15(a), leave to amend ordinarily should be freely granted absent undue delay, bad faith, dilatory tactics, undue prejudice in being served with the proposed amended pleading, or futility. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Elma R.T. v. Landesmann Int’l Mktg. Corp., No. 98-CIV.3662, 2000 WL 297197, at *3 (S.D.N.Y. Mar. 22, 2000) (citing Foman). The defenses which plaintiffs and SMC have attempted to interpose by way of amended pleading include failure to state a claim upon which relief may be granted; fraud; accord and satisfaction; release; fraud in the inducement; prima facie tort; breach of contract; quasi contract; implied contract; quantum merit; unjust enrichment; bad faith; and unconseionability. Plaintiffs Exhibits (Dkt. No. 57) Exh. 17 ¶¶ 36-87. Except as relates to the first affirmative defense, which is non-controversial, defendants assert that the new affirmative defenses lack merit and that plaintiffs’ motion should therefore be denied on the basis of futility. In considering whether to grant a motion for leave to amend, the court may properly take into account the futility associated with the newly-added claims or defenses. Foman, 371 U.S. at 182, 83 S.Ct. at 230; Lucente, 310 F.3d at 258. Quite sensibly, a court may properly deny leave to amend when the claim or defense sought to be added would not withstand a likely motion to dismiss for failure to state a legally cognizable claim or defense. Lucente, 310 F.3d at 259. Accordingly, in ruling upon the motion I must address the facial" }, { "docid": "17532324", "title": "", "text": "Allergan’s motion to amend be granted. Although I harbor some doubts about the viability of Allergan’s affirmative defense and counterclaim, at this stage I cannot find that under no set of facts could Allergan establish its claim of patent misuse. With respect to the motion to strike, I note that such motions are not favored. See William Z. Salcer v. Envicon Equities, 744 F.2d 935, 939 (2d Cir.1984) (“A motion to strike an affirmative defense ... is not favored”), vacated on other grounds, 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed.2d 731 (1986). At any rate, even if I were inclined to grant the motion with respect to the patent-misuse allegations contained in the original answer, I find that the proposed amended answer does contain sufficient allegations of patent misuse, and I therefore will allow the amendment and deny the motion to strike. Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading “shall be freely given when justice so requires.” The Second Circuit has stated that “justice does so require unless the [movant] is guilty of undue delay or bad faith or unless permission to amend would unduly prejudice the opposing party.” S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir.1979). The purpose of Rule 15(a) is to encourage disposition of litigation on the merits, rather than on procedural technicalities. Sanders v. Thrall Car Mfg. Co., 582 F.Supp. 945, 952 (S.D.N.Y.1983), aff'd, 730 F.2d 910 (2d Cir.1984). The Rule has been liberally interpreted by the Second Circuit, which has stated that it is “rare” that leave should be denied, especially when there has been no prior application to amend. Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). See also Kaster v. Modification Systems, Inc., 731 F.2d 1014, 1018 (2d Cir.1984) (as long as the movant has “at least colorable grounds for relief, justice does ... require leave to amend”). A court may deny leave to amend, however, where" }, { "docid": "14978575", "title": "", "text": "F.2d 283, 287 [2d Cir.1974].) Only “undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... [or] futility of the amendment” will serve to prevent an amendment prior to trial (see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227,-, 9 L.Ed.2d 222 [1962]; accord Reiter’s Beer Distributors, Inc. v. Christian Schmidt Brewing Co., 657 F.Supp. 136, 141 [E.D.N.Y.1987]; see also Health-Chem Corp. v. Baker, 915 F.2d 805 [2d Cir.1990]). The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial (see Panzella v. Skou, 471 F.Supp. 303, 305 [S.D.N.Y.1979]), and “[u]nless a proposed amendment is clearly frivolous or legally insufficient on its face, the substantive merits of a claim or defense should not be considered on a motion to amend” (Lerman v. Chuckleberry Pub., Inc., 544 F.Supp. 966, 968 [S.D.N.Y.1982], rev’d on other grounds sub nom., 745 F.2d 123 [2d Cir.1984], cert. denied, 471 U.S. 1054, 105 S.Ct. 2114, 85 L.Ed.2d 479 [1985]). Although Fed.R.Civ.P. 15(a) requires that “leave to amend shall be freely given when justice so requires” (see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 [1962]), the Supreme Court stated in Foman that denial of a Rule 15(a) motion may be appropriate in instances of futility of the amendment. (Foman, at 182, 83 S.Ct. at 230 (emphasis supplied); accord Ruffolo v. Oppenheimer & Company, 987 F.2d 129, 131 [2d Cir.1993] [where granting leave to amend is unlikely to be productive, it is not an abuse of discretion to deny leave to amend]; Reiter’s Beer Distributors, Inc. v. Christian Schmidt Brewing Co., 657 F.Supp. 136, 141 [E.D.N.Y.1987]; see also Health-Chem Corp. v. Baker, 915 F.2d 805 [2d Cir.1990] [“where ... there is no merit in the proposed amendments, leave to amend should be denied”]). In assessing the defendants’ request for leave to amend, the Court looks to the defendants’ argument concerning Fed. R.Civ.P. 56(f). A party seeking discovery under Rule 56(f) must" }, { "docid": "12677218", "title": "", "text": "the Rules prohibits the addition of new claims and defendants by amendment. Rule 15(a) provides that “leave shall be freely given when justice so requires,” and the Supreme Court has held that leave should be freely given “[i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, etc. . . . ” Foman v. Davis, 371 U.S. 178, at 182, 83 S.Ct. 227, at 230, 9 L.Ed.2d 222 (1962). That language infers, and the precedent is nearly unanimous in holding, that denial of a motion to amend may not be based solely on the fact that it is offered late in the case. 3 Moore’s Federal Practice ¶ 15.08. The proper inquiry, and the one to be undertaken here, is whether the amendment would result in undue prejudice to defendants. United States v. Hougham, 364 U.S. 310, 316, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960) ; Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973); Strauss v. Douglas Aircraft, 404 F.2d 1152, 1158 (2d Cir., 1968); United States v. International Business Machines Corp., 1975 Trade Cases ¶ 16,104 (S.D.N.Y.); 3 Moore’s Federal Practice ¶ 15.08 [4]. Where substantial prejudice is demonstrated, the amendment will be denied. See, e. g., Suehle v. Markem Machine Co., 38 F.R.D. 69 (E.D.Pa.1965). A similar analysis is required under Rule 15(c). See Reid v. International Union, 479 F. 2d 517 (10th Cir. 1973), cert. denied, 414 U.S. 1076, 94 S.Ct. 572, 38 L.Ed.2d 483 (1973); Montgomery Environmental Coalition v. Fri, 366 F.Supp. 261, 265-66 (D.D.C.1973). Prejudice is generally found in cases characterized by some or all of the following circumstances: The motion comes on the eve of trial after many months or years of pretrial activity; e. g., Dale Hilton v. Triangle Publications, 5 Fed.R.Serv.2d 185 (S.D.N.Y.1961); Data Digests, Inc. v. Standard &" }, { "docid": "9409665", "title": "", "text": "109 S.Ct. 2003, 104 L.Ed.2d 593 (1989); United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Plaintiffs’ state law claims are hereby dismissed pursuant to Fed.R.Civ.P. 12(b)(1). F. Dismissal of Plaintiffs’ Claims With Prejudice Federal Rule of Civil Procedure 15(a) requires that “leave [to amend the complaint] shall be freely given when justice so requires.” The Court recognizes that the Second Circuit has interpreted Rule 15(a) liberally, allowing for amendment unless circumstances exist such as “ ‘undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party.’ ” Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987) (quoting State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981)); see also Luce v. Edelstein, supra, 802 F.2d at 56 (“Complaints dismissed under Rule 9(b) are ‘almost always’ dismissed with leave to amend.”). If the district court does exercise its discretion to dismiss the complaint with prejudice, “refusal to grant leave must be based on a valid ground.” Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir.1990) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)). In the case at bar, the Court believes that dismissal of plaintiffs’ federal law claims against Price Waterhouse and Howard Jackson should be with prejudice. Plaintiffs have already been granted one opportunity to amend their pleadings, and they have failed to do so in a satisfactory fashion under Rule 9(b). More importantly, the nature of plaintiffs’ amendments— mere elaboration and increased verbiage concerning the same core allegations initially put forward — suggests to the Court that a third pleading against Price Waterhouse and Howard Jackson would merely duplicate these efforts. The Court therefore declines to allow plaintiffs to file a third pleading in this case, based on the expected futility of such a pleading and the costs and potential prejudice which would be caused to defendants. See Posner v. Coopers & Lybrand, supra, 92 F.R.D. at 770 (dismissal with prejudice of the amended complaint" }, { "docid": "4272070", "title": "", "text": "allegation. Plaintiff Depo. at 112, 121; Douglas Chancellor Depo. at 22; Mary Jane Chancellor Depo. at 30. Wishart also claims that she called Dr. Richardson, the superintendent, to report the allegation. Wishart Depo. at 68-69. Dr. Richardson has no recollection of this phone call, Richardson Depo. at 45-51, or indeed of “anyone telling her about any rumor and/or information that Oakes was having an inappropriate and/or intimate and/or sexual relationship with a School District student prior to April 27, 2004,” the day the police alerted the assistant superintendent of A.P.’s allegation. Potts-grove’s Resp. to Pl.’s First Set of Interr., at 3. II. DISCUSSION A. Pottsgrove’s Motion to Amend Its Answer Both Oakes and Pottsgrove moved to amend their answers to add statute of limitations as an affirmative defense. Plaintiff did not oppose Oakes’s motion, and the Court granted it (doc. no. 39). Plaintiff does, however, oppose Potts-grove’s motion. After the Court granted in part and denied in part Pottsgrove’s motion to dismiss, Pottsgrove filed its answer and affirmative defenses (doc. no. 13). Although Pottsgrove listed thirty-four affirmative defenses, the statute of limitations was not one of them. Pottsgrove argues that its motion to amend should be evaluated under Federal Rule of Civil Procedure 15(a), which provides that “leave shall be freely given [for a party to amend its pleading] when justice so requires.” “In the absence of substantial or undue prejudice, denial [of a motion to amend] must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment.” Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing of V.I., Inc., 663 F.2d 419, 425 (3d Cir.1981) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Thus, under Rule 15(a), the burden is on the party opposing the amendment to show prejudice, bad faith, undue delay, or futility. Plaintiff, however, argues that, because the deadline for filing motions to amend specified in the Court’s pretrial scheduling order had passed, Pottsgrove’s motion to amend must be evaluated under the stricter" }, { "docid": "19194323", "title": "", "text": "In response, the defendant submitted the present Motion to Amend Answer to add the affirmative defenses of laches and mitiga tion of damages to its Answer. Def.’s Mot. Am., Sept. 20, 2012, ECF No. 129. The Court will grant this motion, as allowing the amendments will not unduly prejudice plaintiff. II. LEGAL STANDARD Under Federal Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court stated that leave should be “freely given” absent “any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” 371 U.S. at 182, 83 S.Ct. 227; see also Atchinson v. Dist. of Columbia, 73 F.3d 418, 425-27 (D.C.Cir.1996) (applying Foman). “Although the grant or denial of leave to amend is committed to a district court’s sound discretion, it is an abuse of discretion to deny leave to amend unless there is sufficient reason,” such as the factors listed in Foman. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996). “An answer may be amended to include an inadvertently omitted affirmative defense, and even after the time to amend ‘of course’ has passed, ‘leave [to amend] shall be freely given when justice so requires.’ ” Kontrick v. Ryan, 540 U.S. 443, 459, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (quoting Fed.R.Civ.P. 15(a)). One of the “most important factor[s]” to consider when determining whether to grant leave to amend is “the possibility of prejudice to the opposing party.” Djourabchi v. Self, 240 F.R.D. 5, 13 (D.D.C.2006); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (“[I]n deciding whether to permit such an amendment, the trial court was required to take into account" } ]

[ { "docid": "16216820", "title": "", "text": "(Opinion of Blackmun, J.)). Federal Rule of Criminal Procedure 16(a)(1)(C) likewise requires disclosure of information “material to the preparation of the defendant’s defense.” Under Rule 16, evidence is material if “there is a strong indication that it will ‘play an important role in uncovering admissible evidence, aiding witness preparation, ... or assisting impeachment or rebuttal.’ ” United States v. Lloyd, 992 F.2d 348, 351 (D.C.Cir.1993) (quoting United States v. George, 786 F.Supp. 56, 58 (D.D.C.1992)). Although the materiality standard is “not a heavy burden,” id. at 351, the Government need disclose Rule 16 material only if it “ ‘enable[s] the defendant significantly to alter the quantum of proof in his favor.’” United States v. Caicedo-Llanos, 960 F.2d 158, 164 n. 4 (D.C.Cir.1992) (quoting United States v. Ross, 511 F.2d 757, 763 (5th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975)). We are not persuaded that the polygraph results would have significantly aided impeachment. As the district court found, For-gy “had already admitted to the deceptions in other contexts in the course of direct examination, and there is a limit to the number of deceptions which operate for impeachment.” Tr. 8/2/93, at 63. Appellants have likewise faded to show what additional impeachment information they would have learned from the deposition. On direct examination, Forgy .admitted that he had participated in three killings, including the two at issue in the deposition. Pleading guilty to having committed two, he was convicted at trial of the other. Tr. 7/14/93, at 67, 70. Defense counsel cross-examined Forgy extensively about the killings. Tr. 7/14/93, at 132-37, 142-44. Because the jury was well aware of Forgy’s involvement in several killings and previous deceptions, we think it unlikely that any additional impeachment of Forgy would have significantly altered the quantum of proof in appellants’ favor, much less produced a different outcome. Cf. United States v. Cuffie, 80 F.3d 514, 518 (D.C.Cir.1996) (impeachment evidence is cumulative “only if the witness was already impeached at trial by the same kind of evidence”). Confrontation Clause Appellants claim that the district court restricted their cross-examination of Government" } ]

[ { "docid": "22128698", "title": "", "text": "of Hamilton, J.); Kyles, 115 S.Ct. at 1565, n. 7, 514 U.S. at 433, n. 7. The first situation, where the prosecution introduced testimony at trial that it knew or should have known was perjured, required reversal \"if there is any reasonable likelihood that the false testimony could have affected the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. In the second case, where the government failed to turn over a specific kind of exculpatory evidence requested by the defense, such non-disclosure was \"seldom, if ever, excusable”. Id. at 106, 96 S.Ct. at 2398. Finally, in the third category, where the government failed to turn over exculpatory evidence either not requested or requested in a general way, reversal was necessary only when withholding the evidence would be \"of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Id. at 108, 96 S.Ct. at 2399. . As the Court explained, \"(t)he evidence is material only if there is a reasonable probabiliiy that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (opinion of Blackmun, J.); id. at 685, 105 S.Ct. at 3385 (White, J., concurring in part and concurring in judgment). \"A 'reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. at 682, 105 S.Ct. at 3384. . The Kyles CourL restricted its materiality analysis to Brady situations caused by prosecutorial omissions and did not \"address any claim under the first Augurs categoiy.” Kyles, 115 S.Ct. at 1565 & n. 7, 115 S.Ct. at 1565 & n. 7. . In Norris, a police report describing a rape victim’s hesitation during her initial identification of the defendant was not disclosed to the defense. Subsequently at trial, the victim testified that when she first confronted Norris, she was certain that he had attacked her. Norris, 540 F.2d at 1244. In McDowell, the victim’s initial statements to police were that her attacker was white. Defense counsel was told only of the victim's subsequent description of" }, { "docid": "22128656", "title": "", "text": "case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566. Third, the Court explained that once Brady error is found to be material, further harmless error review is unnecessary as ‘“a reasonable probability that, had the evidence been disclosed to the defense, the result of the trial would have been different’ necessarily entails the conclusion that the suppression must have had ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. (internal citations omitted); see Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir.) (noting that “the Bagley materiality standard necessarily requires a court to find an impact on the jury verdict sufficiently substantial to satisfy the Brecht harmless error test.”), cert. denied, — U.S. -, 116 S.Ct. 1269, 134 L.Ed.2d 216 (1996). And finally, it noted that while courts of necessity examine undisclosed evidence item-by-item, their materiality determinations must evaluate the cumulative effect of all suppressed evidence to determine whether a Brady violation has occurred. Id. at 437, n. 10, 115 S.Ct. at 1567, n. 10. Appellant argues that the undisclosed 302 report is material in two respects. First, Sharon Wagner’s initial statement could have strengthened his claim that he was being tried for a crime committed by Lester Fuller. In support of his claim for reversal, appellant relies on our decisions in McDowell v. Dixon, 858 F.2d 945 (4th Cir.1988), and Norris v. Slayton, 540 F.2d 1241 (4th Cir.1976). However, unlike those cases where defense counsel was unaware of the exculpatory evidence until after trial, here Sharon Wagner admitted both on direct and on cross-examination at Trial # 1 that she had told FBI investigators in October 1993 that Lester Fuller and Rodney Van Wright had robbed the bank. J.A. at 111, 165-66. Thus, unlike McDowell and Norris where the contrast between the exculpatory evidence and the witnesses’ in-court testimony brought into question their credibility, here Sharon Wagner’s prior statement supports her trial testimony that she had initially lied to FBI investigators in order to protect her brother and appellant. The government contends" }, { "docid": "22128700", "title": "", "text": "her assailant— that he was black, with a medium afro and a medium build. At trial, the victim testified that she had always described her attacker as a black man with flat hair, big eyes, and a flat nose. McDowell, 858 F.2d at 947. . Appellant's subsequent conviction on the substantive crime (unarmed bank robbery) in his second trial, after having received the October 1993 report, only further supports our belief that the result would not have been different. . See also Hays, 85 F.3d at 1498-99 (11th Cir.1996); United States v. Graham, 83 F.3d 1466, 1474 (D.C.Cir.1996) (concluding that use of polygraph results would not have significantly aided impeachment where the witness had already admitted the deceptions in other contexts); cf. United States v. Cuffie, 80 F.3d 514, 518 (D.C.Cir.1996) (arguing evidence of perjury was material and that impeachment evidence is cumulative “only if the witness was already impeached at trial by the same kind of evidence.”). Hays is a particularly apt case for comparison, for there the appellant argued that the state had violated its Brady obligation by failing to disclose some 20 statements made by Knowles, the state's main witness, which could have aided impeachment. Hays, 85 F.3d at 1497. While appellant noted at least 4 inconsistencies that could have been highlighted only by reference to the suppressed statements, the court rejected this argument explaining: Taken together, these assertions do not undermine confidence in the verdict. The main reason for this is that most of the asserted uses of the suppressed statements would have been redundant, because Hays’s counsel in fact elicited testimony from Knowles on the witness stand acknowledging that he had been inconsistent on many of the listed points. And on others (particularly the relatedness of the murder and the cross-burning), no obvious reason suggests that the jury would have regarded the inconsistency as particularly significant. Therefore, we conclude that Petitioner's argument on the materiality of the alleged Brady statements fails. Id. at 1499. . See. Wood, - U.S. at -, 116 S.Ct. at 11 (“In short, it is not 'reasonably likely’ that disclosure of" }, { "docid": "13125130", "title": "", "text": "order to argue Holmes had a motive to steal the money on his own. But the evidence showed Hemp-hill continued to write checks to Holmes in excess of his salary, and the excess ended up in Hemphill’s or Bullock’s accounts. Trial Transcript at 3596. If Holmes thwarted the conspirators by retaining the excess, why would Hemphill have continued to use him? The trial court pressed Hemphill’s counsel to offer any basis for thinking Holmes kept the excess money, but she provided no explanation. Trial Transcript at 3595-96. Since Holmes’s gambling was not relevant for any purpose other than to suggest a motivation to steal the excess money, the trial court committed no error when it prevented counsel’s inquiry. Second, the government denies a defendant due process when it suppresses information requested by a defendant that is material to the defendant’s guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Information is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citation omitted). Whether information was material is a question for de novo review. United States v. Cuffie, 80 F.3d 514, 517 (D.C.Cir.1996). Here, there is no dispute that the government knew Holmes had been arrested twice in Maryland for theft and did not disclose these facts. Impeachment evidence, such as a witness’s prior crimes, is material if “the undisclosed information could have substantially affected the efforts of defense counsel to impeach the witness.” Id. “[A]n incremental amount of impeachment evidence on an already compromised witness” is not material. United States v. Derr, 990 F.2d 1330, 1336 (D.C.Cir.1993). Impeachment evidence is incremental “only if the witness was already impeached ... by the same kind of evidence.” Cuffie, 80 F.3d at 518. Assuming Holmes’s arrests led to convictions, the information would still be immaterial because the defense had impeached Holmes with the “same kind of evidence” as the supposed Maryland thefts, including the substantial" }, { "docid": "22128654", "title": "", "text": "favorable to the defendant and material in order to demonstrate constitutional error. United States v. Hoyte, 51 F.3d 1239, 1241 (4th Cir.1995). By any measure, the October FBI 302 is favorable to appellant. As exculpatory evidence, it implicates Fuller and Van Wright in the bank robbery and comports with appellant’s theory of the case. As impeachment evidence, it reveals inconsistencies in Sharon Wagner’s accounts to investigators that could be used to impugn her credibility as a witness. The more difficult question focuses on the materiality of the suppressed report and whether “there exists a ‘reasonable probability that had the evidence been disclosed the result at trial would have been different.” Wood, — U.S. at -, 116 S.Ct. at 10. The Supreme Court first considered standards of materiality in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), where it discussed three separate situations in which a Brady claim might arise and adopted a separate materiality standard for each. Subsequently, in Bagley, the Court rejected any difference between impeachment and exculpatory evidence for Brady purposes and consolidated the “no request/general request” and “specific request” scenarios under the same “reasonable probability of a different result” standard. 473 U.S. at 682, 105 S.Ct. at 3383. More recently, in Kyles, the Court reaffirmed its Bagley formulation and further explored four aspects of materiality that guide application of the standard. First, Kyles explains what is not required in demonstrating materiality — a defendant does not have to show by a preponderance of the evidence that disclosure of the evidence would have resulted in acquit tal. Kyles, 514 U.S. at 431-32, 115 S.Ct. at 1565-66; Hays v. State of Alabama, 85 F.3d 1492, 1498 (11th Cir.) (interpreting Kyles to mean that undisclosed evidence can require a new trial even if it is more likely than not that a jury seeing the new evidence will still convict), cert. denied, — U.S. -, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997). Second and related, it discussed what is required — a “showing that the favorable evidence could reasonably be taken to put the whole" }, { "docid": "22128659", "title": "", "text": "(9th Cir.1995) (noting that failure to disclose an investigative report identifying an alternative suspect does not require reversal where defendant was able to discuss alternative suspect with interviewing officer on cross-examination and again on recross-examination). As a second line of attack, appellant argues that the October 302 report reveals a number of inconsistencies (in addition to naming Fuller and Van Wright as the bank robbers) which appellant would have used to impeach Sharon Wagner’s trial testimony. This court has often stressed that “when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule.” Jean, 107 F.3d at 1115 (citing Giglio, 405 U.S. at 153-54, 92 S.Ct. at 765-66). At trial, Sharon Wagner claimed on cross-examination that she lied only twice in her initial interview with FBI investigators: she lied about her name and she lied in identifying Fuller and Van Wright as the bank robbers. J.A. at 166. Appellant claims that the government’s failure to disclose the October 302 report prevented him from impeaching Sharon Wagner on this point. As a result, the jury was not informed that she had originally told investigators that Anthony Wagner was not her brother, that she had slept until 2:00 p.m. on the day of the robbery, and that she claimed to have overheard Fuller and Van Wright conspiring to rob the bank. Assuming these statements to be inconsistent, we find that these details would have provided only cumulative impeachment of Sharon Wagner’s trial testimony and do not rise to a level that undermines our confidence in the verdict. Our decision in Hoyte provides analogous circumstances. 51 F.3d 1239 (4th Cir.1995). In Hoyte, appellant was not provided with a statement made by government witness Densie Beckford in which Beckford failed to single out which of the defendants had lured the victim into the car. Appellant argued that were the statement to be false, it could be used to impeach Beckford’s trial testimony and would “tend to show that he kept changing his story until he invented a version that the" }, { "docid": "13125131", "title": "", "text": "the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citation omitted). Whether information was material is a question for de novo review. United States v. Cuffie, 80 F.3d 514, 517 (D.C.Cir.1996). Here, there is no dispute that the government knew Holmes had been arrested twice in Maryland for theft and did not disclose these facts. Impeachment evidence, such as a witness’s prior crimes, is material if “the undisclosed information could have substantially affected the efforts of defense counsel to impeach the witness.” Id. “[A]n incremental amount of impeachment evidence on an already compromised witness” is not material. United States v. Derr, 990 F.2d 1330, 1336 (D.C.Cir.1993). Impeachment evidence is incremental “only if the witness was already impeached ... by the same kind of evidence.” Cuffie, 80 F.3d at 518. Assuming Holmes’s arrests led to convictions, the information would still be immaterial because the defense had impeached Holmes with the “same kind of evidence” as the supposed Maryland thefts, including the substantial thefts he committed during the WTU conspiracy. He had pled guilty to stealing much more substantial sums than those involved in the two undisclosed arrests. Moreover, the defense also impeached him with more damaging evidence, such as his perjury and other lies. For example, Holmes concealed his profits from the conspiracy by falsifying his tax returns, Trial Transcript at 3322-30, and he lied during the FBI’s investigation, Trial Transcript at 3374. The additional minor thefts could have done no further damage to Holmes’s severely compromised credibility. Our conclusion that Hemphill had the proper opportunity to confront Holmes, together with our decision that the summary charts were properly in evidence, also disposes of the attack on her sentence. Since Hemphill’s claim is simply that her sentence was based on improper evidence, namely the charts and Holmes’s testimony, our decision that this evidence was proper means the appeal of her sentence must fail. F Finally, Hemphill appeals her convictions for money laundering, Counts Nineteen through Twenty-Three. First, she complains there was insufficient evidence to prove these charges." }, { "docid": "23054607", "title": "", "text": "stated that he and other Government agents had met with Williams prior to Williams’ testimony. Cf. Hays v. Alabama, 85 F.3d 1492, 1499 (11th Cir.1996) (finding insufficient materiality where, inter alia, cross-examination elicited statements acknowledging inconsistency with testimony on direct examination), cert. denied, 520 U.S. 1123, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997). At trial the Government did not correct Williams’ testimony regarding his prior drug use; the falsehood became apparent only at Williams’ sentencing hearing three months later. Thus, defense counsel was unable to highlight the falsity in impeaching Williams during cross-examination. Nevertheless, Williams did testify that he had tested positive once for drug use after his arrest. See R9-46-, 72-76, 105-108. Because Williams effectively admitted to ongoing drug use, an admission of an additional positive drug test subsequent to his arrest would not have tarnished his character or credibility further to any significant degree. Furthermore, the defense emphasized numerous possible inconsistencies in Williams’ testimony during cross-examination. See R9-46 to 50, 72-76,105-108. Thus, an additional instance of alleged perjury would have been of minimal significance in the jury’s assessment of Williams’ credibility, and certainly not enough to raise the reasonable possibility of a different verdict. See Hays, 85 F.3d at 1498. Therefore, because we find that the uncorrected, allegedly perjurious statements do not “undermine confidence in the verdict,” Strickler, 527 U.S. at 290, 119 S.Ct. at 1952 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. at 1566), we reject Dickerson’s Giglio challenge. Cf. Strickler, 527 U.S. at 289-92, 119 S.Ct. at 1952-53 (finding insufficient materiality even where “[wjithout a doubt, [witness’] testimony was prejudicial in the sense that it made petitioner’s conviction more likely than if she had not testified, and discrediting [wit ness’] testimony might have changed the outcome of the trial”). B. Inconsistent Theories in Multiple Prosecutions for the Same Crime Dickerson’s second Due Process claim rests on a comparison of the theories employed by the prosecution when charging Dickerson in the trial below and his co-conspirators in the previous trials in Georgia and South Carolina. The Government’s cases in Georgia and South Carolina rested on Nelson’s" }, { "docid": "15192329", "title": "", "text": "would have assisted in the impeachment of Harper. The Government counters that the impeachment evidence was cumulative and cumulative impeachment evidence is not material. See, e.g., Orache, 484 F.3d at 599-600 (failure to disclose grand jury transcript of witness’s admission to lying in another case was not Brady violation because witness was “thoroughly impeached” at trial when cross-examined about prior convictions, past incidents of lying and benefits received in exchange for testimony); United States v. Maloney, 71 F.3d 645, 653 (7th Cir.1995) (impeachment evidence that lawyer witness instructed client to lie was cumulative because witness admitted to taking statements from other clients with full knowledge of falsity); United States v. Kozinski, 16 F.3d 795, 818 (7th Cir.1994) (evidence that witness participated in two additional drug sales was cumulative where witness admitted to being drug dealer); United States v. Marashi, 913 F.2d 724, 732-33 (9th Cir.1990) (witness’s false statement was cumulative where her trial testimony was contradicted by another prior statement). As the district court noted, Harper was thoroughly impeached at trial. Order Denying Mot. for New Trial at 5 (“[T]he jury was well aware of Harper’s legacy of past untruths-”). For example, Harper admitted on cross-examination that she had prepared hundreds of false appraisals apart from her work for Brodie and that she had been fired from a previous job with a mortgage broker due to a discrepancy in “[a]n appraisal that someone else did for a loan that I was doing.” Trial Tr. 465-66, Jan. 12, 2005. Defense counsel also questioned Harper’s motivation to testify truthfully by highlighting the reduced sentence she was likely to receive for testifying against Bro-die. To be cumulative, however, undisclosed impeachment evidence must be “the same kind of evidence” as that introduced at trial. United States v. Cuffie, 80 F.3d 514, 518 (D.C.Cir.1996). In Cuffie a co-defendant, who pleaded guilty and testified, was impeached at trial by evidence “that he was a cocaine addict; that he was a cooperating witness; that, as the owner of the apartment, he had an incentive to place responsibility for the drugs on someone else; and that he had" }, { "docid": "22128660", "title": "", "text": "him from impeaching Sharon Wagner on this point. As a result, the jury was not informed that she had originally told investigators that Anthony Wagner was not her brother, that she had slept until 2:00 p.m. on the day of the robbery, and that she claimed to have overheard Fuller and Van Wright conspiring to rob the bank. Assuming these statements to be inconsistent, we find that these details would have provided only cumulative impeachment of Sharon Wagner’s trial testimony and do not rise to a level that undermines our confidence in the verdict. Our decision in Hoyte provides analogous circumstances. 51 F.3d 1239 (4th Cir.1995). In Hoyte, appellant was not provided with a statement made by government witness Densie Beckford in which Beckford failed to single out which of the defendants had lured the victim into the car. Appellant argued that were the statement to be false, it could be used to impeach Beckford’s trial testimony and would “tend to show that he kept changing his story until he invented a version that the government liked.” Id. at 1243. In rejecting Hoyte’s appeal, we agreed with the findings of the trial court that use of the undisclosed statement to attack credibility “would not have changed the outcome because Beckford was impeached in so many other ways.” Id,. Similarly here, further impeachment of Sharon Wagner by highlighting additional inconsistencies between her trial testimony and her October 1993 statement would not, within reasonable probability, have led to a different result. From the partial trial record before us, it is evident that Sharon Wagner admitted to having lied a number of times: lying to get into the country (J.A. at 152, 162), lying to get a Virginia drivers license and a Social Security card (J.A. at 109, 151), lying to get a job (J.A. at 153), being convicted of four misdemeanors involving dishonesty (J.A. at 110, 151), and lying initially about who was responsible for the bank robbery (J.A. 110-11, 165-66, 178). In addition, the jury learned that she had allowed other individuals to sell crack out of her residence (J.A. at" }, { "docid": "8051852", "title": "", "text": "often favorable to a defendant, as “making the government’s case less credible ... enhances the defendant’s chances of acquittal.” In re Sealed Case No. 99-3096, 185 F.3d 887, 893 (D.C.Cir.1999). For example, in United States v. Smith, 77 F.3d 511, 516 (D.C.Cir.1996), the court found the government’s failure to disclose an agreement to dismiss charges against a cooperator as part of a plea agreement to be a Brady violation that warranted a new trial. Smith concluded that the confidence in the jury’s verdict was undermined because “[a]rmed with full disclosure, defense counsel could have pursued devastating cross-examination, challenging [the witness’] assertion that he was testifying only to ‘get a fresh start’ and suggesting that the witness might have deliberately concealed the other favors from the Government that were not in the written plea agreement.” Id. Likewise, United States v. Cuffie, 80 F.3d 514, 518 (D.C.Cir.1996), found that evidence that a witness had lied under oath in a previous court proceeding involving the same drug conspiracy was material because such evidence was “almost unique in its detrimental effect on a witness’ credibility.” However, unlike in Smith and Cuffie, here it is unclear whom Wilson would have sought to impeach with the undisclosed evidence. Under the Federal Rules of Evidence, a party may attempt to impeach a witness through evidence of character or conduct, of conviction of a crime, or of prior inconsistent statements. See Fed.R.Evid. 608, 609, 613. “[W]itnesses are not impeached by prior inconsistent statements of other witnesses, but by their own prior inconsistent statements.” United States v. Tarantino, 846 F.2d 1384, 1416 (D.C.Cir.1988). Several witnesses testified about the Doleman murder and the feud between the 1-5 Mob and the Congress Park group including James Faison, Kelliebrew, Capíes, and Damien Green. With the undisclosed reports, Wilson may have been able to cross-examine these witnesses about feud details the reports revealed that varied from those offered by the witnesses. However, Wilson could not have impeached the witnesses since the suppressed reports do not contain prior statements of these witnesses. They contain only summaries of interviews of other witnesses by police investigators." }, { "docid": "22128701", "title": "", "text": "violated its Brady obligation by failing to disclose some 20 statements made by Knowles, the state's main witness, which could have aided impeachment. Hays, 85 F.3d at 1497. While appellant noted at least 4 inconsistencies that could have been highlighted only by reference to the suppressed statements, the court rejected this argument explaining: Taken together, these assertions do not undermine confidence in the verdict. The main reason for this is that most of the asserted uses of the suppressed statements would have been redundant, because Hays’s counsel in fact elicited testimony from Knowles on the witness stand acknowledging that he had been inconsistent on many of the listed points. And on others (particularly the relatedness of the murder and the cross-burning), no obvious reason suggests that the jury would have regarded the inconsistency as particularly significant. Therefore, we conclude that Petitioner's argument on the materiality of the alleged Brady statements fails. Id. at 1499. . See. Wood, - U.S. at -, 116 S.Ct. at 11 (“In short, it is not 'reasonably likely’ that disclosure of the polygraph results ... would have resulted in a different outcome at trial. Even without Rodney’s testimony, the case against respondent was overwhelming .... In the face of this physical evidence, as well as Rodney and Tracy's testimony — to say nothing of the testimony by Bell that the state likely could introduce on retrial — it should take more than supposition on weak premises offered by the respondent to undermine a court’s confidence in the outcome.”) (emphasis added); Hoke, 92 F.3d at 1357 (\"Nevertheless, we are convinced beyond any doubt that, in light of the overwhelming evidence that Still was raped by Hoke, no reasonable juror would conclude that this single act of anal intercourse almost a year earlier was material to the question of whether Still consented to having sex with Hoke.\") (first emphasis added). . On the partial record before us, which does not include Appellant's written Motion in Limine filed prior to the first trial, we are unable to determine whether or not appellant clearly identified the ruling sought. . The" }, { "docid": "7179953", "title": "", "text": "the assailant. Robert McDowell is unmistakably black, and Patsy Mason first claimed that her assailant was white. Originally she claimed that he had shoulder length hair, later that he had an afro, and ultimately that his hair was flat. The state attempts to distinguish Norris from this case by stressing that Patsy has always identified McDowell as her attacker when shown pictures of him. This contention unjustifiably diminishes the value of the prior inconsistent description in impeaching Patsy’s credibility, or memory or both, and ignores the fact that, “[ijmpeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.” Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. Whether Patsy testified truthfully and accurately determined the guilt or innocence of Robert McDowell. Hers was the sole identification testimony and where it was not, as here, incontestably corroborated by circumstantial evidence, the conclusion is inescapable that had the jury known of her prior inconsistent identifications, there was a reasonable probability that the outcome of McDowell’s trial might have been different. Certainly it was enough to create a reasonable doubt of McDowell’s guilt that did not otherwise exist. The prosecution also argues that Patsy’s first account is not material because Officer Baker described her as “semi-conscious” when she uttered the fact that her assailant had been white, although several physicians testified that she had been alert and conscious at the time. We recognize that had Patsy’s prior inconsistent identifications been proved, there was evidence to minimize or explain away their damaging effect on the prosecution’s case. But that evidence is not so overwhelming that we can say that the jury inevitably would have been persuaded that her in-court identification was entirely truthful and conclusive, and that her memory and credibility were beyond reproach. Thus we are not persuaded that the inconsistent prior identifications were not material as defined in Bagley and Agurs. Another significant aspect of Patsy’s account of her assailant’s features concerns her prior acquaintance with McDowell. We do not doubt that the strategy counsel used to defend McDowell was influenced by their lack of knowledge of Patsy’s first" }, { "docid": "7179943", "title": "", "text": "to SBI officer Scheppf on July 17, 1979, was that she was uncertain as to whether the man was black or white. Subsequently, on July 18, 1979, Patsy stated that her attacker had been black, with a medium afro and a medium build, and that she did not know the man. Patsy later identified McDowell from a photo spread. Defense counsel were apprised only of Patsy’s July 18 description that her assailant was black, and of the results of the photo spread. At trial Patsy testified that she had always described her attacker as a black man with flat hair, big eyes and a flat nose, and that she had seen McDowell before briefly on only one occasion. The second item of undisclosed evidence came from an interview between Agent John Walker and an eleven-year-old neighbor of the Masons, Jerry Stone. Stone reported seeing a black male approach the Mason home riding a bicycle “white in col- or,” at about 11:30 p.m. on July 14. According to Stone, the bicyclist was “approximately 6'0\", 20 years old, very skinny, very dark skinned, no hat, no shirt, light green medium cutoff shorts and believed to be wearing shoes, possibly black boots up to one foot high.” The bicyclist shone a flashlight at the Mason residence, approached the front door, and was admitted into the house. Stone then examined the ten-speed bicycle, which he described as “a Huffy brand ... white in color, ... no fenders, no horn and no front headlight.” Stone then knocked on Patsy’s side door, and when she opened the door, asked her “who the colored boy was on the white ten speed bicycle.” Patsy replied that she did not know, and that he might be talking with her parents. Jerry Stone then left and went home. Several minutes later, he heard “a ten speed bicycle travelling real fast down Third Street.” The final item of undisclosed evidence consisted of police reports prior to July 14 of white intruders in the Mason home. Hope Spivey and Sheila Jackson, young cousins of Patsy, told of two separate incidents, one several" }, { "docid": "7179942", "title": "", "text": "the case, we do not consider his other contentions. Nor do we think it necessary to consider the effect of Franklin on this case. There were three separate items of undisclosed evidence. First, there existed direct evidence potentially damaging to the reliability of Patsy’s identification of McDowell as her attacker and Patsy’s credibility or memory. Patsy was initially questioned about the identity of her attacker in the early morning hours of July 15, 1979, less than three hours after the attack, by Sanford police officer W.A. Baker in the Lee County Hospital. The following exchange occurred: Q. Do you know who did this to you? A. Patsy motioned with her head in a negative manner. Q. Does he live in your neighborhood? A. Motioned with her shoulder, I don’t know. Q. Was he black or white? A. White, (emphasis added) An interview conducted by SBI agent Stewart with Terry Hinson, (Carol Ann’s mother and Patsy’s stepsister), disclosed that she “knew that Patsy had already told that the people who did it were white.” Patsy’s description to SBI officer Scheppf on July 17, 1979, was that she was uncertain as to whether the man was black or white. Subsequently, on July 18, 1979, Patsy stated that her attacker had been black, with a medium afro and a medium build, and that she did not know the man. Patsy later identified McDowell from a photo spread. Defense counsel were apprised only of Patsy’s July 18 description that her assailant was black, and of the results of the photo spread. At trial Patsy testified that she had always described her attacker as a black man with flat hair, big eyes and a flat nose, and that she had seen McDowell before briefly on only one occasion. The second item of undisclosed evidence came from an interview between Agent John Walker and an eleven-year-old neighbor of the Masons, Jerry Stone. Stone reported seeing a black male approach the Mason home riding a bicycle “white in col- or,” at about 11:30 p.m. on July 14. According to Stone, the bicyclist was “approximately 6'0\", 20 years" }, { "docid": "15192330", "title": "", "text": "New Trial at 5 (“[T]he jury was well aware of Harper’s legacy of past untruths-”). For example, Harper admitted on cross-examination that she had prepared hundreds of false appraisals apart from her work for Brodie and that she had been fired from a previous job with a mortgage broker due to a discrepancy in “[a]n appraisal that someone else did for a loan that I was doing.” Trial Tr. 465-66, Jan. 12, 2005. Defense counsel also questioned Harper’s motivation to testify truthfully by highlighting the reduced sentence she was likely to receive for testifying against Bro-die. To be cumulative, however, undisclosed impeachment evidence must be “the same kind of evidence” as that introduced at trial. United States v. Cuffie, 80 F.3d 514, 518 (D.C.Cir.1996). In Cuffie a co-defendant, who pleaded guilty and testified, was impeached at trial by evidence “that he was a cocaine addict; that he was a cooperating witness; that, as the owner of the apartment, he had an incentive to place responsibility for the drugs on someone else; and that he had violated his oath as a police officer to uphold the law.” Id. The Government failed to disclose that the witness had lied under oath in an earlier court proceeding involving the same conspiracy. Id. We held that the witness’s testimony was “almost unique in its detrimental effect on [his] credibility” and therefore ordered a new trial. Id. Amicus similarly asserts that the undisclosed report was not “the same kind of evidence” and thus was not cumulative. Cuffie, 80 F.3d at 518. Specifically, Ami-cus contends that the report was unique because it revealed that Harper engaged in fraud as a loan officer whereas the other impeachment evidence involved fraud as an appraiser. We do not agree-Harper’s admission that she prepared loan applications containing false statements for Bro-die is similar to her previous admissions that she had prepared hundreds of appraisals containing false statements. The withheld evidence was simply another illustration of Harper’s untruthfulness rather than evidence “almost unique in its detrimental effect” on Harper’s credibility. Id. This case thus differs from Cuffie, where the Government withheld" }, { "docid": "22128657", "title": "", "text": "10, 115 S.Ct. at 1567, n. 10. Appellant argues that the undisclosed 302 report is material in two respects. First, Sharon Wagner’s initial statement could have strengthened his claim that he was being tried for a crime committed by Lester Fuller. In support of his claim for reversal, appellant relies on our decisions in McDowell v. Dixon, 858 F.2d 945 (4th Cir.1988), and Norris v. Slayton, 540 F.2d 1241 (4th Cir.1976). However, unlike those cases where defense counsel was unaware of the exculpatory evidence until after trial, here Sharon Wagner admitted both on direct and on cross-examination at Trial # 1 that she had told FBI investigators in October 1993 that Lester Fuller and Rodney Van Wright had robbed the bank. J.A. at 111, 165-66. Thus, unlike McDowell and Norris where the contrast between the exculpatory evidence and the witnesses’ in-court testimony brought into question their credibility, here Sharon Wagner’s prior statement supports her trial testimony that she had initially lied to FBI investigators in order to protect her brother and appellant. The government contends that the disclosure of the exculpatory information at Trial # 1 aligns this case closely with the facts in United States v. Curtis, 931 F.2d 1011 (4th Cir.1991). In that ease appellant Curtis challenged his possession and conspiracy convictions arguing that the prosecution’s failure to disclose an exculpatory memorandum summarizing a witness’s initial statement to police violated his right to a fair trial. The Curtis court rejected appellant’s claim and distinguished Norris based on two factors: (1) that the appellant knew about the witness’s exculpatory statement prior to trial, and; (2) that the witness testified about his prior statement at Trial # 1 and was cross-examined by appellant concerning it. Id. at 1014. Admittedly, the facts of the instant case differ in that only the second factor is present here. However, because Sharon Wagner testified at trial to her initial false identification and was cross-examined regarding it, we believe that disclosure of the actual 302 report would not, within reasonable probability, have caused a different result. See United States v. Manning, 56 F.3d 1188, 1198" }, { "docid": "17354556", "title": "", "text": "witness whose credibility has already been shaken due to extensive cross-examination, does not create a reasonable doubt that did not otherwise exist where that evidence is cumulative.... ” Dumas, 207 F.3d at 16 (quoting United States v. Shelton, 588 F.2d 1242, 1248 (9th Cir.1978)); see also United States v. Connolly, 504 F.3d 206, 217 (1st Cir.2007). Nevertheless, “suppressed impeachment evidence can be immaterial because of its cumulative nature only if the witness was already ... impeached at trial by the same kind of evidence.” Conley, 415 F.3d at 192 (quoting United States v. Cuffie, 80 F.3d 514, 518 (D.C.Cir.1996)) (internal quotation marks omitted). The district court’s immateriality finding was based, in part, on its conclusion that the Andino proffer would have provided avenues of impeachment that were cumulative of others already available to the defense. We agree that, at best, the Andino proffer would have provided Paladin with more of the same kind of evidence that was already available to him to undermine Vega’s credibility. Paladin relies principally on the notion from Conley that evidence is cumulative only insofar as the witness was already impeached by the “same kind of evidence.” See id. In Conley, the defendant police officer was convicted of perjury and obstruction charges stemming from his involvement in (and subsequent cover-up of) the accidental beating of an undercover officer. Id. at 187. A key government witness — a fellow officer involved in the pursuit that led to the beating — testified regarding his perception of the chain of events. However, the prosecution had failed to disclose an FBI interview with the witness during which he expressed uncertainty regarding the events, and even asked that he be hypnotized in order to better recall what had happened. Id. at 185-86. This Court found that a Brady violation had occurred because the defendant had been unaware of any evidence suggesting that the witness was uncertain as to his recollection of events. Id. at 191 (“Prior to trial ... Petitioner did not know the Government’s key witness previously suggested he be hypnotized to ‘truly recall’ the events.... Without any other similar" }, { "docid": "22128699", "title": "", "text": "the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (opinion of Blackmun, J.); id. at 685, 105 S.Ct. at 3385 (White, J., concurring in part and concurring in judgment). \"A 'reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. at 682, 105 S.Ct. at 3384. . The Kyles CourL restricted its materiality analysis to Brady situations caused by prosecutorial omissions and did not \"address any claim under the first Augurs categoiy.” Kyles, 115 S.Ct. at 1565 & n. 7, 115 S.Ct. at 1565 & n. 7. . In Norris, a police report describing a rape victim’s hesitation during her initial identification of the defendant was not disclosed to the defense. Subsequently at trial, the victim testified that when she first confronted Norris, she was certain that he had attacked her. Norris, 540 F.2d at 1244. In McDowell, the victim’s initial statements to police were that her attacker was white. Defense counsel was told only of the victim's subsequent description of her assailant— that he was black, with a medium afro and a medium build. At trial, the victim testified that she had always described her attacker as a black man with flat hair, big eyes, and a flat nose. McDowell, 858 F.2d at 947. . Appellant's subsequent conviction on the substantive crime (unarmed bank robbery) in his second trial, after having received the October 1993 report, only further supports our belief that the result would not have been different. . See also Hays, 85 F.3d at 1498-99 (11th Cir.1996); United States v. Graham, 83 F.3d 1466, 1474 (D.C.Cir.1996) (concluding that use of polygraph results would not have significantly aided impeachment where the witness had already admitted the deceptions in other contexts); cf. United States v. Cuffie, 80 F.3d 514, 518 (D.C.Cir.1996) (arguing evidence of perjury was material and that impeachment evidence is cumulative “only if the witness was already impeached at trial by the same kind of evidence.”). Hays is a particularly apt case for comparison, for there the appellant argued that the state had" }, { "docid": "7179952", "title": "", "text": "to identify him. The prosecution knew of this report but failed to furnish a copy of it to the defense. The victim subsequently testified at trial that when she first confronted Norris, she was certain that he was her assailant. We concluded that the report “was evidence which had a direct bearing upon the critical issue in the case and might ‘reasonably have weakened or overcome testimony adverse to the defendant.’ ” Id. at 1244, quoting Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 847 (4 Cir.1964). The report would have weakened the victim’s credibility, as well as the accuracy of her identification of the defendant as her assailant. In an addendum to our opinion in Norris, we further stated that since the omitted evidence “was of such a nature as to raise a substantial likelihood that it would have affected the result in Norris’ trial,” Agurs, decided after Norris had been argued, but before its publication, did not require a different result. In the case at bar the critical issue was the identity of the assailant. Robert McDowell is unmistakably black, and Patsy Mason first claimed that her assailant was white. Originally she claimed that he had shoulder length hair, later that he had an afro, and ultimately that his hair was flat. The state attempts to distinguish Norris from this case by stressing that Patsy has always identified McDowell as her attacker when shown pictures of him. This contention unjustifiably diminishes the value of the prior inconsistent description in impeaching Patsy’s credibility, or memory or both, and ignores the fact that, “[ijmpeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.” Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. Whether Patsy testified truthfully and accurately determined the guilt or innocence of Robert McDowell. Hers was the sole identification testimony and where it was not, as here, incontestably corroborated by circumstantial evidence, the conclusion is inescapable that had the jury known of her prior inconsistent identifications, there was a reasonable probability that the outcome of McDowell’s trial might have been different. Certainly it was enough" } ]

[ { "docid": "22636204", "title": "", "text": "relieve any person from any law of any State which regulates insurance, banking, or securities.” § 514(b)(2)(A), as set forth in 29 U. S. C. § 1144(b)(2)(A) (saving clause). “Neither an employee benefit plan . . . nor any trust established under such a plan, shall be' deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.” § 514(b)(2)(B), 29 U. S. C. § 1144(b)(2)(B) (deemer clause). We indicated in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985), that these provisions “are not a model of legislative drafting.” Id., at 739. Their operation is nevertheless discernible. The pre-emption clause is conspicuous-for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that “relate[s] to” an employee benefit plan governed by ERISA. The saving clause returns to the States the power to enforce those state laws that “regulat[e] insurance,” except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be “deemed” an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws “purporting to regulate” insurance companies or insurance contracts. Ill Pennsylvania’s antisubrogation law “relate[s] to” an employee benefit plan. We made clear in Shaw v. Delta Air Lines, supra, that a law relates to an employee welfare plan if it has “a connection with or reference to such a plan.” Id., at 96-97 (footnote omitted). We based our reading in part on the plain language of the statute. Congress used the words “‘relate to’ in §514(a) [the pre-emption clause] in their broad sense.” Id., at 98. It did not mean to pre-empt only state laws specifically designed to affect employee benefit plans. That interpretation would have made it unnecessary for Congress to enact ERISA § 514(b)(4), 29 U. S. C. § 1144(b)(4), which exempts from pre-emption “generally”" } ]

[ { "docid": "3408678", "title": "", "text": "ERISA because it does not sufficiently relate to an employee benefit plan so as to fall within ERISA’s general preemption provision. 29 U.S.C. § 1144(a) (1988). Three provisions of ERISA specifically address the scope of the Act’s intended preemptive effect. The first provision states that Congress intended ERISA to preempt state laws which relate to employee benefit plans: Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.... 29 U.S.C. § 1144(a) (1988) (emphasis added). The general preemptive effect of subsection (a), however, is specifically limited by subsection (b) of the Act, commonly referred to as the “saving clause:” Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. 29 U.S.C. § 1144(b)(2)(A) (1988). Finally, the power which subsection (b) reserves to the states to regulate insurance, banking, and securities is likewise expressly limited by subparagraph (2)(B) of that subsection, commonly referred to as the “deemer clause:” Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 29 U.S.C. § 1144(b)(2)(B) (1988) (emphasis added). In the seminal case of FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990), the United States Supreme Court described the application and scope of these provisions: The pre-emption clause is conspicuous for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that “relate[s] to” an employee benefit plan governed by ERISA. The saving clause returns to the States the power to enforce those state laws that" }, { "docid": "2842173", "title": "", "text": "plan’s administration are preempted. See Cicio v. Does, 321 F.3d 83, 96 (2nd Cir.2003)(finding that state law claim for misrepresentation of employee benefit plan preempted by ERISA); see also Powell v. Chesapeake & Potomac Telephone Co., 780 F.2d 419 (4th Cir.1985)(finding that ERISA preempts state common law claim brought by a beneficiary for intentional infliction of emotional distress because the claim arose out of pension plan administration). Although Chapman’s state law claims are very general and there are no specific facts or state statutes cited to support the allegations in the complaint, it is fair to say that his claims arise from the administration of the plan. Therefore, it is clear from the case law that such state law claims “relate to” an employee benefit plan and are preempted. The last step in the Court’s preemption inquiry is the determination of whether Chapman’s claims are saved from preemption by ERISA’s savings clause. 29 U.S.C. § 1144(b)(2)(A). After conducting this analysis the Court finds, that Chapman’s claims cannot avoid preemption because they do not fall within the scope of the savings clause. Pursuant to Title 29 U.S.C. § 1144(b)(2)(A), which courts term the “savings clause,” a law that “regulates insurance” survives ERISA preemption. A state law “regulates insurance” and is “saved” from ERISA preemption if the Court finds that the law satisfies two requirements of the recently crafted Miller test. Kentucky Ass’n of Health Plans v. Miller, — U.S.-, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2008). In Miller, the Supreme Court makes a “clean break from” the former McCarran-Ferguson factors which courts have been using to determine whether a law “regulates insurance.” Id. at 1479. The McCarran-Ferguson factors directed courts to determine: “first, whether the practice has the effect of transferring or spreading a policy holder’s risk; second, whether the practice is an integral part of the policy relationship; and third, whether the practice is limited to entities within the insurance industry.” Miller, 123 S.Ct. at 1475. However, under the new two-pronged Miller test, a court must first determine that a state law is “specifically directed toward the entities engaged in" }, { "docid": "23612812", "title": "", "text": "of State action in the field of private employee benefit programs.” Wilson v. Zoellner, 114 F.3d 713, 715-16 (8th Cir.1997) (internal quotations omitted). Accordingly, ERISA broadly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” governed by ERISA. 29 U.S.C. § 1144(a). However, ERISA contains an exception to the general rule of preemption, which is referred to as the “savings clause.” Under the savings clause, a state law that regulates insurance is “saved” from ERISA preemption. 29 U.S.C. § 1144(b)(2)(A). ERISA’s “deemer clause,” in turn, “exempt[s] self-funded ERISA plans from state laws that ‘regulate] insurance’ within the meaning of the savings clause.” FMC Corp. v. Holliday, 498 U.S. 52, 61, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990). The effect of the deemer clause is that “self-funded ERISA plans are exempt from state regulation insofar as that regulation ‘relate[s] to’ the plans.” Id. Daley cites three cases in support of her argument against ERISA preemption of the Nebraska mental-health parity law: Express Scripts, Inc. v. Wenzel, 262 F.3d 829 (8th Cir.2001) (holding that Missouri statutes regulating some aspects of how Missouri HMOs provide prescription drugs through network pharmacies regulate insurance and, therefore, fall within ERISA’s savings clause); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002) (holding that Illinois statute requiring HMOs to provide independent medical review of certain claim denials is saved from preemption because the statute regulates insurance within the meaning of ERISA’s savings clause); and Miller, 538 U.S. 329, 123 S.Ct. 1471, 155 L.Ed.2d 468 (holding that two Kentucky any-willing-provider laws are saved from preemption because they regulate insurance within the meaning of ERISA’s savings clause). Relying on these cases, Daley argues that the Nebraska mental-health parity law is “saved” from ERISA preemption. Ultimately, Daley’s argument is fatally flawed because it ignores the significance of the deemer clause in cases where self-funded ERISA plans are concerned. See Prudential Ins. Co., 413 F.3d at 912 (“The movants’ argument here fails because it ignores the application of the deemer clause to self-funded ERISA" }, { "docid": "9856665", "title": "", "text": "must first consider whether the Michigan’s no-fault law is preempted under ERISA before applying the Federal Kemper rule. 1. Preemption under ERISA ERISA’s preemption clause provides in relevant part that “Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” 29 Ü.S.C. § 1144(a). ERISA’s “savings clause” qualifies the preemption clause when it states that “nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” 29 U.S.C. § 1144(b)(2)(A). However, ERISA’s “deemer clause,” which provides as follows, may override the savings clause for purposes of preemption under ERISA’s. Neither an employee benefit plan ... nor any trust established under such plan, shall be deemed to be an insurance company or other insurer, bank, trust company or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. = 29 U.S.C. § 1144(b)(2)(B). 2. Whether § 3109(a) is Preempted in the Matter at Hand Plaintiff claims that the determination of whether § 3109a is preempted is not based upon whether the plan at issue is self-funded, but on the state law itself. Plaintiff contends that the Federal Kemper rule does not fall within ERISA’s savings clause, and argues that the district court assumed that the Federal Kemper rule constituted a law regulating insurance and thus was saved from preemption without making the proper inquiry. Plaintiff concludes that upon making the proper inquiry, the Federal Kemper rule cannot be considered “saved” from ERISA preemption. We disagree. In the case at hand, there is no dispute that § 3109 “relates” to the employee benefit plans administered by Plaintiff for purposes of ERISA’s preemption clause. See 29 U.S.C. § 1144(a). Therefore the next step in the analysis is to determine whether § 3109a “regulates” insurance for" }, { "docid": "2054876", "title": "", "text": "health and benefit plans. ERISA’s “preemption clause” provides as follows: Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supercede any and all State laws in so far as they may now or hereafter relate to any employee benefit plan.... 29 U.S.C. § 1144(a). ERISA’s “savings clause” provides as follows: Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any state which regulates insurance, banking or securities. 29 U.S.C. § 1144(b)(2)(A). The savings clause is modified by the so-called “deemer clause”: Neither an employee benefit plan described in section 1003(a) of this title, which is not exempt under section 1003(b) of this title (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, ... or to be engaged in the business of insurance ... for the purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 29 U.S.C. § 1144(b)(2)(B). If a plan purchases insurance, as opposed to being self-insured, it is “directly affected by state laws that regulate the insurance industry.” Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 732, 105 S.Ct. 2380, 2385, 85 L.Ed.2d 728 (1985). In Metropolitan Life Insurance Co. v. Massachusetts, the Court was faced with a Massachusetts statute requiring that all insurance contracts affecting Massachusetts citizens or written in Massachusetts provide minimum mental health coverage. Id. at 727, 105 S.Ct. at 2383. The statute applied to both insured (those that purchase insurance) and noninsured (self-insured) plans. Id. at n. 14, 105 S.Ct. at n. 14. The state argued that its law, as applied to insured plans, was not preempted by ERISA. The Court noted that Massachusetts was in effect acknowledging that its statute as applied to self-insured plans would not be saved from preemption because of the “deemer clause.” Id. We need not decide whether" }, { "docid": "10814386", "title": "", "text": "ERISA preempted the Massachusetts statute (§ 47B) it was unnecessary for them to provide the mandated benefit in any ERISA plan. Thus, the narrow issue presented to the Court was whether the Massachusetts mandatory benefit law was a law “which regulates insurance” within the meaning of § 1144(b)(2)(A) such that it would not be pre-empted by § 1144(a). Section 1144(a) of ERISA is the broad pre-emption statute and provides for the supercedure of “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . .” 29 U.S.C. § 1144(a). However, § 1144(b)(2)(A), the “insurance saving clause” provides that, with one exception, nothing in ERISA “shall be construed to exempt or relieve any person from any law of any State which regulates insurance.” 29 U.S.C. § 1144(b)(2)(A). The one exception, the “deemer clause”, states that no employee benefit plan or trust established under such a plan with certain exceptions not relevant here, “shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.” 29 U.S.C. § 1144(b)(2)(B). The Court concluded that Massachusetts’ mandated benefit laws were laws that regulated insurance thereby falling within the plain language of ERISA’s insurance saving clause. Metropolitan, supra, — U.S. at —, 105 S.Ct. at 2390. The Court’s conclusion is not dispositive of the issues raised in the case at bar. However, the Court’s interpretation of the “deemer clause” and its relationship to the “insurance saving clause” is highly probative and important to the question of pre-emption of state law claims. The Court stated in pertinent part as follows: By exempting from the saving clause laws regulating insurance contracts that apply directly to benefit plans, the deem-er clause makes explicit Congress’ intention to include laws that regulate insurance contracts within the scope of the insurance laws preserved by the saving clause. Unless Congress intended to include laws regulating insurance" }, { "docid": "4576036", "title": "", "text": "against defendant Lilli Thomas, an agent of LMR in administering the plan, were also held to be preempted, “even if she [was] not herself an ERISA entity.” Id. Going even further, we noted the irrelevancy of whether one of the defendants was an “ERISA entity,” stating that state law claims that would “affect relations among principal ERISA entities” give rise to preemption. Id.; accord Morstein v. Nat'l Ins. Servs., Inc., 93 F.3d 715, 722 (11th Cir.1996) (“when a state law claim brought against a nonERISA entity does not affect relations among principal ERISA entities as such, then it is not preempted by ERISA”). Additionally, IDEA is not limited to TPAs, but rather applies to self-funded health plans without regard to the specific entity addressing the claim. Thus, our decision is not influenced by whether the IDEA provisions affect ERISA entities, or whether the TPAs are fiduciaries of the plan, since the enactment of IDEA would affect self-funded plans and the relations amongst principal ERISA entities. 2) The Saving and Deemer Clause Having found that the challenged IDEA provisions “relate to” ERISA self-funded plans, we consider whether an exception applies, or whether an exception to the exception applies. The district court found that the challenged IDEA provisions fall within the Saving Clause, but that the Deemer Clause applies to prohibit Georgia’s timeliness regulations. As noted above, the Saving Clause exempts a state law from Section 514(a) preemption if the state law “regulates insurance.” 29 U.S.C. § 1144(b)(2)(A). For the Saving Clause to apply, the state law must satisfy two requirements: (1) it “must be specifically directed toward entities engaged in insurance,” and (2) it “must substantially affect the risk pooling arrangement between the insurer and the insured.” Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341-42, 123 S.Ct. 1471, 1479, 155 L.Ed.2d 468 (2003). Applying this standard, the district court found that the Saving Clause applies to save the challenged IDEA provisions from preemption. Specifically, as to the second prong of the test, the district court found that the risk pooling arrangement between the insurer and the insured" }, { "docid": "23612824", "title": "", "text": "\"primary issue” in this case is whether the Nebraska mental health parity law is preempted by ERISA. However, in her reply brief, Daley asserts for the first time that ERISA preemption of the Nebraska law is not the issue in this case. She now claims that she is attempting to enforce against the Plan the federal mental-health parity law set forth in 29 U.S.C. § 1185a. We view this as \"an attempt to amend one’s pleadings in an appellate brief.” Dorothy J. v. Little Rock School Dist., 7 F.3d 729, 734 (8th Cir.1993) (quoting Hanson v. Town of Flower Mound, 679 F.2d 497, 504 (5th Cir.1982)) (internal quotation omitted). In her complaint, Daley merely alleged the Plan's failure to conform to the Nebraska mental-health parity law. Accordingly, we will not consider this new claim which Daley did not raise in the district court. See Alexander v. Pathfinder, Inc., 189 F.3d 735, 740 (8th Cir.1999). . The savings clause provides: \"Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” 29 U.S.C. § 1144(b)(2)(A). In Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341-42, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003), the Supreme Court refined the analysis for determining whether a state law regulates insurance for purposes of ERISA's savings clause. A state law must satisfy two requirements to be deemed a law which regulates insurance: (1) it \"must be specifically directed toward entities engaged in insurance”; and (2) it \"must substantially affect the risk pooling arrangement between the insurer and the insured.” Id. . The deemer clause provides: “Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.” 29 U.S.C. § 1144(b)(2)(B). As" }, { "docid": "23612825", "title": "", "text": "relieve any person from any law of any State which regulates insurance, banking, or securities.” 29 U.S.C. § 1144(b)(2)(A). In Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341-42, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003), the Supreme Court refined the analysis for determining whether a state law regulates insurance for purposes of ERISA's savings clause. A state law must satisfy two requirements to be deemed a law which regulates insurance: (1) it \"must be specifically directed toward entities engaged in insurance”; and (2) it \"must substantially affect the risk pooling arrangement between the insurer and the insured.” Id. . The deemer clause provides: “Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.” 29 U.S.C. § 1144(b)(2)(B). As we noted above, although the Supreme Court refined the savings-clause analysis in Miller, 538 U.S. at 341-42, 123 S.Ct. 1471, \"[n]othing in Miller indicates a change in the Court’s deemer-clause analysis.” Prudential Ins. Co. of Am. v. Nat’l Park Med. Ctr., Inc., 413 F.3d 897, 913 (8th Cir.2005). . The additional argument advanced by Daley that summary judgment should not have been granted because an issue of fact exists as to whether Empire is a fiduciary under ERISA is, therefore, irrelevant. . In Ruple, the Court explained that at common law, if someone brought debt to recover possession of a specific thing, and the action was dismissed, a second action, this time in the form of detinue, would not be barred. The second case, it was said, was on a different \"cause of action.” ... It is now said, in general, that if a case arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action, that the two cases are really the same \"claim”" }, { "docid": "13997648", "title": "", "text": "a joint tortfeasor to deduct that amount from his or her recovery in any civil action. Thus, payments made by health care providers are deducted from a plaintiffs tort recovery under New Jersey law. Generally, a state law that “relates to” an ERISA-governed plan is preempted by ERISA. 29 U.S.C. § 1144(a). ERISA’s expansive express preemption rule — as distinguished from the jurisdictional question of complete preemption discussed above — is set forth in Section 514(a) of the Act, and provides that ERISA’s regulatory structure “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan [subject to ERISA].” 29 U.S.C. § 1144(a) (emphasis added). The District Court has determined that the state law on which the Insureds rely “relates to” the Insureds’ ERISA plans. That ruling is not before us for review. The Insureds’ claims are thus preempted unless they fall within an exception to Section 514(a). The relevant exception here is Section 514(b)(2)(A), or the “savings clause.” The savings clause provides that, apart from particular scenarios not presented here, “nothing in [ERISA’s preemption provisions] shall be construed to exempt or relieve any person from any law of any state which regulates insurance, banking or securities.” 29 U.S.C. § 1144(b)(2)(A) (emphasis added). Accordingly, the key question before us is whether the New Jersey law underlying the Insureds’ claims is a law “which regulates insurance.” The Supreme Court recently clarified the appropriate test for determining whether a state law that relates to employee benefit plans falls within the savings clause. In a 2003 decision, issued after the District Court had made its preemption ruling in this case, the Court directed that for a “state law to be deemed a ‘law ... which regulates insurance’ under § 1144(b)(2)(A), it must satisfy two requirements.” Miller, 538 U.S. at 341-42, 123 S.Ct. 1471. First, the state law must be “specifically directed toward entities engaged in insurance.” Id. Second, the state law must “substantially affect the risk pooling arrangement between the insurer and the insured.” Id. The Providers argue that the New Jersey statute applies" }, { "docid": "10424395", "title": "", "text": "State are fully preempted by ERISA. 29 U.S.C. § 1144(a) is the general preemption provision of ERISA: Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subehapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.... 29 U.S.C. § 1144(a). This ERISA provision also contains what is referred to as the “savings clause,” § 1144(b)(2)(A), which exempts some State regulation from the general preemption: Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. 29 U.S.C. § 1144(b)(2)(A). Subparagraph (B), § 1144(b)(2)(B), is referred to as the “deemer clause,” which keeps the state from deeming certain employee benefit plans as falling within the “savings clause:” Neither an employee benefit plan described in section 1003(a) of this title, which is not exempt under section 1003(b) of this title (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 29 U.S.C. § 1144(b)(2)(B). A major issue in determining whether preemption is proper in this cause is whether the removing defendants fall within the protection of the “deemer clause,” 29 U.S.C. § 1144(b)(2)(B). The Fifth Circuit affirmed this Court’s decision concerning the Texas Administrative Services Tax Act (“ASTA”) and ERISA. See E-Systems, Inc. v. Pogue, 929 F.2d 1100, 1101 (5th Cir.1991) cert. denied — U.S. -, 112 S.Ct. 585, 116 L.Ed.2d 610 (1991). The Fifth Circuit concluded that ERISA did preempt the causes of action involving ASTA. Id. at 1102-1103. When state laws “relate to”" }, { "docid": "4764624", "title": "", "text": "state interference with the accomplishment of ERISA’s goals, Congress included preemption language in the statute. There are three provisions relating to the preemptive effect of the federal legislation: a. “Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and sub-chapter III of this chapter shall supersede any and all state laws insofar as they now or hereafter relate to any employee benefit plan ...” § 514(a), as set forth at 29 U.S.C. § 1144(a) (preemption clause). b. “Except as provided in sub-paragraph (B) [the Deemer Clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any state which regulates insurance, banking, or securities.” § 514(b)(2)(A), as set forth at 29 U.S.C. § 1144(b)(2)(A) (savings clause). c. “Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any state purporting to regulate insur-anee companies, insurance contracts, banks, trust companies or investment companies.” § 514(b)(2)(B), as set forth at 29 U.S.C. § 1144(b)(2)(B) (deemer clause). 3.05 The United States Supreme Court has summarized the “pure mechanics” of these three provisions as follows: “If a state law ‘relates to ... employee benefit plans,’ it is preempted. § 514(a). The saving clause exempts from the preemption clause, laws that ‘regulate insurance’. § 514(b)(2)(A). The deemer clause makes clear that a state law that ‘purports to regulate insurance’ cannot deem an employee benefit plan to be an insurance company.” § 514(b)(2)(B). Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). 3.06 ERISA also has a specific provision for pension plans which establishes a prohibition against assignment or alienation of plan benefits. § 401(a) of ERISA as set forth at 29 U.S.C. § 1056(d) provides: “(1) Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” There are certain exceptions contained in subparagraphs (2)" }, { "docid": "3313190", "title": "", "text": "in part) (noting that where plaintiffs state law claims are barred by ERISA conflict preemption, “it is wholly unnecessary for a court to engage in analysis of whether the other ERISA preemption doctrine applies”). ERISA’s preemption clause broadly states that “[ejxcept as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). What Congress took away with one hand, however, it gave back with the other as contained in ERISA’s saving clause: “Except as provided in subpara-graph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” Id. § 1144(b)(2)(A). Sub-paragraph (B) (the deemer clause), in turn, provides: Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. Id. § 1144(b)(2)(B). Kidneigh, 345 F.3d at 1184. Ms. Allison contends that the savings clause of ERISA places her claim outside of ERISA’s exclusive remedial scheme, and thus the claims are not preempted. In order to determine whether her claim is preempted by ERISA, we must examine whether the Oklahoma state law at issue satisfies two requirements: “First the state law must be specifically directed toward entities engaged in insurance” and “[sjecond ... the state law must substantially affect the risk pooling arrangement between the insurer and the insured.” Id. (quoting Miller, 123 S.Ct. at 1479). Ms. Allison maintains that the Oklahoma bad faith claim satisfies both prongs of Miller, and as such, falls within ERISA’s savings clause and is not expressly preempted. In Kidneigh, we applied the Miller test to determine whether Colorado’s bad faith claim regulated insurance, and thus" }, { "docid": "18975576", "title": "", "text": "and denying plaintiffs claim in bad faith. Defendants maintain that these claims are preempted by ERISA. While plaintiff does not contest that she cannot succeed on both her ERISA claim and Counts II and III, she asserts that her state law claims are not preempted because they are pled in the alternative. The Supreme Court discussed the scope of ERISA preemption in Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Noting the “expansive sweep” of § 514(a) of ERISA, the court determined that ERISA preempts any state law, including common law, that relates to an employee benefit plan. Id. at 48-49, 107 S.Ct. 1549. Plaintiffs breach of contract claim and Illinois Insurance Code claim, which are both rooted in Clark’s optional life insurance policy, relate to an employee benefit plan. Thus, the preemption clause applies to these claims unless they fall within an ERISA preemption savings clause. In its motion to dismiss, Hewitt provides two reasons why plaintiffs Illinois Insurance Code claim is not saved by 29 U.S.C. § 1144(b)(2)(A), which states that nothing in the subchapter on preemption “shall be construed to exempt or relieve any person from any law of any State which regulates insurance.... ” Hewitt argues that Count III is preempted because the Illinois statutes upon which plaintiff relies do not qualify as laws that regulate insurance under the Supreme Court’s interpretation of § 1444(b)(2)(A), see Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, -, 123 S.Ct. 1471, 1479, 155 L.Ed.2d 468 (2003), and that it calls for state law remedies which supplement the remedies allowed by § 502 of ERISA, see Rudman v. Time Ins. Co., 1995 WL 239390 at *5-6 (N.D.Ill.1995). Plaintiff does not contest these arguments. Plaintiff does maintain, however, that she may plead these state law claims in the alternative, in the event that her ERISA claim does not succeed. Defendants respond that the likelihood of a party’s success in bringing a claim has no effect on ERISA preemption. As defendants point out, in Pilot Life Ins. Co. the Supreme Court" }, { "docid": "14023772", "title": "", "text": "enacted the ERISA legislation. That Congress intended to preempt state taxation laws can no longer be gainsaid. When Congress amended ERISA to exclude Hawaii’s Prepaid Health Care Act from the preemption clause, it added a specific provision that state tax laws were not exempt from preemption. 29 U.S.C. § 1144(b)(5)(B)(i). The conference report on the legislation is illuminating for it stated simply that “the preemption is continued with respect to ... any State tax law relating to employee benefit plans.... ” 1982 U.S.Code Cong. & Admin.News 4603 (emphasis added). The congressional intent appears clear, state tax laws were preempted even before they were specifically enumerated in the amended statute. The Texas legislation is not saved by the insurance savings clause. Although that clause lifts the effect of the preemption from any state law which regulates “insurance, banking or securities,” 29 U.S.C. § 1144(b)(2)(A), the deemer clause, 29 U.S.C. § 1144(b)(2)(B), declares that no state law regulating insurance shall deem an ERISA plan to be engaged in the business of insurance. Even if ASTA fit within the protective reach of the insurance savings clause, of which we are not persuaded, the deemer clause would prevent its application. Our conclusion is guided by the recent Holliday decision in which the Supreme Court instructed: We read the deemer clause to exempt self-funded ERISA plans from state laws that ‘regulat[e] insurance’ within the meaning of the savings clause. By forbidding States to deem employee benefit plans ‘to be an insurance company or other insurer ... or to be engaged in the business of insurance,’ the deemer clause relieves plans from state laws ‘purporting to regulate insurance.’ As a result, self-funded ERISA plans are exempt from state regulation insofar as that regulation *relate[s] to’ the plans. 111 S.Ct. at 409. Having concluded that ASTA is preempted by ERISA we need proceed no further. The State received monies from the ERISA plans to which it was not entitled. The funds must be returned. The parties are to be restored to the status quo ante. That includes appropriate consideration of the loss of use of the funds" }, { "docid": "18165866", "title": "", "text": "health care specifically excluded coverage for chiropractic services, and that all of plaintiffs’ claims in this action are barred by provisions of ERISA. In sustaining defendant’s motion for summary judgment, the district court found that ERISA preempts all state laws that “relate to” an employee benefit plan, 29 U.S.C. § 1144(a), except those that regulate the insurance industry, 29 U.S.C. § 1144(b)(2)(A). The court further found that while the Alabama statute relating to chiropractic services is a statute regulating the insurance industry, and would not normally be preempted, the ERISA “deemer clause” applied so that state law was preempted in this case. 29 U.S.C. § 1144(b)(2)(B). The district court further noted that since the Plan at issue in this case was fully funded by the Walter Company, and was not an insured plan, it was not subject to state regulation, citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). The question thus presented for our review is whether the “deemer clause” of ERISA operates to preempt a non-ERISA cause of action based upon an Alabama statute which regulates insurance when the employee benefit plan at issue is self-insured. In order to determine ERISA’s preemptive effect upon state law, we must consult the provisions of the Act as well as the diverse opinions which seek to give guidance not only to the litigants but to states which seek to regulate the social problems of their citizens. No one questions that as a general rule the “general preemption clause” of ERISA, 29 U.S.C. § 1144(a), preempts all state laws which relate to any employee benefit plan. This simple statement ceases to be simple or clear when we get to the exception, and the exception to the exception, codified and now known as the “savings clause,” 29 U.S.C. § 1144(b)(2)(A), and the “deemer clause,” 29 U.S.C. § 1144(b)(2)(B). The statutory treatment provides the following guidelines: § 1144. Other laws (a) Supersedure; effective date Except as provided in subsection (b) of this section, the provisions of this sub-chapter ... shall supersede any and all State laws" }, { "docid": "13997662", "title": "", "text": "Circuit Judge, dissenting. This appeal, consisting of three consolidated actions, principally concerns two separate preemption issues: express preemption under § 514(a) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1144(a) (“ERISA”), and complete preemption under § 502(a) of ERISA, 29 U.S.C. § 1132. While I join Part III of the majority opinion because I agree that § 502(a) complete preemption exists, thereby establishing federal subject-matter jurisdiction, I must respectfully dissent from Parts IV and V of the majority opinion because, in my view, the New Jersey collateral source statute, N.J.S.A. 2A:15-97, is saved from express preemption under § 514(a) of ERISA as a state regulation of insurance. I. Three provisions of ERISA § 514 speak directly to the question of express preemption, the mechanics of which have been neatly summarized by the Supreme Court: If a state law “relatefs] to ... employee benefit plants],” it is pre-empted. § 514(a). The saving clause excepts from the pre-emption clause laws that “regulat[e] insurance.” § 514(b)(2)(A). The deemer clause makes clear that a state law that “purport[s] to regulate insurance” cannot deem an employee benefit plan to be an insurance company. § 514(b)(2)(B). Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Although the express preemption analysis normally requires the application of the three relevant provisions of § 514, the sole issue in this appeal is whether the District Court erred as to the second step in the analysis in finding that N.J.S.A. 2A: 15-97 is “saved” from preemption as a state statute that regulates insurance under § 514(b)(2)(A). Accordingly, I confine my discussion to that narrow issue. II. In Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 341-42, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003), the Supreme Court rejected the previous use of the McCarran-Ferguson factors, and instead enunciated two requirements for a state law to be deemed a “law ... which regulates insurance” under § 514(b)(2)(A). First, the state law must “be specifically directed toward entities engaged in insurance.” Id. at 342, 123 S.Ct. 1471 (citing" }, { "docid": "10424394", "title": "", "text": "in ERISA saves them from preemption. See id., 463 U.S. at 96, 103 S.Ct. at 2899. Section 1003 states that ERISA generally applies to any employee benefit plan established or maintained: (1) by any employer engaged in commerce or in any industry or activity affecting commerce; or (2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or (3) both. 29 U.S.C. § 1003(a). However, ERISA is not applicable to an employee benefit plan that “is maintained solely for the purpose of complying with applicable workmen’s compensation laws or unemployment compensation or disability insurance laws.” 29 U.S.C. § 1003(b)(3). Also, ERISA does allow state law to apply to an employee welfare benefit plan which is a fully-insured multiple employer arrangement and to multiple employer welfare arrangements that fall within § 1003(b)(3). See 29 U.S.C. § 1144(b)(6). For other multiemployer arrangements, state laws are preempted to the extent inconsistent with ERISA. See id. The primary issue is whether or not the various claims asserted by the State are fully preempted by ERISA. 29 U.S.C. § 1144(a) is the general preemption provision of ERISA: Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subehapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.... 29 U.S.C. § 1144(a). This ERISA provision also contains what is referred to as the “savings clause,” § 1144(b)(2)(A), which exempts some State regulation from the general preemption: Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. 29 U.S.C. § 1144(b)(2)(A). Subparagraph (B), § 1144(b)(2)(B), is referred to as the “deemer clause,” which keeps the state from deeming certain employee benefit plans as falling within the “savings clause:” Neither an employee benefit plan described in section 1003(a) of this title," }, { "docid": "15158598", "title": "", "text": "Employer Endorsement Because the “no contribution” requirement is not met, it is unnecessary to determine whether Stone Office endorsed the policy. D. ERISA Savings Clause When Congress enacted ERISA, it included an express provision that preempts state law claims “relating to any employee benefit plan.” 29 U.S.C. § 1144(a). However, Congress was also concerned with the prospect of limiting states’ authority to regulate insurance. Thus, it provided for a savings clause that exempts state laws that “regulate insurance” from ERISA preemption. 29 U.S.C. § 1144(a). Having found that-the policy at issue qualifies as an ERISA governed employee benefit plan, the parties do not dispute that Count I for Breach of Contract; Count III for Fraud and/or Negligent Misrepresentation; and Count IV for Violation of the UTP-CPL are pre-empted by ERISA’s express pre-emption clause. However, the parties do dispute whether ERISA pre-empts plaintiffs Count II for Bad Faith, pursuant to 42 Pa. Cons.Stat. Ann. § 8371 (“Section 8371”). In order to determine whether Section 8371 regulates insurance within the meaning' of ERISA’s saving clause, the Court must conduct a two-part test pursuant to Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003) (“the Miller test”) with Section 8371 satisfying both prongs in order to be saved from preemption. First, “the state law must be specifically directed toward entities engaged in insurance.” Id. at 1479 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); UNUM Life Ins. Co. v. Ward, 526 U.S. 358, 368, 119 S.Ct. 1380, 143 L.Ed.2d 462 (1999); Rush v. Moran, 536 U.S. 355, 366, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002)). Second, “the state law must substantially affect the risk pooling arrangement between the insurer and the insured.” Id. The Miller test has “dramatically changed the analysis for determining whether state legislation qualifies for exemption from express preemption under ERISA via ERISA’s savings clause.” Rosenbaum v. Unum Life Ins. Co., No. 01-6748, 2003 U.S. Dist. LEXIS 15652, at *2. See, also, Elliot v. Fortis Benefits Ins. Co., 337 F.3d 1138," }, { "docid": "1702795", "title": "", "text": "912 F.2d 1383, 1385 (11th Cir.1990). ERISA is a comprehensive statute that subjects employee benefit plans to federal regulation. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 732, 105 S.Ct. 2380, 2385, 85 L.Ed.2d 728 (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). Section 514(a) of ERISA, the preemption clause, provides that ERISA “supersede^] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). The Supreme Court has noted that the preemption clause “is conspicuous for its breadth,” FMC Corp. v. Holliday, 498 U.S. 52, -, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990), and has instructed that the clause should be “expansively applied,” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, -, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990). ERISA’s preemptive effect upon state law operates in three stages. First, as a general rule, ERISA preempts all state laws that relate to ERISA covered plans. 29 U.S.C. § 1144(a). Second, the exception to the general rule is the “saving clause” which provides that nothing in ERISA “shall be construed to exempt or relieve any person from any law of any State which regulates insurance_” 29 U;S.C. § 1144(b)(2)(A). Third, the exception to the exception is the “deemer clause” which provides that no employee benefit plan “shall be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies_” 29 U.S.C. § 1144(b)(2)(B). Swerhun does not dispute that the Guardian plan is an ERISA-covered plan. Nor does she dispute that her complaint is based on state laws that “relate to” an ERISA plan and, hence, fall within ERISA’s preemption clause. Indeed, the Supreme Court has determined that a state statute “relates to” an ERISA plan “if it has a connection with” such a plan, see Shaw, 463 U.S. at 96-97, 103 S.Ct. at 2900; see also Pilot Life Ins. Co. v." } ]

[ { "docid": "22785620", "title": "", "text": "one-year time limit did not begin to run against any state prisoner prior to the statute’s date of enactment. See Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996) (allowing AEDPA’s time limit to run from date prior to enactment “would be entirely unfair and a severe instance of retroactivity”); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc) (“Courts treat a reduction in the statute of limitations as a rule for new cases only.”), cert. granted, — U.S. -, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997); see also United States v. Lopez, 100 F.3d 113, 116-17 (10th Cir.1996) (rejecting retroactive application of parallel one-year limit for filing of federal petitions under 28 U.S.C. § 2255). No petition filed on or before April 23, 1997 — one year from the date of AEDPA’s enactment — may be dismissed for failure to comply with the section 101’s time limit. See Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 791 n. 21, 70 L.Ed.2d 738 (1982) (new statutes of limitation must allow “a reasonable time after they take effect for the commencement of suits upon existing causes of action” (quoting Wilson v. Iseminger, 185 U.S. 55, 62, 22 S.Ct. 573, 575, 46 L.Ed. 804 (1902))); Lindh, 96 F.3d at 866 (AEDPA’s time limit is “short enough that the ‘reasonable time’ after April 24,1996, and the one-year statutory period coalesce”). IV. Can the One-Year Limit Be Tolled? Beeler, along with many other prisoners, thus has at least until April 23, 1997, to file his habeas petition. The district court went one step farther and, based on its conclusion that AEDPA’s one-year limit could be equitably tolled, extended Beeler’s deadline to October 17, 1997. We will upset this decision on petition for writ of mandamus only if the district court’s decision was “clearly erroneous as a matter of law.” Bauman, 557 F.2d at 654-55. The district court’s interpretation of AED-PA’s limitation period was not, however, clearly erroneous. It was, rather, clearly correct. Unlike other parts of AEDPA, section 101 is remarkably lucid. It is phrased only as" } ]

[ { "docid": "23010042", "title": "", "text": "careful en banc review, we now hold that the district court did not err in applying a one-year grace period for the filing of Crane’s habeas corpus petition. When application of a new limitation period would wholly eliminate claims for substantive rights or remedial actions considered timely under the old law, the application is impermissibly retroactive. The legislature cannot extinguish an existing cause of action by enacting a new limitation period without first providing a reasonable time after the effective date of the new limitation period in which to initiate the action. Indeed, the Supreme Court has stated that newly-enacted statutes of limitations must allow a reasonable time after they take effect for the commencement of suits upon existing causes of action. Brown v. Angelone, 150 F.3d 370, 373 (4th Cir.1998) (Angelone) (citations and internal quotation marks omitted). In our opinion, a reasonable time after the effective date of the AEDPA for allowing suits to commence upon pre-existing causes of action is one year. Accord id. (holding that the “reasonable time” required and the one-year statutory period “coalesce”) (quoting Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)); United States v. Flores, 135 F.3d 1000, 1002-06 (5th Cir.1998) (holding that one year is “reasonable period” for purposes of § 2255 grace period), cert. denied, — U.S. -, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999). The courts of appeals which have addressed this issue have agreed with the application of a one-year grace period, although they have been divided on the question of whether the grace period ends on April 23, 1997, or April 24,1997. Compare, e.g., Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.1998) (applying April 24 deadline); Ross v. Artuz, 150 F.3d 97, 99-103 (2d Cir.1998) (applying April 24 deadline and clarifying Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997)), with Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998) (applying April 23 deadline); Calderon v. United States District Court, 128 F.3d 1283, 1287 (9th Cir.1997) (applying April 23 deadline), cert. denied," }, { "docid": "22984262", "title": "", "text": "the Supreme Court in Wilson v. Iseminger, 185 U.S. 55, 60-63, 22 S.Ct. 573, 575, 46 L.Ed. 804 (1902), where the Court stated: It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. Id. The Court went on to state that “[i]t is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action.” Id. at 60-63, 22 S.Ct. at 575. As such, courts nearly unanimously allow prisoners a “reasonable time” after the enactment of the AEDPA to file a habeas petition, even if their conviction was finalized in the state courts more than one year prior to the filing of the petition. See e.g., United States v. Flores, 135 F.3d 1000 (5th Cir.1998); Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir.1997); United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir.1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). This Circuit has already ruled that a one-year grace period after the AED-PA’s effective date is reasonable. See Brown, 187 F.3d at 577. Therefore, applying this one-year deadline to Cook’s habe-as petition does not violate his due process rights. D. Common Law Mailbox Rule Next, Cook argues that the common law mailbox rule should apply in this case, thereby making his habeas petition timely; accordingly, April 19 or 20, the day that he mailed the habeas petition to his daughter, should be considered the actual filing date. We find the mailbox rule inapplicable to this case and affirm the district" }, { "docid": "23010043", "title": "", "text": "statutory period “coalesce”) (quoting Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)); United States v. Flores, 135 F.3d 1000, 1002-06 (5th Cir.1998) (holding that one year is “reasonable period” for purposes of § 2255 grace period), cert. denied, — U.S. -, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999). The courts of appeals which have addressed this issue have agreed with the application of a one-year grace period, although they have been divided on the question of whether the grace period ends on April 23, 1997, or April 24,1997. Compare, e.g., Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.1998) (applying April 24 deadline); Ross v. Artuz, 150 F.3d 97, 99-103 (2d Cir.1998) (applying April 24 deadline and clarifying Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997)), with Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998) (applying April 23 deadline); Calderon v. United States District Court, 128 F.3d 1283, 1287 (9th Cir.1997) (applying April 23 deadline), cert. denied, — U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.1997) (applying April 23 deadline); Lindh v. Murphy, 96 F.3d at 866 (applying April 23 deadline). In order to dispose of the issues in Crane’s appeal, it is not necessary for us to decide whether the grace period ended precisely on April 23, 1997, or April 24, 1997. Accordingly, we hold that a one-year filing grace period, beginning on April 24, 1996, shall apply for habeas petitions where the relevant triggering date under 28 U.S.C. § 2244(d)(1) precedes April 24, 1996 (but we leave for another day the April 23-versus-April 24 deadline issue). Prison mailbox rule We now turn to the more difficult issue presented by these appeals: whether or not the petitions were timely filed — that is, whether they were “filed” within the meaning of 28 U.S.C. § 2244(d) on or before the applicable deadlines. Uncontra-dicted evidence in the record indicates that petitioners deposited their petitions in their respective prison mail systems on the" }, { "docid": "23103542", "title": "", "text": "2255 motion that “Counsel for Petitioner failed to file an appeal [Petitioner had requested counsel to file an appeal, but counsel failed to do so].’’ However, he merely mentioned the assertion in passing, and did not raise it as an independent ground for relief. . In considering the effect of the time limit of § 2255 to claims which arose prior to the enactment of the time limit itself, the Fifth Circuit has ruled as a matter of statutory construction that Congress intended to allow a \"reasonable time” of one year beyond the enactment date of the AEDPA in which to file petitions. United States v. Flores, 135 F.3d 1000, 1004-06 (5th Cir.1998). The Tenth Circuit reached the same result on grounds of fairness. United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir.1997). The Ninth Circuit, interpreting a similar one year time limit in § 2244, has concluded that the statutory clock does not begin to run until the statute's date of enactment. Calderon v. U.S. Dist. Court for Central Dist. of Calif., 112 F.3d 386, 389 (9th Cir.1997); accord, Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Reyes v. Keane, 90 F.3d 676, 679 (2nd Cir.1996); but see Peterson v. Demskie, 107 F.3d 92, 93 (2nd Cir.1997) (stating in dicta that a prisoner who has had several years to contemplate bringing a habeas petition need not be accorded a full year after the effective date of the AEDPA). . In Calderon, the Ninth Circuit determined that the one-year time limit of § 2244 was subject to equitable tolling in extraordinary circumstances. Calderon, 112 F.3d at 391. We do not pursue this line of reasoning because from our review of the record, no \"extraordinary circumstances” were present which would justify tolling. . Because habeas proceedings are civil in nature, the Federal Rules of Civil Procedure apply. 28 U.S.C. § 2242; see, e.g., Coleman v. Rafferty, 627 F.Supp. 735, 736 (D.N.J.1986) (applying Rule 15 of the Federal Rules of Civil Procedure to a" }, { "docid": "4305487", "title": "", "text": "through 3 of Mr. Martin’s § 2254 petition as of May 11, 1993, nearly three years prior to the Act’s effective date. As the Tenth Circuit has reasoned, however, application of the law in such a manner would strip prisoners of their rights and expectations without notice or opportunity to act. See United States v. Simmonds, 111 F.3d 737, 745 (10th Cir.1997) (addressing the parallel statute of limitations found in § 2255). In other words, on the eve of the Act’s enactment Petitioner could have been confident that he possessed the right to petition this Court for a writ of habeas corpus, only to rise the next morning to earn that his right had not only disappeared, but had expired three years earlier. The Supreme Court has noted that the “Constitution ____requires that statutes of limitations must ‘allow a reasonable time before they take effect for the commencement of suits upon existing causes of action.’” Block v. North Dakota, 461 U.S. 273, 286 n. 23, 103 S.Ct. 1811, 1819 n. 23, 75 L.Ed.2d 840 (1983) (quoting Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 791 n. 21, 70 L.Ed.2d 738 (1982)). Thus, the party-bringing suit must be given a grace period in which he can file suit upon pre-accrued claims free of any bar or prejudice imposed by the new statute. In light of Supreme Court precedent this Court does not accept the view that the amended § 2244(d) applies retroactively. This raises the question as to what is a “reasonable time” within which Petitioner must file his habeas ease. Both the Tenth and Seventh Circuits have ruled that the one-year limitation imposed by the Act was short enough so that the limitation itself was considered a reasonable time. See Simmonds, 111 F.3d at 746; Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev’d on other grounds, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under this analysis, no petition filed by April 23,1997, one year from the date of enactment, could be dismissed for violating the statute of limitations. While the" }, { "docid": "4305488", "title": "", "text": "(quoting Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 791 n. 21, 70 L.Ed.2d 738 (1982)). Thus, the party-bringing suit must be given a grace period in which he can file suit upon pre-accrued claims free of any bar or prejudice imposed by the new statute. In light of Supreme Court precedent this Court does not accept the view that the amended § 2244(d) applies retroactively. This raises the question as to what is a “reasonable time” within which Petitioner must file his habeas ease. Both the Tenth and Seventh Circuits have ruled that the one-year limitation imposed by the Act was short enough so that the limitation itself was considered a reasonable time. See Simmonds, 111 F.3d at 746; Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev’d on other grounds, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under this analysis, no petition filed by April 23,1997, one year from the date of enactment, could be dismissed for violating the statute of limitations. While the Second Circuit has stated that there is no need to apply the full year as the reasonable time standard, they have not provided any other time frame for guidance. See Peterson v. Demskie, 107 F.3d 92, 93 (2nd Cir.1997). This Court sees no reason why it is preferable to make ease by case determinations of reasonableness, as suggested by Peterson, in place of a predetermined one-year period. If anything, lack of a set standard can only increase the risk of arbitrary treatment by courts in deciding which petitions are time-barred. Therefore, this Court recognizes April 23,1997 as the date by which all § 2254 petitions based on final judgments rendered before the Act’s enactment must be filed. Accordingly, Petitioner’s exhausted claims, if not tolled by the presence of pending post-conviction remedies (discussed below), would not be barred since the petition was filed on April 17,1997. 2) Habeas Petitions Containing Multiple Claims The new statute raises the possibility that a habeas petition may contain multiple claims, each with a different date that would trigger the statute" }, { "docid": "23494281", "title": "", "text": "circuits have allowed such a grace period in the parallel context of AEDPA’s new limitations period applicable to § 2254 habeas petitions, codified at 28 U.S.C. § 2244(d)(1). See Libby v. Magnusson, 177 F.3d 43, 47 (1st Cir.1999). However, we did not have occasion to apply such a grace period on the facts of Libby. .See Nichols v. Bowersox, 172 F.3d 1068, 1999 WL 203482 (8th Cir. Apr. 13, 1999) (en banc) (§ 2254 petition); Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir.1998); Brown v. Angelone, 150 F.3d 370 (4th Cir.1998) (§ 2254 petition); Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998) (§ 2254 petition) (clarifying dicta in Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997)); United States v. Flores, 135 F.3d 1000 (5th Cir.1998), cert. denied, U.S. -, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999); Burns v. Morton, 134 F.3d 109 (3d Cir.1998) (§ 2254 petition); O'Connor v. United States, 133 F.3d 548, 550 (7th Cir.1998) (reaffirming language in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)); Calderon v. United States Dist. Court for Cent. Dist. of Cal., 128 F.3d 1283 (9th Cir.1997) (§ 2254 petition), cert. denied, -U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998), overruled on other grounds, 163 F.3d 530 (9th Cir.1998); United States v. Simmonds, 111 F.3d 737 (10th Cir.1997). . Where the legislature has specified a grace period, the legislative determination that such grace period constitutes a “reasonable opportunity” is entitled to \"the greatest deference.” See Texaco, Inc. v. Short, 454 U.S. 516, 532, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982); accord Ross v. Artuz, 150 F.3d at 100. Congress specified no such grace period in AEÜPA. . Rogers claims that application of a \"judge-made” grace period constitutes an unconstitutional violation of separation of powers. He argues that \"for courts to both create and review such a bright-line [grace-period] rule is not within their purview.” See Appellant's Br. at 33. Rogers cites a Supreme Court opinion stating \"[i]t is essential that such statutes allow" }, { "docid": "23149672", "title": "", "text": "period to cases \"pending\" on the AEDPA’s effective dale. Lindh,-U.S. at-, 117 S.Ct. at 2063. . It should be noted that we are speaking in general terms. The limitations provision does contain certain exceptions to the one-year period. However, these exceptions are relatively narrow and likely would not be of any aid to the majority of potential habeas petitioners. . Although it might be argued that this principle is one of constitutional dimensions, we emphasize that we apply it here as a jurisprudential rule of statutory construction, and do not address the question of whether the provision would be constitutional if otherwise applied. . As noted above, we have been unable to discern any specific legislative intent as to the temporal application of the Act’s limitations period. We agree with the Tenth Circuit that \"there is no indication Congress intended to foreclose prisoners who had no prior notice of the new limitations period from bringing their § 2255 motions” immediately upon the AEDPA’s enactment. United States v. Simmonds, 111 F.3d 737, 745 (10th Cir.1997). We have reviewed both the statute and its legislative history and found no evidence that Congress contemplated the immediate application of this provision to prisoners without giving them a “reasonable post-amendment time to get litigation underway.” Lindh, 96 F.3d at 866. . See, e.g., United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir.1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev'd on other grounds, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir.1997); Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997). . See Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), where the court stated that \"[i]n circumstances like Peterson’s, where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, we see no need to accord a full year after the effective date of the AEDPA.\" Id. at 93. The court went on to say that \"[a]t the same time, we do not think that" }, { "docid": "22197116", "title": "", "text": "Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner claiming imprisonment in violation of the laws or Constitution of the United States has one year from the conclusion of his state appeal to file for federal habeas relief. 28 U.S.C. § 2244(d)(1). For those whose state appeals concluded prior to the passage of AEDPA, most circuits, including ours, have held that a one-year grace period applies, and that the statute of limitations expires one year from the passage of AEDPA, on April 24, 1997. See Nooks v. Collins, No. 98-3243, 1999 WL 98355 (6th Cir. Jan.29, 1999) (unpublished opinion) (citing Brown v. Angelone, 150 F.3d 370 375-76 (4th Cir.1998), and Bums v. Morton, 134 F.3d 109 111 (3d Cir.1998)). See also Calderon v. United States Dist. Ct. for the Central Dist. of Cal., 112 F.3d 386, 389, amended, 128 F.3d 1283, 1287 (9th Cir.1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Thus Austin had until that date to file his petition for federal habeas corpus. However, the limitation period may be tolled: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Austin claims that his petition, filed January 29,1998, was timely because the limitations period was tolled in his case while his petition for post-conviction review was pending in the Ohio courts. Although the case was pending, the district court held that the statute of limitations period was not tolled, on the grounds that the complaint on which Austin’s post-conviction review was based — the technical defect in the indictment does not present a cognizable federal habeas claim. But Austin’s post-conviction petition, as originally presented to the trial court, contained two complaints. As a result, we are confronted by two different questions, each of first impression in this circuit. The first complaint, regarding the defect in the indictment’s language," }, { "docid": "22944304", "title": "", "text": "‘the best and only sufficient de-fence of personal freedom,’ ” Lonchar, 517 U.S. at 324, 116 S.Ct. 1293 (quoting Ex parte Yerger, 75 U.S. (8 Wall.) 85, 95, 19 L.Ed. 332 (1869)) — a writ of habeas corpus. We hold that a prisoner whose statutory right to seek federal habeas relief accrued prior to the AEDPA must receive a reasonable period of time after the statute’s effective date to file his petition. This holding comports with that of every one of our sister circuits — six to date — to consider the proper application of the new limitation periods found in § 2244(d) or § 2255 (the analogous statutory provision governing habeas petitions filed by federal prisoners). See Flores, 135 F.3d at 1002-04 (§ 2255); Burns, 134 F.3d at 110-12 (§ 2244(d) and § 2255); Calderon, 128 F.3d at 1286-87 (§ 2244(d)); Simmonds, 111 F.3d at 744-46 (§ 2255); Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997) (§ 2244(d)); Lindh v. Murphy, 96 F.3d 856, 865-66 (7th Cir.1996) (en banc) (dicta), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also Andrews v. Johnson, 976 F.Supp. 527, 531-32 (N.D.Tex.1997) (§ 2244(d)); Dickerson v. Stalder, 975 F.Supp. 831, 832 (E.D.La.1997) (§ 2244(d)); Kapral v. United States, 973 F.Supp. 495, 499 (D.N.J.1997)(§ 2255); United States v. Ramos, 971 F.Supp. 199, 202 n. 2 (E.D.Pa.1997) (§ 2255); Martin v. Jones, 969 F.Supp. 1058, 1060-61 (M.D.Tenn.1997) (§ 2244(d)); Duarte v. Hershberger, 947 F.Supp. 146, 148-49 (D.N.J.1996) (§ 2244(d)). We therefore turn to defining a “reasonable period” in this context. III. Pritchard filed his habeas petition within one month after the enactment of the AEDPA. Undeterred, the Commonwealth contends that even if the statute must permit prisoners a reasonable time after the effective date to file a habeas petition, Pritchard waited an unreasonable period. This argument has no merit. Pritchard certainly could have brought his petition sooner than he did. But, prior to the AEDPA federal law generally imposed no obligation on him to do so. The new limitation period surely seeks to eradicate the sort of delay" }, { "docid": "11418131", "title": "", "text": "of due diligence. 28 U.S.C. § 2244(d)(1). Section 2244 further provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Clearly, the amendments to the federal habeas corpus statute enacted as a part of the AEDPA are applicable to Burns’s petition, because it was filed after April 24, 1996, the effective date of the Act. This does not, however, automatically imply that Burns’s petition is barred because it was not filed within one year of September 21, 1995, the date on which the Supreme Court of New Jersey finally denied his appeal of his post-conviction relief petition. This court, like the vast majority of courts, has chosen to apply the limitations period set forth in § 2244 prospectively, allowing prisoners a “grace period” following the effective date of April 24, 1996, in which to file § 2254 petitions, regardless of the date on which final review was denied, if that date was prior to April 24, 1996. See Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996); (allowing AEDPA’s time limit to run from date prior to enactment “would be entirely unfair and a severe instance of retroactivity”); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc) (“Courts treat a reduction in the statute of limitations as a rule for new eases only.”), rev’d on other grounds, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); cf. United States v. Lopez, 100 F.3d 113, 116-17 (10th Cir.1996) (rejecting retroactive application of a parallel one-year limit for petitions filed under 28 U.S.C. § 2255); but cf. Clarke v. United States, 955 F.Supp. 593, 597 (E.D.Va.1997) (holding that one-year limitation period of § 2255 may be applied retroactively to deny motion filed over six years after petitioner’s conviction became final). Courts disagree as to whether a habeas petitioner against whom the new statute of limitations began to run prior to the enactment of the AEDPA should" }, { "docid": "11806653", "title": "", "text": "S.Ct. 573, 46 L.Ed. 804 (1902). Courts agree that prisoners should be given a “reasonable time” following the passage of the AED-PA to present accrued claims in a federal habeas corpus petition. See United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir.1997) (holding that applying the AEDPA’s deadline for filing § 2255 motions was impermissibly retroactive because the movant had not been afforded a reasonable time to bring his claim); Peterson v. Demskie, 107 F.3d 92, 92 (2nd Cir.1997) (“a habeas corpus petitioner is entitled to a reasonable time after the effective date of the AEDPA to file a petition”). Most circuit courts considering the issue have determined that a prisoner should be accorded one year (the equivalent of the new limitations period) from the date that the AEDPA was enacted (April 24, 1996) to comply with the new limitations period. See Calderon v. United States Dist. Court for the Central Dist. of California, 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998) (“[n]o petition filed on or before April 23, 1997—one year from the date of AEDPA’s enactment—may be dismissed for failure to comply with [2244(d)’s] time limit”); Simmonds, 111 F.3d at 746 (“the one-year limitations period ... is ... a reasonable time for prisoners to bring § 2255 motions whose convictions became final before the [AEDPA] took effect”). In this case, Petitioner’s convictions became final before the AEDPA took effect on April 24, 1996. Thus, he would normally have been required to file his habeas application by April 24, 1997 to comply with the statute of limitations. The time during which a prisoner seeks collateral review of his or her conviction, however, does not count toward the limitations period. The relevant statute provides: “The time during which a properly filed application for post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). In this case, Respondent acknowledges that the limitations period must be tolled when a properly" }, { "docid": "22161760", "title": "", "text": "considered filed at the time he submits it to prison officials for mailing, does not apply to habeas petitions. The court thus found that Burns’ petition was filed after April 23, 1997, and dismissed it as untimely under § 2244(d)(1). The court also granted Burns a certificate of appeala-bility to appeal from this dismissal. Burns filed a timely notice of appeal. II. 28 U.S.C. § 2244(d) provides in relevant part: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from ... (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). Section 2244(d) became effective on April 24, 1996, when the Antiterrorism and Effective Death Penalty Act of 1996 was signed into law. Applying § 2244(d) as of its effective date would require Burns to have filed his habeas petition before September 21, 1996, one year after his petition for certification was denied by the New Jersey Supreme Court, but less than five months after § 2244(d) became effective. Several other courts of appeals have held that applying § 2244(d) in this manner “would impermissi-bly ‘attach new legal consequences to events completed before its enactment.’ ” Calderon v. United States Dist. Court for the Cent. Dist. of Cal., 128 F.3d 1283, 1286-87 (9th Cir.1997), quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994); see Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), rev’d on other grounds, — U.S.-, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also United States v. Simmonds, 111 F.3d 737 (10th Cir.1997) (holding that 28 U.S.C. § 2255’s one-year limitation cannot bar motions filed" }, { "docid": "11806652", "title": "", "text": "Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 was April 24, 1996. The AEDPA governs the filing date for the habeas petition in this case because Petitioner filed his petition after the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Among other things, the AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for ha-beas petitions brought by prisoners challenging state court judgments. Duarte v. Hershberger, 947 F.Supp. 146, 148 (D.N.J.1996); Flowers v. Hanks, 941 F.Supp. 765, 769 (N.D.Ind.1996). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims. See 28 U.S.C. § 2244(d)(1)(A). Nevertheless, a statute of limitations may not arbitrarily extinguish existing rights. Instead, a statute of limitations must provide a litigant with a reasonable time after the statute takes effect to commence a suit on an existing cause of action. Wilson v. Iseminger, 185 U.S. 55, 62-63, 22 S.Ct. 573, 46 L.Ed. 804 (1902). Courts agree that prisoners should be given a “reasonable time” following the passage of the AED-PA to present accrued claims in a federal habeas corpus petition. See United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir.1997) (holding that applying the AEDPA’s deadline for filing § 2255 motions was impermissibly retroactive because the movant had not been afforded a reasonable time to bring his claim); Peterson v. Demskie, 107 F.3d 92, 92 (2nd Cir.1997) (“a habeas corpus petitioner is entitled to a reasonable time after the effective date of the AEDPA to file a petition”). Most circuit courts considering the issue have determined that a prisoner should be accorded one year (the equivalent of the new limitations period) from the date that the AEDPA was enacted (April 24, 1996) to comply with the new limitations period. See Calderon v. United States Dist. Court for the Central Dist. of California, 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998) (“[n]o petition" }, { "docid": "12848303", "title": "", "text": "1999, Gutierrez filed a petition for a writ of habeas corpus in the federal district court. Judge Manning dismissed Gutierrez’s petition, concluding that it was untimely under 28 U.S.C. § 2244(d). She reasoned that Gutierrez’s one-year clock began ticking on April 24, 1997, the day after the filing grace period for petitioners whose conviction became final pre-AEDPA, see Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); the clock stopped 188 days later, on October 29, 1997, when Gutierrez filed his state post-conviction petition; and it remained stopped while his state petition was pending in the state courts. After an extensive analysis, Judge Manning concluded that the statute of limitations was not tolled during the time Gutierrez could have filed a petition for certiorari review and, thus, the clock resumed ticking on December 2, 1999, when the state supreme court denied his petition for leave to appeal. Accordingly, Judge Manning found that Gutierrez had 441 days of “countable” time and that his petition was therefore untimely under § 2244(d). Gutierrez argues that the ninety days during which he could have filed a certio-rari petition to the United States Supreme Court from the denial of his state post-conviction petition tolled the limitations period and, thus, that his petition is timely. This court has not yet decided whether the limitations period for habeas corpus actions is tolled under such circumstances, but several of our sister circuits have answered the question in the negative. See Isham v. Randle, 226 F.3d 691 (6th Cir. 2000); Coates v. Byrd, 211 F.3d 1225 (11th Cir.2000); Ott v. Johnson, 192 F.3d 510 (5th dir.1999); cf. Rhine v. Boone, 182 F.3d 1153 (10th Cir.1999) (holding that the time during which a properly filed certio-rari petition from the denial of state post-conviction relief is pending does not toll the statute of limitations). We now join the Sixth, Eleventh, and Fifth Circuit Courts in their conclusion, but, as explained below, on a somewhat narrower basis. Section 2244(d)(1) imposes a one-year statute of limitations on state prisoners" }, { "docid": "11418132", "title": "", "text": "on which final review was denied, if that date was prior to April 24, 1996. See Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996); (allowing AEDPA’s time limit to run from date prior to enactment “would be entirely unfair and a severe instance of retroactivity”); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc) (“Courts treat a reduction in the statute of limitations as a rule for new eases only.”), rev’d on other grounds, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); cf. United States v. Lopez, 100 F.3d 113, 116-17 (10th Cir.1996) (rejecting retroactive application of a parallel one-year limit for petitions filed under 28 U.S.C. § 2255); but cf. Clarke v. United States, 955 F.Supp. 593, 597 (E.D.Va.1997) (holding that one-year limitation period of § 2255 may be applied retroactively to deny motion filed over six years after petitioner’s conviction became final). Courts disagree as to whether a habeas petitioner against whom the new statute of limitations began to run prior to the enactment of the AEDPA should be given a full year from the date of enactment in which to file a habeas petition, Lindh, 96 F.3d at 866; Duarte v. Hershberger, 947 F.Supp. 146, 149 (D.N.J.1996), or only a reasonable time in which to file a petition, Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997) (where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, there is “no need to accord a full year after the effective date of the AEDPA.”). The Supreme Court of New Jersey denied Burns’s Petition for Certification of the denial of post-conviction relief on September 21, 1995. Therefore, the limitations period described by the provisions of § 2244(d)(1)(A) began to run on Burns’s claims on September 21, 1995. Giving Burns the widest possible latitude, a grace period equal to the new limitations period, the latest date on which Burns was required to file any § 2254 petition was April 23, 1997. Duarte, 947 F.Supp. at 149. Burns’ § 2254 petition was received in this court and filed after April" }, { "docid": "22161761", "title": "", "text": "2244(d) became effective on April 24, 1996, when the Antiterrorism and Effective Death Penalty Act of 1996 was signed into law. Applying § 2244(d) as of its effective date would require Burns to have filed his habeas petition before September 21, 1996, one year after his petition for certification was denied by the New Jersey Supreme Court, but less than five months after § 2244(d) became effective. Several other courts of appeals have held that applying § 2244(d) in this manner “would impermissi-bly ‘attach new legal consequences to events completed before its enactment.’ ” Calderon v. United States Dist. Court for the Cent. Dist. of Cal., 128 F.3d 1283, 1286-87 (9th Cir.1997), quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994); see Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), rev’d on other grounds, — U.S.-, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also United States v. Simmonds, 111 F.3d 737 (10th Cir.1997) (holding that 28 U.S.C. § 2255’s one-year limitation cannot bar motions filed prior to April 24,1997). These courts have fashioned a rule that “[n]o petition filed on or before April 23, 1997 — one year from the date of AEDPA’s enactment — may be dismissed for failure to comply with [§ 2244(d)(l)’s] time limit.” Calderon, at 1287. The United States Court of Appeals for the Second Circuit has articulated a somewhat more flexible rule that a habeas petitioner must be afforded a “reasonable time” after April 24, 1996, to file his petition. Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997) (finding petition filed 72 days after effective date timely under § 2244(d), even though petitioner’s conviction became final in 1978). We agree that applying § 2244(d)(1) to bar the filing of a habeas petition before April 24, 1997, where the prisoner’s conviction became final before April 24, 1996, would be imper-missibly retroactive. Even under § 2244(d)(l)’s time limitation, would-be petitioners are afforded one full year to prepare and file their habeas petitions, and as of April 24, 1996, have been placed on notice of this time" }, { "docid": "22910633", "title": "", "text": "ability to respond to the petition.” Ross v. Artuz, 150 F.3d 97, 99 (2d Cir.1998) (alteration in original) (internal quotations . and citation omitted). AEDPA changed this by imposing a one-year limitations period on habeas petitions that begins to run from the latest of several events, including the date on which the challenged state judgment becomes final. See generally 28 U.S.C. § 2244(d)(1). AEDPA’s one-year limitations period does not strictly apply to the instant petition because appellant’s conviction became final prior to AEDPA’s enactment. See Reyes v. Keane, 90 F.3d 676, 678-79 (2d Cir.1996) (holding that AEDPA’s one-year limitations period ddes not apply retroactively), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 336-37, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (holding that AEDPA provisions for non-capital cases “generally apply only to cases filed after [AEDPA] became effective”). However, we have held that prisoners whose habeas claims accrued prior to AEDPA’s enactment are afforded the “reasonable time” of “one year after the effective date of AEDPA” to file a federal habeas petition. Ross, 150 F.3d at 102-03. That one-year grace period expired April 24, 1997, over nine months before the instant petition was filed. However, AEDPA provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.” 28 U.S.C. § 2244(d)(2). By not counting the time during which a petition is pending in state court, the tolling provision preserves the “long-standing federal policy” of requiring habeas appellants to exhaust state court remedies prior to initiating suit in federal court. Mills v. Norris, 187 F.3d 881, 883-84 (8th Cir.1999) (noting that “[t]he tolling period in § 2244(d)(2) complements [the exhaustion requirement under 28 U.S.C. § 2254(c) ] by extending the time for filing federal petitions while state remedies are being exhausted”); see also O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999) (noting that exhaustion doctrine is based upon the understanding that “state courts should have the first opportunity" }, { "docid": "16861887", "title": "", "text": "appealability on three issues: (1) whether AEDPA’s one-year grace period ended on April 23 or April 24, 1997; (2) whether the district court erred in dismissing Newell’s original petition and whether his amended petition relates back to the earlier filing date; and (3) whether Newell’s constitutional rights were violated by the prosecutor’s misconduct. II. Discussion A. Timeliness AEDPA imposes a one-year statute of limitations on.habeas corpus petitions brought by state prisoners, 28 U.S.C. § 2244(d), but for prisoners whose convictions became final prior to AEDPA’s enactment on April 24,1996, there was a one-year grace period in which to file. Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In holding that Newell’s original filing on April 24, 1997, was untimely, the district court relied on the following language from Lindh, 96 F.3d at 866: “[W]e do not doubt that the [Supreme] Court would give a plaintiff who files after the enactment [of AEDPA] a reasonable post-amendment time to get litigation underway.... [Reliance interests lead us to conclude that no collateral attack filed by April 23, 1997, may be dismissed under § 2244(d).” Later cases in this and other circuits have also assumed, where the date was not criti cal, that April 23, 1997, was the end of AEDPA’s one-year grace period. E.g., Jones v. Bertrand, 171 F.3d 499, 500 (7th Cir.1999); O’Connor v. United States, 133 F.3d 548, 550 (7th Cir.1998); Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir.1999); Brown v. Angelone, 150 F.3d 370, 375 (4th Cir.1998); Burns v. Morton, 134 F.3d 109, 111-12 (3d Cir.1998); Calderon v. U.S. Dist. Court for the Cent. Dist. of Cal., 128 F.3d 1283, 1287 (9th Cir.1997), overruled on other grounds by 163 F.3d 530 (9th Cir.1998); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.1997). Notwithstanding Lindh, however, whether AEDPA’s grace period ended on April 23 or April 24, 1997, is still an open question in this circuit. As we observed in United States v. Marcello, 212 F.3d 1005, 1009 (7th Cir.2000), the issue in Lindh" }, { "docid": "22076214", "title": "", "text": "would deprive inmates of all access to the writ should be both clear and fair.” Id. at 330, 116 S.Ct. 1293; see id. (discouraging the application to first federal habeas petitions of “ad hoc equitable devices”). AEDPA is silent as to what grace period is to be allowed for the filing of habeas petitions by prisoners whose convictions became final before the effective date of the Act. All of our sister Circuits that have considered this question have concluded that a one-year grace period should be allowed. See, e.g., Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); O’Connor v. United States, 133 F.3d 548, 550 (7th Cir.1998) (reaffirming Lindh’s conclusion that a one-year grace period applies to federal prisoners’ § 2255 motions); see also United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998) (adopting one-year grace period for § 2255 motions); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.1997) (same). The State in the present case, however, contends that this Circuit resolved the question to the contrary in Peterson v. Dem-skie, in noting that we had previously declined to decide whether the duration of the grace period should be “ ‘a full year from the effective date of the Act or only a reasonable time thereafter,’” 107 F.3d at 93 (quoting Reyes v. Keane, 90 F.3d at 679), and in stating that [i]n circumstances like Peterson’s, where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, we see no need to accord a full year after the effective date of the AEDPA. At the same time, we do not think that the alternative of a “reasonable time” should be applied with undue rigor, Peterson v. Demskie, 107 F.3d at 93 (emphasis ours). Relying on the" } ]

[ { "docid": "15484226", "title": "", "text": "OPINION AND ORDER MUKASEY, District Judge. As disclosed to the parties at a conference on April 18, 1991, the motion of claimant Maruquel Investment, Inc. to dismiss the complaint for lack of jurisdiction and for failure to state a claim is denied. The defendant accounts are alleged to be owned or controlled by Pedro Lora, a defendant in a criminal case in this District who is accused of narcotics trafficking. Complaint, 112. Claimant has argued that because the account which is the subject of this motion is located in Puerto Rico, this court lacks in rem jurisdiction and the complaint therefore must be dismissed. The relevant statute, however, permits the Government to seek forfeiture of property “in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought.” 18 U.S.C. § 981(h). To the extent there is anything inconsistent in United States v. One Lear Jet Aircraft, Serial No. 35A-280, 836 F.2d 1571, 1575 (11th Cir.1988), cert. denied, 487 U.S. 1204, 108 S.Ct. 2844, 101 L.Ed.2d 881 (1989), that reasoning appears to be at odds with the reasoning of our own Circuit in United States v. Aiello, 912 F.2d 4 (2d Cir.1990). To the extent it is not, claimants’ argument that an in rem proceeding cannot be prosecuted in the absence of the res has a certain appeal. E.g., Bank of New Orleans and Trust Co. v. Marine Credit Corp., 583 F.2d 1063, 1067-68 (8th Cir.1978). However, that does not take into account the nature of this action, which seeks to forfeit property that is alleged to be under the continuing control of a defendant being prosecuted in this District. Such a contact appears, to my eye, to satisfy the minimum contacts requirements of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) and their progeny. Put another way, it does not appear to deny due process to one alleged to be acting at the" } ]

[ { "docid": "9711888", "title": "", "text": "On June 18,1992, the Honorable Linnea R. Johnson, United-States Magistrate Judge for the Southern District of Florida, issued a seizure warrant for the Defendant-in-rem Account Number 2033301 in the name of Luis Freixas, in the amount of $16,911.52, located at Citibank International Bank in Miami,. Florida. On June 23,1992, the Internal Revenue Service (“IRS”) seized the Account under the warrant pursuant to 18 U.S.C. § 981, based on its alleged involvement in or traceability to a violation of one of the federal anti-structuring statutes, 31 U.S.C. § 5324. Freixas, however, is not a defendant in the related criminal proceeding. On April 15, 1993, Freixas filed a verified claim with respect to the contents of the Miami Account and filed a motion to dismiss the complaint, or, in the alternative, to transfer the action to the Southern District of Florida. Discussion “A civil proceeding for the forfeiture of property may be prosecuted in any district where such property is found.” 28 U.S.C. § 1395(b). Previously, forfeiture cases turned upon the notion that venue for a civil forfeiture proceeding was only proper in the District in which the, property was found. See e.g. U.S. v. U.S. Currency in the Amount of Twenty Three Thousand Four Hundred Eighty One Dollars, ($23,481), More or Less, 140 F.Supp. 950, 953 (E.D.N.Y.1990) (“Since the currency was ‘found’ in this district the only district where venue is proper in this civil in rem forfeiture action against the United States currency is the Eastern District of New York.”) (citations omitted); U.S. v. Contents of Accounts Nos. 3034504504. and 144-07143 at Merrill, Lynch, Pierce, Fenner & Smith Inc., 971 F.2d 974, 983 (3d Cir.1992), cert. denied sub nom. Friko Corp. v. United States, — U.S. -, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993) (“We realize that our result requires the government to file a second civil forfeiture action in the district court where the res is found if it wishes to affect any rights person who are not subject to the territorial jurisdiction of the district court in which the related criminal prosecution is pending may have in a" }, { "docid": "23226141", "title": "", "text": "that the Supplemental Rules For Certain Admiralty And Maritime Claims (Supplemental Rule(s)) set forth the minimal requirements for a connection that is sufficient to meet due process standards in proceedings in rem. Supplemental Rule C(2) provides in relevant part: In actions in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. Supp.R. For Certain Admiralty And Maritime Claims C(2) [hereinafter “Supp.R.”] (emphasis added). Friko also relies on Supplemental Rule E(3)(a). It states: Process in rem and of maritime attachment shall be served only within the district. Supp.R. E(3)(a) (emphasis added). Both rules presuppose that the res is located in the district where the action is commenced. Friko, therefore, argues that the District of New Jersey lacked venue over this in rem action for forfeiture because the res was in the Southern District of New York and 18 U.S.C.A. § 981(h) (West Supp.1992), concerning venue in forfeiture cases, is unconstitutional. This question is one of law over which we exercise plenary review. See Air Courier Conf. of Am./Int'l Comm. v. United States Postal Serv., 959 F.2d 1213, 1217 (3d Cir.1992). Section 981(h) reads: In addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought. Id. § 981(h). Here, Friko was indicted as a co-defendant in the Cardona criminal prosecution in the District of New Jersey. The government, therefore, contends that a proceeding to forfeit Friko’s bank accounts can be brought in the District of New Jersey under section 981(h). Section 981(h) is recently enacted and we have found only two" }, { "docid": "23226145", "title": "", "text": "States v. 218 Panther St., 745 F.Supp. 118, 119 n. 2 (E.D.N.Y. 1990) (noting statute in dicta), aff'd sub. nom. United States v. Eng, 951 F.2d 461 (2d Cir.1991); United States v. Section 28, Block 1, Lot 48.221, 131 F.R.D. 27, 28 (D.R.I.1990) (claimant’s motion for transfer of forfeiture proceedings to Southern District of New York granted when indictment had been transferred there and res was there); United States v. Parcel I, 731 F.Supp. 1348, 1351 (S.D.Ill.1990) (forfeiture proper when brought in same district as related criminal proceeding); United States v. 5708 Beacon Dr., 712 F.Supp. 525, 527 (S.D.Miss.1988) (same); United States v. 2050 Brickwell Ave., 681 F.Supp. 309, 311 (E.D.N.C.1988) (same). These cases persuade us to reject Friko’s argument that section 981(h)’s limited grant of venue over civil actions for forfeiture of a res to district courts that do not have the res within their boundaries violates due process. By limiting venue in civil forfeiture proceedings to those districts that have venue over a related criminal proceeding, section 981(h) prevents the government from seeking civil forfeiture in a court so inconvenient for the defendant or the claimant that either of them is deprived of the fundamental fairness that is at the core of due process. Section 981(h) assures that the criminal defendant whose alleged misconduct is the basis on which the government asserts its right to forfeiture will already be present or subject to personal jurisdiction in the forfeiture venue because it is only there that the related criminal action can proceed (other than where the res is or its owner is found). Since venue in a criminal proceeding is constitutionally restricted to “the State where the said Crimes shall have been committed,” U.S. Const, art. Ill, § 2, cl. 3, civil forfeiture venue under section 981(h) is similarly restricted to a district in the state where the related crime was committed. We therefore hold that the district court’s assumption of venue under section 981(h) does not infringe Friko’s constitutional right to due process. B. Friko’s argument also goes to the absence of in rem (territorial) jurisdiction over the" }, { "docid": "23226146", "title": "", "text": "civil forfeiture in a court so inconvenient for the defendant or the claimant that either of them is deprived of the fundamental fairness that is at the core of due process. Section 981(h) assures that the criminal defendant whose alleged misconduct is the basis on which the government asserts its right to forfeiture will already be present or subject to personal jurisdiction in the forfeiture venue because it is only there that the related criminal action can proceed (other than where the res is or its owner is found). Since venue in a criminal proceeding is constitutionally restricted to “the State where the said Crimes shall have been committed,” U.S. Const, art. Ill, § 2, cl. 3, civil forfeiture venue under section 981(h) is similarly restricted to a district in the state where the related crime was committed. We therefore hold that the district court’s assumption of venue under section 981(h) does not infringe Friko’s constitutional right to due process. B. Friko’s argument also goes to the absence of in rem (territorial) jurisdiction over the res, as well as the court’s lack of power to hear the government’s cause because of a lack of venue. Friko contends that the district court was without territorial jurisdiction because the res was not located in the District of New Jersey. The district court ruled that territorial jurisdiction existed in the District of New Jersey under section 981(h). Friko’s challenge to the district court’s assertion of territorial jurisdiction is a question of law over which we exercise plenary review. See Bumberger v. Insurance Co. of N. Am., 952 F.2d 764, 766 (3d Cir.1991). The government asserts “[tjhere is no doubt that the territorial jurisdiction of the United States District Court for the District of New Jersey in a forfeiture proceeding includes New York City. Its jurisdiction is limited only by the nation’s borders and the venue provisions. Congress created nationwide jurisdiction when it passed 18 U.S.C. § 981(h)_” Brief for Appellee in No. 90-5470 at 27-28 (citation omitted); see 18 U.S.C.A. § 981(a)(1)(A) (West Supp. 1992). Friko’s jurisdictional argument is not controlled by section" }, { "docid": "22925319", "title": "", "text": "forfeiture actions arising out of money laundering activities as follows: In addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought. 18 U.S.C. § 981(h). The government relies on the provisions of § 981(h) to support its argument that the district court had jurisdiction over the defendant property located in New Mexico because the underlying criminal prosecution was brought in the District of Colorado and, after his arrest, Austin also was brought into the District of Colorado. Venue, however, is distinct from jurisdiction. United States v. Contents of Accounts Nos. 3034504504 & 144-07143, 971 F.2d 974, 980 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). Even if a district is the proper venue for a civil forfeiture action, the court cannot proceed unless it has jurisdiction over the defendant property. To obtain jurisdiction over the property, the court must be able to execute service of process on it. Id. at 980-81. At the time the government filed its complaint and the district court sought to obtain jurisdiction over the property in New Mexico, Supplemental Rule E(3)(a) provided that “[pjrocess in rem and of maritime attachment and garnishment shall be served only within the district.” By contrast, Fed. R.Civ.P. 4(f) provided that “[a]ll process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when authorized by a statute of the United States or by these rules, beyond the territorial limits of the state.” Even if the more expansive service provisions of Rule 4(f) applied, the district court could not execute service of process outside Colorado unless some federal statute authorized the court to do" }, { "docid": "23226156", "title": "", "text": "process provided for in Arbitration Act, 9 U.S.C.A. § 9 (West 1970) and Sherman Act, 15 U.S.C.A. § 5 (West 1973)); Howard M. Erichson, Note, Nationwide Personal Jurisdiction in All Federal Question Cases: A New Rule 4, 64 N.Y.U.L.Rev. 1117, 1123 n. 30 (1989) (listing another twelve nationwide statutes providing for nationwide service of process). In the absence of clear evidence in the legislative history that Congress intended to allow nationwide service of process when it enacted section 981(h), we do not think we can imply authorization for nationwide service from section 981(h)’s liberalized rule on venue. We might be more inclined to imply into section 981(h) a provision for nationwide service of process if, without the extended venue it provides for, civil forfeitures would lose all practical effect, but that is not the case. Without section 981(h), “[a] civil proceeding for the forfeiture of property may be prosecuted in any district where such property is found,” 28 U.S.C.A. § 1395(b) (West 1976). Absent section 981(h), the District of New Jersey would be an improper venue for civil forfeiture of a res even as to the defendants in the related criminal action. Again, we remind the reader that Section 981(h)’s grant of venue to a district court in which a related criminal proceeding has been brought permits the District Court of New Jersey to adjudicate any rights the criminal defendants subject to its jurisdiction may have in a res located in New York, or elsewhere, without regard to service of process. See 18 U.S.C.A. § 981(h). Whenever a criminal case is pending in the district where the related civil forfeiture is brought pursuant to section 981(h), a criminal defendant who has a claim to the res will usually be within the district court’s in personam jurisdiction. Thus, section 981(h) does give the district courts expanded power to resolve a criminal defendant’s rights in a related res even though service cannot be effected because the property is outside the court’s territorial jurisdiction. See 11205 McPherson Lane, 754 F.Supp. at 1484. We realize that our result requires the government to file a" }, { "docid": "23226157", "title": "", "text": "venue for civil forfeiture of a res even as to the defendants in the related criminal action. Again, we remind the reader that Section 981(h)’s grant of venue to a district court in which a related criminal proceeding has been brought permits the District Court of New Jersey to adjudicate any rights the criminal defendants subject to its jurisdiction may have in a res located in New York, or elsewhere, without regard to service of process. See 18 U.S.C.A. § 981(h). Whenever a criminal case is pending in the district where the related civil forfeiture is brought pursuant to section 981(h), a criminal defendant who has a claim to the res will usually be within the district court’s in personam jurisdiction. Thus, section 981(h) does give the district courts expanded power to resolve a criminal defendant’s rights in a related res even though service cannot be effected because the property is outside the court’s territorial jurisdiction. See 11205 McPherson Lane, 754 F.Supp. at 1484. We realize that our result requires the government to file a second civil forfeiture action in the district court where the res is found if it wishes to affect any rights persons who are not subject to the territorial jurisdiction of the district court in which the related criminal prosecution is pending may have in a related res. Having already defeated a criminal defendant who claims the res, this second filing is not likely to be necessary unless a lienholder or an innocent owner not present in the district where the criminal proceeding is pending files a claim. C. Unfortunately, our conclusion that section 981(h) does not allow extra-territorial service of process does not end our inquiry into the district court’s power to adjudicate Friko’s claim to ownership of the accounts that are the res. We must still consider whether the district court has otherwise obtained personal jurisdiction over Friko that would enable it to adjudicate Friko’s rights in a res located outside the court’s territorial jurisdiction. See Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934). Our review of" }, { "docid": "23226147", "title": "", "text": "res, as well as the court’s lack of power to hear the government’s cause because of a lack of venue. Friko contends that the district court was without territorial jurisdiction because the res was not located in the District of New Jersey. The district court ruled that territorial jurisdiction existed in the District of New Jersey under section 981(h). Friko’s challenge to the district court’s assertion of territorial jurisdiction is a question of law over which we exercise plenary review. See Bumberger v. Insurance Co. of N. Am., 952 F.2d 764, 766 (3d Cir.1991). The government asserts “[tjhere is no doubt that the territorial jurisdiction of the United States District Court for the District of New Jersey in a forfeiture proceeding includes New York City. Its jurisdiction is limited only by the nation’s borders and the venue provisions. Congress created nationwide jurisdiction when it passed 18 U.S.C. § 981(h)_” Brief for Appellee in No. 90-5470 at 27-28 (citation omitted); see 18 U.S.C.A. § 981(a)(1)(A) (West Supp. 1992). Friko’s jurisdictional argument is not controlled by section 981(h)’s validity as a venue statute. Venue, though dependent upon jurisdiction, is distinct from it. Venue does not refer to jurisdiction at all. “Jurisdiction” of the court means the inherent power to decide a case, whereas “venue” designates the particular [district] in which a court with jurisdiction may hear and determine the case. Black’s Law Dictionary 1396 (5th ed. 1981). See generally 4 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 1070 (2d ed. 1984) (discussing in rem jurisdiction). The government’s premise, that section 981(h) automatically expanded the district court’s in rem jurisdiction to the same extent as its venue, must be examined. When subject-matter jurisdiction and venue are present but the res that is said to afford a district court in rem jurisdiction is located outside the district in which proceedings against the res are brought, service of process must be available if a district court is to exercise jurisdiction over the res. See The Rio Grande, 90 U.S. (23 Wall.) 458, 463, 23 L.Ed. 158 (1874)." }, { "docid": "23226144", "title": "", "text": "21 U.S.C.A. § 881(j) (West Supp. 1992) (forfeiture proceedings related to drug prosecutions). Section 881(j) has been the subject of eight reported cases. Only in one, United States v. 11205 McPherson Lane, 754 F.Supp. 1483, 1484-89 (D.Nev.1991), has a court held that section 881(j) did not give it power to deal with a res located outside the district in which the forfeiture proceeding was brought, and there the court pointed out the problem was not venue but territorial jurisdiction. Cf. United States v. 6960 Miraflores Ave., 932 F.2d 1433, 1435 (11th Cir.1991) (government may prosecute “forfeiture action either in the district where the res is located, in the district of the criminal prosecution, or the district in which the owner is found”), petition for cert, granted sub. nom., Republic Nat’l Bank v. United States, — U.S.-, 112 S.Ct. 1159, 117 L.Ed.2d 406 (1992) (certiorari granted on an unrelated issue); United States v. Maull, 855 F.2d 514, 517 (8th Cir.1988) (forfeiture prosecution may be brought either where res is located or criminal prosecution is brought); United States v. 218 Panther St., 745 F.Supp. 118, 119 n. 2 (E.D.N.Y. 1990) (noting statute in dicta), aff'd sub. nom. United States v. Eng, 951 F.2d 461 (2d Cir.1991); United States v. Section 28, Block 1, Lot 48.221, 131 F.R.D. 27, 28 (D.R.I.1990) (claimant’s motion for transfer of forfeiture proceedings to Southern District of New York granted when indictment had been transferred there and res was there); United States v. Parcel I, 731 F.Supp. 1348, 1351 (S.D.Ill.1990) (forfeiture proper when brought in same district as related criminal proceeding); United States v. 5708 Beacon Dr., 712 F.Supp. 525, 527 (S.D.Miss.1988) (same); United States v. 2050 Brickwell Ave., 681 F.Supp. 309, 311 (E.D.N.C.1988) (same). These cases persuade us to reject Friko’s argument that section 981(h)’s limited grant of venue over civil actions for forfeiture of a res to district courts that do not have the res within their boundaries violates due process. By limiting venue in civil forfeiture proceedings to those districts that have venue over a related criminal proceeding, section 981(h) prevents the government from seeking" }, { "docid": "22925354", "title": "", "text": ". A claimant seeking to make a claim to property subject to an in rem forfeiture action must file a claim within ten days after service is executed and serve an answer within twenty days thereafter. Fed.R.Civ.P. C(6). . Venue for an in personam civil proceeding for recovery of a fine, penalty or forfeiture is in the district in which the claim accrues or in which the defendant is found. 28 U.S.C. § 1395(a); 1A, Pt. 2 James W. Moore, et al., Moore's Federal Practice ¶ 0.344[3], at 4223 (2d ed. 1993). Venue for a civil proceeding to forfeit property seized outside the territorial borders of the United States is in the district into which the property is brought. 28 U.S.C. § 1395(c); United States v. One 1974 Cessna Model 310R Aircraft, 432 F.Supp. 364, 368 (D.S.C.1977). . Nitsua argues that § 981(h) does not apply because the property at issue is not \"property of the defendant.” Other courts have accepted venue as proper under § 981(h) when the government's complaint has alleged that the subject property, though titled in someone else’s name, actually is property of the criminal defendant. See, e.g., United States v. 953 E. Sahara, 807 F.Supp. 581, 582 n. 3, 585 (D.Ariz.1992); United States v. Contents of Account No. 11671-8, 763 F.Supp. 53, 54 (S.D.N.Y.1991). Here, the government alleged that the real property titled in Nitsua’s name actually was property of Austin, one of the criminal defendants. Nitsua does not dispute the district court's factual finding that Austin is its alter ego. . Because the government commenced this action in 1991, it is governed by the provisions of Rule 4 that were in effect in 1991, rather than the amendments to Rule 4 that went into effect on December 1, 1993. . The government mistakenly cites 953 E. Sahara as a case from the District of Nevada and, on that false premise, argues that it undercuts the ruling in United States v. 11205 McPherson Lane, 754 F.Supp. 1483, 1487 (D.Nev.1991), that § 881(j) does not authorize nationwide service of process. . In Accounts Nos. 3034504504 &" }, { "docid": "7252629", "title": "", "text": "to section 981(h) of Title 18 U.S.C., which specifically provides that, “[i]n addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought” (emphasis supplied). Section 981(h), therefore, expressly creates a specific alternative for venue of civil forfeiture proceedings in addition to the venue provisions of 28 U.S.C. § 1395, governing venue of civil proceedings to recover fines, penalties or forfeiture in general. This section explicitly contemplates venue of civil forfeiture proceedings in the judi cial district where the parallel criminal action is prosecuted. As a practical matter, this avoids piecemeal forfeiture proceedings in district courts throughout the country where the criminal defendant owns or has an interest in property located outside of the district within which he or she is being criminally prosecuted. Finally, the Court also notes that the venue provision relied upon by Murillo is couched in permissive terms — “[a] civil proceeding ... may be prosecuted in any district where such property is found”— and is not a mandatory direction. Accordingly, the Court finds that subject matter jurisdiction exists over this action and that venue of all six bank accounts is proper in the Eastern District of New York. As such, Murillo’s motion to dismiss for lack of subject matter jurisdiction is denied. (2) The Government’s Motion for Partial Summary Judgment: The Government moves for summary judgment pursuant to Fed.R.Civ.P. 56(a) as to the six bank accounts. Specifically, the Government alleges that these accounts were used in over one-hundred separate transactions allegedly structured so as to avoid currency transaction reporting requirements in violation of 31 U.S.C. § 5324. To establish forfeitability under 18 U.S.C. § 981(a)(1)(A), the Government is required to demonstrate that “probable cause” exists for the forfeiture (see" }, { "docid": "22925318", "title": "", "text": "subject matter and the parties.” Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202-03 (10th Cir.1986). This affirmative duty exists regardless of whether the parties are people or, in the case of actions in rem, inanimate objects such as pieces of real property. I. In Rem Jurisdiction. The exercise of in rem jurisdiction in a civil forfeiture ease permits the court to adjudicate the rights of the government to the property as against the whole world. United States v. Certain Real & Personal Property Belonging to Hayes, 943 F.2d 1292, 1295 (11th Cir.1991). Traditionally, a court could obtain in rem jurisdiction only over property situated within its territorial borders. Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 272, 37 S.Ct. 282, 283, 61 L.Ed. 713 (1917). Thus, venue for an in rem civil proceeding to forfeit property lies in the district in which the property is found. 28 U.S.C. § 1395(b). In 1986, as part of the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, Congress expanded the venue for civil forfeiture actions arising out of money laundering activities as follows: In addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought. 18 U.S.C. § 981(h). The government relies on the provisions of § 981(h) to support its argument that the district court had jurisdiction over the defendant property located in New Mexico because the underlying criminal prosecution was brought in the District of Colorado and, after his arrest, Austin also was brought into the District of Colorado. Venue, however, is distinct from jurisdiction. United States v. Contents of Accounts Nos. 3034504504 & 144-07143, 971 F.2d 974, 980 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1580, 123" }, { "docid": "23226143", "title": "", "text": "reported cases that have even mentioned it. See United States v. All Funds On Deposit In Any Account At Certain Fin. Insts. Held In The Names Of Certain Individuals, 767 F.Supp. 36, 39-40 (E.D.N.Y.1991); United States v. Contents of Account Number 11671-8, 763 F.Supp. 53, 54 (S.D.N.Y.1991). Neither deals with the due process question Friko raises and neither undertakes any materially helpful discussion or analysis of section 981(h). They do no more than provide examples of situations in which section 981(h) afforded a district court venue over civil forfeiture actions against a res outside the district when the forfeiture action was related to criminal proceedings brought within the district. See All Funds, 767 F.Supp. at 39-40 (venue over forfeiture proceedings concerning four accounts located in the Southern District of New York properly laid in the Eastern District of New York); Account Number 11671-8, 763 F.Supp. at 54 (venue over proceedings concerning account located in District of Puerto Rico properly laid in the Southern District of New York). Section 981(h) is, however, a veritable clone of 21 U.S.C.A. § 881(j) (West Supp. 1992) (forfeiture proceedings related to drug prosecutions). Section 881(j) has been the subject of eight reported cases. Only in one, United States v. 11205 McPherson Lane, 754 F.Supp. 1483, 1484-89 (D.Nev.1991), has a court held that section 881(j) did not give it power to deal with a res located outside the district in which the forfeiture proceeding was brought, and there the court pointed out the problem was not venue but territorial jurisdiction. Cf. United States v. 6960 Miraflores Ave., 932 F.2d 1433, 1435 (11th Cir.1991) (government may prosecute “forfeiture action either in the district where the res is located, in the district of the criminal prosecution, or the district in which the owner is found”), petition for cert, granted sub. nom., Republic Nat’l Bank v. United States, — U.S.-, 112 S.Ct. 1159, 117 L.Ed.2d 406 (1992) (certiorari granted on an unrelated issue); United States v. Maull, 855 F.2d 514, 517 (8th Cir.1988) (forfeiture prosecution may be brought either where res is located or criminal prosecution is brought); United" }, { "docid": "23226140", "title": "", "text": "presenting documentation to establish its legal and equitable interest in the property seized.\" Supplemental Appendix in No. 91-5768 at 126. III. We have appellate jurisdiction over the district court’s final judgment pursuant to 28 U.S.C.A. § 1291 (West Supp.1991). Fri-ko disputes the district court’s jurisdiction over the accounts the government seeks forfeiture of. The resolution of this dispute will determine whether the district court had the power to decide if Friko had any claim to the accounts and whether they were forfeited to the government. IV. We must first address several threshold questions concerning subject-matter jurisdiction, due process, venue, in rem jurisdiction and service of process. We will consider them in turn before reaching Friko’s arguments that it had standing to contest the forfeiture and that its motion for rear-gument was erroneously denied. A. Friko frames its venue argument in terms of due process, arguing that “[a]l-though federal courts have nationwide jurisdiction, due process demands at least some connection to the District.” Brief for Appellant in No. 91-5470 at 24 (emphasis in original). Friko says that the Supplemental Rules For Certain Admiralty And Maritime Claims (Supplemental Rule(s)) set forth the minimal requirements for a connection that is sufficient to meet due process standards in proceedings in rem. Supplemental Rule C(2) provides in relevant part: In actions in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. Supp.R. For Certain Admiralty And Maritime Claims C(2) [hereinafter “Supp.R.”] (emphasis added). Friko also relies on Supplemental Rule E(3)(a). It states: Process in rem and of maritime attachment shall be served only within the district. Supp.R. E(3)(a) (emphasis added). Both rules presuppose that the res is located in the district where the action is commenced. Friko, therefore, argues that the District of New Jersey lacked venue over this in rem action for forfeiture because the res was in the Southern District of New York and 18 U.S.C.A. § 981(h) (West" }, { "docid": "14048375", "title": "", "text": "U.S.C. § 981(a)(2), that is, that the claimant is an \"innocent owner.\" See United States v. 755 Forest Road, 985 F.2d 70, 72 (2d Cir.1993) (\"The so-called `innocent owner' defense is an affirmative defense to be proven by the owner-claimant.\"); see also Marine Midland, 11 F.3d at 1126 (discussing statutory framework). We consider each of the seized accounts separately. A. The Miami Account The funds seized from the Miami account must be released to the claimant because these funds were wired from Paris to Miami in response to newsletters sent from Guatemala to France, Wetterer had not been indicted for wire fraud in the Eastern District of New York, and there is therefore no basis for forfeiture jurisdiction in that district. Section 1355(b)(1)(B) of Title 28, U.S. Code, provides for forfeiture jurisdiction in any \"district where venue for the forfeiture action ... is specifically provided for in section 1395 of this title or any other statute.\" 28 U.S.C. § 1355(b)(1)(B) (emphasis added). Section 1395, which lays jurisdiction in any venue where the seized property was \"brought\" or \"found,\" 28 U.S.C. § 1395(b), (c), does not establish Eastern District jurisdiction over the funds found in the Miami account, because they were wired there direct from Paris. The government is therefore compelled to cite some \"other statute\" to establish jurisdiction, and relies here solely on 18 U.S.C. § 981(h), the venue provision of the federal forfeiture statute. In relevant part, Section 981(h) provides: [I]n the case of property of a defendant charged with a violatiom that is the ba-sisfor afrnfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which . the criminal prosecution is brought. Id. (emphasis added). It is unclear how this provision furnishes jurisdiction over the Miami account in the Eastern District. It is undisputed (A) that the only specified \"basis for a forfeiture\" of the funds held in the Miami account is Wetterer's alleged violation of the federal wire fraud statute, 18 U.S.C. § 1343; and (B) that the only specified basis for the Eastern District" }, { "docid": "8815654", "title": "", "text": "18, 1994, the High Court of England issued a judgment, holding that “although now based on the civil proceedings in New York, the order will remain in force.” J.L. and In the Matter of the Drug Trafficking Offenses Act 1986 (Designated Countries and Territories) Order 1990, at 10 (High Court of Justice March 18, 1994). Law A. Subject Matter Jurisdiction and Venue In forfeiture cases, venue has traditionally only been proper in the judicial district in which the property to be forfeited is found. See, e.g., 28 U.S.C. § 1395(b) (“A civil proceeding for the forfeiture of property may be prosecuted in any district where such property is found.”) See also United States v. Contents of Account No. 2033301, 831 F.Supp. 337, 338-39 (S.D.N.Y.1993). In order for a court to have venue over property outside the United States, the property had to be physically brought into the district. See, e.g., 28 U.S.C. 1395(c) (“A civil proceeding for the forfeiture of property seized outside any judicial district may be prosecuted in any judicial district into which the property is brought.”) See also United States v. One Caribou Aircraft Registration No. N-1017-H, 557 F.Supp. 379, 381 (D.P.R.1983). Congress, in the last several years, has expanded the forfeiture laws. 21 U.S.C. § 881(j) and 18 U.S.C. § 981(h) both state that venue for a civil forfeiture proceeding is proper in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought. See United States v. Contents of Accounts Nos. 3031501501 and 144-07143, 971 F.2d 974, 979 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993); United States v. 51 Pieces of Real Property Roswell, N.M., 17 F.3d 1306, 1311 (10th Cir.1994). In addition, in October, 1992, Congress amended 28 U.S.C. § 1355(b) to give subject matter jurisdiction and venue to district courts over forfeiture cases in which any of the acts or omissions giving rise to the forfeiture oc curred in the district, even if the property is located in a foreign country. Section 1355" }, { "docid": "7252628", "title": "", "text": "accounts seized are located in Manhattan, within the confines of the Southern District of New York, this Court lacks subject matter jurisdiction over the res with respect to those accounts. In support of his argument, Murillo relies on 28 U.S.C. § 1395(b), which provides as follows: “(b) A civil proceeding for the forfeiture of property may be prosecuted in any district where such property is found” (emphasis supplied). For the reasons that follow, the Court finds Murillo’s argument to be without merit. Pursuant to 28 U.S.C. § 1345, federal district courts have exclusive jurisdiction over all actions where the United States is a plaintiff. Furthermore, 28 U.S.C. § 1355 provides that original exclusive jurisdiction over all actions or proceedings for forfeiture rests with the district courts. Clearly, “subject matter” jurisdiction over the civil forfeiture of Murillo’s bank accounts pursuant to 18 U.S.C. § 981 is proper in this Court. The Court must next determine whether venue over the four accounts maintained in Manhattan is proper in this district. To make this determination, the Court turns to section 981(h) of Title 18 U.S.C., which specifically provides that, “[i]n addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought” (emphasis supplied). Section 981(h), therefore, expressly creates a specific alternative for venue of civil forfeiture proceedings in addition to the venue provisions of 28 U.S.C. § 1395, governing venue of civil proceedings to recover fines, penalties or forfeiture in general. This section explicitly contemplates venue of civil forfeiture proceedings in the judi cial district where the parallel criminal action is prosecuted. As a practical matter, this avoids piecemeal forfeiture proceedings in district courts throughout the country where the criminal defendant owns or has an interest in" }, { "docid": "23226142", "title": "", "text": "Supp.1992), concerning venue in forfeiture cases, is unconstitutional. This question is one of law over which we exercise plenary review. See Air Courier Conf. of Am./Int'l Comm. v. United States Postal Serv., 959 F.2d 1213, 1217 (3d Cir.1992). Section 981(h) reads: In addition to the venue provided for in section 1395 of title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought. Id. § 981(h). Here, Friko was indicted as a co-defendant in the Cardona criminal prosecution in the District of New Jersey. The government, therefore, contends that a proceeding to forfeit Friko’s bank accounts can be brought in the District of New Jersey under section 981(h). Section 981(h) is recently enacted and we have found only two reported cases that have even mentioned it. See United States v. All Funds On Deposit In Any Account At Certain Fin. Insts. Held In The Names Of Certain Individuals, 767 F.Supp. 36, 39-40 (E.D.N.Y.1991); United States v. Contents of Account Number 11671-8, 763 F.Supp. 53, 54 (S.D.N.Y.1991). Neither deals with the due process question Friko raises and neither undertakes any materially helpful discussion or analysis of section 981(h). They do no more than provide examples of situations in which section 981(h) afforded a district court venue over civil forfeiture actions against a res outside the district when the forfeiture action was related to criminal proceedings brought within the district. See All Funds, 767 F.Supp. at 39-40 (venue over forfeiture proceedings concerning four accounts located in the Southern District of New York properly laid in the Eastern District of New York); Account Number 11671-8, 763 F.Supp. at 54 (venue over proceedings concerning account located in District of Puerto Rico properly laid in the Southern District of New York). Section 981(h) is, however, a veritable clone of" }, { "docid": "23226158", "title": "", "text": "second civil forfeiture action in the district court where the res is found if it wishes to affect any rights persons who are not subject to the territorial jurisdiction of the district court in which the related criminal prosecution is pending may have in a related res. Having already defeated a criminal defendant who claims the res, this second filing is not likely to be necessary unless a lienholder or an innocent owner not present in the district where the criminal proceeding is pending files a claim. C. Unfortunately, our conclusion that section 981(h) does not allow extra-territorial service of process does not end our inquiry into the district court’s power to adjudicate Friko’s claim to ownership of the accounts that are the res. We must still consider whether the district court has otherwise obtained personal jurisdiction over Friko that would enable it to adjudicate Friko’s rights in a res located outside the court’s territorial jurisdiction. See Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934). Our review of this issue also is plenary. See Bumberger, 952 F.2d at 766. The record before us does not show any contacts between the District of New Jersey and Friko beyond Friko’s connection with the Cardona criminal prosecution and this case. However, in both the criminal prosecution and civil forfeiture proceeding, Friko waived any objection it may have had to the in personam jurisdiction of the District Court of New Jersey. Although the criminal summons issued against Friko could not properly be served on Friko in Panama, see Fed.R.Grim.P. 4(b) (“the summons may be served at any place within the jurisdiction of the United States”), Fri-ko appeared in the Cardona prosecution pursuant to a corporate resolution signed by Daccarett (though Daccarett himself did not appear). Thus, Friko’s submission to the District Court of New Jersey’s jurisdiction was voluntary. Already litigating the criminal prosecution in the District Court of New Jersey, Friko voluntarily submitted itself to the in personam jurisdiction of the District Court of New Jersey for purposes of the civil forfeiture proceeding. Even assuming that Friko’s" }, { "docid": "9711895", "title": "", "text": "jurisdiction in which the property was “found.” Here, the Government alleges that the activity giving rise to forfeiture—the structuring of cash deposits into the two BPD accounts and the transfer to the Account—occurred in New York. Under 28 U.S.C. § 1355, as amended, the New York Court has both subject matter and in rem jurisdiction over the Miami Account. With respect to venue, it must be concluded that the action against the contents of the Account are properly brought in the Southern District. Freixas has not set before this Court any compelling reasons for transferring this action to the Southern District of Florida for the convenience of the parties under § 1404. The account is only one of several accounts across the country which have been seized due to transfers made in New York. It is preferable for the Government to prosecute this action in a single judicial forum, and Freixas has not described any circumstances which would render it inconvenient for him to defend his claim in New York. Accordingly, his motion to transfer is denied. Conclusion For the reasons stated above, Freixas’ motion to dismiss, or, in the alternative, transfer to the Southern District of Florida is hereby denied. It is so ordered. . The Court also held that the venue provisions of 18 U.S.C. § 981 provides venue to determine the rights of the res in a district court only in the event a related criminal, not civil, action exists. Id. Section 981(h) reads: In addition to the venue provided for in section 1395 of Title 28 or any other provision of law, in the case of property of a defendant charged with a violation that is the basis for forfeiture of the property under this section, a proceeding for forfeiture under this section may be brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought." } ]

[ { "docid": "1824290", "title": "", "text": "statements found where the evidence indicated that the creditor relief exclusively on the personal guarantee of a majority stockholder); Lippert, supra, 84 B.R. at 617 (creditor failed to show reasonable reliance on a financial statement rather than on the debtor’s cash flow and its own security interests in machinery and equipment); Duncan, supra, 81 B.R. 665, 668 (no reasonable reliance by creditor found on purported ownership of realty where there was no verification of ownership and the application suggests reliance was not based on such ownership). This is particularly true with respect to the second lease agreement, since McMahon’s and Martz’s testimony indicates that the only real requirement imposed for approval of the second lease application was that Cafe Raymon be current on its payments under the first lease, which it was. See In re Savich, 82 B.R. 1011, 1012-13 (Bankr.W.D.Mo.1988) (bank not found to have relied on false statement when it renewed the loan after it received a correct statement). Even if the Plaintiff had established reliance, it would have had to show that such reliance was reasonable. Lip-pert, supra, 84 B.R. at 617. The reasonableness of a creditor’s reliance is judged by an objective standard, i.e., that degree of care which would be exercised by a reasonably cautious person in an average business transaction under similar circumstances. In re Icsman, 64 B.R. 58, 62 (Bankr.N.D.Ohio 1986). Cf. Bossard, supra, 74 B.R. at 736. A determination of reasonable reliance requires consideration of the creditor’s standard practices in evaluating credit worthiness, the standards or customs of the creditor’s industry in evaluating credit worthiness, and the surrounding circumstances existing at the time of the debtor’s application for credit. In re Mitchell, 70 B.R. 524, 528 (Bankr.N.D.Ill.1987). Reliance has been found to be unreasonable when 1. The creditor knows that the financial statement is not accurate; 2. the financial statement does not contain adequate information to present an accurate picture of the debtor’s financial condition for credit analysis; 3. the creditor’s own investigation suggests that the financial statement was false or incomplete; or 4. the creditor fails to verify information on the" } ]

[ { "docid": "18979402", "title": "", "text": "own name with the FAA. About seven months after the bank and Borg-Warner exchanged releases of lien, a series of transactions and omissions left Borg-Warner with only an unperfected security interest in the Seneca. The chief omission involved Borg-Warner’s filings. Either the company failed to send the documents that Borg-Warner needed to supply in order to perfect its lien, or the FAA misplaced them. The company discovered the error in the spring of 1981, but for some time it placed reliance on the bank’s Seneca lien, which remained of record at the FAA, to preserve its perfected security position. Events occurring in June 1981 form the basis of Borg-Warner’s allegations of fraud. On June 12, the FAA recorded the bank’s release of lien. The bank denies executing and Borg-Warner denies sending the release, and nothing in the record indicates who did give it to the FAA. On the same day, the FAA recorded an instrument transferring title of the Seneca to QHL. The document bore McKenzie’s signature in his capacity as president of QHL. McKenzie had promised Borg-Warner that he would take title in his personal capacity, and he had originally done so. Borg-Warner belatedly sent additional documentation to the FAA in an effort to perfect its security interest. On the day before the FAA received the filing, however, QHL filed a voluntary petition under Chapter 11 of the Bankruptcy Code. Filing the petition rendered nugatory Borg-Warner’s attempt to perfect its lien. See Bankruptcy Code, 11 U.S.C. § 362(a)(4) (1982) (automatically staying “any act to ... perfect ... any lien against property of the estate”). Trustee Vineyard soon initiated the bankruptcy court proceedings that led to this appeal. He did so by filing an adversarial claim seeking the court’s permission to sell the Seneca for the benefit of the bankruptcy estate. Borg-Warner did not object to the sale but argued that it had a security interest in the airplane superior to the trustee’s and thus should receive first the amount of its lien from the proceeds of any sale. The company grounded its claim on allegations that McKenzie, QHL, or" }, { "docid": "18988633", "title": "", "text": "(B.A.P. 1st Cir.1983). All that is required is that the financial statement was a “contributory cause of the extension of credit” American Bank and Trust v. Drewett (In re Drewelt), 13 B.R. 877, 880 (Bankr.E.D.Pa.1981) (quoting State Employees Credit Union of Md., Inc. v. Shipley, In re Shipley, 1 B.,R. 85, 90 (Bankr.D.Md.1979). In re Ardelean, 28 B.R. 299, 301, supra. While § 523(a)(2)(B) imposes on the creditor the duty to make reasonable inquiry it does not require the debtor to make all possible inquiries or investigate all possible avenues of investigation and a creditor need not necessarily independently investigate when the information on the application is not the creditor’s sole source of the creditor’s reliance. For example, when a creditor has had favorable prior dealings with a debtor, and, in consideration of all the circumstances can reasonably expect that the obligation can and will be satisfied, partial reliance on a financial statement is reasonable. In re Icsman, 64 B.R. 58, 63 (Bankr.W.D.Ohio 1986). Thus, where a creditor has knowledge of factors other than the ones set forth on the financial statement which would lead a prudent businessman to reasonably expect he will be able to look to the debtor or the debtor’s assets for satisfaction of the debt, then partial reliance on a financial statement can be reasonable and the standard by which reasonable reliance on a financial statement is measured will be lower. Id. at 63-64. However, where the evidence shows, for example, that there was no reliance on the financial statement, but the creditor solely relied on a security interest nondischarge-ability pursuant to § 523(a)(2)(B) will be denied. In Matter of Curl, 64 B.R. 14, 17 and 19, n. 13 (Bankr.W.D.Mo.1986). The Court now turns specifically to the case at bar and will apply the foregoing principles to the evidence adduced by the parties. Here, it is clear that the Debtor did not accurately list all of his material obligations outstanding at the time he completed his financial statement to HFC. Only two debts are listed: 1) Lafayette National Bank in the sum of $7,500.00, and 2)" }, { "docid": "11512391", "title": "", "text": "or credit reasonably relied; and (iv)that the debtor caused to be made or published with intent to deceive ... Under these provisions, a debt which arises through the use of a written financial statement will not be dischargeable in bankruptcy if the statement: 1) was materially false, 2) had to do with the debtor’s financial condition, 3) was offered to the plaintiff with the intent to deceive, and 4) the plaintiff reasonably relied on the statement. Thorp Credit Inc. of Ohio v. Saunders (In re Saunders), 37 B.R. 766 (Bkcy. N.D.Ohio 1984), Investors Consumer Corporation, Inc. v. Goff (In re Goff), 17 B.R. 564 (Bkcy.W.D.Ky.1982). Intent may be inferred from either the circumstances of the case or the debtor’s conduct. Thorp Credit Inc. of Ohio v. Saunders, supra, H.C. Prange Co. v. Schnore (Matter of Schnore), 13 B.R. 249 (Bkcy.W.D.Wis. 1981). It must also be shown that the plaintiff’s reliance on the written statement was reasonable. Reasonable reliance is that degree of care which would be exercised by reasonably cautious persons in an average business transaction under similar circumstances. First Security Bank of Fox Valley v. Ardelean (In re Ardelean), 28 B.R. 299 (Bkcy.N.D.Ill.1983). This standard imposes a duty on the creditor to make a reasonable inquiry as to the information provided by the statement. A review of the facts finds that the existence of certain elements of 11 U.S.C. Section 523(a)(2)(B) is not contested. It is readily apparent that the loan application signed by the Debtor was a written statement, and that it was published by the Debtor with regard to his application for a loan. It is also apparent that the information provided by the Debtor pertained to the Debtor’s assets and liabilities. Furthermore, this document was used by the parties during the loan application process, and was relied upon to some extent in assessing the Debtor’s credit worthiness. Based upon these uncontested facts, it must be concluded that the Debtor published a written statement respecting his financial condition which was relied on by the Plaintiff and was used to obtain an exten sion of credit. It must" }, { "docid": "18560094", "title": "", "text": "magnitude of the resultant misrepresentation may combine to produce the inference of intent, (citations omitted). This court finds Hert’s nondisclosure of his limited ownership interest in the California property and his failure to amend the property value listed for the Indiana property upon learning of its over-inflated worth to be, at the least, reckless statements constituting willful misrepresentations. Hert made these willful misrepresentations which he should have known would induce these parties to enter into the financial and contractual relationship with him, thus his intent to deceive the plaintiffs may be inferred. Carini v. Matera, 592 F.2d 378 (7th Cir.1979). 81 B.R. at 641. In In re Barrett, 2 B.R. 296, 301 (Bankr.E.D.Pa.1980), the Court stated that it will not shield an intelligent, educated businessman, who had ample opportunity to read what he signed, from his own carelessness, especially in light of his extensive dealings with banks. See also, In re Jordan, 927 F.2d 221, 226 (5th Cir.1991). Lefeve’s testimony indicated that he knew NOF conditioned the Drown loan on his guaranty and that a financial statement was required. Ashton Ryan testified that an underwriter relies heavily on a financial statement and especially one that was as well prepared as Lefeve's. He testified that the level of detail in Lefeve’s financial statement was exemplary. Ryan stated that a financial statement that was not current and that did not reflect material changes would not be meaningful to a lender or underwriter. Ryan concluded that NOF in fact relied on the financial statement. Hughes Drumm further testified that the loan committee relied upon financial statements as a matter of course. As discussed previously, application of the D’Oench, Duhme doctrine may be used to foreclose factual disputes concerning reliance under section 523(a)(2). Under Figge, supra, the Court held that the doctrine of D’Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S. 447, 62 5.Ct. 676, 86 L.Ed. 956 (1942), “creates a presumption of reasonable reliance” by the FDIC in its objection to discharge of a debtor based on § 523(a)(2)(A) and (B). The Court stated that, “the element of reliance required" }, { "docid": "6277007", "title": "", "text": "not arise to the level of conversion, or of willful and malicious conduct. Section 523(a)(6) provides: (а) A discharge under section 727, ... of this title does not discharge an individual debtor from any debt; (б) for willful and malicious injury by the debtor to another entity or to the property of another entity; ... It is well-established that, for purposes of § 523(a)(6), “willful” conduct is conduct that is deliberate or intentional. See, e.g., In re Conte, 33 F.3d 303, 307 (3d Cir. 1994); and In re Galizia, 108 B.R. 63, 69 (Bankr.W.D.Pa.1989). Further, “malicious” conduct is conduct that is committed with “conscious disregard of one’s duties or without just cause or excuse.” Galizia, supra, 108 B.R. at 69. Consequently, a debtor’s actions will be considered to be “willful and malicious” under § 523(a)(6) only if the debt- or’s actions are taken with the purpose of producing injury or if they have a substantial certainty of producing injury. Conte, supra, 33 F.3d at 307. The mere failure of a debtor to turn over the proceeds obtained from the sale of secured property of a business to a secured creditor does not establish willfulness nor maliciousness. See In re Cilek, 115 B.R. 974, 998 (Bankr.W.D.Wis.1990); and In re Graham, 7 B.R. 5, 7 (Bankr.D.Nev.1980). This is particularly true when the sale proceeds are used to pay the expenses of the debtor’s business. Cilek, supra, 115 B.R. at 998-99. In Galizia, supra, an authority cited by the Plaintiffs, the court determined that the debtor willfully injured the creditor because he intentionally disposed of assets in which the creditor had a security interest, and that he maliciously injured the creditor because he knew that the assets were the subjects of the creditor’s security interest. 108 B.R. at 69-70. However, the instant facts are not analogous to those of Galizia for several reasons. First, we cannot conclude that the Debtors in this case willfully injured the Plaintiffs, because the Plaintiffs were unable to prove that the Debtors sold the furniture and equipment with the deliberate intention of defrauding the Plaintiffs. Further, the evidence" }, { "docid": "12869663", "title": "", "text": "predicated its holding on its finding that: the most reasonable reading [of Schedule No. 5] is that it provides blank lined spaces for the applicant to note which scheduled properties are not held solely in his name but otherwise requires the applicant to specify, inter alia, the location, dimensions, hens against and assessed value of each property and indeed it [is] illogical to assume that a lender or guarantor would require such information only for collateral not solely registered to an applicant. Cohn, No. 91-6073 (order denying appeal and dismissing action). The district court opined that had INA requested Cohn to identify the property in Item 9 and explain this inconsistency within the application, Cohn would have revealed that the value listed in Item 9 was the property Cohn proposed to acquire by investment of the borrowed funds. Id. The district court appears to have applied the correct standard in determining a creditor’s reasonable reliance. The reasonableness of a creditor’s reliance under § 523(a)(2)(B) is judged by an objective standard, i.e., that degree of care which would be exercised by a reasonably cautious person in the same business transaction under similar circumstances. Martz, 88 B.R. at 673; Lesman v. Mitchell (In re Mitchell), 70 B.R. 524, 527 (Bankr.N.D.Ill.1987); Signed Finance of Ohio v. Icsman (In re Icsman), 64 B.R. 58, 62 (Bankr.N.D.Ohio 1986). A determination of reasonable reliance requires consideration of three factors: (1) the creditor’s standard practices in evaluating credit-worthiness (absent other factors, there is reasonable reliance where the creditor follows its normal business practices); (2) the standards or customs of the creditor’s industry in evaluating credit-worthiness (what is considered a commercially reasonable investigation of the information supplied by debtor); and (3) the surrounding circumstances existing at the time of the debtor’s application for credit (whether there existed a “red flag” that would have alerted an ordinarily prudent lender to the possibility that the information is inaccurate, whether there existed previous business dealings that gave rise to a relationship of trust, or whether even minimal investigation would have revealed the inaccuracy of the debtor’s representations). See Coston v. Bank" }, { "docid": "1799962", "title": "", "text": "arising out of that reliance to be nondischargeable under 11 U.S.C. § 523(a)(2)(B). In re Long, 44 B.R. 300 (Bankr.D.Minn.1983); In re Richards, 81 B.R. 527 (Bankr.D.Minn. 1987). Proof of detrimental reliance lies with the creditor who brings an action pursuant to § 523(a)(2)(B). In re Richards, supra at 531. Numerous courts have adopted this principle by making it one of the essential elements of a § 523(a)(2)(B) action. The creditor must have suffered the alleged damage or loss as the proximate result of the representations. See, e.g., In re Hott, 99 B.R. 664 (Bankr.W.D. Pa.1989). COUNT I HOROWITZ v. VIRGINIA C. HALL GUARANTY AND SURETYSHIP AGREEMENT Debtor does not deny that she provided Horowitz with a written statement of her financial condition in connection with the $600,000.00 loan and could not seriously deny that it was materially false. These matters do not appear to be at issue here. Rather, Debtor denies that she published it with intent to deceive Horowitz and denies that Horowitz reasonably relied on the financial statement. This Court does not accept Defendant’s defense and, to the contrary, is convinced that Horowitz has demonstrated by clear and convincing evidence that it reasonably relied on the financial statement in making the $600,000.00 loan and that Debtor published it with intent to deceive Horowitz. In order for Horowitz to establish its case pursuant to 11 U.S.C. § 523(a)(2)(B)(iii), it must show both that it actually relied on the financial statement and that such reliance was reasonable. In re Martz, 88 B.R. 663 (Bankr.E.D.Pa.1988). Horowitz actually relied on the financial statement. Plaintiffs agent testified unequivocally, and this Court accepts as a fact, that Horowitz would not have loaned $600,000.00 to Skyline Properties had it known at the time that Debtor had millions of dollars in contingent liabilities. Obviously, the fact that Debtor failed to voluntarily divulge this information would further Plaintiffs determination not to make the loan. In re Coughlin, 27 B.R. 632 (Bankr. 1st Cir.1983) (citations omitted). Evidence demonstrating that a loan would not have been made had the lender received accurate information is sufficient to establish reliance." }, { "docid": "18560077", "title": "", "text": "intended to be covered by the doctrine of D’Oench, Duhme in the protection of the FDIC as an insurer. On this basis, the Court concludes that documentation in Lefeve’s loan file satisfies the element of reliance by application of the doctrines announced in D’Oench, Duhme, and Figge as cited above. On the element of intent to deceive under section 523(a)(2), the Court in Briga dier Homes v. Hert, 81 B.R. 638 (Bankr.N.D.Fla.1987) stated the following: Intent may be inferred from the surrounding circumstances, (citations omitted). Reckless disregard for the truth or falsity of a statement combined with the sheer magnitude of the resultant misrepresentation may combine to produce the inference of intent, (citations omitted) ... Hert made these willful misrepresentations which he should have known would induce these parties to enter into the financial and contractual relationship with him, thus his intent to deceive the plaintiffs may be inferred. Carini v. Matera, 592 F.2d 378 (7th Cir.1979). 81 B.R. at 641. Additionally, in In re Barrett, 2 B.R. 296, 301 (Bankr.E.D.Pa.1980), the Court stated that it will not shield an intelligent, educated businessman, who had ample opportunity to read what he signed, from his own carelessness, especially in light of his extensive dealings with banks. Lefeve is an experienced attorney, a real estate speculator and is sophisticated in real estate financings and underwriting criteria. His testimony reflects a very high degree of business acumen and familiarity with loan transactions and lending practices. In In re Jordan, supra, the Fifth Circuit stated that: Nevertheless, [In re] Icsman [64 B.R. 58 (Bankr.N.Ohio 1986) ] is not so far afield as to discredit its message: that debtors with business acumen, like the Jordans, are to be held to a higher standard. See also In re Mutschler, 45 B.R. 482 (Bankr.D.N.D.1984) (“Where the debtor is an individual of intelligence and experience in financial matters, courts have been more inclined to hold them responsible for uttering a false financial statement”) ... [0]ur review of the record convinces us that the bankruptcy judge was well within his discretion in inferring an intent to deceive from the" }, { "docid": "8386905", "title": "", "text": "be exercised in an average business transaction by parties under similar circumstances. In re Ardelean, 28 B.R. 299 (Bkrtcy.N.D.Ill.1983). This standard imposes a duty on the creditor to make a reasonable inquiry as to the information provided by the statement and to comply with local standards in doing so. In the present case, it is apparent that the Debtor submitted the pay stub to the Plaintiff with the intention that it be accepted as proof of income in excess of Fifteen Thousand and no/100 Dollars ($15,-000.00). By doing so he has made a representation to the Plaintiff which he knew to be false. The failure to explain the information on the stub, despite his awareness it did not accurately reflect an income over Fifteen Thousand and no/100 Dollars ($15,-000.00), expressed an intent to deceive the Plaintiff in that regard. The Plaintiff, relying on the stub, issued a loan and thereby sustained the loss it now seeks to recover. Accordingly, all the elements of fraud under 11 U.S.C. § 523(a)(2)(A) appear to have been satisfied. Similarly, if the facts are applied to the elements of 11 U.S.C. § 523(a)(2)(B), the cause of action would appear to be sustained. The Debtor offered a written document to the Plaintiff which reflected the type of information as to financial condition which was asked for by the Plaintiff. He also used the pay stub under circumstances which expressed an intent to mislead the Plaintiff as to the information thereon. Finally, it is apparent that the Plaintiff relied on that information in making its decision on whether or not to issue the loan. While it would appear that under either analysis the debt should be held nondis-chargeable, the element of reliance is not necessarily satisfied merely upon a showing of actual reliance. It must also be determined whether or not the reliance was reasonable. The record does no.t contain the precise terms of the loan offer. However, it is apparent from the record that the principal factor to be considered in assessing an applicant’s eligibility was his annual income. The record does not reflect that the" }, { "docid": "12869671", "title": "", "text": "agree with INA that under an agency scenario, common law principles of agency law would probably dictate the imputation of an agent’s fraud to a principal under a § 523(a)(2)(B)(iv) analysis. If principles of imputability applied, Cohn could be held responsible for Scutto’s statements and intent to deceive. However, under the facts of this case, agency law is not directly applicable. In the case at hand, Cohn signed the application; Cohn made representations to INA; INA relied on Cohn’s representations. The third party — INA—never relied upon anything Cohn’s agent said on behalf of Cohn. Because INA relied only upon the principal’s representations, agency law is irrelevant to this case. What Cohn relied upon — the advice of Scutto — is relevant only to the question of his own state of mind. Accordingly, on remand the question remains whether Cohn, in light of the totality of the circumstances, intended to deceive, or was reckless in making the representations. Last, we find of interest discussion in certain bankruptcy courts within this circuit regarding a rebuttable presumption of intent to deceive that arises upon the making of a false financial statement, see, e.g., Horowitz Finance Corp. v. Hall (In re Hall), 109 B.R. 149, 155 (Bankr.W.D.Pa.1990); First Seneca Bank v. Galizia (In re Galizia), 108 B.R. 63, 67 (Bankr.W.D.Pa.1989); Signal Consumer Discount Co. v. Hott (In re Hott), 99 B.R. 664, 667 (Bankr.W.D.Pa.1989), and a shifting burden of production of evidence upon a creditor’s establishing a prima facie case, see, e.g., Beneficial Consumer Discount Co. v. Russell (In re Russell), 18 B.R. 325, 327 (Bankr.E.D.Pa.1982) (once creditor satisfies the first three elements of § 523(a)(2)(B), a prima facie case is established and the debtor then has the burden of going forward with evidence on the question of intent to deceive); Bucks County Teachers’ Federal Credit Union v. McVan (In re McVan), 21 B.R. 632, 634 (Bankr.E.D.Pa.1982); Wybro Federal Credit Union v. Mann (In re Mann), 22 B.R. 306, 308 (Bankr.E.D.Pa.1982). We understand that these bankrupt cy courts were motivated to formulate the presumption and shifting burdens of persuasion in order to assist" }, { "docid": "4157067", "title": "", "text": "Mortgage Modification Agreement, and Husband confirmed that he did not discuss the substance of the loan transaction with her. Plaintiff, William Roy Lyons, also indicated that he never had any substantive conversations with Defendant about the Mortgage Modification Agreement. Moreover, the testimony of Jeri Waugh, legal assistant to the closing attorney, corroborates the fact that Husband was acting alone with regard to the Mortgage Modification Agreement. Based on the preceding, Plaintiffs’ § 523(a)(2)(A) claim cannot succeed as Plaintiffs have failed to prove that Defendant made a false representation with the intention of deceiving them. Nonetheless, even if Plaintiffs could prove that Defendant made a false representation with the intent to deceive, Plaintiffs’ reliance on the statement was not justifiable under the circumstances. As in Thomas, “[t]his is not a situation in which a sophisticated businessman enticed an uneducated novice into a bad deal.” 217 B.R. at 654. Plaintiff, William Roy Lyons, testified that he has a college degree in education and also completed a certain amount of post-graduate work. Plaintiffs are real estate owners and understand the concept of title insurance. Unfortunately, Plaintiffs used poor judgment in modifying then-existing mortgage on the Peters Creek Property and substituting the Ravines Lots as collateral without obtaining title insurance. There is no doubt that Defendant acted imprudently when she signed the Mortgage Modification Agreement without being apprised of its contents. However, Defendant’s actions do not amount to fraud and are not sufficient to except the debt from discharge pursuant to 11 U.S.C. § 523(a)(2)(A). CONCLUSION Based on the foregoing, Plaintiffs have failed to prove by a preponderance of the evidence that Defendant acted with fraudulent intent or that Plaintiffs justifiably relied on Defendant’s representations. Accordingly, the debt owed to Plaintiffs by Defendant is not excepted from Defendant’s discharge pursuant to 11 U.S.C. § 523(a)(2)(A). A separate judgment will be entered in accordance with these Findings of Fact and Conclusions of Law. . 11 U.S.C. § 523(a)(2)(A) provides in pertinent part that: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any" }, { "docid": "1799970", "title": "", "text": "in the Melbourne Beach Hilton Hotel and described it as a “tax shelter”. In addition, she also was aware that she had borrowed $300,000.00 from U.S. National Bank in Johnstown, Pennsylvania, and knew that she owned an interest in Standard Energy Corporation, an oil drilling partnership, which she valued at $18,-750.00. In short, Debtor’s insistence that she “didn’t know” that her financial statement grossly understated her liabilities is not credible. Moreover, even if she did not actually know that it was inaccurate, she should have known that it was inaccurate and, at the very least, she was recklessly indifferent as to its accuracy. Intent to deceive may be established by a showing of reckless indifference to, or reckless disregard of, the accuracy of information in a financial statement. In re Liptak, supra at 5. It may be established by a showing that the debtor had seen the financial statement and the errors were such that she knew or should have known of their falsity. Matter of Gray, 22 B.R. 676 (Bankr.W.D. Wis.1982). Debtor, at a base minimum, reads and understands the English language and has at least basic business acumen. Utilizing same, she would have realized the financial statement was false. Failure to utilize same indicates a reckless indifference to truth. Neither bolsters Debtor’s position. COUNT II HOROWITZ v. VIRGINIA C. HALL COMMITMENT LETTER Horowitz’s attempt to have any debt arising out of the Commitment Letter also declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B) must fail because Horowitz has failed to establish the essential elements listed previously. In particular, Horowitz did not establish, by clear and convincing evidence, that its decision to execute the Commitment Letter was based in any way on a statement submitted by Debt- or concerning her financial condition. In addition, no credible evidence was elicited indicating Plaintiff relied to its detriment, nor have they proved damage with any appropriate degree of specificity. The circumstances leading up to the Commitment Letter are unclear. Plaintiff’s officer testified that Debtor’s attorney/broker approached it shortly after the closing of the $600,000.00 loan, to inquire whether it would be willing" }, { "docid": "6277006", "title": "", "text": "agreement in place'on the items. Therefore, each of the Plaintiffs’ claims under section 523(a)(4) must fail. 3. The Plaintiffs’ Claims Under § 523(a)(6) Fail Because the Record Does Not Support the Conclusion that the Debtors’ Disposition of the Plaintiffs’ Collateral in the Equipment and Furniture Was “Willful” or “Malicious.” In a claim more focused than its previously-discussed claims under §§ 523(a)(2)(A) and (a)(4), the Plaintiffs next assert in the Complaint that the debt owed to them by the Debtors is nondischargeable under § 523(a)(6) because the Debtors converted to their own use the equipment and furniture in the Centers in which the Plaintiffs had a security interest. In their brief the Plaintiffs additionally argue that the Debtors’ failure to remit the $5,000 proceeds of the sale of this property to them also constituted conversion. In response the Debtors contend that their selling the equipment and furniture was not done in bad faith, nor was it done in conscious contravention of the Plaintiffs’ purported security interest in the property. Therefore, they contend that their actions do not arise to the level of conversion, or of willful and malicious conduct. Section 523(a)(6) provides: (а) A discharge under section 727, ... of this title does not discharge an individual debtor from any debt; (б) for willful and malicious injury by the debtor to another entity or to the property of another entity; ... It is well-established that, for purposes of § 523(a)(6), “willful” conduct is conduct that is deliberate or intentional. See, e.g., In re Conte, 33 F.3d 303, 307 (3d Cir. 1994); and In re Galizia, 108 B.R. 63, 69 (Bankr.W.D.Pa.1989). Further, “malicious” conduct is conduct that is committed with “conscious disregard of one’s duties or without just cause or excuse.” Galizia, supra, 108 B.R. at 69. Consequently, a debtor’s actions will be considered to be “willful and malicious” under § 523(a)(6) only if the debt- or’s actions are taken with the purpose of producing injury or if they have a substantial certainty of producing injury. Conte, supra, 33 F.3d at 307. The mere failure of a debtor to turn over the" }, { "docid": "1799965", "title": "", "text": "In re Kroh, 88 B.R. 987 (Bankr.W.D.Mo.1988). The standard for determining whether such reliance was reasonable is objective—i.e., that degree of care which would be exercised by a reasonably cautious person in an average business transaction. In re Icsman, 64 B.R. 58 (Bankr.N. D.Ohio 1986). A creditor does not have an affirmative duty to verify the accuracy of a financial statement. Matter of Earls, 80 B.R. 978 (W.D.Mo.1987). It is not obligated to conduct an independent investigation when, on its face, all facts are sworn to as accurate. In re Kroh, supra at 994. Accordingly, the fact that Horowitz relied on Debtor’s representations concerning her liabilities and did not independently verify them does not entail that its reliance was unreasonable. The financial statement was complete on its face, contained no apparent inconsistencies, and gave no indication that Horowitz should have attempted to verify the accuracy of the representations as to Debtor’s liabilities. Horowitz had no reason to suspect that Debtor had grossly understated her contingent liabilities by approximately $9 million. In addition, there is no reason to believe that a time-consuming and costly, all-inclusive investigation on the part of Horowitz as to Debtor’s liabilities would have uncovered the inaccuracies. In fact, when Horowitz contacted Naples, which had been identified as a credit reference by Ronald Hall prior to the $600,000.00 loan, Naples informed Horowitz that Debtor was a “good customer”. Said statement was clearly a subjective opinion. For reasons of their own, Naples determined it would not, or legally could not, advise Plaintiff that Debtor had guaranteed $1,400,000.00 in loans by Naples. When a financing statement, on its face, contains no information suggesting the need for further investigation, and there is no reason to believe that further investigation would have revealed inaccuracies in the financial statement, a creditor’s reliance on it is reasonable. Matter of Garman, 643 F.2d 1252 (7th Cir.1980). Debtor further claims that Horowitz had failed to establish by clear and convincing evidence that she published the financial statement with intent to deceive Horowitz. See 11 U.S.C. § 523(a)(2)(B)(iv). Debtor testified at trial that she completely trusted her" }, { "docid": "15597652", "title": "", "text": "reasonable reliance on the written statement, § 523(a)(2)(A) imposes no reasonableness standard on the reliance concerning Mullet’s false representations that were not in writing. We disagree. Section 523(a)(2) is the successor to § 17(a)(2) of the Bankruptcy Act, 11 U.S.C. § 35(a)(2), and it only slightly modified § 17(a)(2). S.Rep. No. 95-989, reprinted in 1978 U.S. Code Cong. & Ad. News 5787, 5864. “Cases interpreting section 17(a)(2) developed two judicial glosses. First, because direct proof of actual reliance is difficult, actual reliance may be proven by circumstantial evidence of reliance. Second, actual reliance must be reasonable.” In re Kreps, 700 F.2d 372, 375 (7th Cir.1983) (citations omitted). Section 17(a)(2) thus required a finding that the creditor actually relied upon the false representations, “[a]nd of course such reliance must be reasonable.” Carini v. Matera, 592 F.2d 378, 381 (7th Cir.1979) (dealing with false representations other than written statements regarding financial condition). We conclude that this standard of reasonableness required under § 17(a)(2) should continue to be imposed on claimed reliance pertaining to § 523(a)(2)(A). Other courts of appeals have also concluded that reliance under § 523(a)(2)(A) must be reasonable. See In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986); In re Kimzey, 761 F.2d 421, 423 (7th Cir.1985). This standard of reasonableness places a measure of responsibility upon a creditor to ensure that there exists some basis for relying upon the debtor’s representations. Of course, the reasonableness of a creditor’s reliance will be evaluated according to the particular facts and circumstances present in a given case. The loan officer in charge of Mullet’s loan testified that he relied on Mullet’s written financial statement in granting the loan. Rec. vol. Ill at 50-51. This reliance is covered by § 523(a)(2)(B), which contains an express requirement that the reliance be reasonable. The loan officer also stated that he relied on oral representations made by Mullet, specifically that the stock pledged as collateral was listed on the New York Stock Exchange. Rec. vol. Ill at 11-12, 23-24. This reliance is covered by § 523(a)(2)(A) and, as noted above, also must be reasonable. Thus, the" }, { "docid": "1799964", "title": "", "text": "Plaintiff acknowledges that it did not rely exclusively on Debtor’s financial statement in deciding to lend Skyline Properties $600,000.00. Had it done so, an argument could be advanced that such reliance was not reasonable. However, this does not mean that Horowitz did not actually rely on the financial statement. A creditor need not rely exclusively or entirely on a financial statement. Partial reliance may be sufficient. In re Tomei, 24 B.R. 204 (W.D.N.Y.1982) (citations omitted). All that is required for there to be actual reliance is that the financial statement have been “a contributory cause of the extension of credit”. In re Drewett, 13 B.R. 877 (Bankr.E.D.Pa.1981) (quoting, In re Shipley), 1 B.R. 85 (Bankr.D.Md.1979)). At the very least, Debtor’s financial statement was such a “contributory cause” of the $600,000.00 loan. Horowitz’s reliance on the financial statement, to the extent that it did rely, also was reasonable. Care must be taken when evaluating a creditor’s reliance on a financial statement to avoid scrutinizing the creditor’s business judgment instead of determining whether its reliance was reasonable. In re Kroh, 88 B.R. 987 (Bankr.W.D.Mo.1988). The standard for determining whether such reliance was reasonable is objective—i.e., that degree of care which would be exercised by a reasonably cautious person in an average business transaction. In re Icsman, 64 B.R. 58 (Bankr.N. D.Ohio 1986). A creditor does not have an affirmative duty to verify the accuracy of a financial statement. Matter of Earls, 80 B.R. 978 (W.D.Mo.1987). It is not obligated to conduct an independent investigation when, on its face, all facts are sworn to as accurate. In re Kroh, supra at 994. Accordingly, the fact that Horowitz relied on Debtor’s representations concerning her liabilities and did not independently verify them does not entail that its reliance was unreasonable. The financial statement was complete on its face, contained no apparent inconsistencies, and gave no indication that Horowitz should have attempted to verify the accuracy of the representations as to Debtor’s liabilities. Horowitz had no reason to suspect that Debtor had grossly understated her contingent liabilities by approximately $9 million. In addition, there is no" }, { "docid": "8386904", "title": "", "text": "silence. Matter of Schnore, 13 B.R. 249 (Bkrtcy.W.D.Wis.1981). Despite a debtor’s assertion of an honest motive, a debt will be nondischargeable if the facts demonstrate that actual fraud has occurred. In re . Aldrich, 16 B.R. 825 (Bkrtcy.W.D.Ky.1982). If, on the other hand, a plaintiff asserts nondischargeability under the provision which addresses the use of a written statement* he must show: 1) that the statement was materially false, 2) that it had to do with the debtor’s financial condition, 3) that it was offered to the plaintiff with the intent to deceive, and 4) that the plaintiff reasonably relied on the statement. In re Goff, 17 B.R. 564 (Bkrtcy.W.D.Ky.1982). As with an allegation of fraud under 11 U.S.C. § 523(A)(2)(B), intent may be inferred from either the circumstances of the case or the debtor’s conduct. However, when proceeding under this section of the Code, the element of reliance is of greater significance. It must be shown that the plaintiff’s reliance on the written statement was reasonable. Reasonable reliance is that degree of care which would be exercised in an average business transaction by parties under similar circumstances. In re Ardelean, 28 B.R. 299 (Bkrtcy.N.D.Ill.1983). This standard imposes a duty on the creditor to make a reasonable inquiry as to the information provided by the statement and to comply with local standards in doing so. In the present case, it is apparent that the Debtor submitted the pay stub to the Plaintiff with the intention that it be accepted as proof of income in excess of Fifteen Thousand and no/100 Dollars ($15,-000.00). By doing so he has made a representation to the Plaintiff which he knew to be false. The failure to explain the information on the stub, despite his awareness it did not accurately reflect an income over Fifteen Thousand and no/100 Dollars ($15,-000.00), expressed an intent to deceive the Plaintiff in that regard. The Plaintiff, relying on the stub, issued a loan and thereby sustained the loss it now seeks to recover. Accordingly, all the elements of fraud under 11 U.S.C. § 523(a)(2)(A) appear to have been satisfied. Similarly," }, { "docid": "6277008", "title": "", "text": "proceeds obtained from the sale of secured property of a business to a secured creditor does not establish willfulness nor maliciousness. See In re Cilek, 115 B.R. 974, 998 (Bankr.W.D.Wis.1990); and In re Graham, 7 B.R. 5, 7 (Bankr.D.Nev.1980). This is particularly true when the sale proceeds are used to pay the expenses of the debtor’s business. Cilek, supra, 115 B.R. at 998-99. In Galizia, supra, an authority cited by the Plaintiffs, the court determined that the debtor willfully injured the creditor because he intentionally disposed of assets in which the creditor had a security interest, and that he maliciously injured the creditor because he knew that the assets were the subjects of the creditor’s security interest. 108 B.R. at 69-70. However, the instant facts are not analogous to those of Galizia for several reasons. First, we cannot conclude that the Debtors in this case willfully injured the Plaintiffs, because the Plaintiffs were unable to prove that the Debtors sold the furniture and equipment with the deliberate intention of defrauding the Plaintiffs. Further, the evidence in this ease establishes that the Debtors did not maliciously injure the Plaintiffs, since we credit their testimony and that of Attorney Zumbano that they inadvertently forgot that the property in question was subjected to the Plaintiffs’ security interest. The Plaintiffs argue that the tort of conversion has been determined to be a violation of this section of the Code and cite In re Pasek, 983 F.2d 1524, 1528 (10th Cir.1993), in support of this contention. In Pasek the court stated only that conversion of a creditor’s property by a debtor, when done without the creditor’s consent or knowledge, intentionally, and without any justification or excuse, which results in an injury to the other creditor, constitutes a willful and malicious injury within the meaning of this exception to dischargeability. Id. The Plaintiffs also cite In re Ramonat, 82 B.R. 714, 721 (Bankr.E.D.Pa.1988), a decision by Judge Twardowski of this court, for the proposition that a creditor is injured pursuant to § 523(a)(6) if it is precluded from maintain ing its rights in collateral by a" }, { "docid": "1868979", "title": "", "text": "not state that Bodenstein owned an interest in the Catskill Property; it represented that Bodenstein had an investment in real estate. The manner in which the entry is presented on the 1990 PFS may well be construed to reflect the labor, management, materials and “sweat equity” invested in the Catskill Property by Bodenstein under the agreement with Gubitz in contradistinction to present ownership. Having failed to show that the representation regarding the Catskill Property was “materially false” within the meaning of 11 U.S.C. § 523(a)(2)(B), FABNY also failed to prove intent to deceive under that provision. B. Reasonable Reliance The reasonable reliance requirement under § 523(a)(2)(B) has two aspects. Not only must the creditor demonstrate reliance upon the false financial statement, but it also must establish that the reliance was reasonable. Texas Am. Bank, Tyler, N.A v. Barron (In re Barron), 126 B.R. 255, 259 (Bankr.E.D.Tex.1991); H.R.Rep. No. 595, 95th Cong. 1st Sess. 364 (1977) (“[T]he creditor must not only have relied on a false statement in writing, the reliance must have been reasonable.”). Thus, FABNY is required to prove that it actually and reasonably relied on the 1990 PFS in its September 1990 renewal of Archway’s credit line. FABNY’s proof fell short on both counts. The only witness presented by FAB-NY at trial was Philip Levine, a former bank official who succeeded Mr. Vatter as the person in charge of the Archway account. He assumed this responsibility around February 1990, only a few months prior to submission of the 1990 PFS by Bodenstein. Mr. Levine recommended renewal of Archway’s credit line and testified that such renewal was in reliance on Archway’s financial position, Bodensteins’ guarantees and the collateral base identified in the 1990 PFS. On the strength of Mr. Levine’s brief testimony, this Court is unable make a finding of actual reliance. Mr. Levine testified that he presented his renewal recommendation to his supervisor for approval. Mr. Levine’s unidentified supervisor, the actual approving loan officer at FABNY, was never called as a witness. Nor was Mr. Vatter, who was in charge of Archway’s account for FABNY for many years" }, { "docid": "12869672", "title": "", "text": "of intent to deceive that arises upon the making of a false financial statement, see, e.g., Horowitz Finance Corp. v. Hall (In re Hall), 109 B.R. 149, 155 (Bankr.W.D.Pa.1990); First Seneca Bank v. Galizia (In re Galizia), 108 B.R. 63, 67 (Bankr.W.D.Pa.1989); Signal Consumer Discount Co. v. Hott (In re Hott), 99 B.R. 664, 667 (Bankr.W.D.Pa.1989), and a shifting burden of production of evidence upon a creditor’s establishing a prima facie case, see, e.g., Beneficial Consumer Discount Co. v. Russell (In re Russell), 18 B.R. 325, 327 (Bankr.E.D.Pa.1982) (once creditor satisfies the first three elements of § 523(a)(2)(B), a prima facie case is established and the debtor then has the burden of going forward with evidence on the question of intent to deceive); Bucks County Teachers’ Federal Credit Union v. McVan (In re McVan), 21 B.R. 632, 634 (Bankr.E.D.Pa.1982); Wybro Federal Credit Union v. Mann (In re Mann), 22 B.R. 306, 308 (Bankr.E.D.Pa.1982). We understand that these bankrupt cy courts were motivated to formulate the presumption and shifting burdens of persuasion in order to assist creditors in proving the elusive element of a debtor’s intent. As a preliminary matter, we are not aware of any courts outside of the Eastern and Western Districts of Pennsylvania that have utilized a shifting burdens approach. Further, we conclude that it is not necessary to utilize a presumption of intent or a shifting burden of production in processing objections to the discharge of a debt. We observe that in other areas of commercial litigation in which fraud is alleged, courts have not utilized a shifting burden of production. A shifting burden is no more necessary in the realm of discharge in bankruptcy than in any other area of commercial litigation in which fraud is alleged. It is sufficient that fraud must be pled and proven with particularity. See Fed.R.Civ.P. 9(b). Thus, the creditor at all times retains both the burden of proof and the burden of production regarding all four elements of § 523(a)(2)(B). We believe that the standards adopted today (i.e., that “intent to deceive” includes both recklessness and subjective intent and that" } ]

[ { "docid": "12195822", "title": "", "text": "machines for dissatisfied customers. When this court previously considered an appeal from a similar mail fraud prosecution for fraudulent misrepresentations where fraudulent misrepresentations were conveyed through salesmen at widely different places and times, it recognized that proof of such representations could establish the existence of a scheme to defraud. Reistroffer v. United States, 8 Cir., 1958, 258 F.2d 379, 387. In the instant case it is clear that fraudulent misrepresentations were made by appellant’s agents with his knowledge and encouragement. Totality of appellant’s conduct while involved in the National scheme as set out above is properly admissible as evidence and subject to the consideration of the jury in its determination of the appellant’s intent. Shreve, v. United States, 9 Cir., 1939, 103 F.2d 796, 803. Finally, permissively indicative of appellant’s intent is the absence of any effort on his part to rectify the wrongs suffered by victims of the vending machine scheme. United States v. Press, 2 Cir., 1964, 336 F.2d 1003, 1011, cert. denied, 379 U.S. 965, 85 S.Ct. 658, 13 L.Ed.2d 559. Although appellant was well aware of the complaints made by many defrauded customers, he made no effort to make good. A thorough examination of the record compels the conclusion that there was substantial evidence of appellant’s criminal intent to defraud as well as his control of National. His claim of insufficiency of the evidence must fail. II. Denial of motion to dismiss Count 5. Count 5 of the indictment in the instant ease was based upon a complaint letter sent by Elmer Bender to National. The mailing and receipt of the letter are not questioned. Although appellant claims that the aforementioned letter was written by Bender only upon the instigation of the government with the intent of obtaining evidence against National, the testimony of Bender indicates that his principal purpose in writing the letter was to recover money he had prepaid National for vending machines that had never been delivered. Appellant further contends that this letter was not written by him nor caused to be written by him within the meaning of 18 U.S.C.A. § 1341" } ]

[ { "docid": "6706047", "title": "", "text": "and press releases revealed an improved and encouraging outlook for Elkton stock, based upon a series of alleged acquisitions by Elkton of other enterprises. Investors were not told of the real condition of these companies. These public misrepresentations enabled the Elkton stock to reach artificially high levels at which time Lowry and Lowther sold their shares at inflated prices. Lowther profited by about $66,000 and Lowry’s profit amounted to about $68,-000. Mrs. Jolkovsky purchased shares of Elkton because of the representations made in the letters which she received. She was a victim of Lowry’s and Lowther’s scheme to defraud. Thus on the basis of the record we conclude that the trial judge committed no error in the application of Rule 29. II. Lowry argues that his motion for acquittal should have been granted by the court because the guilty verdict on Count one involved identical evidence which the jury found insufficient on Counts two, three, five and six involving transactions occurring before and after the transaction in Count one. Lowther also alleges that a new trial should have been granted because of the inconsistent verdicts wherein the jury found the appellants guilty under Count one and not guilty on counts which involved identical evidence. They argue that there could be no scheme to defraud because Lowther’s acquittal on Counts three and five shows that the jury determined that there was no scheme between Lowther and Lowry in early December of 1965. Thus, they contend, if there was no scheme as to Kuhnle and Endres there could be no scheme against Mrs. Jolkovsky. We disagree. Each count in an indictment is a separate offense and consistency in the verdict is not necessary. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); Speers v. United States, 387 F.2d 698 (10th Cir. 1967), cert. denied 391 U.S. 956, 88 S.Ct. 1864, '20 L.Ed.2d 871 (1968); Maxfield v. United States, 360 F.2d 97 (10th Cir. 1966), cert. denied 385 U.S. 830, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966); Burns v. United States, 286 F.2d 152 (10th Cir. 1961). Furthermore" }, { "docid": "588427", "title": "", "text": "essential step toward the defendants obtaining payment on their fraudulent claim. III. Appellant also contends the district court should have dismissed Counts Three through Six because the mailings listed in those counts hinder, rather than further, the operation of the fraudulent scheme. It is not necessary, however, that each mailing guarantee the success of the scheme, or even significantly advance it. “A mailing need only be closely related to the scheme and reasonably foreseeable as a result of the defendant’s actions.” United States v. Silvano, 812 F.2d 754, 760 (1st Cir.1987) (citing United States v. Maze, 414 U.S. at 399, 94 S.Ct. at 647-648). To the same effect is the recent decision in United States v. Fermín Castillo, supra, 829 F.2d at 1198-99. Although the language of the mail fraud statute, 18 U.S.C. § 1341, requires that the mailings be sent or caused to be sent “for the purpose of executing [the fraudulent] scheme,” this court and others have given a liberal construction to this language. We have done so because Congress made it clear that its purpose in enacting this statute was to secure the integrity of the mails and to prevent their use as part of activities to defraud, not necessarily to punish fraud itself. United States v. States, 488 F.2d 761, 767 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974); see also McNally v. United States, — U.S.-, 107 S.Ct. 2875, 2884, 97 L.Ed.2d 292 (1987) (Stevens, J., dissenting); Parr v. United States, 363 U.S. 370, 389, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960). It is sufficient that the mailings are incident to defendants’ efforts in furtherance of the scheme. United States v. Galloway, 664 F.2d 161, 163 (7th Cir.1981), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982). Serino’s point is that the Count Three through Six mailings did not further the scheme, but rather hindered it, because they contained the Insurance Company’s attorney’s reservations about the validity of the claim. Our response is that the focus ought to be concerned less with the precise" }, { "docid": "13713645", "title": "", "text": "all were made by false representations, fraudulent maps, and promises which they had no intention of fulfilling. They seek to prove that they did not have knowedge of the character of the land, and therefore did not participate in a scheme to defraud which constituted conspiracy. We find ample and substantial evidence in the record that all of the appellants participated in varying degrees in the fraud disclosed by the proof. That evidence fully warranted their conviction on the conspiracy count. Appellants contend that what was sold was land and nothing else, and that this could not constitute a violation of the Securties Act. In Securities and Exchange Commission v. Joiner Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88, the Supreme Court held that where promoters offered and sold to investors instruments purporting to be assignments of leaseholds in specific portions of a tract of potential Texas oil and gas land, the selling literature indicating that investors would earn a profit through the efforts of the promoter in drilling an oil-producing well on the land, defendants were engaged in the sale of investment contracts. The record shows that appellants made sales of the land by means of false promises and agreements to drill oil wells from which the investors would earn large profits. Warranty deeds purporting to convey title in such circumstances constituted investment contracts within the meaning of the Securities Act. It was the practice of those appellants who made sales of the land to order warranty deeds from appellant Mansfield at San Antonio, Texas, by mail; and the latter then executed deeds and mailed them to the County Clerk at Alpine, Texas, with instructions to forward them after recordation to one of the appellants in California, or to an investor. The scheme could not have been carried out without the use of the mails. Appellants contend that there was no conspiracy or intent to use the mails in furtherance of a fraudulent scheme. The conspiracy consisted of a scheme to defraud people in the sale of land. The Government charged, not a conspiracy to commit a" }, { "docid": "3106553", "title": "", "text": "count at issue (count 4) charged that Neveherlian, as part of the fraudulent scheme, had mailed “matter” in Rhode Island to the Narraganset Police Department. The evidence at trial showed that Neveherlian mailed a copy of the title for the 1975 Corvette from Florida to the Narraganset police in Rhode Island in response to the police request for paperwork confirming the story he had told the police about the sale of the Corvette. Nevcherlian’s first argument for a judgment of acquittal, made in the district court and renewed on appeal, is that there is a fatal variance because Neveherlian actually mailed the title from Florida rather than from Rhode Island (as alleged in the indictment). Such a variance would, as already noted, be a basis for relief only if it caused prejudice to the defendant; and in this instance there is no showing of prejudice. We reject the variance claim on this ground without reaching the government’s alternative argument that the mailing could be regarded as occurring partly in Rhode Island. Nevcherlian’s second argument for an acquittal on this count, again properly preserved, is that the mailing of the title document cannot be treated as part of a scheme to defraud since the document was sent in response to a police request. We see no reason why a jury could not reasonably conclude as a factual matter that the mailing was intended to and did serve to forward and shield the fraudulent scheme by seeming to corroborate the story that Neveherlian had already told the police. After all, to recover and retain the insurance proceeds depended on reporting the supposed theft to the police while at the same time dissembling about the facts. Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1959), relied on by Neveherlian, is not in point. There, employees stole money that had been obtained by the school district, which had obtained the funds by mailing tax assessments and received checks by mail. The Supreme Court held that the mailings, which were required by law and had been completed before the funds" }, { "docid": "14774967", "title": "", "text": "property. The crime was completed upon receipt of the gasoline and services. Once the property was received, the defendants had no further interest in the billing practices of the service stations involved. All that the Supreme Court held was “Here, as in Kann, ‘[t]he scheme in each case had reached fruition’ when Carrillo and Garza [the District’s employees] received the goods and services complained of. ‘The persons intended to receive the [goods and services] had received [them] irrevocably. It was immaterial to them, or to any consummation of the scheme, how the [oil company] * * * would collect from the [District]. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires.' 323 U.S. at 94, 65 S.Ct. 148.” Parr and Kann have been distinguished on a factual basis in Kloian v. United States, 349 F.2d 291, 5th Cir. 1965, cert. denied, 384 U.S. 913, 86 S.Ct. 1349, 16 L.Ed.2d 365 (1966) and in Adams v. United States, 312 F.2d 137, 5th Cir. 1962. The Supreme Court itself in United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L. Ed.2d 136 (1962) distinguished Parr and Kann in upholding an indictment which alleged potential use of the mails as part of a scheme to defraud, a decision which Mr. Justice Douglas in his lone dissent felt “materially qualifies”. Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277. In Kloian the court pointed to the distinguishing features, saying: “There [Parr and Kann] the fraud operated through the abuse of offices held by defendants. It sounded in larceny after trust,” 349 F.2d at 294. Far more pertinent to the facts here is the court’s comment in Adams that “Appellant’s scheme reasonably contemplated the utilization of a commercial practice which, taken in its entirety, embraced the use of the mails,” 312 F.2d at 140. Each defendant would isolate himself from a general conspiracy by claiming only partial participation. It is true that each defendant may not have been present on every occasion and each may have had" }, { "docid": "395733", "title": "", "text": "Court recited the “particular circumstances of this case” it found pertinent, “especially” (363 U.S. at 391, 80 S.Ct. at 1183): (1) the district was legally required to collect taxes; (2) the government had not charged or established that the fraud inflated the taxes; (3) the state law compelling the district to collect taxes also compelled it to use the mails. As a result, the Court concluded, the mailings were not “part[s] of the execution of the fraud”, ibid., quoting Kann v. United States, supra, 332 U.S. at 95, 65 S.Ct. at 151, or “incident to an essential part of the scheme,” quoting Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954). The decision was based on the way the government presented the case, not solely on the legal requirement that the district mail tax notices. Parr and other cases require that the government prove that legally-required mailings were important to the successful execution of the fraud. Although this is less clear, Parr also may require proof that legally-required mailings were used with specific intent to defraud the recipients of the mail. Both elements were present here. Mailings were essential to Green’s plan. Green needed the mailings to reel in the fish. The taxpayers in Parr were uninjured (the Court assumed); the recipients of Green’s notices suffered. And although Green protests that he did not mail the notices with intent to defraud, this was a disputed inference. The district court instructed the jury that it could convict Green only if it found that Green not only hatched a plan to defraud but also that “for the purpose of carrying out the scheme ... [Green] used the United States mails ... knowingly and with the intent to defraud.” If the jury followed these instructions, it found that Green used the mails with the intent to extort money from those who responded to the notices. The evidence supports such a conclusion. Green mailed notices and extorted money repeatedly, and the jury could infer that in mailing each notice Green had in mind prior episodes of extortion" }, { "docid": "588428", "title": "", "text": "that its purpose in enacting this statute was to secure the integrity of the mails and to prevent their use as part of activities to defraud, not necessarily to punish fraud itself. United States v. States, 488 F.2d 761, 767 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974); see also McNally v. United States, — U.S.-, 107 S.Ct. 2875, 2884, 97 L.Ed.2d 292 (1987) (Stevens, J., dissenting); Parr v. United States, 363 U.S. 370, 389, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960). It is sufficient that the mailings are incident to defendants’ efforts in furtherance of the scheme. United States v. Galloway, 664 F.2d 161, 163 (7th Cir.1981), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982). Serino’s point is that the Count Three through Six mailings did not further the scheme, but rather hindered it, because they contained the Insurance Company’s attorney’s reservations about the validity of the claim. Our response is that the focus ought to be concerned less with the precise contents of the particular mailings than with the role those mailings played in the execution of the scheme to defraud. As long as the mailings are sufficiently related to the scheme so that the execution of the scheme depended on those mailings being sent, the proper nexus is established. See United States v. Maze, 414 U.S. at 402-03, 94 S.Ct. at 649-50; United States v. Fermín Castillo, supra. Appellant could be expected to foresee that the processing of his fraudulent claim would require use of the mails. Success of his plan, were it to result, would depend on the sending and receipt of precisely those claim documents and supporting documentation that were in fact sent between the Insurance Company and its attorney. The fact that the attorney included in that transmittal his expressions of doubt about the validity of the claims does not sever those expected and necessary mailings from the fraudulent scheme. Appellant’s reliance on United States v. Tamopol, 561 F.2d 466, 473 (3d Cir.1977), is misplaced. There, the mailings that the court found" }, { "docid": "8779297", "title": "", "text": "them into inaction by concealing the fraud. It was not necessary for the government to show that Stew art himself deposited the payments in the mail. His participation in a scheme entailing reasonably foreseeable use of the mail was sufficient to sustain his conviction. United States v. Outpost Development Co., 552 F.2d at 870; United States v. Brown, 540 F.2d at 376. 3. Baumann. Baumann, who owned Banker’s, brokered contracts and mortgages for Western. He was convicted on four counts of mail fraud. Three of the counts concerned his mailing of monthly payments to investors holding contracts for which Western supplied the funds. The fourth count concerned a letter to Hood, billing him for payments due to an investor holding a contract on which the named obligor had never made a payment. There was sufficient circumstantial evidence from which the jury could infer Baumann’s intent to defraud, including testimony that he had been involved in other fence-posting schemes. The mailings were part of the mechanism employed to insure continuing generation of fraudulently procured revenues. United States v. Sampson, 371 U.S. at 80, 83 S.Ct. 173. III. CONCLUSION McDonald’s convictions are reversed. The convictions of the other appellants are affirmed on all counts. Bail is revoked now as to the defendants-appellants Baumann, Besbris and Stewart. The mandate will issue at once. . Typically, Western would obtain an interest in a tract of land with title held in trust by the owner. The trust agreement gave Western the right to subdivide into lots. As lots were sold, a “release price” was paid into the trust and the trustee issued a deed for those lots in the name of Western. Lot purchasers contracted for a down payment and subsequent monthly installments of the purchase price. Western held the deeds as security until final payment. . Contracts were assigned with “full recourse” against Western in the event of default by the contract lot purchaser. . Sham buyers signed contracts with the assurance that they were not expected to make payments. Some of them were paid $50 for their signatures. . The changes in practice" }, { "docid": "12871330", "title": "", "text": "the advance were signed by Lewis and Stewart on August 18 and delivered by hand to Ferguson for the purpose of obtaining appellants’ signatures. On August 21 Lewis and Stewart delivered by hand cashier’s checks for the $30,000 advance to appellant Jurras. These checks were negotiated at Texas Bank & Trust Company, Dallas, Texas, on August 21 by Jurras and cleared the Dallas Clearing House on August 24. The contract and note were signed by appellants and returned to Ferguson. Ferguson delivered them to Bickley, Lewis’ attorney, who in turn mailed them to Lewis on August 25, together with the letter of transmittal specified in Count 3. Count 6 of the indictment alleges that appellants caused to be delivered through the U. S. Mail a letter from appellant Jurras to Hack Henson on June 19, 1965. The record discloses that appellants obtained all of the advances made by Henson and his partner, Veryl Hughes, on or before August 20, 1964. The letter specified in the indictment was sent by Jurras at Henson’s request for the specified purpose of aiding Henson to obtain a renewal of his note at the bank. Appellants contend that neither letter was mailed for the purpose of executing the scheme to defraud. Relying on Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960) and Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), they argue that the sole objective of the scheme, i.e., to obtain money as loans from contractors, had been accomplished before the letters in question were mailed. The government argues that the scheme to defraud Lewis and Stewart (Count 3) and Henson (Count 6) had not reached fruition prior to the mailings in question; that its final objective to conceal the fraud and avoid detection had not been accomplished; and that the letters served to lull these victims into inaction and to avoid detection of the scheme. A necessary element of section 1341 is that the mailing be in execution of the scheme to defraud. Kann v. United States, 323 U.S. 88, 94," }, { "docid": "22299071", "title": "", "text": "business. Sales Tax Mail Fraud Defendants complain that the court below failed to properly charge the jury on the mail fraud counts relating to sales tax evasion. Judge Weinfeld charged that the defendants could be found guilty if the jury found that the stated gross receipts were false or that the reported amount of sales tax due was understated. It is asserted that this allowed the jury to convict even if no tax was due. Assuming this to be true, it is not error. In Gelb, the defendant had defrauded an insurance company by inflating his claimed losses. In the mail fraud prosecution, he argued that the government had failed to prove that his inflated statement of loss resulted in an inflated claim (i.e., he claimed a loss of $684,000 where the insurance coverage was $500,000, and argued that the government had to prove false loss claims in excess of $184,000). The court held that the government need only show a specific intent to defraud. See Gelb, 700 F.2d at 879-80; see also United States v. Rodolitz, 786 F.2d 77, 80-81 (2d Cir.1986) (“To sustain the [insurance-mail fraud] conviction, the government needed to prove only that Rodolitz employed a- deceptive scheme intended to prevent the insurer from determining for itself a fair value of recovery.”). Similarly, in this case the government need only show a specific intent to evade sales taxes. The evidence in the record to support such a finding was ample. Twenty-First Amendment The defendants also claim that the twenty-first amendment bars this mail fraud prosecution. However, the federal government’s lack of direct power to regulate intrastate liquor does not necessarily imply that it cannot prosecute conduct that also implicates federal concerns. See Parr v. United States, 363 U.S. 370, 389, 80 S.Ct. 1171, 1182, 4 L.Ed.2d 1277 (1960) (Congress can forbid conduct through mailing in furtherance of a scheme that it regards as contrary to public policy, whether it can forbid the scheme or not, quoting Badders v. United States, 240 U.S. 391, 393, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916)); United States v. DeFiore, 720" }, { "docid": "23644797", "title": "", "text": "* * * * * “Mr. Grady: I would like to know specifically how the defendant expects to prove that bills were submitted on these other cases; that Mr. Shavin submitted them, that they were the actual bills that were submitted by the doctors ? * * * * * * “Mr. Grady: I want to state for the record that I don’t believe the evidence they are going to seek to introduce will show that. “Mr. Bellows: I want to contradict you that it will. •X* w w *X* # •X* “The Court: The objection of the Government to the defendant’s so-called offer of proof will be sustained.” The indictment charged the defendant, as a lawyer, with a continuing scheme with intent to defraud insurance carriers. The defendant attempted to rebut the scheme and the intent to defraud insurance companies by this evidence which he was not permitted to do. In Worthington v. United States, 7 Cir., 1933, 64 F.2d 936, a similar situation occurred. The defendant was indicted for violation of the Mail Fraud Statute. The defendant platted additions, sold the lots, then in turn sold the land contracts on lots, misrepresenting their value. This court stated at page 940: “From such evidence the Government argued that appellant had devised a scheme to defraud and that it was to be effectuated by his selling this worthless paper to innocent purchasers who paid sums known to appellant to be in excess of the true value of the paper. “It was to meet this position of the Government, thus briefly set forth, that appellant offered the testimony of witnesses who purchased other contracts and who received the full amounts due thereon. Such evidence, while not conclusively disproving the existence of a fraudulent scheme or purpose on appellant’s part, would tend to refute the Government’s evidence tending to establish a fraudulent scheme. Ordinarily, evidence of other transactions not connected with the one in question is not admissible to establish or disprove the fraud upon which an action for damages is predicated. But here we have a different issue. It was competent," }, { "docid": "6831098", "title": "", "text": "argument. All the parties stipulated at trial that the mailings described in counts one through thirteen of the indictment did occur on or about the dates indicated therein. The indictment stated that the Defendants caused to be mailed “insurance policies, applications, finance agreements, claims, premium payments, premium deposits, and insurance related materials” to the thirteen individuals listed in counts one through thirteen. These documents were essential to Sovereign Insurance’s task of selling insurance. By “renting” overvalued assets and reporting them on the annual statements to the Commissioner of Insurance, the Defendants were able to disguise the insolvent nature of their insurance company. Without these mailings to the insureds, however, the Defendants would equally not have been able to continue selling worthless insurance policies, the financial object of their scheme. Accordingly, we conclude that there was sufficient evidence for the jury to conclude that the mailings in counts one through thirteen were in furtherance of the Defendants’ scheme to defraud. Alternatively, Krenning argues that these mailings fall within the “innocent mailings” or “statutory duty” exception to the mail fraud statute first recognized by the Supreme Court in Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960). There is no general rule that innocent or routine mailings cannot supply the mailing element under the statute. Schmuck v. United States, 489 U.S. 705, 714-15, 109 S.Ct. 1443, 1450, 103 L.Ed.2d 734 (1989). Rather, the exception in Parr applies only where the mailings are both not themselves false or fraudulent, and their mailing is required by law. United States v. Curry, 681 F.2d 406, 412 (5th Cir.1982). Parr involved the mailing of legitimate tax notices and receipt of tax payments by a Texas school board engaged in embezzling some of the tax money collected by the school district. The Supreme Court reversed the defendants’ mail fraud convictions based on these mailings, in part because the defendants were required by state law to cause the tax related mailings. Parr, 363 U.S. at 390-91, 80 S.Ct. at 1183-84. This Court has previously noted, however, that in Parr the tax mailings would" }, { "docid": "23132423", "title": "", "text": "sales, Henry Harrison made the same misrepresentations concerning Presidential as others did. The evidence showed that he conducted most of the dinner meetings in St. Louis. Based on the above analysis we find there was sufficient evidence to support the government's charges and the jury’s verdicts that each of the defendants participated in a scheme to defraud. The defendants contend that there was no evidence that they intended to defraud and that at most the record demonstrates mismanagement and a resulting business failure. Some of the parties allege that they relied on advice of counsel in taking the advances and manipulating the cash. These questions, however, belong peculiarly to the trier of fact and not to this court. Intent can seldom be shown by actual testimony reflecting a defendant’s state of mind. The cases are legion that intent may properly be inferred from all the facts and circumstances surrounding the transactions. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Isaacs v. United States, 301 F.2d 706, 724-725 (8 Cir. 1962), cert. denied 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58; Blachly v. United States, 380 F.2d 665, 676 (5 Cir. 1967); Diaz-Rosendo v. United States, 357 F.2d 124, 129 (9 Cir. 1966), cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83; Gusow v. United States, 347 F.2d 755, 756 (10 Cir. 1965), cert. denied 382 U.S. 906, 86 S.Ct. 243, 15 L.Ed.2d 159; Roe v. United States, 316 F.2d 617, 621-622 (5 Cir. 1963); Beck v. United States, 305 F.2d 595, 598 (10 Cir. 1962), cert. denied 371 U.S. 890, 83 S.Ct. 186, 9 L.Ed.2d 123. One of the salient factors in weighing the sufficiency of proof as to intent to defraud is the parties’ use of material misrepresentations in carrying out their venture. Anderson v. United States, 369 F.2d 11, 15 (8 Cir. 1966), cert. denied 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967); Fabian v. United States, 358 F.2d 187, 194 (8 Cir. 1966), cert. denied 385 U.S. 821, 87 S.Ct. 46, 17 L.Ed.2d 58; Reistroffer" }, { "docid": "1158867", "title": "", "text": "the evidence in the light most favorable to the government, a jury could reasonably find that the Danadians could have foreseen that Pitts, as Bell City Administrator, would file statements of economic interest with the Fair Political Practices Commission. Since the concealment of Pitts’ CBC financial interest was the cornerstone of the scheme to defraud, it was reasonably forseeable that Pitts would falsify and mail his economic interest statements to ensure nondisclosure. Similarly, the mailing of the letter denying Pitts’ interest in CBC to the limited partners who had sued the Dadanians was reasonably forseeable. A rational jury could have found beyond a reasonable doubt that the Dadanians knew of the scheme to defraud and that the mail was used in furtherance thereof. We reject appellants’ contention that their mail fraud convictions are invalid under Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960) because the mailings were “legally compelled.” In Parr the mailing of tax assessments which did not contain misrepresentations was held not to be an unlawful execution of a fraudulent scheme to embezzle school district funds since the defendants were required by law to assess and collect taxes, and because the tax assessments were neither alleged nor proved to be illegal, excessive or padded. Id., at 387, 391, 80 S.Ct. at 1181, 1183. Here Pitts’ statements of economic interest, while required by law to be filed, were false on their face. Unlike Parr, these false statements were made in furtherance of the scheme to keep secret that Dadanian held the CBC interest for Pitts. See United States v. Bagnariol, 665 F.2d 877, 899 (9th Cir.1981) (per curiam), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). SUFFICIENCY OF THE INDICTMENT THE TRAVEL ACT COUNT George Dadanian argues his conviction on the Travel Act count, 18 U.S.C. § 1952, must be set aside because the indictment did not allege sufficiently the third element of the offense. We review the sufficiency of an indictment de novo. United States v. Benny, 786 F.2d 1410, 1414 (9th Cir.), cert. denied, — U.S. -," }, { "docid": "11703261", "title": "", "text": "it is coun-terintuitive to conclude that a defendant who knew enough about TDOT procedures to envision an inter-office mailing as part of his fraud would not realize the fraud-revealing implication of such a mailing on title records. In sum, drawing all inferences from the facts in the record in favor of the verdict, the government has presented insufficient evidente such that a jury could reasonably link the mailing of CCO applications to the success of Strong’s “title punching” fraud scheme. Accordingly, the district court did not err in setting aside the jury verdict of conviction. Ill For the foregoing reasons, which are essentially an elaboration of the district court’s rationale, the judgment of the district court is AFFIRMED. . Section 1341 provides, in relevant part: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises ... for the purpose of executing such scheme or artifice or attempting to do so ... knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person tp whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. 18 U.S.C. § 1341. . In Parr, the Court also dealt with a second fraudulent scheme relating to the misappro priation of tax revenue, where the government brought mail fraud charges based on the mailing of tax statements, checks, and receipts. 3,63 U.S. at 390, 80 S.Ct. 1171. The Court held that the mailing element could not be met because the mailings were \"made under the imperative command of duty imposed by state law.” Id. at 391, 80 S.Ct. 1171. In Schmuck, it further clarified its Parr holding by noting that although the mailings in both cases. were compelled by law — tax laws in Parr and car registration procedure in Schmuck — the Parr mailings would have taken place “regardless of the defendant’s fraudulent scheme,” as" }, { "docid": "13982101", "title": "", "text": "from North Carolina to Florida, knowing that Florida could not readily detect the sales and collect the taxes that were owed by [their] customers.” Id., at 496. In Brewer, it was held to be “immaterial that Brewer made no misrepresentations to either Florida residents or tax officials, for it is no defense that the papers sent through the mail are innocent in themselves if they are part of a scheme to defraud. Parr v. United States, 363 U.S. 370, 390, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960).” Id., at 496. In the case now before us, however, there was evidence which showed that defendants made misrepresentations both to Florida residents and to tax officials. This provides even clearer proof of a scheme to defraud and criminal intent then was found in Brewer. In Brewer, the Court also rejected the “defense that [defendant] herself owed no tax. It is enough that she knowingly devised a scheme that would enable Florida residents to obtain cigarettes without declaring them for taxation. One who consciously aids another in defrauding a government of taxes is a participant in the illicit enterprise. Cf. United States v. Johnson, 319 U.S. 503, 515, 63 S.Ct. 1233, 87 L.Ed. 1546 (1943).” Id., at 496. Thus, as in Brewer, the evidence before us is sufficient to sustain a finding of the first element of the offense of mail fraud— that defendants devised a scheme to defraud. Like the defendant in Brewer, defendants here rely on United States v. Maze, 1974, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603; Parr v. United States, 1960, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277; and Kann v. United States, 1944, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88, to support their argument that the use of the mails here was not sufficiently closely related to the scheme to defraud to bring the conduct within the mail fraud statute. However, “in each of these eases, the mails were used after completion of the fraud and did not affect the success of the scheme.” Brewer, supra, at 496. In this case, by" }, { "docid": "3106554", "title": "", "text": "an acquittal on this count, again properly preserved, is that the mailing of the title document cannot be treated as part of a scheme to defraud since the document was sent in response to a police request. We see no reason why a jury could not reasonably conclude as a factual matter that the mailing was intended to and did serve to forward and shield the fraudulent scheme by seeming to corroborate the story that Neveherlian had already told the police. After all, to recover and retain the insurance proceeds depended on reporting the supposed theft to the police while at the same time dissembling about the facts. Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1959), relied on by Neveherlian, is not in point. There, employees stole money that had been obtained by the school district, which had obtained the funds by mailing tax assessments and received checks by mail. The Supreme Court held that the mailings, which were required by law and had been completed before the funds were stolen, could not be treated as part of the fraudulent scheme so as to invoke the mail fraud statute. In our case, Nevch-erlian’s mailing was not compelled by law, nor was it a separate activity completed before the end of the fraudulent scheme. Rather, the mailing played an operative role in the fraud. Neveherlian was also charged (in count 5) with a second substantive count of mail fraud by causing Maryland Casualty to make a mailing to Vermilyea. The mailing was the insurer’s letter acknowledging that it had received Vermilyea’s claim for the theft of the 1975 Corvette. Neveherlian asked for a judgment of acquittal in the district court on the ground that the mailing was not part of the scheme to defraud, the district court rejected the assertion, and Neveherlian now claims error. Courts have long puzzled to devise a formula that would capture the required relationship between the use of the mails and the fraudulent scheme. In Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), the" }, { "docid": "3857846", "title": "", "text": "as “part of the said scheme and artifice to defraud” the defendants prepared and mailed false statements purporting “to reflect the financial condition of Yale and its subsidiaries.” Although Paragraph 1 charges that the scheme was to obtain money by false pretenses from insurance companies who were induced to purchase “Yale’s promissory notes” on the defendants’ false representations as to the soundness of “Yale,” an essential part of the alleged scheme was the use of the false financial statements of Yale and its subsidiaries. Indeed, the allegation of inducement, although relevant, was not an essential element of the crime. The Government was not required to allege or prove that the fraud was successful. United States v. Rowe, 56 F.2d 747 (2d Cir.), cert. denied, Rowe v. United States, 286 U.S. 554, 52 S.Ct. 579, 76 L.Ed. 1289 (1932). It is sufficient to allege and prove a scheme or artifice to defraud coupled with the requisite mailing. United States v. Fromen, 265 F.2d 702, 705 (2d Cir.), cert. denied, 360 U.S. 909, 79 S.Ct. 1295, 3 L.Ed.2d 1260 (1959). II. Sufficiency of the Evidence of Fraudulent Intent and a Common Scheme Eskow and Mackensen each assert that the release of the two financial reports (for 1963 and the first six months of 1964, respectively) was not fraudulent, although admittedly perhaps negligent, because each accepted the statements as prepared by the company’s internal accounting staff and reviewed by PMM. In support of their contention they rely on certain portions of the record but ignore damaging proof found elsewhere. The jury, of course, was not required to limit itself to the evidence relied upon by appellants and, because of the verdict below, the evidence must here be assessed in the light most favorable to the Government, United States v. Littman, 421 F.2d 981 (2d Cir., Jan. 21, 1970); United States v. Andreadis, 366 F.2d 423 (2d Cir. 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967); United States v. Dardi, 330 F.2d 316, 325 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964), and" }, { "docid": "3857837", "title": "", "text": "MANSFIELD, District Judge: On November 5, 1968, following a four-week jury trial, defendants Gerald W. Eskow and Fred H. Mackensen were found guilty of using the mails in furtherance of a scheme to defraud eight insurance companies in connection with loans totaling some $2,350,000 to Yale Express Systems, Inc. (“Yale” herein) in violation of Title 18 U.S.Code §§ 1341 and 2, as charged in 31 counts of a 43-count indictment. They here urge that the judgments of conviction entered on December 27, 1968 be reversed on the grounds that (1) the indictment was defective; (2) there was a fatal variance between the indictment and proof; (3) the evidence of fraudulent intent and a common scheme was insufficient; (4) the .trial court, after admitting certain evidence “subject to connection,” improperly permitted the jury to determine whether the necessary connection had been established; (5) the trial court erred in characterizing credibility as a collateral matter and foreclosing cross-examination on certain matters. For the reasons hereinafter stated we affirm. The mail fraud charges grow out of defendants’ involvement in obtaining loans in 1964 for Yale, of which Eskow was president and Mackensen was the administrative vice-president in charge of the company’s accounting department. Yale was both a holding and operating company. Prior to 1963 it had two wholly-owned subsidiaries, Yale Transport, which conducted interstate motor carrier operations, and American Freight Forwarding Corp., the name of which denotes its business. On May 1, 1963, Yale purchased 97% of the issued stock of Republic Carloading and Distributing Company (“Republic” herein), also a freight forwarder. In March, 1964, Yale commenced negotiations through Eastman Dillon Union Securities Co. (“Eastman Dillon” herein) to borrow money and in that connection furnished to Eastman Dillon its financial statements for 1963 and also apparently for the first quarter of 1964. Eastman Dillon, in turn, forwarded these statements to prospective lenders. Eastman Dillon was successful in securing loans totaling $2,350,000 from eight insurance companies. In the loan agreements, which were closed on September 30, 1964, Yale warranted that: (1) the financial statements covering its operations for 1963 and the first six months" }, { "docid": "13713644", "title": "", "text": "all of them were completed as dry holes, the nearest producing well being approximately one hundred miles away. From time to time as the scheme progressed, Mansfield would call at the Central Securities Company and purchase land, usually a section at a time, pay for it, and obtain deeds. Beginning in June, 1940, without the knowledge of the owner, he executed numerous spurious deeds to land that belonged to the Central Securi- ties Company. He also executed a warranty deed to W. H. Young conveying all of Section 203, which he in fact owned, having purchased it from Central Securities Company; but thereafter, while the title was in Young, he executed forty-three deeds to the land, conveying a total of 1280 acres from a 640-acre section, his grantees receiving no title whatever. Consequently, they could not have received any benefit from Thigpen’s well if he had struck oil. The price at which nearly all the sales were effected was $20 per acre. The salesmen used various methods of making sales, but the record shows that all were made by false representations, fraudulent maps, and promises which they had no intention of fulfilling. They seek to prove that they did not have knowedge of the character of the land, and therefore did not participate in a scheme to defraud which constituted conspiracy. We find ample and substantial evidence in the record that all of the appellants participated in varying degrees in the fraud disclosed by the proof. That evidence fully warranted their conviction on the conspiracy count. Appellants contend that what was sold was land and nothing else, and that this could not constitute a violation of the Securties Act. In Securities and Exchange Commission v. Joiner Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88, the Supreme Court held that where promoters offered and sold to investors instruments purporting to be assignments of leaseholds in specific portions of a tract of potential Texas oil and gas land, the selling literature indicating that investors would earn a profit through the efforts of the promoter in drilling an oil-producing well on" } ]

[ { "docid": "22600481", "title": "", "text": "all of these requirements as well, but only the reliance requirement concerns us here. Traditionally, plaintiffs in a rule 10b-5 suit had the burden of establishing that they relied on the fraudulent actions of the defendant. List v. Fashion Park, Inc., 340 F.2d 457, 463 (2d Cir.), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). Thus, plaintiffs were required, as a thresh-hold matter, to establish that they were aware of and directly misled by defendant’s actions. However, many courts have come to realize that, in certain situations, the requirement of showing direct reliance “imposes an unreasonable and irrelevant evi-dentiary burden.” Blackie v. Barrack, 524 F.2d 891, 907 (9th Cir.1975). The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business. See Note, The Fraud-on-the-Market-Theory, 95 Harv.L.Rev. 1143, 1154-56 (1982). Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements. The misstatements may affect the price of the stock, and thus defraud purchasers who rely on the price as an indication of the stock’s value. By artificially inflating the price of the stock, the misrepresentations defraud purchasers who rely on the price as an indication of the stock’s value. The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. In both cases, defendants’ fraudulent statements or omissions cause plaintiffs to purchase stock they would not have purchased absent defendants’ misstatements and/or omissions. Accordingly, we hold that plaintiffs who purchase in an open and developed market need not prove direct reliance on defendants’ misrepresentations, but can satisfy their burden of proof on the element of causation by showing that the defendants made material misrepresentations. If plaintiffs make such a showing, the court will presume that the misrepresentations occasioned an increase in the stock’s value that, in turn, induced the plaintiffs to purchase" } ]

[ { "docid": "18874609", "title": "", "text": "the integrity of the defendants’ scheme or course of business in issuing the securities.” Ockerman v. May Zima & Co., 785 F.Supp. 695, 703 (M.D.Tenn.1992). The court held that, even if plaintiff did not rely on specific misrepresentations by defendants, he is “presumed to rely on the integrity of the defendants’ scheme and course of business in issuing the securities in question.” Id. A plaintiff must establish reliance in order to recover in a Rule 10b-5 action. See Basic, Inc. v. Levinson, 485 U.S. 224, 243, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988). The purpose of requiring reliance is to establish a causal connection between the defendants’ alleged fraud and the plaintiffs decision to purchase the security. The plaintiff must usually prove direct reliance on a defendant’s misrepresentations or failure to disclose. In certain situations, however, reliance may be presumed. One such situation involves the “fraud on the market” theory: The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business. Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986) (citation omitted), cited in Basic, 485 U.S. at 241-42, 108 S.Ct. at 989. The fraud-on-the-market presumption is based on three factual premises. First, in a developed market, sophisticated financial professionals can generally be expected to read the publicly available information about a security. Second, their competing evaluations will affect the security’s price. Third, unsophisticated investors generally rely on a security’s market price as reflecting the security’s value. Thus, if disclosure documents contain material misrepresentations, the security’s price will be affected through market professionals, and investors, relying on the price, rely indirectly on the disclosure documents whether or not they have actually read them." }, { "docid": "13885336", "title": "", "text": "Production of Documents to All Plaintiffs, and to answer Interrogatory No. 2 of Defendants' First Set of Interrogatories to All Plaintiffs. . Defendants seek to compel production of documents responsive to Request Nos. 7 and 8 in the schedule attached to Defendants' Subpoena Duc-es Tecum served on WHB. . While plaintiffs make this suggestion, they do not argue that the production of the requested documents would be unduly burdensome. .The theory was has been explained as follows: The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business .... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements .... The causal connection between the defendants’ fraud and the plaintiffs' purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Basic, 485 U.S. at 241-42, 108 S.Ct. at 988-89 (citing Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)). . Defendants contend that plaintiffs cannot assert the fraud on the market theory because the instant case involves an initial public offering and a debenture offering — not an open and developed securities market. It is unnecessary for us to decide this issue for purposes of the instant motion. . Of course, as also pointed out in Davidson, a plaintiff should not be exposed to the \"minute details of every transaction he has engaged in” simply by filing a complaint. 120 F.R.D. at 460. In the instant case, plaintiffs have not argued that complying with defendants' requests would be unduly burdensome. . Compare Kamerman v. Ockap Corp., 112 F.R.D. 195, 198 (S.D.N.Y.1986) (\"[Wjhere as here, a proposed class representative did not rely on the allegedly misleading proxy statement or on the integrity of the market, the proposed representative is subject to unique defenses and may not represent the class.”); Weintraub v. Texasgulf Inc., 564 F.Supp. 1466, 1471 (S.D.N.Y.1983) (class certification denied where proposed class representative" }, { "docid": "8010070", "title": "", "text": "an element of a Rule 10b-5 cause of action, but Plaintiffs may be entitled to a rebuttable presumption of reliance based on the fraud-on-the-market theory. See Basic, Inc. v. Levinson, 485 U.S. 224, 247, 108 S.Ct. 978, 991, 99 L.Ed.2d 194 (1988). That theory was described by the Supreme Court as follows: “The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business---- Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements____ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.” Basic, Inc. v. Levinson, 485 U.S. at 241-42, 108 S.Ct. at 988-89 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3rd Cir.1986)). To be entitled to the presumption, Plaintiffs must show that the materially misleading statements were disseminated into “an impersonal, well-developed market for securities.” Id. at 247, 108 S.Ct. at 991. The presumption is rebuttable: Defendants may show that the market price was not affected by their misrepresentations or that Plaintiffs did not trade in reliance on the integrity of the market price. Id. at 248-49, 108 S.Ct. at 992. Defendants’ contention that Mazerolle’s claims are atypical of those of the class fails because the Court may not consider the merits of the case at the class certification stage. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974); see also Randle v. Spectran, 129 F.R.D. 386, 391 (D.Mass.1988) (inappropriate to raise non-reliance at class certification). The Second Consolidated Amended Complaint alleges that Mazerolle and the other named Plaintiffs relied on the integrity of the market and that the markets for trading One Ban-corp common stock were open, well developed and efficient. It also alleges that Plaintiffs purchased One Bancorp stock at artificially inflated prices due to Defendants’ misrepresentations. For the purposes" }, { "docid": "16267599", "title": "", "text": "the plaintiffs and the district court recognized the barriers to certifying a class action where proof of individualized reliance would have to be proved because such individual issues would then likely “overwhelm” the common ones and preclude the court from finding satisfaction of the predominance requirement of Rule 23(b)(3). Reliance can, however, be treated as a common issue if it is presumed under the theory that the defendants defrauded the market — not the individual plaintiffs — so long as the plaintiffs purchased their stock in an efficient market. The “fraud-on-the-market” theory was recognized by the Supreme Court in Basic as a way to litigate securities-fraud class actions. In Basic, the Court acknowledged that Rule 10b-5 actions include a reliance element and recognized that proof of individualized reliance from each class member “effectively would have prevented” the plaintiff from proceeding with a class action, given the commonality and predominance requirements of Rules 23(a)(2) and 23(b)(3). 485 U.S. at 242, 108 S.Ct. 978. But the Court held that this barrier could be overcome with a rebuttable presumption of reliance that may be applied through a fraud-on-the-market theory. Id. at 241-49, 108 S.Ct. 978. Quoting the Third Circuit, Basic described the theory as follows: “The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business .... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in the case of direct rebanee on misrepresentations.” Id. at 241-42, 108 S.Ct. 978 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)). The Basic Court emphasized the difference between “modern securities markets, literally involving millions of shares changing hands daily, [and] the face-to-face transactions contemplated by early fraud cases-” Id. at 243-44, 108 S.Ct. 978. With face-to-face transactions, the reliance inquiry focuses on the “subjective pricing”" }, { "docid": "8052935", "title": "", "text": "(7th Cir.1974). A unique reliance defense may render a named plaintiff atypical for class certification purposes. McNichols v. Loeb Rhoades & Co., 97 F.R.D. 331, 346 (N.D.Ill.1982). Plaintiffs argue that no unique reliance defenses exist, and even if they did, the individual reliance issues would not become primary issues that require denial of class certification. Defendants claim that plaintiffs who purchased securities during the initial public offerings for the MIF, LP III and SLF II funds are subject to a unique reliance defense. In order to recover under section 10(b) and Rule 10b-5, a plaintiff must ordinarily show that he or she relied on material misrepresentations or omissions in purchasing the security. Rowe v. Maremont Corp., 850 F.2d 1226, 1233 (7th Cir.1988). Defendants observe that plaintiffs’ 10(b) claims appear to be based on the fraud-on-the market theory of reliance. Under this theory, a plaintiff may still assert a section 10(b) claim without alleging that he or she directly relied on material misrepresentations or omissions; indirect reliance may be presumed. Basic, Inc. v. Levinson, 485 U.S. 224, 243, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988). In Basic, the Supreme Court explained the nature of the fraud-on-the-market theory: The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements ... Id. at 241-242, 108 S.Ct. at 988-989 (citation omitted) (emphasis added). Defendants argue that plaintiffs who purchased securities in initial public offerings did not buy in an open and developed market and therefore cannot invoke the presumption of reliance under the fraud-on-the-market theory. See Freeman v. Laventhol & Hor-wath, 915 F.2d 193, 198 (6th Cir.1990) (fraud-on-the-market theory not applicable to new issues because, among other things, “[t]he price of newly issued securities is set primarily by the underwriter and the offer- or, not by the market”); Eckstein v. Bal-cor Film Investors, 740 F.Supp. 572, 580-81" }, { "docid": "23568123", "title": "", "text": "the misrepresentations and that the defendants’ misrepresentations induced a disparity between the transaction price and the true “investment quality” of the securities at the time of transaction. Suez Equity, 250 F.3d at 97-98 (emphasis in original). a. Transaction Causation The first prong of the Suez Equity test — transaction causation, or reliance —is satisfied if a plaintiff alleges that defendants have “disseminat[ed] false information into the market on which a reasonable investor would rely.” In re Ames Dept. Stores Inc. Stock Litig., 991 F.2d 953, 967 (2d Cir.1993). See also Hade v. Capozzi, No. 91 Civ. 5897, 1996 WL 426394, at *1 (S.D.N.Y. July 30, 1996) (citing Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir.1992) and Schlick, 507 F.2d at 380-81). Plaintiffs here rely solely on the so-called “fraud on the market” theory of reliance. The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Basic Inc. v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (alterations in original) (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir. 1986)). Where such an “efficient market” exists, all public information is assumed to be rapidly assimilated and therefore is assumed to affect prices. Almost by definition, any misstatement or omission that affects the price of a security — especially one that incorrectly represents its value— is important to the reasonable investor. See infra Part X.B.I. Under the fraud on the market theory, an individual investor need not be aware of and rely explicitly on those alleged misstatements; it is sufficient that she bases her transactions on the market trends or securities prices that are altered by the" }, { "docid": "14033389", "title": "", "text": "reports about Corvis stock before purchasing the stock, that is not fatal to their claim because plaintiffs’ allegation of transaction causation relies on the so-called fraud-on the-market theory, “based on the hypothesis that, in an open and developed securities market the price of a company’s stock is determined by the available material information regarding the company and its business- Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.” Basic v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), quoting Peil v. Speiser, 806 F.2d 1154, 1160-1161 (3d Cir.1986). This theory of transaction causation takes into account the difference between face-to-face negotiated transactions contemplated by traditional common-law fraud doctrines, and modern securities markets where multiple sellers and buyers engage in transactions at prices determined by an impersonal market, while remaining mutually anonymous. See In re WorldCom Inc., Sec. Litig., 219 F.R.D. 267, 300 (S.D.N.Y.2003) (class certification decision). Basic relaxes the requirement of direct reliance where plaintiffs allege that defendants have “disseminate[d] false information into the market on which a reasonable investor would rely.” In re Ames Dept. Stores, Inc., Stock Litig., 991 F.2d 953, 967 (2d Cir.1993). In such a case, individual investors are relieved of the burden of showing direct reliance on the fraudulent statement because it is assumed that in an efficient market, all public information is reflected in share price, including any misrepresentations concerning the value of the company or its stock, and “it is sufficient that [the investor] bases her transactions on the market trends or securities prices that are altered by the fraud.” In re Initial Public Offerings [“IPO”] Sec. Litig., 241 F.Supp.2d 281, 375 (S.D.N.Y.2003). The ensuing presumption of reliance may be rebutted by “[a]ny showing that severs the link between the alleged misrepresentation and ... the price received (or paid) by the plaintiff,” because in that case “the basis for finding that the fraud had been transmitted through market price would be gone.” Basic, 485 U.S. at 248,108 S.Ct. 978. Defendants argue that the complaint does not sufficiently allege transaction" }, { "docid": "13885337", "title": "", "text": "(citing Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)). . Defendants contend that plaintiffs cannot assert the fraud on the market theory because the instant case involves an initial public offering and a debenture offering — not an open and developed securities market. It is unnecessary for us to decide this issue for purposes of the instant motion. . Of course, as also pointed out in Davidson, a plaintiff should not be exposed to the \"minute details of every transaction he has engaged in” simply by filing a complaint. 120 F.R.D. at 460. In the instant case, plaintiffs have not argued that complying with defendants' requests would be unduly burdensome. . Compare Kamerman v. Ockap Corp., 112 F.R.D. 195, 198 (S.D.N.Y.1986) (\"[Wjhere as here, a proposed class representative did not rely on the allegedly misleading proxy statement or on the integrity of the market, the proposed representative is subject to unique defenses and may not represent the class.”); Weintraub v. Texasgulf Inc., 564 F.Supp. 1466, 1471 (S.D.N.Y.1983) (class certification denied where proposed class representative was \"sophisticated speculative trader whose unusual trading activities will give rise to unique defenses”); Kline v. Wolf, 88 F.R.D. 696, 700 (S.D.N.Y.1981), aff'd in part, vacated on other grounds, 702 F.2d 400 (2d Cir.1983) (class certification denied where proposed class representative was speculative trader who did not rely on the market), with Fisher v. Plessey Co., 103 F.R.D. 150, 160 (S.D.N.Y.1984) (Conner, J.) (certifying class and rejecting defendants' argument that plaintiff was atypical because he was \"trained as a lawyer, reads the Wall Street Journal, and ‘owns many types of securities’ ”); Cohen v. Long Island Lighting Company, 1986 WL9961 (E.D.N.Y.1986) (\"Sophistication is, indeed, irrelevant” to typicality requirement of class certification)." }, { "docid": "11249419", "title": "", "text": "10b-5 claim, as a matter of law to support their § 10(b) claim. More specifically, defendants contend that plaintiffs cannot rely on the fraud-on-the-market-theory to establish reliance because the theory does not apply to an initial public offering. Plaintiffs argue that proof of reliance is not required in securities cases involving a failure to disclose material information. The court agrees with defendants that reliance is a required element of a Rule 10b-5 cause of action. See Basic Inc. v. Levinson, 485 U.S. 224, 243, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988) (citations omitted). “Reliance provides the requisite causal connection between a defendant’s misrepresentation and a plaintiffs injury.” Id. (citations omitted). Actual proof of reliance, however, is not always necessary. Recognizing the difficulty of proving actual reliance in class action securities cases, the Supreme Court has “dispensed with a requirement of positive proof of reliance, where a duty to disclose material information had been breached, concluding that necessary nexus between the plaintiffs’ injury and the defendant’s wrongful conduct had been established.” Id. (citing Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972)). The Supreme Court has found that it is appropriate for a court to apply a presumption of reliance supported by the fraud-on-the-market theory in cases where a duty to disclose material information has been breached. Basic, 485 U.S. at 250, 108 S.Ct. at 993. The Supreme Court has adopted the following description of the fraud-on-the-market theory: ‘The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements .... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.’ Basic, 485 U.S. at 241-42, 108 S.Ct. at 988-89 (quoting Peil v. Speiser, 806 F.2d" }, { "docid": "19282084", "title": "", "text": "Corp., 968 F.2d 1489, 1495 (2d Cir.1992). Loss causation is comparable to the tort concept of proximate cause. See id.; Herzog v. GT Interactive Software Corp., No. 98 Civ. 0085, 1999 WL 1072500, at *10 (S.D.N.Y. Nov. 29, 1999). \"The test for loss causation is thus whether the injury suffered was a `foreseeable consequence of the misrepresentation.’\" Arduini/Messina, 74 F.Supp.2d at 359 (quoting Citibank, 968 F.2d at 1495). 1. Transaction Causation/Reliance In the instant case, plaintiff sets forth a “fraud on the market” theory of causation, and therefore he is not required to plead direct reliance on defendants’ alleged fraudulent acts. See In re Quintel Entertainment Inc. Sec. Litig., 72 F.Supp.2d 283, 296 (S.D.N.Y.1999). The Supreme Court explained the “fraud on the market” theory as follows: “The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business .... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.” Basic, 485 U.S. at 241-42, 108 S.Ct. 978 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)) (alterations in original). Based on this notion of an open and efficient securities market, plaintiffs advancing a fraud on the market theory need not plead direct reliance because the element of reliance is presumed: \"[R]eliance on material misrepresentations may be presumed in open-market transactions because such investors rely on the integrity of the market to set a fair price and in that sense rely on any misrepresentations that distort the market price.\" Feinman v. Dean Witter Reynolds, Inc., 84 F.3d 539, 541 (2d Cir.1996) (citing Basic, 485 U.S. at 241-247, 108 S.Ct. 978). See also Harsco Corp. v. Segui, 91 F.3d 337, 342 & n. 5 (2d Cir.1996); In re Quintel, 72 F.Supp.2d 283, 296. Plaintiff alleges that" }, { "docid": "3079251", "title": "", "text": "alleged in II16 of the Complaint. However, there is some evidence that Blubaugh purchased 2,000 shares on September 13, 1987. Blu-baugh’s Response to Interrogatories, No. 1. However, Mr. Blubaugh does not remember a purchase subsequent to the IPO, although he stated he may have done so. Blubaugh depo., p. 60-61, lines 13-25 and 1-16. Defendants assert that proof of reliance will so vary among the proposed plaintiff class that issues of individual reliance will overwhelm any common issues. Plaintiffs claim that issues of individual reliance are beside the point because plaintiffs proceed under a fraud on the market theory, and thus have no need to address individual reliance. Implicit in plaintiffs’ position is an admission that, absent availability of the fraud on the market theory, individual reliance issues will be significant among the proposed plaintiff class and will overwhelm any common issues. The Fraud on the Market Theory Two varieties of this new theory have emerged. One involves fraud in the secondary market in transactions subsequent to the initial offering. The Supreme Court described the theory as “based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available information regarding the company and its business ____ Misleading statements will therefore defraud purchasers even if the purchasers do not directly rely on the misstate-ments____ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance or misrepresentations.” Basic, Inc. v. Lev-inson, 485 U.S. 224, 108 S.Ct. 978, 988-89, 99 L.Ed.2d 194 (1988), quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir. 1986). Although the Supreme Court specifically did not pass on the general validity of the theory, it did so implicitly by applying the theory to the case at hand. See, Basic, 108 S.Ct. at 989. Some form of fraud on the market has been adopted by every circuit considering it. Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 361 (5th Cir.1987). Nevertheless, the theory is not uncriticized, and commands vigorous and" }, { "docid": "13885335", "title": "", "text": "by plaintiffs involved whether sophistication was relevant for purposes of defeating class certification. By contrast, the issue in the instant case is whether sophistication is relevant to rebutting plaintiffs’ claim of reliance at trial. See Feldman, 1992 WL 137163 at *1-2, 1992 U.S.Dist. LEXIS 8157 at *3 (brokerage statements of class members are relevant to defense of non-reliance; whether they are relevant for class certification is separate issue). Our holding today that sophistication is relevant for merits discovery has no bearing on whether sophistication is sufficient to defeat certification of the instant class. CONCLUSION For the foregoing reasons, defendants’ motion to compel is granted. Plaintiffs are ordered to produce the documents requested for the years 1988 to 1992 within 30 days of this opinion. SO ORDERED. . While defendants originally requested documents concerning plaintiffs’ past investments from 1988 \"to the present,\" they have now limited their request to the four-year period from 1988 to 1992. . Defendants seek to compel plaintiffs to produce all documents responsive to Request No. 16 of Defendants’ First Request for Production of Documents to All Plaintiffs, and to answer Interrogatory No. 2 of Defendants' First Set of Interrogatories to All Plaintiffs. . Defendants seek to compel production of documents responsive to Request Nos. 7 and 8 in the schedule attached to Defendants' Subpoena Duc-es Tecum served on WHB. . While plaintiffs make this suggestion, they do not argue that the production of the requested documents would be unduly burdensome. .The theory was has been explained as follows: The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business .... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements .... The causal connection between the defendants’ fraud and the plaintiffs' purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Basic, 485 U.S. at 241-42, 108 S.Ct. at 988-89" }, { "docid": "2790608", "title": "", "text": "in this case, ii. The “fraud on the market” theory. Another avenue that leads to presumed reliance is the “fraud on the market” theory. In describing this idea, the Supreme Court has relied on the Third Circuit’s explanation: The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business_ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements_ The causal connection between the defendant’s fraud and the plaintiff’s purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Basic v. Levinson, [485 U.S. 224] 108 S.Ct. 978, 988-9 [99 L.Ed.2d 194] (1988) (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986). The critical issue in a Basic analysis is whether the particular securities market is open and developed. Basic explains the “fraud on the market” theory can only apply where a stock’s price accurately reflects its value. The idea is that when information flows freely and stocks trade quickly and efficiently, price will closely reflect value. Under this theory buyers are not obliged to prove reliance on any false information because it may be assumed they relied on accuracy of the price and that the price reflected all of the news in the market. If a party introduced any positive data that was false, it would necessarily affect all buyers because they would all pay the fraudulently inflated price. Given this theoretical underpinning, the “fraud on the market” theory can not apply to initial public offerings. In an initial public offering it cannot be assumed price reflects value because there is simply no open and developed market. Instead, interested parties have set the price. This characteristic rules out the theory in two respects. First, the initial price represents a biased view of value because the promoters are self-interested, and second, the price cannot change to reflect true value. Therefore, a buyer cannot" }, { "docid": "5088158", "title": "", "text": "Proposed Class member’s reliance on the misrepresentation or omission; (5) economic loss; and (6) a causal connection between the material misrepresentation and the loss. See Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627,161 L.Ed.2d 577 (2005). Defendants argue that the Proposed Class should not be certified because individualized questions predominate, particularly whether the respective Plaintiffs relied on the alleged misstatements and omissions. Plaintiffs counter that, to establish reliance, they intend to put forward a fraud-on-the-market theory (the “Fraud Theory”), which is “based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business,” and thus, “[m]isleading statements will ... defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.” Basic Inc. v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (citation and quotation marks omitted). To establish the Fraud Theory, Plaintiffs must make “some showing,” DeMarco v. Robertson Stephens Inc., 228 F.R.D. 468, 470 (S.D.N.Y.2005), that Defendants’ alleged misstatements and omissions forming the basis of Plaintiffs’ claims were “public material misrepresentations” (the “Materiality Requirement”) about a stock traded on an “open and developed securities market” (the “Market Efficiency Requirement”). Basic, 485 U.S. at 241, 247, 108 S.Ct. 978. If Plaintiffs establish the Fraud Theory, they are entitled to a rebuttable presumption that Defendants’ alleged misstatements and omissions affected the price of securities on the open market and that all class members relied on the alleged misrepresentations or omissions. See Hevesi, 366 F.3d at 77 (stating that establishing the fraud-on-the-market doctrine “creates a rebuttable presumption that (1) misrepresentations by an issuer affect the price of securities traded in the open market, and (2) investors rely on the market price of securities as an accurate measure of their intrinsic value”); In re Salomon Analyst Metromedia Litig., 236 F.R.D. 208, 220 (S.D.N.Y.2006) (“Salomon ”) (stating that once fraud on the market is established, plaintiffs “will be entitled to a presumption that all class members relied on the alleged misrepresentations and that" }, { "docid": "17094079", "title": "", "text": "a class,” to require analysis of all requisite elements, whether subject to challenge or not. See McLaughlin v. Liberty Mutual Ins. Co., 224 F.R.D. 304, 307 (D.Mass.2004) (analyzing all relevant Rule 23 requirements even though defendant challenged only a subset thereof). Consequently, I will take up each of the threshold requirements presented by Fed.R.Civ.P. 23(a). . The Complaint excludes the following persons and entities from the definition of the Class: \"Defendants; members of the Individual Defendants' immediate families, any director, officer, parent, subsidiary, or affiliate of CSFB; any entity in which any excluded person has a controlling interest; and their legal representatives, heirs, successors and assigns.” Compl. H 13. . In Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court offered the following summary of the fraud-on-the-market theory: The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business .... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements .... The causal connection between the defendants’ fraud and the plaintiffs' purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Id. at 241-42, 108 S.Ct. 978 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3rd Cir.1986)). . If the class conclusively established fraud-on-the-market, the so-called \"hydraulic pressure to settle” presumably would be increased. To the extent Swack faces a potential defense of non-reliance, she would seem to have an interest in reaching a settlement on favorable terms before having to litigate this issue, an outcome whose likelihood would be enhanced were the class to succeed on the fraud-on-the-market issue. . I take up briefly the squabble between the parties regarding the decision by Judge Lindsay to deny Swack's motion for appointment as Lead Plaintiff in a separate, albeit topically related, matter. Approximately seven months after filing the present action, Swack filed suit against Lehman Brothers," }, { "docid": "11360136", "title": "", "text": "Blackie v. Barrack, where plaintiff alleges there has been a material misrepresentation, reliance is presumed where investors trade in securities in well developed markets because in efficient markets, the market price of securities purportedly reflects all material, public information and thus the investor may be presumed to rely upon the integrity of the market price. 485 U.S. at 241-49, 108 S.Ct. 978. In Basic, Inc., the Supreme Court explained, “The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business .... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.” Basic, Inc., 485 U.S. at 241-42, 108 S.Ct. 978, quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986). Thus the investor may rely on the price of the stock, which reflects all publicly available information. Where reliance is presumed under the fraud-on-the-market theory, reliance can be treated as a common, instead of an individual, issue with regard to proof. The Supreme Court found that the presumption was consistent with congressional policy underlying the Securities Exchange Act of 1934 and was supported by common sense and probability. Id. at 246, 108 S.Ct. 978. The United States Supreme Court further stated, “Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.” Id. For example the defendant may show that the plaintiff would have made the same investment decision even if he had known about the misstatement or nondisclosure, or that the plaintiff knew of the misstatement or nondisclosure before he traded, or that the material information was incorporated into the market price before the plaintiff" }, { "docid": "11249420", "title": "", "text": "Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972)). The Supreme Court has found that it is appropriate for a court to apply a presumption of reliance supported by the fraud-on-the-market theory in cases where a duty to disclose material information has been breached. Basic, 485 U.S. at 250, 108 S.Ct. at 993. The Supreme Court has adopted the following description of the fraud-on-the-market theory: ‘The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements .... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.’ Basic, 485 U.S. at 241-42, 108 S.Ct. at 988-89 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3rd Cir.1986)). In this case, defendants argue that plaintiff cannot rely on the fraud-on-the-market theory to establish the rebuttable presumption of fraud because in an initial public offering no trading market exists upon which investors may rely. Rather, defendants argue, relying on the Seventh Circuit’s decision in Eckstein, that the price of the securities is determined by the Company and its underwriters based on public demand, not by the available material public information regarding the company and its business, making use of the fraud-on-market-theory to establish reliance inappropriate. The court disagrees with defendants’ assessment of Eckstein and finds that plaintiffs are not precluded from presenting the fraud-on-the-market theory in this case to establish investor reliance. In Eckstein, the Seventh Circuit did not eliminate, as defendants suggest, use of the fraud-on-the-market theory in all initial public offering cases. The court merely held that the specific circumstances of the initial public offering at issue in the Eckstein case prevented the plaintiffs from using the theory to establish reliance. Eckstein, 8 F.3d at 1130. The court" }, { "docid": "6908211", "title": "", "text": "478 F.Supp. 756, 765 (S.D.N.Y.1979); see also Dubin v. E.F. Hutton Group, Inc., 125 F.R.D. 372, 373 (S.D.N.Y.1989). Plaintiffs argue that the use of the fraud on the market theory of reliance forecloses discovery concerning their investment histories and prior involvement in other securities and class action suits. Defendants counter that plaintiffs’ consolidated amended complaint alleges traditional direct reliance on the defendants’ misrepresentations and omissions, as well as fraud on the market theory ; and moreover, since the fraud on the market theory creates a rebuttable presumption of reliance the defendants ought to be allowed discovery which would assist in rebutting such presumption. In Basic, Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the United States Supreme Court approved the use of the fraud on the market theory to create a rebuttable presumption of an investor’s reliance on materially misleading statements. See id. at 250, 108 S.Ct. at 993. The fraud on the market theory presupposes that an investor relies on the integrity of the price of'the stock set 'by the market. See id. at 241-42, 108 S.Ct. at 988-89. As the Supreme Court explained: The fraud on the market theory is based on the hypothesis that, in an open and • developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements ____ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a ease is no less significant than in a case of direct reliance on misrepresentations. Id. (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3rd Cir.1986)). The Court did not dispense with reliance as an element of the Rule 10b-5 cause of action; rather, it relied on siich precedents as Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1972), in which the causal connection in an omissions case was furnished by a breach of a" }, { "docid": "9352480", "title": "", "text": "the market is justified and satisfies the reliance requirement of a Rule 10b-5 claim. Id. Thus, when the fraud-on-the-market theory is applicable in a case, alleging reliance on the market satisfies the pleading requirement for reliance. Conversely, if the fraud-on-the-market theory cannot be utilized to satisfy the reliance requirement, then the plaintiffs must plead that they relied on the specific documents or statements containing the misstatements or omitted information. The Court in Basic, however, did not explicitly state the type of security market for which the fraud-on-the-market theory can be utilized to create the presumption of reliance. Thus, the Court’s reasoning for holding that reliance on the market is justified is critical in determining if the fraud-on-the-market theory is applicable in the Ecksteins’ case. The Court first summarized the rational supporting the fraud-on-the-market theory: The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business ____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements____ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a ease is no less significant than in a case of direct reliance on misrepresentations. Basic, 485 U.S. at 241-42, 108 S.Ct. at 989, quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3rd Cir.1986). The Court then reasoned that reliance on the market price of a security is justified and can be substituted for reliance on defendant’s specific material misstatements: Recent empirical studies have tended to confirm Congress’ premise that the market price of shares traded on well-developed markets reflects all publicly avail able information, and, hence, any material misrepresentations____ Indeed, nearly every court that has considered the proposition has concluded that where materially misleading statements have been disseminated into an impersonal, well-developed market for securities, the reliance of individual plaintiffs on the integrity of the market price may be presumed. 485 U.S. at 246-47, 108 S.Ct. at 991. Thus, the Court held" }, { "docid": "11360414", "title": "", "text": "and (c), § 11, § 12 and §§ 1962(c) and (d) of the Racketeer Influenced and Corrupt Organizations Act. In re American Continental Corp./Lincoln Savings and Loan Securities Li-tig. (\"Lincoln Savings\"), 140 F.R.D. 425, 427, 428 (D.Az.1992). Those purchasers, varying from institutions to employees of the defendant corporation, were allegedly defrauded over a period of time by similar, but not identical, oral misrepresentations, in aggregate, which distorted the entire public image of the company’s health and lawful character. Id. at 432. Defendants filed a motion to decertify the class, inter alia, for failure to satisfy the reliance element under § 10(b). The district court found that \"[t]he fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.” Id. at 429, quoting Basic, Inc. v. Levinson, 485 U.S. 224, 249, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). The court, finding flexibility essential to realize the purposes of the securities statutes, concluded that the principles of Basic, Inc. applied beyond transactions on the open securities market to the limited market and to facts in the case before it because \"the proof problems associated with a fraudulent scheme to register and sell subordinated debentures out of the offices of a savings and loan institution are comparable to those facing purchasers of open market securities.” Id. at 429. In Lincoln Savings the court found that the bond purchasers listened to oral sales pitches that, while not identical, were sufficiently uniform to justify class treatment. Id. at 430. Since not the exact wording of the misrepresentations, but the underlying, pervasive scheme, was the gravamen of the alleged fraud, the court applied the fraud-on-the-market presumption of reliance because it found" } ]

[ { "docid": "11770993", "title": "", "text": "that his safety was in jeopardy, nor has he pointed out other facts or information the prison officials might have had at their disposal that would have led them to conclude that he was at risk. Farmer, 511 U.S. at 838-42, 114 S.Ct. at 1981-82; see infra at 10-11. Without such knowledge, defendants can hardly have been deliberately indifferent to Lewis’ safety. See Goka v. Bobbitt, 862 F.2d 646, 647-48 (7th Cir.1988). Neither, prior to the second attack, did Lewis specifically seek protection from the two inmates who assaulted him on that occasion, identify the twenty gang members who threatened him after the first rape, or inform authorities of the threats which were made against him earlier in the day of the second attack. Therefore, Lewis did not demonstrate that the defendants had specific knowledge of a threat to Lewis by the inmates who assaulted him. Lewis did present sworn testimony that, when he reported the first attack on April 18,1991, he made prison officials aware that the Disciples had targeted him, and had requested but was refused protective custody. Therefore, he argues, any subsequent attack by a member of the gang suffices to establish that defendants were deliberately indifferent to his safety. We disagree. It is true that courts may infer “deliberate indifference to a known hazard” where prison officials fail to protect an inmate who belongs to an identifiable group of prisoners for whom the risk of assault is a serious problem of substantial dimensions, including prisoners targeted by gangs. Langston v. Peters, 100 F.3d at 1239; Walsh v. Mellas, 837 F.2d 789, 795-96 (7th Cir.1988). Nonetheless, the fact that an inmate sought and was denied protective custody is not dispositive of the fact that prison officials were therefore deliberately indifferent to his safety. To succeed on the theory that defendants consciously ignored the threat posed by “gang targeting,” Lewis must demonstrate that the defendants either took no precautions to avoid a known hazard which the gang presented, or that the precautions they took ignored the risk which targeted inmates faced. Id. Had the defendants in this case" } ]

[ { "docid": "11770994", "title": "", "text": "but was refused protective custody. Therefore, he argues, any subsequent attack by a member of the gang suffices to establish that defendants were deliberately indifferent to his safety. We disagree. It is true that courts may infer “deliberate indifference to a known hazard” where prison officials fail to protect an inmate who belongs to an identifiable group of prisoners for whom the risk of assault is a serious problem of substantial dimensions, including prisoners targeted by gangs. Langston v. Peters, 100 F.3d at 1239; Walsh v. Mellas, 837 F.2d 789, 795-96 (7th Cir.1988). Nonetheless, the fact that an inmate sought and was denied protective custody is not dispositive of the fact that prison officials were therefore deliberately indifferent to his safety. To succeed on the theory that defendants consciously ignored the threat posed by “gang targeting,” Lewis must demonstrate that the defendants either took no precautions to avoid a known hazard which the gang presented, or that the precautions they took ignored the risk which targeted inmates faced. Id. Had the defendants in this case simply refused to do anything, Lewis’ ease might survive summary judgment. But the record speaks otherwise. They transferred Lewis to a different area in the prison, rather than placing him in protective custody. Almost five months had passed without incident since the first attack, defendants point out, and thus immediately prior to the second attack, there was no indication that Lewis was in imminent danger. And because Lewis faded to inform prison officials when gang members in the new dorm made more threats against Lewis for being a “snitch,” officials had no way of knowing that he was in heightened peril. See Estate of Davis v. Johnson, 745 F.2d 1066, 1071 (7th Cir.1984) (to demonstrate callous indifference to inmate safety, plaintiff must show a “strong likelihood” of violence). Even assuming, as we must for purposes of summary judgment, that the defendants were aware of the fact that Lewis needed protection from the Disciples, subsequent events proved at best that the defendants exercised poor judgment in simply choosing to send Lewis to a different dormitory. Exercising" }, { "docid": "8541293", "title": "", "text": "grievances Santiago filed alerting prison officials to his complaints about [his assailants].”); cf. Reed v. McBride, 178 F.3d 849, 854 (7th Cir.1999) (knowledge that plaintiff was being deprived of food and medication established by prisoner’s letters). Complaints that convey only a generalized, vague, or stale concern about one’s safety typically will not support an inference that a prison official had actual knowledge that the prisoner was in danger. See, e.g., Dale v. Poston, 548 F.3d 563, 569 (7th Cir.2008) (“[The prisoner’s] vague statement that inmates were ‘pressuring’ him and ‘asking questions’ were simply inadequate to alert the officers to the fact that there was a true threat at play.”); Klebanowski v. Sheahan, 540 F.3d 633, 639-40 (7th Cir.2008) (beyond expressing fear for his life, prisoner’s statements to guards did not identify who was threatening him or what the threats were); Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir.2008) (prisoner did not mention to guards that he was perceived to be a “snitch” or otherwise apprise them of a specific threat to his life); Butera v. Cottey, 285 F.3d 601, 606 (7th Cir.2002) (prisoner only stated vaguely that he was “having problems” in his cellblock and “needed to be removed”). Nor will complaints that are contradicted by the prisoner himself suffice to establish knowledge. See, e.g., Riccardo v. Rausch, 375 F.3d 521, 527 (7th Cir.2004) (prisoner initially expressed mortal fear of harm at hands of cellmate, but subsequently indicated to guard he had no concern). By contrast, a complaint that identifies a specific, credible, and imminent risk of serious harm and identifies the prospective assailant typically will support an inference that the official to whom the complaint was communicated had actual knowledge of the risk. See, e.g., Haley v. Gross, 86 F.3d 630, 643 (7th Cir.1996) (prisoner advised sergeant, inter alia, that cellmate was intimidating him, acting strangely, had threatened that “something crucial was going to happen” if one of them was not moved, and was now “deadlocked” in cell, which restricted ingress to and egress from cell). Gevas has adduced sufficient evidence that defendants McLaughlin and Steele knew he" }, { "docid": "23081733", "title": "", "text": "for Hicks v. Churchich, 161 F.3d 1030, 1042 (7th Cir.1998) (“[W]e do not believe that the allegations in the complaint about Mr. Hicks’ conduct and tattoo message, without more, indicate an obvious, substantial risk of suicide.”). Grieveson also points to the repeated assaults that he suffered at the hands of other inmates as evidence that the jail officers were subjectively aware of the obvious safety threats Grieveson faced. But looking at the facts uncovered in discovery, even we cannot discern the threat(s) Grieveson faced during his detention. Grieveson never informed the jail officers of a specific threat to his life (ie., that he was at risk because of his “snitch” reputation). See Butera, 285 F.3d at 606. Instead, he told jail officials only that he was afraid and that he wanted to be moved. After his first assault, Grieveson told the jail officers that “the problem was taken out of the block already” and that he wanted to “let the situation pass.” After the second assault, Grieveson informed jail officers that he had been assaulted by another inmate and that he wanted to be moved to another cell block. However, he did not tell the officers who assaulted him, why he had been assaulted (allegedly because of his “snitch” label), or whether he continued to feel threatened by the assaulting individuals. The type of information Grieveson shared with the jail officers is comparable to that shared in Butera v. Cottey, where the plaintiff told the jail guards that he was “having problems in the block” and “need[ed] to be removed.” 285 F.3d at 606-07. Such vague information did not put the jail officers on notice of a specific threat to Grieveson’s safety. See id. Grieveson was assaulted the third time by an inmate who “beat [him] senseless for taking too long to use the toilet.” It is hard to imagine how the jail officers would have been on notice of this specific threat to Grieveson’s safety. As sad as it may be, the toilet attack, in particular, demonstrates that Grieveson was a “victim of the inherent, as it were the" }, { "docid": "11770995", "title": "", "text": "simply refused to do anything, Lewis’ ease might survive summary judgment. But the record speaks otherwise. They transferred Lewis to a different area in the prison, rather than placing him in protective custody. Almost five months had passed without incident since the first attack, defendants point out, and thus immediately prior to the second attack, there was no indication that Lewis was in imminent danger. And because Lewis faded to inform prison officials when gang members in the new dorm made more threats against Lewis for being a “snitch,” officials had no way of knowing that he was in heightened peril. See Estate of Davis v. Johnson, 745 F.2d 1066, 1071 (7th Cir.1984) (to demonstrate callous indifference to inmate safety, plaintiff must show a “strong likelihood” of violence). Even assuming, as we must for purposes of summary judgment, that the defendants were aware of the fact that Lewis needed protection from the Disciples, subsequent events proved at best that the defendants exercised poor judgment in simply choosing to send Lewis to a different dormitory. Exercising poor judgment, however, falls short of meeting the standard of consciously disregarding a known risk to his safety. McGill v. Duckworth, 944 F.2d at 348. Moreover, to survive summary judgment Lewis must present some evidence, beyond the bare allegations of his complaint, not only that the inmates who assaulted him on June 3 were members of the Disciples, but also that the defendants were aware of their gang affiliation. See Adler v. Glickman, 87 F.3d 956, 958 (7th Cir.1996); Fed.R.Civ.P. 56(e). He has not done so. Defendants conceded that they know gang activity occurs at the WCC, and that the Gangster Disciples are one of the more predominant prison gangs. But the defendants also presented evidence that it is the policy at the WCC not to segregate inmates based on gang affiliation, in part on the reasonable theory that such segregation would enhance the power of the prison gangs, and in part because it would result in racial segregation within the prison. Instead, defendants indicated that the WCC employs a gang coordinator, who maintains a" }, { "docid": "19975337", "title": "", "text": "harm” decreases. See Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir.2005). So, too, does the official’s ability to respond. The ultimate measure of the adequacy of the response is therefore reasonableness in light of the surrounding circumstances. We agree with the district court that the defendants in this case are entitled to summary judgment. As it turned out, there was a cobra lurking in the grass; the objective prong is satisfied. But that’s not dispositive. The focus is on the defendants’ subjective state of mind, and for all they knew, Dale was being harassed by a garter snake. Irritating, yes. Deadly, no. Dale’s vague statements that inmates were “pressuring” him and “asking questions” were simply inadequate to alert the officers to the fact that there was a true threat at play. See Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir.2008) (holding that an inmate who “told jail officials only that he was afraid and that he wanted to be moved” failed to put those officials on notice of an actionable threat). There is no evidence that any of the defendants here were aware of facts from which they could draw an inference of substantial harm, let alone evidence that they actually drew that inference. Dale asks us to find deliberate indifference due to the inherent risks faced by snitches in prison; he would have Eighth Amendment liability every time an inmate known to be cooperating with authorities is attacked. That would be quite a stretch. Just because a correctional officer knows an inmate has been branded a snitch — and it’s common knowledge that snitches face unique risks in prison — does not mean that an officer violates the Constitution if the inmate gets attacked. Cf. id. at 775-76 (suggesting that officer knowledge of a snitch reputation may support, not prove, a claim for deliberate indifference). Each case must be examined individually, with particular focus on what the officer knew and how he responded. Poston, Fortune, King, and White all listened when Dale expressed fear for his safety; they all implored him for details; and they all offered" }, { "docid": "19975336", "title": "", "text": "officials know about a serious risk of harm, they have an obligation “to take reasonable measures to abate it.” Borello v. Allison, 446 F.3d 742, 747 (7th Cir.2006). Of course, an official’s response may be reasonable even if it fails to avert the harm. Id. Another way to think of it: picture an inmate with a cobra in his cell. If the prison officials “know that there is a cobra there or at least that there is a high probability of a cobra there, and do nothing, that is deliberate indifference.” Bill-man v. Ind. Dep’t of Corrections, 56 F.3d 785, 788 (7th Cir.1995). The precise identity of the threat, be it a cobra or a fellow inmate, is irrelevant. A prison official “cannot escape liability by showing that he did not know that a plaintiff was especially likely to be assaulted by the specific prisoner who eventually committed the assault.” Mayoral v. Sheahan, 245 F.3d at 939. On the other hand, as the vagueness of a threat increases, the likelihood of “actual knowledge of impending harm” decreases. See Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir.2005). So, too, does the official’s ability to respond. The ultimate measure of the adequacy of the response is therefore reasonableness in light of the surrounding circumstances. We agree with the district court that the defendants in this case are entitled to summary judgment. As it turned out, there was a cobra lurking in the grass; the objective prong is satisfied. But that’s not dispositive. The focus is on the defendants’ subjective state of mind, and for all they knew, Dale was being harassed by a garter snake. Irritating, yes. Deadly, no. Dale’s vague statements that inmates were “pressuring” him and “asking questions” were simply inadequate to alert the officers to the fact that there was a true threat at play. See Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir.2008) (holding that an inmate who “told jail officials only that he was afraid and that he wanted to be moved” failed to put those officials on notice of an actionable threat). There is" }, { "docid": "23081739", "title": "", "text": "as having been received), he fails to identify a tangible threat to his safety or wellbeing. Grieveson wrote that he was “real scared of my life here and the guards are even afraid to come into the block[ — Jhow do you think we feel.” He asked to be moved to another jail or a “safer” block, but did not put the jail officials on notice of specific threats to his safety. Perhaps the jail officers should have done a better job with Grieveson — maybe they could have initiated more conversations with him, asked him to identify his assailants, invited him to come to them more often with his concerns — but proving deliberate indifference “requires more than a showing of negligent or even grossly negligent behavior.... [TJhe corrections officer must have acted with the equivalent of criminal recklessness.” Borello, 446 F.3d at 747. Also problematic for Grieveson is his failure to tie actions of the named defendants to the injuries he allegedly suf fered. See Alejo, 328 F.3d at 936; Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir.1996). Throughout his affidavits and briefs, Grieveson refers to “the defendants,” claiming that “the defendants” failed to protect him. Vague references to a group of “defendants,” without specific allegations tying the individual defendants to the alleged unconstitutional conduct, do not raise a genuine issue of material fact with respect to those defendants. See Alejo, 328 F.3d at 936 (finding dismissal of named defendant proper where plaintiff failed to allege defendant’s personal involvement in the alleged wrongdoings). Thus, for six of the seven assaults, Grieveson has not demonstrated a genuine issue of material fact about the jail officers’ deliberate indifference. On the other hand, the sixth attack Grieveson suffered does survive summary judgment insofar as it relates to Officer Highbaugh. Grieveson attests that in March 2001, he was assaulted by other inmates when they stole his personal commissary items and his food. Grieveson claims that Officer Highbaugh witnessed the incident and failed to intervene; later Highbaugh allegedly commented to Grieveson that he needed to “learn how to fight harder" }, { "docid": "232813", "title": "", "text": "the officers knew only that he had been involved in an altercation with three other inmates, and that he wanted a transfer because he feared for his life. He did not tell them that he had actually been threatened with future violence, nor that the attack on September 8 was inflicted by gang members because of his non-gang status. Without these additional facts to rely on, there was nothing leading the officers to believe that Klebanowski himself was not speculating regarding the threat he faced out of fear based on the first attack he suffered. This lack of specificity falls below the required notice an officer must have for liability to attach for deliberate indifference. Because the officers did not have notice of a specific threat to Klebanowski, the district court did not err in concluding that they were not deliberately indifferent to a risk posed to him, and it correctly entered summary judgment in their favor. III. We conclude that Klebanowski failed to put forth any evidence creating a genuine issue of material fact regarding the defendants’ liability for deliberate indifference to his rights. First, there was no indication that the defendants sued in their official capacities were responsible for policies that subjected Klebanowski to a substantial risk of harm. Second, there is no evidence indicating that the defendants who were sued in their individual capacities were aware of a substantial risk of harm to Klebanowski. The defendants were entitled to summary judgment on Klebanowski’s claims, and the district court’s entry of judgment in their favor is therefore AFFIRMED. . These charges arose from a botched attempt by Klebanowski’s associate, Robert Winters, to rob an off-duty lieutenant with the Chicago police department, Gary Szparkowski. Id. at 815-16. Klebanowski drove Winters to Szparkowski’s house, and waited as the getaway driver. Winters took Szparkowski’s wallet from him in the driveway of his house, but Szparkowski shot and killed Winters before he was able to get away. Klebanowski was convicted of both charges following a bench trial, and was sentenced to 20 years’ imprisonment for the felony murder charge. Id. at 817." }, { "docid": "16042223", "title": "", "text": "the Sheriff actual notice of a specific risk of serious harm so as to find the Sheriff deliberately indifferent for failing to take appropriate steps to prevent the assault. See Lewis v. Richards, 107 F.3d 549, 553 (7th Cir.1997). In Lewis, after the inmate plaintiff had been raped by two members of the Gangster Disciples gang, he reported the incident to prison officials and requested protection from those inmates who had raped him. See id. at 551. In response, the prison transferred him to another dormitory. See id. Before he was transferred, the plaintiff was also threatened by twenty gang members, but the plaintiff did not report this incident to the prison. See id. Two different inmates, both members of the Gangster Disciples, raped the plaintiff in the second dormitory. See id. at 551-52. Thereafter, the plaintiff sued the prison officials to whom he had allegedly reported the first rape, claiming that they were deliberately indifferent to the risk that the plaintiff would be raped a second time. See id. at 552. The district court granted summary judgment in favor of the defendants, and we affirmed. See id. at 552-53. We held that the prison officials were not deliberately indifferent because although the plaintiff had requested protection from the inmates who had raped him the first time, he had not “specifically [sought] protection from the two inmates who assaulted him on [the second] occasion [nor] identified] the twenty gang members who threatened him after the first rape.” Id. at 553. Therefore, the defendants were not deliberately indifferent because the plaintiff could not “demonstrate that defendants had specific knowledge of a threat to [the plaintiff] by the inmates who assaulted him [on the second occasion].” Id. (emphasis added). Butera’s statements to the correctional officers that he “was having problems in the block” and “needed to be removed” were insufficient to give the Sheriff notice of a specific threat. Butera did not identify who had threatened him and what the threats were. Indeed, Butera did not even disclose in general terms that he was afraid of being assaulted. In fact, prior to" }, { "docid": "8791059", "title": "", "text": "subjected to ominous threats or violence. Brown and Shabazz’s allegations fail to identify any threat beyond a general sense of caution or fear of retribution based on the unspecified “heat” they received from other prisoners. Without further detail or supporting evidence, this general trepidation is insufficient to constitute an objectively serious risk of substantial harm. Articulating generalized fears of violence or retribution may be insufficient to alert prison officials or create a need for administrative protection. See Oliver v. Vose, No. 89-1727, 1991 WL 97453, at *2 (D.Mass. May 23, 1991) (Zobel, J.) (the mere fact that the plaintiff was afraid of certain gangs and groups of inmates does not require defendants to provide protection). “[A]n inmate’s request for protective custody may be so vague and non-specific that it renders it difficult, if not impossible, for corrections officials to understand the nature of the perceived threat and, as a consequence, the means by which to reduce or eliminate that threat.” De Angelis v. Beaudoin, No. 04-456, 2008 WL 205211, at *6 (D.N.H. January 22, 2008). Although Brown and Shabazz reasonably may have been concerned about their safety, without any allegations of specific threats, there is no evidence that the refusal to reassign inmate maintenance workers to another job was unreasonable, much less deliberately indifferent to the Inmates’ safety. Therefore, the Prison Officials’ motion for summary judgment is granted with respect to the deliberate indifference claims raised by the Inmates. D. Loss of Work Privileges Brown and Shabazz allege that they were coerced into performing a work assignment by threat of demotion and transferral. The Prison Officials contend that prisoners have no constitutional liberty or property right to a prison job or program. Although it may have been improvident for the prison officials to use prisoner maintenance workers to install security features, there is no case law or statutory provision supporting the Inmates’ contention that this decision was illegal or constitutes an unconstitutional use of prison officials’ power. Brown and Shabazz’s positions as inmate maintenance workers and the correlative benefits they derived from being crew members were privileges not rights. As" }, { "docid": "23081732", "title": "", "text": "Cir.1992) (quoting Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)), for six of the seven assaults Grieveson presents no evidence showing that such an inference is appropriate. Although his attacker on November 30 called him a snitch, Grieveson presented no evidence that any of the named defendants were aware that Grieveson was perceived as a snitch by his fellow inmates. The mere fact that Grieveson thought he was considered a snitch does not allow a factfinder to conclude “ that a prison official knew of a substantial risk from the very fact that the risk was obvious.’ ” Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir.2001) (quoting Farmer, 511 U.S. at 842, 114 S.Ct. 1970). The only person who believes that Grieveson was considered a snitch (according to the evidence) is Grieveson himself. Any risk to Grieve-son’s safety on account of the “snitch” label was not obvious. See Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir.2006) (stating that an inmate’s need for surgery was not obvious); Payne for Hicks v. Churchich, 161 F.3d 1030, 1042 (7th Cir.1998) (“[W]e do not believe that the allegations in the complaint about Mr. Hicks’ conduct and tattoo message, without more, indicate an obvious, substantial risk of suicide.”). Grieveson also points to the repeated assaults that he suffered at the hands of other inmates as evidence that the jail officers were subjectively aware of the obvious safety threats Grieveson faced. But looking at the facts uncovered in discovery, even we cannot discern the threat(s) Grieveson faced during his detention. Grieveson never informed the jail officers of a specific threat to his life (ie., that he was at risk because of his “snitch” reputation). See Butera, 285 F.3d at 606. Instead, he told jail officials only that he was afraid and that he wanted to be moved. After his first assault, Grieveson told the jail officers that “the problem was taken out of the block already” and that he wanted to “let the situation pass.” After the second assault, Grieveson informed jail officers that he had been assaulted" }, { "docid": "8791058", "title": "", "text": "of his incarceration pose a “substantial risk of serious harm.” Id. Second, the prison official must have had “a sufficiently culpable state of mind, namely one of ‘deliberate indifference’” to the prisoner’s health or safety. Id. The requisite state of mind is “more blameworthy than negligence.” Id. The standard requires “an actual, subjective appreciation of the risk” to inmates that is analogous to the standard for determining criminal recklessness. Id. It is axiomatic that prison officials cannot be deliberately indifferent if they are unaware of the risk. Id. Including Brown and Shabazz, three prisoners raised concerns about the possibility of retribution from other inmates. Dunton’s grievances support Brown and Shabazz’s claims that prison officials were aware that the inmate maintenance workers were wary of potential retaliation from their fellow prisoners for being seen installing security measures. Although the Prison Officials may have known that the inmate maintenance crew was afraid of retribution from other prisoners, however, there is no evidence on the record indicating that any of the crew members who performed the installations were subjected to ominous threats or violence. Brown and Shabazz’s allegations fail to identify any threat beyond a general sense of caution or fear of retribution based on the unspecified “heat” they received from other prisoners. Without further detail or supporting evidence, this general trepidation is insufficient to constitute an objectively serious risk of substantial harm. Articulating generalized fears of violence or retribution may be insufficient to alert prison officials or create a need for administrative protection. See Oliver v. Vose, No. 89-1727, 1991 WL 97453, at *2 (D.Mass. May 23, 1991) (Zobel, J.) (the mere fact that the plaintiff was afraid of certain gangs and groups of inmates does not require defendants to provide protection). “[A]n inmate’s request for protective custody may be so vague and non-specific that it renders it difficult, if not impossible, for corrections officials to understand the nature of the perceived threat and, as a consequence, the means by which to reduce or eliminate that threat.” De Angelis v. Beaudoin, No. 04-456, 2008 WL 205211, at *6 (D.N.H. January 22, 2008)." }, { "docid": "23395083", "title": "", "text": "take protective action after a plaintiff-detainee complained of a feared threat posed by rival gang members or a specific person. See, e.g., Butera v. Cottey, 285 F.3d 601 (7th Cir.2002); Lewis v. Richards, 107 F.3d 549 (7th Cir.1997); Haley v. Gross, 86 F.3d 630 (7th Cir.1996); Jelinek v. Greer, 90 F.3d 242 (7th Cir.1996). Another common fact pattern found in our failure to protect cases finds deliberate indifference arising out of improper cell assignments, where the defendant custodian places an unwitting detainee in a cell with another detain ee whom the custodian knows to have certain violent propensities. See, e.g., Weiss v. Cooley, 230 F.3d 1027 (7th Cir.2000); Billman v. Ind. Dept. of Corr., 56 F.3d 785 (7th Cir.1995); Zarnes v. Rhodes, 64 F.3d 285 (7th Cir.1995). In these types of cases, the victim and assailant are readily identifiable, and the custodian’s deliberate indifference is based upon knowledge of a clearly particularized risk. While we have often found deliberate indifference where custodians know of threats to a specific detainee posed by a specific source, we have not been constrained by this fact pattern. It is well settled that deliberate indifference may be found though the specific identity of the ultimate assailant is not known in advance of assault. Farmer, 511 U.S. at 843, 114 S.Ct. 1970 (noting that a custodial official cannot “escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault,” and that “it does not matter whether the risk comes from a single source or multiple sources”); Weiss, 230 F.3d at 1032 (“Sometimes the heightened risk of which the guards were aware comes about because of their knowledge of the victim’s characteristics, not the assailant’s.”); Langston v. Peters, 100 F.3d 1235, 1238-39 (7th Cir.1996) (recognizing that deliberate indifference can be based upon jailer’s knowledge of inmates likely to be targeted by gangs); Swofford v. Mandrell, 969 F.2d 547, 549-50 (7th Cir.1992) (noting that the placement of a" }, { "docid": "23081738", "title": "", "text": "trained Correctional Officer to realize that I was having problems in Cell Block 2-A? I had already taken 4 (four) trips to the emergency room.” Elsewhere he attests: “[a]t no time did the Defendants approach me and ask me as to my personal safety and well being.”; “Any layperson, let alone someone ‘trained’ for observation, could readily see my injuries were consistent with being assaulted. Yet the Defendants did not take adequate measures to ... assure I was not attacked again.”; “Never was I approached by a correctional officer for determination of whether or not I needed assistance.”; “It is hard to understand how a prisoner standing there with free-flowing blood should not be enough to spark some interest; but it didn’t in my case.” Grieveson does not say that he told jail officers he was in danger; rather, he claims that the officers should have realized he was in danger. In the grievances Grieveson filed (two of which the jail does not report having received, but for purposes of summary judgment we will consider as having been received), he fails to identify a tangible threat to his safety or wellbeing. Grieveson wrote that he was “real scared of my life here and the guards are even afraid to come into the block[ — Jhow do you think we feel.” He asked to be moved to another jail or a “safer” block, but did not put the jail officials on notice of specific threats to his safety. Perhaps the jail officers should have done a better job with Grieveson — maybe they could have initiated more conversations with him, asked him to identify his assailants, invited him to come to them more often with his concerns — but proving deliberate indifference “requires more than a showing of negligent or even grossly negligent behavior.... [TJhe corrections officer must have acted with the equivalent of criminal recklessness.” Borello, 446 F.3d at 747. Also problematic for Grieveson is his failure to tie actions of the named defendants to the injuries he allegedly suf fered. See Alejo, 328 F.3d at 936; Starzenski v. City" }, { "docid": "232811", "title": "", "text": "Did Klebanowski actually complete the grievance process when he did not receive a disposition? Was a grievance process even available to Klebanowski given the inordinate time he alleges passed without receiving a disposition? See Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (imposing on prisoners a duty to exhaust administrative remedies only where those remedies are “available”). We need not resolve these issues. We may affirm summary judgment on any basis supported in the record. Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 681 (7th Cir.2007). Like the district court, we will bypass the statute of limitations questions and consider the merits of Klebanowski’s claims against the individual defendants. To establish deliberate indifference on the part of the defendants sued individually, Klebanowski needed to show that the officers acted with the equivalent of criminal recklessness, in this context meaning that they were actually aware of a substantial risk of harm to Klebanowski’s health or safety, yet failed to take appropriate steps to protect him from the specific danger. Guzman, 495 F.3d at 857. Klebanowski testified during his deposition that he told officers twice on September 8 that he was afraid for his life and he wanted to be transferred off the tier. Those statements, and the officers’ knowledge of the first beating, are the only pieces of evidence in the record that can assist Klebanowski in his attempt to show that the officers were aware of any risk to him. We have previously held that statements like those made by Klebanowski are insufficient to alert officers to a specific threat. Butera, 285 F.3d at 606 (deeming insufficient to establish deliberate indifference statements by a prisoner that he was “having problems in the block” and “needed to be removed”). In Butera, we deemed the inmate’s statements insufficient to give notice to the officers because they did not provide the identities of those who threatened the inmate, nor state what the threats were. Id. The facts of this case make clear our reason for requiring more than general allegations of fear or the need to be removed. By Klebanowski’s own testimony," }, { "docid": "8541292", "title": "", "text": "at 837, 114 S.Ct. at 1979. Although this inquiry focuses on an official’s subjective knowledge, a prisoner need not present direct evidence of the official’s state of mind: “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence ....” Id. at 842, 114 S.Ct. at 1981. “In failure to protect cases, ‘[a] prisoner normally proves actual knowledge of impending harm by showing that he complained to prison officials about a specific threat to his safety.’ ” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir.1996) (per curiam) (quoting McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir.1991), overruled on other grounds by Farmer)-, see also Gidarisingh v. Pollard, 571 Fed.Appx. 467, 470 (7th Cir.2014) (non-precedential decision); James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir.1992); Santiago v. Walls, 599 F.3d 749, 769 (7th Cir.2010) (Sykes, J., dissenting) (“Each defendant’s state of mind is inferred primarily from the circumstances surrounding the assaults in question and the grievances Santiago filed alerting prison officials to his complaints about [his assailants].”); cf. Reed v. McBride, 178 F.3d 849, 854 (7th Cir.1999) (knowledge that plaintiff was being deprived of food and medication established by prisoner’s letters). Complaints that convey only a generalized, vague, or stale concern about one’s safety typically will not support an inference that a prison official had actual knowledge that the prisoner was in danger. See, e.g., Dale v. Poston, 548 F.3d 563, 569 (7th Cir.2008) (“[The prisoner’s] vague statement that inmates were ‘pressuring’ him and ‘asking questions’ were simply inadequate to alert the officers to the fact that there was a true threat at play.”); Klebanowski v. Sheahan, 540 F.3d 633, 639-40 (7th Cir.2008) (beyond expressing fear for his life, prisoner’s statements to guards did not identify who was threatening him or what the threats were); Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir.2008) (prisoner did not mention to guards that he was perceived to be a “snitch” or otherwise apprise them of a specific threat to his life); Butera" }, { "docid": "11770985", "title": "", "text": "COFFEY, Circuit Judge. This case involves the prison problem of coping with violence. Tommy Ray Lewis, a state prisoner, sued several employees and officials at the Westville (Indiana) Correctional Center (“WCC”), claiming that they violated his Eighth Amendment right to be free from cruel and unusual punishment by being deliberately indifferent to three separate sexual assaults to which Lewis was subjected. The district court granted summary judgment to defendants. Lewis appeals, arguing that unresolved issues of material fact — namely, whether defendants were aware of, and disregarded, a substantial risk to his health and safety in the form of sexual assaults by gang members in the prison— precluded summary judgment. We modify the judgment, and affirm as modified. I. Because this is an appeal from summary judgment, we view the facts in the light most favorable to Lewis. Jelinek v. Greer, 90 F.3d 242, 243 (7th Cir.1996). Lewis was serving a four-year sentence at the WCC. He was housed with the general prison population in November of 1990. At no time before the first attack had he ever advised prison authorities that he feared that he was in danger, nor had he requested that he be housed separately from any other inmates. On November 23, two inmates beat and sexually assaulted Lewis in one of the prison dormitories. Lewis maintains that both were members of the Gangster Disciples, a gang which, as defendants concede, is one of the predominant gangs among inmates at the WCC. Lewis maintains that he immediately reported the attack to the officer in charge of the dormitory. The officer never reported this incident to his superiors. His only response, according to Lewis, was to make a number of snide and vulgar comments about the incident. Subsequently, Lewis says that about twenty members of the Disciples, including the two who had committed the rape, confronted him and threaténed him with physical harm if he told anyone else about the attack. Lewis inferred that the officer he told (whose employment at the prison was later terminated for reasons unconnected to this case) relayed the information to the gang" }, { "docid": "23081734", "title": "", "text": "by another inmate and that he wanted to be moved to another cell block. However, he did not tell the officers who assaulted him, why he had been assaulted (allegedly because of his “snitch” label), or whether he continued to feel threatened by the assaulting individuals. The type of information Grieveson shared with the jail officers is comparable to that shared in Butera v. Cottey, where the plaintiff told the jail guards that he was “having problems in the block” and “need[ed] to be removed.” 285 F.3d at 606-07. Such vague information did not put the jail officers on notice of a specific threat to Grieveson’s safety. See id. Grieveson was assaulted the third time by an inmate who “beat [him] senseless for taking too long to use the toilet.” It is hard to imagine how the jail officers would have been on notice of this specific threat to Grieveson’s safety. As sad as it may be, the toilet attack, in particular, demonstrates that Grieveson was a “victim of the inherent, as it were the baseline, dangerousness of prison life.” Case v. Ahitow, 301 F.3d 605, 607 (7th Cir.2002). The fourth assault occurred at the hands of a jail officer, according to Grieveson. This officer has not been identified, and there is no suggestion that the alleged assaulting officer is one of the named defendants in this case. “ ‘A plaintiff bringing a civil rights action must prove that the defendant personally participated in or caused the unconstitutional actions.’ ” Alejo v. Heller, 328 F.3d 930, 936 (7th Cir.2003) (quoting Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981)). Grieveson does not argue that the named defendants in this case knew that another jail officer was going to slam Grieveson’s arm in a door. “[D]eliberate indifference requires that the corrections officer must have ‘actual knowledge’ of the risk.” Guzman, 495 F.3d at 857-58 (quoting Washington v. LaPorte County Sheriffs Dep’t, 306 F.3d 515, 517-18 (7th Cir.2002)). Grieveson’s fifth assault was similar to his third in that an inmate came after him out of personal frustration. Grieveson attests that he was" }, { "docid": "232812", "title": "", "text": "testified during his deposition that he told officers twice on September 8 that he was afraid for his life and he wanted to be transferred off the tier. Those statements, and the officers’ knowledge of the first beating, are the only pieces of evidence in the record that can assist Klebanowski in his attempt to show that the officers were aware of any risk to him. We have previously held that statements like those made by Klebanowski are insufficient to alert officers to a specific threat. Butera, 285 F.3d at 606 (deeming insufficient to establish deliberate indifference statements by a prisoner that he was “having problems in the block” and “needed to be removed”). In Butera, we deemed the inmate’s statements insufficient to give notice to the officers because they did not provide the identities of those who threatened the inmate, nor state what the threats were. Id. The facts of this case make clear our reason for requiring more than general allegations of fear or the need to be removed. By Klebanowski’s own testimony, the officers knew only that he had been involved in an altercation with three other inmates, and that he wanted a transfer because he feared for his life. He did not tell them that he had actually been threatened with future violence, nor that the attack on September 8 was inflicted by gang members because of his non-gang status. Without these additional facts to rely on, there was nothing leading the officers to believe that Klebanowski himself was not speculating regarding the threat he faced out of fear based on the first attack he suffered. This lack of specificity falls below the required notice an officer must have for liability to attach for deliberate indifference. Because the officers did not have notice of a specific threat to Klebanowski, the district court did not err in concluding that they were not deliberately indifferent to a risk posed to him, and it correctly entered summary judgment in their favor. III. We conclude that Klebanowski failed to put forth any evidence creating a genuine issue of material fact" }, { "docid": "16042224", "title": "", "text": "granted summary judgment in favor of the defendants, and we affirmed. See id. at 552-53. We held that the prison officials were not deliberately indifferent because although the plaintiff had requested protection from the inmates who had raped him the first time, he had not “specifically [sought] protection from the two inmates who assaulted him on [the second] occasion [nor] identified] the twenty gang members who threatened him after the first rape.” Id. at 553. Therefore, the defendants were not deliberately indifferent because the plaintiff could not “demonstrate that defendants had specific knowledge of a threat to [the plaintiff] by the inmates who assaulted him [on the second occasion].” Id. (emphasis added). Butera’s statements to the correctional officers that he “was having problems in the block” and “needed to be removed” were insufficient to give the Sheriff notice of a specific threat. Butera did not identify who had threatened him and what the threats were. Indeed, Butera did not even disclose in general terms that he was afraid of being assaulted. In fact, prior to summary judgment, Butera conceded that “prior to the assault on January 6, 1997, [he] did not report to Jack Cottey (“Cot-tey”) or to any personnel at the Marion County Jail that he had been threatened or assaulted in cell block 2-1.” Further, Butera testified that no correctional officer had seen Mitchell or Eskridge threaten him. As in Lewis, because Butera did not specifically seek protection from the detainees who had assaulted him and did not disclose the specific threats that Mitchell and Eskridge had made to him, he could not demonstrate that the Sheriff was aware of a substantial risk of injury to him. See id. Further, even if Butera could show that the correctional officers knew about a risk of harm to Butera, this is not enough, without more, to impute knowledge to the Sheriff. Cf. Williams v. Heavener, 217 F.3d 529, 532 (7th Cir.2000) (noting that municipalities are not vicariously liable for constitutional torts). For similar reasons, Rena’s phone call to the Jail did not put the Sheriff on notice of a specific" } ]

[ { "docid": "22967977", "title": "", "text": "NIES, Circuit Judge. I. In this appeal, this court must consider the effect of amendments to Chapters 43 and 75 of Title 5 made by the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1121 (CSRA). Petitioner, Albert Lovshin, was removed from his position as Electronics Engineer for the Department of the Navy (agency) at the Naval Ship Weapons Engineering Station, Port Hueneme, California, effective November 30, 1981. On appeal to the Merit Systems Protection Board (MSPB or board), the agency action was sustained as meeting the standards and procedures required by Chapter 75 of the CSRA. As originally briefed on appeal, petitioner asserted that (1) the agency charge of unsatisfactory performance in his work was not proved, (2) the removal action was in retaliation for petitioner’s whistleblowing activities, (3) the agency committed harmful error in its removal procedures, (4) the presiding official of the MSPB violated procedural due process in the manner of conducting discovery and the hearing, and (5) the agency improperly removed him during the pendency of an agency-initiated disability retirement application. The agency argued that the presiding official’s decision was correct in all respects and should be upheld. Subsequently, the MSPB was allowed to intervene in this appeal. The MSPB asks that this case be remanded because it may have been improperly considered under Chapter 75. In Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), a decision issued on October 22,1984 during the pend-ency of this appeal, the board held that Chapter 43 was the exclusive procedure for performance-based actions effected after October 1, 1981, and that Chapter 75, with several exceptions, was no longer available after that date for effecting such actions. Because the action against petitioner Lovshin was performance-based and was effective on November 30, 1981, this action prima facie falls within the Gende ruling. If the case is remanded, the MSPB states that the agency would be allowed to show, if it could, that, in effect, it complied with Chapter 43 or that the action falls within one of the exceptions the MSPB has stated to the Gende rule. Petitioner" } ]

[ { "docid": "22968048", "title": "", "text": "1981. The Petitioner then pursued his discharge appeal. A hearing was held and the presiding official of the Board held that the charges were proven by the Navy by a preponderance of the evidence, that the reinstatement of the November 30, 1981, separation-inefficiency action by the Navy was proper, and that Petitioner’s separation was for such cause as will promote the efficiency of the service. The decision of the presiding official was approved by the Board. The Petitioner has appealed from that decision to this court. The Petitioner was removed and separated from his position by proceedings conducted under the provisions of Chapter 75 of the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1121, 5 U.S.C. § 7513 (the Act). Petitioner contends that if he was to be removed for poor performance, the proceedings had to be conducted by the Navy under and in accordance with ' Chapter 43 (5 U.S.C. § 4303) of the Act instead of Chapter 75. The Navy argues that it had an option to file the action on the performance-based charge under either Chapter 75 or Chapter 43. This is the main issue in the case. As a preliminary matter, it should be pointed out that when Congress passed the Act it provided in § 4302 that each agency should develop one or more performance appraisal systems to be approved by OPM by October 1, 1981. As events transpired many agencies failed to have such performance appraisal systems approved by OPM by said date. As a consequence, OPM issued interim regulations for the discharge of employees on performance-based charges under Chapter 43 of the Act. However, the Board held these regulations invalid in Wells v. Harris, 1 MSPB 199, 1 M.S.P.R. 208 (1979). The Board held further in that case that agencies could nevertheless maintain performance-based actions against employees under Chapter 75. A number of courts followed the Wells opinion in this regard and upheld the discharge of employees in such actions under Chapter 75 during the interim period before the agencies had an OPM-approved performance appraisal system in place. Some of" }, { "docid": "22968008", "title": "", "text": "cases. It also concluded that “unacceptable performance” was used interchangeably with “performance cases” in that Report and not as a word of art. Turning to the statute itself, the MSPB relied on the interpretative guide expressio unius est exclusio alterius and found it applicable to the relationship between Chapter 43 and Chapter 75. Since Chapter 75 did not apply to Chapter 43 actions and Chapter 43 provided specifically for removal and demotion for “unacceptable performance,” it must follow, per the board, that Chapter 75 could no longer be used for performance-based actions. The board found the chapters otherwise impossible to reconcile. From this analysis, the board reached the following conclusion: In sum, the Board holds that Congress intended agencies to utilize Chapter 43 as the exclusive procedure for performance-based actions effected after October 1, 1981. We further hold that, in light of this Congressional intent, § 7513 provides no authority for agencies to effect such actions after October 1, 1981. 23 M.S.P.R. at 614-15. To the extent that a different interpretation had been espoused in Wells, it was so modified. The board then went on to recognize exceptions to this basic rule. Where a removal was based on performance and nonperformance (i.e., misconduct) factors, Chapter 75 would apply. It reserved judgment on which section should be used where the board does not sustain the misconduct charge or where an employee alleges bad faith in the agency’s putting forth the misconduct charge in order to bring the action under Chapter 75. A second exception was recognized where agencies and employees do not fall within Chapter 43 as provided in § 4301(1) and (2). Such performance-based cases could only be brought under Chapter 75. It also identified two other possible exceptions: (1) cases charging insubordination even though involving an employee’s refusal to perform his duties, although such actions could be brought under Chapter 43 if the agency relies solely on failure to meet performance standards; and (2) cases where there would be a substantial likelihood that delay in removal for the purpose of allowing time for improvement would result in injury, death," }, { "docid": "22968027", "title": "", "text": "under 5 U.S.C. § 7703(c)(3), our review is under the substantial evidence standard, regardless of whether the action originates under Chapter 43 or Chapter 75. The agency presented abundant documentary and testimonial evidence indicating that petitioner’s work was deficient, including, inter alia, three written performance evaluations: a June 17, 1981 Performance Evaluation, an October 1, 1981 Performance Evaluation, and an August 25,1981 “Joint Investigation Report.” The latter evaluation is particularly significant as it was prepared jointly by a member of agency management and a member of petitioner’s union, in accordance with the union agreement. It concludes that petitioner’s work product was unsatisfactory, poorly organized and written, and difficult to understand. Though petitioner emphatically denies that his work was unsatisfactory, the evidence presented by the agency supporting such charge is overwhelming. In sum, the record clearly contains substantial evidence to support the charge, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). Petitioner also argues that certain evidence considered by the agency and the board should have been disregarded since it concerns work performance occurring prior to one year preceding his proposed removal. Petitioner also faults the agency for failing to introduce any evidence of “critical element” performance deficiencies. However, in accordance with our previous analysis, the agency action here was properly taken under Chapter 75, and the procedural prerequisites of a Chapter 43 action referenced by petitioner are, thus, inapplicable. Reprisal Petitioner also argues that his removal was instituted in reprisal for his reporting of security violations. As petitioner acknowledges, it is extremely difficult to prove a case of retaliation. The presiding official fully considered the supporting testimony of Mr. Richard S. Day, Security Specialist, petitioner’s only corroborating witness, but discounted such testimony based on Day’s admission on cross-examination that he was unhappy with management (and, thus, appeared likely to be biased in petitioner’s favor) and on the observation that Day’s testimony was at times “evasive and non-responsive.” Determinations of credibility are within the exclusive province" }, { "docid": "22968058", "title": "", "text": "issue that is involved here. I would hold that Chapter 43 is the exclusive procedure for agency performance-based actions against employees filed after October 1, 1981, and that Chapter 75 cannot be used in such cases. Also, I would vacate the decision below and grant the request of the Board and remand the case to it for reconsideration consistent with this opinion. . The Sections of the Act referred to herein are those found in Title 5, U.S.C. . We do not need to consider the exceptions discussed by the Board in Gende, as they are not involved in the case before us. Such exceptions will have to be decided on a case by case basis as they arise. . I do not reach the merits, because no decision thereon can be made until the issue of the proper application of Chapter 43 and Chapter 75 has been resolved. NEWMAN, Circuit Judge (with whom KASHIWA and BENNETT, Circuit Judges, and MILLER, Senior Circuit Judge, join), dissenting. I respectfully dissent from the court’s decision, and for the reason given I write separately. This decision turns solely on determination of the intent of Congress. Did Congress intend, when it stated: Actions based on unacceptable performance are governed by Chapter 43 ... to mean that actions based on unacceptable performance are governed by either Chapter 43 or Chapter 75, at the option of the agency? The Civil Service Reform Act of 1978 included implementing amendments to both Chapter 43 and Chapter 75: § 4303(a): Subject to the provisions of this section, an agency may reduce in grade or remove an employee for unacceptable performance. § 7512(D): [Chapter 75] does not apply to ... a reduction in grade or removal under [Chapter 43]. Ignoring this mandate, the court has concluded that clearer statutory language could have been used, and therefore that § 7512 must be ignored, and Chapter 75 remains inviolate. I cannot agree. The asserted lack of clarity in the statutory language has only appeared in retrospect. The straightforward intention of the 1978 Act was blighted by delays in implementation of the performance" }, { "docid": "22968005", "title": "", "text": "approved by this court, which also independently reviewed the legislative history and precedent of other courts in reaching this decision. Kochanny v. Bureau of Alcohol, Tobacco & Firearms, 694 F.2d 698 (Fed. Cir.1982). See also Turnage v. United States, 230 Ct.Cl. 799, 800 (1982) (Chapters 43 and 75 characterized as “two different mutually exclusive procedural routes for disciplining employees on the basis of unsatisfactory job performance.”) In Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), the MSPB had before it a demotion action effective January 11, 1984. The agency had relied on Chapter 75 in demoting the employee on charges of careless workmanship and failure to follow agency policy and the National Electric Code, which allegedly resulted in a $4,000 loss to the agency. Petitioner Gende argued that the demotion was improper in that the agency had failed to follow certain Chapter 43 procedures, particularly, the requirement under Chapter 43 that an employee must be afforded an opportunity to improve before taking action. The presiding official upheld the demotion on the basis of the Wells decision, which he understood to hold that an agency may elect to bring a performance-based action under either Chapter 75 or Chapter 43. Thus, the specific procedures required under Chapter 43 were irrelevant. The MSPB accepted a petition for review recognizing that the board and several courts had interpreted the statute as providing agencies with an option to pursue performance-based actions under either Chapter 43 or Chapter 75. In Gende, the MSPB concluded that the precedent of this court in Kochanny and Turnage could be limited to performance-based actions taken during the change-over period since the court had no need in those appeals to address the exclusive application of Chapter 43 procedures for performance-based actions effected after October 1, 1981. The MSPB then undertook to re-probe the congressional intent. While finding that “a review of the legislative history of the Reform Act [CSRA] indicates that Congress did not expressly state whether, in enacting Chapter 43, it was thereby prohibiting the use of Chapter 75 to effect performance-based actions,” this time, contrary to Wells, it" }, { "docid": "23624911", "title": "", "text": "on its own initiative. Ill Since the MSPB held in Douglas, 5 MSPB 313, 5 M.S.P.R. 280, that it could mitígate penalties imposed for misconduct in chapter 75 proceedings, the question arises as to whether the reasoning in that case should be extended to chapter 43 actions for unacceptable performance. We do not think so. It is important not to ignore the vital distinctions between the relevant chapters of title 5. In chapter 43 the basic issue to be decided is whether the employee has continued to perform unacceptably in a critical job element after being given an opportunity to improve. If he has failed, he can be demoted or removed by his agency. The action taken is remedial. The congressional purposes behind this straight-forward procedure have been discussed. Substantial evidence will support the agency action. Under chapter 75, on the other hand, the agency must prove by a “preponderance of the evidence” that the employee committed the misdeeds with which he is charged, that imposition of discipline will promote “the efficiency of the service,” and that the penalty selected is reasonable. Penalties here are of a punitive nature when imposed for misconduct. The difficulties of proof as required under chapter 75 are manifest and Congress was highly motivated to find another, better way to deal with unacceptable performance cases; hence chapter 43. Now we are confronted by this challenge as to what it intended, and with the suggestion that we should encumber the new chapter with old meanings not given to it by Congress. The conclusion in Douglas that the MSPB could mitigate penalties assessed under chapter 75 was based on considerations not anywhere present under chapter 43. Three principal factors explain that decision: (1) the fact that the board’s predecessor agency, the Civil Service Commission, had mitigated penalties in chapter 75 actions and that this authority was inherited by the board by virtue of Reorganization Plan No. 2 of 1978 at a time when chapter 43 did not exist; (2) the board’s conclusion that the continued exercise of such authority under the subsequent Reform Act was not inconsistent" }, { "docid": "22968057", "title": "", "text": "in performance-based cases. The MSPB has intervened in this case and urges us to uphold its decision in Gende and to hold that Chapter 43 is the exclusive procedure for performance-based actions filed after October 1, 1981. The Board also requests that the instant case be remanded to it for further consideration. The majority opinion acknowledges the fact that the Board has intervened and notes its requests, but fails to give them any favorable consideration. The MSPB is an important part of our government and has considerable expertise in this area. It is trying to conscientiously administer Chapters 75 and 43 as written and as intended by Congress and is to be commended for these efforts. This court should give deference to its opinion and its application of the statute and allow it to reconsider the instant case in light of its decision in Gende. This is especially true in view of the fact that there are a number of other cases pending before the Board that involve the same Chapter 43 and Chapter 75 issue that is involved here. I would hold that Chapter 43 is the exclusive procedure for agency performance-based actions against employees filed after October 1, 1981, and that Chapter 75 cannot be used in such cases. Also, I would vacate the decision below and grant the request of the Board and remand the case to it for reconsideration consistent with this opinion. . The Sections of the Act referred to herein are those found in Title 5, U.S.C. . We do not need to consider the exceptions discussed by the Board in Gende, as they are not involved in the case before us. Such exceptions will have to be decided on a case by case basis as they arise. . I do not reach the merits, because no decision thereon can be made until the issue of the proper application of Chapter 43 and Chapter 75 has been resolved. NEWMAN, Circuit Judge (with whom KASHIWA and BENNETT, Circuit Judges, and MILLER, Senior Circuit Judge, join), dissenting. I respectfully dissent from the court’s decision, and for" }, { "docid": "22968004", "title": "", "text": "system provided for in Chapter 43, then it may be processed as a Chapter 75 action. $ * ¡j< j}t 8{C >¡t Whichever action an agency chooses to pursue, it will have to comply with the procedural requirements of that Chapter. If an agency sees some advantage in pursuing performance-based action under Chapter 75, it is not inconsistent with the Act so long as the agency meets the higher burden of proof — and the more difficult standard of demonstrating that the action will promote “efficiency of the service.” There is not the slightest evidence in the legislative history to suggest that Chapter 43 was ever to be a refuge for employees to escape Chapter 75. Chapter 43 originated as a relief measure for agencies and it was enacted for that purpose. Id. at 235-36, 1 M.S.P.R. at 248-250. Thus, after Wells, deficiencies in performance continued to afford a basis for establishing “such cause as will promote the efficiency of the service.” The continued use of Chapter 75 for removals for performance-based reasons was specifically approved by this court, which also independently reviewed the legislative history and precedent of other courts in reaching this decision. Kochanny v. Bureau of Alcohol, Tobacco & Firearms, 694 F.2d 698 (Fed. Cir.1982). See also Turnage v. United States, 230 Ct.Cl. 799, 800 (1982) (Chapters 43 and 75 characterized as “two different mutually exclusive procedural routes for disciplining employees on the basis of unsatisfactory job performance.”) In Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), the MSPB had before it a demotion action effective January 11, 1984. The agency had relied on Chapter 75 in demoting the employee on charges of careless workmanship and failure to follow agency policy and the National Electric Code, which allegedly resulted in a $4,000 loss to the agency. Petitioner Gende argued that the demotion was improper in that the agency had failed to follow certain Chapter 43 procedures, particularly, the requirement under Chapter 43 that an employee must be afforded an opportunity to improve before taking action. The presiding official upheld the demotion on the basis of the" }, { "docid": "22968051", "title": "", "text": "standard of demonstrating that the action will promote “efficiency of the service.” The following cases are in accord: Kochanny, 694 F.2d at 701, Hatcher, 705 F.2d at 1312; Debose, 700 F.2d at 1266; Darby, 692 F.2d at 196; Drew, 672 F.2d at 201. In Turnage, the Court of Claims, at page 800, stated: For present purposes, it is sufficient to state that the act established two different, mutually exclusive procedural routes for disciplining employees on the basis of unsatisfactory job performance. 5 U.S.C. § 752(d) (Supp. IV 1980) ----Chapter 43 gives employees slightly more procedural protections, 5 U.S.C. § 4303, than does Chapter 75, 5 U.S.C. § 7513, but Chapter 43 actions are reviewed by the Board on a “substantial evidence” standard, while Chapter 75 actions must be supported by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1). As a result, Chapter 43 removals are more easily sustained, as Congress intended. The basis for the decisions in the above cases was the holding of the Board in the Wells case that an agency could proceed under either Chapter 75 or Chapter 43 in a performance-based action to remove an employee. However, on October 22, 1984, the Board in a well-reasoned and comprehensive opinion held in Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), that after October 1, 1981, the exclusive procedure for bringing performance-based actions for the removal of an employee was Chapter 43 (§ 4303) and that after that date such an action could not be brought under Chapter 75 (§ 7513), subject to certain exceptions. I agree with this decision of the Board for reasons that follow. The cases discussed above are not applicable to the case before us for at least three reasons. In the first place, the charges filed in those cases were agency actions initiated or begun before October 1, 1981, the required OPM approval date for agency performance appraisal systems, whereas, in Gende and in our case the actions were begun after October 1,1981. In the second place, those cases followed the decision of the Board in Wells and, for all practical" }, { "docid": "22968060", "title": "", "text": "standards required by Chapter 43, and by the appearance of loopholes, uncertainties, and gaps between the scopes of Chapters 43 and 75. The MSPB undertook to solve these problems, first by Wells v. Harris, 1 MSPB 199, 1 M.S.P.R. 208 (1979), which delayed the switch from Chapter 75 to Chapter 43 procedures until performance standards were in place, and then by Gende v. Department of Justice, 23 M.S. P.R. 604 (1984). I agree with the analysis and conclusion of Judge Skelton’s dissenting opinion, that this case must be remanded because Chapter 43 is the exclusive procedure for performance-based actions. That analysis is logical, it is simple, and it comports with the text of the Act and with the legislative history, which states: [N]o employee will be disciplined when performance standards and critical elements have not been adequately defined by an agency. H.R.Rep. No. 1403, 95th Cong., 2d Sess. 21 (1978). In this I agree also with the analysis in Gende of the purposes and interpretation of the 1978 Act. I write separately to emphasize my concern about the prospective “interstitial legislation” — to quote from the MSPB’s brief in this appeal — that is set forth in Gende. That portion of Gende relates to issues not before the MSPB or this court, is of the nature of dicta, and presents issues that are not ripe for adjudication. Changes in law and practice contrary to clear congressional intent, even when necessary to remedy perceived problems in the statutory scheme, require the attention of Congress and not that of the executive branch or the judiciary. . S.Rep. No. 969, 95th Cong., 2d Sess. 46, reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2768." }, { "docid": "23624893", "title": "", "text": "agreed. We do not disturb that finding. Petitioner had the right under sections 1205 and 7701 of title 5 to appeal the agency action. On review, as an integral part of the appeal process, did MSPB have the right to mitigate the penalty imposed by the agency for the established unacceptable performance? In deciding this issue, it is not necessary to determine what standards would be applicable if the board had mitigation authority or whether, if it did have such authority, it could modify a removal in the manner petitioner seeks or mitigate by substituting a suspension or some other sanction. Finally, it is unnecessary to address any issues concerning whether petitioner should have been removed under title 5, chapter 75, for performance-based reasons because the provisions of that chapter were not invoked in this case. See Lovshin v. Department of the Navy, 767 F.2d 826 (Fed.Cir.1985) (in banc). The issue before the board on mitigation authority was not a simple one and it invited, by notice in the Federal Register, the filing of amici curiae briefs. Seventeen such briefs were filed by government agencies and departments and three unions of government employees. They also addressed other issues with which we are not concerned. The briefs of the Office of Personnel Management and most federal agencies contended that the board had no authority to mitigate penalties imposed pursuant to chapter 43, 5 U.S.C. § 4303, because to do so would frustrate congressional intent in the enactment of the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 1111 (1978) (codified in scattered sections of 5 U.S.C.). Further, it was argued that the board’s opinion in Douglas, wherein it held that it had the authority to mitigate penalties imposed by agencies in chapter 75 actions for misconduct, does not extend to chapter 43 actions for performance appraisal. The three unions and two agencies contended just the opposite. With all of this help and after its own study of the matter, the board concluded, as noted, that its authority did not extend to mitigation under chapter 43. The MSPB’s concern with the" }, { "docid": "22968006", "title": "", "text": "Wells decision, which he understood to hold that an agency may elect to bring a performance-based action under either Chapter 75 or Chapter 43. Thus, the specific procedures required under Chapter 43 were irrelevant. The MSPB accepted a petition for review recognizing that the board and several courts had interpreted the statute as providing agencies with an option to pursue performance-based actions under either Chapter 43 or Chapter 75. In Gende, the MSPB concluded that the precedent of this court in Kochanny and Turnage could be limited to performance-based actions taken during the change-over period since the court had no need in those appeals to address the exclusive application of Chapter 43 procedures for performance-based actions effected after October 1, 1981. The MSPB then undertook to re-probe the congressional intent. While finding that “a review of the legislative history of the Reform Act [CSRA] indicates that Congress did not expressly state whether, in enacting Chapter 43, it was thereby prohibiting the use of Chapter 75 to effect performance-based actions,” this time, contrary to Wells, it saw “persuasive indications” that Chapter 43 was intended to be the exclusive means to effect performance-based removals and demotions. Briefly, the indications relied on were references in the Senate Report to: 1. The aim of simplifying and expediting procedures. 2. Defects in old evaluation procedures. 3. Inordinate procedural requirements and unreasonable standards under Chapter 75. 4. Use of the revised performance appraisal system “as a basis for developing, rewarding, reassigning, demoting, promoting, retaining [in RIF], and removing employees.” 5. Establishment of new procedures for actions based on unacceptable performance. The MSPB perceived Congress’s concern for employees to be protected from actions on “ad hoc” performance standards developed at the unreviewed discretion of agencies. It believed removal on the basis of such standards would be inconsistent with Congressional intent. The MSPB also saw the Conference Report’s discussion of the lesser burden of proof in “performance cases” vis-a-vis “misconduct cases” as an indication that this lesser burden should apply in all performance-based cases, which meant that all such cases would have to be treated as Chapter 43" }, { "docid": "23624910", "title": "", "text": "position no lower than the one he left to accept the higher position for which he failed to qualify. See 5 U.S.C. § 3321(b). See also 5 U.S.C. § 4303(f)(1); 5 C.F.R. § 315.907. The other situation arises under chapter 35 where it is provided that a career appointee in the Senior Executive Service (SES) who likewise fails to demonstrate fully successful executive performance is entitled to be placed in a position of equivalent tenure to the position occupied before appointment to the SES position. See 5 U.S.C. § 3594; 5 C.F.R. §§ 359.701, 359.702. Since these are the only statutory limitations on agency authority to remove an employee, it is reasonable to assume that they were the only mitigation steps that Congress intended for unacceptable performance. We assume, without deciding, that the board could monitor enforcement of these statutory guarantees but this is really not mitigation according to its own discretion and is mentioned only to illustrate the care with which Congress refrained from extending to the board any mitigation authority to be exercised on its own initiative. Ill Since the MSPB held in Douglas, 5 MSPB 313, 5 M.S.P.R. 280, that it could mitígate penalties imposed for misconduct in chapter 75 proceedings, the question arises as to whether the reasoning in that case should be extended to chapter 43 actions for unacceptable performance. We do not think so. It is important not to ignore the vital distinctions between the relevant chapters of title 5. In chapter 43 the basic issue to be decided is whether the employee has continued to perform unacceptably in a critical job element after being given an opportunity to improve. If he has failed, he can be demoted or removed by his agency. The action taken is remedial. The congressional purposes behind this straight-forward procedure have been discussed. Substantial evidence will support the agency action. Under chapter 75, on the other hand, the agency must prove by a “preponderance of the evidence” that the employee committed the misdeeds with which he is charged, that imposition of discipline will promote “the efficiency of the service,”" }, { "docid": "23624908", "title": "", "text": "board stated in its opinion in this case: “Adoption of the substantial evidence standard and the elimination of the efficiency of the service requirement for Chapter 43 actions comprise the cornerstone of this new statutory scheme.” 23 M.S.P.R. at 641. This conclusion is fully supported by the legislative history and the well-considered board opinion. We cannot agree with petitioner that these are minor differences or that a change in the burden of proof is the only difference from chapter 75. To so hold would gloss the new chapter with mitigation authority long exercised under chapter 75. Congress knew what to say if such was its desire. But, it did not so speak. Enactment of the two quoted basic changes gives a clear indication of congressional intent to restrict the board’s authority in reviewing chapter 43 actions. Mitigation would add a third and more intrusive review of agency action by the board. We decline to judicially legislate in this matter. The opening clause of section 4303(a) states: “Subject to the provisions of this section, an agency may reduce in grade or remove an employee for unacceptable performance.” See Appendix. Surely, this suggests intent that additional procedural standards not identified, such as by judicial interpretation or by regulation or imposed by prior law, are not meant to be imposed on the agencies in section 4303 actions. Wells v. Harris, 1 MSPB 199, 1 M.S.P.R. 208, 225 n. 35 (1979). Chapter 43 has procedural and substantive safeguards to protect employees from unfair or illegal treatment and they have been mentioned earlier. Congress did not include board authority to mitigate a penalty chosen by the agency, which is supported by substantial evidence and imposed according to its published regulatory procedures without harmful error. Congress did identify two situations where an agency’s authority to discipline an employee is limited to a demotion or reassignment. Both are outside chapter 43. One is in chapter 33, under which an employee who does not satisfactorily complete the probationary period for a supervisory or managerial position in which he has been placed, is entitled to be assigned to a" }, { "docid": "22968009", "title": "", "text": "Wells, it was so modified. The board then went on to recognize exceptions to this basic rule. Where a removal was based on performance and nonperformance (i.e., misconduct) factors, Chapter 75 would apply. It reserved judgment on which section should be used where the board does not sustain the misconduct charge or where an employee alleges bad faith in the agency’s putting forth the misconduct charge in order to bring the action under Chapter 75. A second exception was recognized where agencies and employees do not fall within Chapter 43 as provided in § 4301(1) and (2). Such performance-based cases could only be brought under Chapter 75. It also identified two other possible exceptions: (1) cases charging insubordination even though involving an employee’s refusal to perform his duties, although such actions could be brought under Chapter 43 if the agency relies solely on failure to meet performance standards; and (2) cases where there would be a substantial likelihood that delay in removal for the purpose of allowing time for improvement would result in injury, death, breach of security, or great monetary loss. The MSPB then formulated standards for determining what actions are solely based on failure of performance. Since these “standards” will be referred to in our analysis, we quote them in their entirety (23 M.S.P.R. at 616-17): [T]he Board will presume that a performance-based Chapter 75 action effected after October 1, 1981, is void ab initio unless the agency shows, by preponderant evidence, that: (1) the action is based solely on misconduct rather than performance or, as noted above, on both; or (2) the action is excluded or excepted from the rule, as described in Part II; or (3) that the action should otherwise be excepted from the rule based on public policy or other considerations. In determining whether Chapter 75 actions are based on performance or misconduct, the Board will utilize two standards. First, the Board will presume, subject to agency rebuttal by preponderance evidence, that charges which directly relate to an appellant’s critical or noncritical elements18 or performance standards are performance-based, irrespective of whether the agency is" }, { "docid": "22968007", "title": "", "text": "saw “persuasive indications” that Chapter 43 was intended to be the exclusive means to effect performance-based removals and demotions. Briefly, the indications relied on were references in the Senate Report to: 1. The aim of simplifying and expediting procedures. 2. Defects in old evaluation procedures. 3. Inordinate procedural requirements and unreasonable standards under Chapter 75. 4. Use of the revised performance appraisal system “as a basis for developing, rewarding, reassigning, demoting, promoting, retaining [in RIF], and removing employees.” 5. Establishment of new procedures for actions based on unacceptable performance. The MSPB perceived Congress’s concern for employees to be protected from actions on “ad hoc” performance standards developed at the unreviewed discretion of agencies. It believed removal on the basis of such standards would be inconsistent with Congressional intent. The MSPB also saw the Conference Report’s discussion of the lesser burden of proof in “performance cases” vis-a-vis “misconduct cases” as an indication that this lesser burden should apply in all performance-based cases, which meant that all such cases would have to be treated as Chapter 43 cases. It also concluded that “unacceptable performance” was used interchangeably with “performance cases” in that Report and not as a word of art. Turning to the statute itself, the MSPB relied on the interpretative guide expressio unius est exclusio alterius and found it applicable to the relationship between Chapter 43 and Chapter 75. Since Chapter 75 did not apply to Chapter 43 actions and Chapter 43 provided specifically for removal and demotion for “unacceptable performance,” it must follow, per the board, that Chapter 75 could no longer be used for performance-based actions. The board found the chapters otherwise impossible to reconcile. From this analysis, the board reached the following conclusion: In sum, the Board holds that Congress intended agencies to utilize Chapter 43 as the exclusive procedure for performance-based actions effected after October 1, 1981. We further hold that, in light of this Congressional intent, § 7513 provides no authority for agencies to effect such actions after October 1, 1981. 23 M.S.P.R. at 614-15. To the extent that a different interpretation had been espoused in" }, { "docid": "22968012", "title": "", "text": "available under Chapter 75 and are not included in § 4303 since § 4303 actions must be based on a failure to meet critical elements. 5 U.S.C. § 4303(b)(l)(A)(ii). In such cases, however, if the agency were to reassign the employee, any such reassignment would not be appealable to the Board under Chapter 43. See 5 U.S.C. §§ 4302(a)(3), (b)(6); 4303(e). Finally, the MSPB announced that its “new rule of law” would be given a partially prospective application. With respect to pending cases or actions taken within 30 days of its Gende decision, the MSPB proposed to allow the agency to elect to have the action reconsidered as a Chapter 43 action, in which event certain new evidence and arguments would be received. The agency would also be permitted to show that the action was not performance-based (e.g., that the poor performance was willful) or that it fell within one of the exceptions which the MSPB recognized. In its role as intervenor, the MSPB urges us to uphold Gende and to affirm that Chapter 43 is “the exclusive procedure for performance-based actions after October 1, 1981.” 23 M.S.P.R. at 614. IV. We are faced here with the question, as framed by the MSPB and petitioner: Does Chapter 43 provide the exclusive procedures for performance-based actions by an agency? V. Interrelationship of Chapters 23, 43, 75, and 77 We begin with acknowledgement that deference is appropriately given to the MSPB's interpretation of the CSRA. Congress has vested the MSPB with substantial responsibility for enforcing the Act. Moreover, it has rendered a thorough and perceptive opinion in Gende. However, there can also be no question that Gende modifies Wells and departs from the analysis of Tumage and Kochanny, precedent of this court to which it must defer. Moreover, Wells generated a number of board decisions which the MSPB acknowledges were inconsistent. Because of these factors, particularly the MSPB’s own change in its perception of the statute, deference is not due to the extent it would ordinarily be given had the MSPB maintained a consistent position over the years. F.E.C. v. Democratic Senatorial" }, { "docid": "22968059", "title": "", "text": "the reason given I write separately. This decision turns solely on determination of the intent of Congress. Did Congress intend, when it stated: Actions based on unacceptable performance are governed by Chapter 43 ... to mean that actions based on unacceptable performance are governed by either Chapter 43 or Chapter 75, at the option of the agency? The Civil Service Reform Act of 1978 included implementing amendments to both Chapter 43 and Chapter 75: § 4303(a): Subject to the provisions of this section, an agency may reduce in grade or remove an employee for unacceptable performance. § 7512(D): [Chapter 75] does not apply to ... a reduction in grade or removal under [Chapter 43]. Ignoring this mandate, the court has concluded that clearer statutory language could have been used, and therefore that § 7512 must be ignored, and Chapter 75 remains inviolate. I cannot agree. The asserted lack of clarity in the statutory language has only appeared in retrospect. The straightforward intention of the 1978 Act was blighted by delays in implementation of the performance standards required by Chapter 43, and by the appearance of loopholes, uncertainties, and gaps between the scopes of Chapters 43 and 75. The MSPB undertook to solve these problems, first by Wells v. Harris, 1 MSPB 199, 1 M.S.P.R. 208 (1979), which delayed the switch from Chapter 75 to Chapter 43 procedures until performance standards were in place, and then by Gende v. Department of Justice, 23 M.S. P.R. 604 (1984). I agree with the analysis and conclusion of Judge Skelton’s dissenting opinion, that this case must be remanded because Chapter 43 is the exclusive procedure for performance-based actions. That analysis is logical, it is simple, and it comports with the text of the Act and with the legislative history, which states: [N]o employee will be disciplined when performance standards and critical elements have not been adequately defined by an agency. H.R.Rep. No. 1403, 95th Cong., 2d Sess. 21 (1978). In this I agree also with the analysis in Gende of the purposes and interpretation of the 1978 Act. I write separately to emphasize my" }, { "docid": "22968052", "title": "", "text": "proceed under either Chapter 75 or Chapter 43 in a performance-based action to remove an employee. However, on October 22, 1984, the Board in a well-reasoned and comprehensive opinion held in Gende v. Department of Justice, 23 M.S.P.R. 604 (1984), that after October 1, 1981, the exclusive procedure for bringing performance-based actions for the removal of an employee was Chapter 43 (§ 4303) and that after that date such an action could not be brought under Chapter 75 (§ 7513), subject to certain exceptions. I agree with this decision of the Board for reasons that follow. The cases discussed above are not applicable to the case before us for at least three reasons. In the first place, the charges filed in those cases were agency actions initiated or begun before October 1, 1981, the required OPM approval date for agency performance appraisal systems, whereas, in Gende and in our case the actions were begun after October 1,1981. In the second place, those cases followed the decision of the Board in Wells and, for all practical purposes, were limited to performance-based actions filed during the interim period before October 1, 1981. Finally, the Board modified Wells and held for the first time in Gende that such actions filed after October 1, 1981, must be filed under Chapter 43 and could not be filed under Chapter 75 unless they involved one of the exceptions mentioned by the Board in that case. This in banc court should hold that Kochanny, Turnage and similar cases cited above are no longer applicable to performance-based actions against employees filed after October 1, 1981. A study of the legislative history of the Act clearly indicates that Congress intended that performance-based removal and demotion actions be effected exclusively under Chapter 43 procedures. One of the main purposes of the Act was to simplify and expedite procedures against employees whose work and performance was substandard. See S.Rep. No. 95-969, 95th Cong., 2d Sess. 2 (1978), reprinted in House Comm, on Post Office and Civil Service, 96th Cong. 1st Sess., Legislative History of the Civil Service Reform Act of 1978," }, { "docid": "22968003", "title": "", "text": "system, were held invalid and ac tions by agencies pursuant thereto could not be sustained under Chapter 43. Wells also held, however, that removals and demotions for performance-based reasons could continue, as before, under Chapter 75. After a review of the “sparse” legislative history, the MSPB rejected the argument that Congress intended that Chapter 75 no longer apply to performance-based actions at all. Rather, statements in the history merely indicated to the Wells board members that Chapter 75 did not apply to “unacceptable performance” removals, using the term as a word of art. Specifically, the MSPB stated: Reading these two sections [from Chapters 43 and 75] together, it is apparent that as used in both sections the term “unacceptable performance” is the term of art which is defined at § 4301. It is not a general term covering all types of poor performance. As we have ruled, if the process of Chapter 43 is not followed, “unacceptable performance” cannot be demonstrated. However if a determination of inadequate performance is not made under a performance appraisal system provided for in Chapter 43, then it may be processed as a Chapter 75 action. $ * ¡j< j}t 8{C >¡t Whichever action an agency chooses to pursue, it will have to comply with the procedural requirements of that Chapter. If an agency sees some advantage in pursuing performance-based action under Chapter 75, it is not inconsistent with the Act so long as the agency meets the higher burden of proof — and the more difficult standard of demonstrating that the action will promote “efficiency of the service.” There is not the slightest evidence in the legislative history to suggest that Chapter 43 was ever to be a refuge for employees to escape Chapter 75. Chapter 43 originated as a relief measure for agencies and it was enacted for that purpose. Id. at 235-36, 1 M.S.P.R. at 248-250. Thus, after Wells, deficiencies in performance continued to afford a basis for establishing “such cause as will promote the efficiency of the service.” The continued use of Chapter 75 for removals for performance-based reasons was specifically" } ]

[ { "docid": "3128104", "title": "", "text": "McGuinness, 744 F.2d at 1821 (citations omitted). The Seventh Circuit concluded that either an individual should not be permitted to sue a federal agency under section 504, or alternatively that an individual asserting a claim based upon section 504 must first exhaust Title VII remedies. Id. at 1321-22. We note that although our sister circuits have not been entirely consistent in the manner in which they have reached the ultimate result, the Seventh Circuit’s resolution of the exhaustion issue in McGuinness is consistent with other courts of appeals that have faced the question of whether a plaintiff must exhaust Title VII remedies before bringing suit under section 504. One court of appeals has explicitly ruled that an individual may sue a federal agency or the Postal Service only under sections 501 and 505(a)(1). See Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985). Other courts of appeals have found that if a litigant sues a federal agency under sections 504 and 505(a)(2), he or she must satisfy Title VII remedies so as not to evade the remedial scheme developed by Congress in the Rehabilitation Act. Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir.1981); Smith v. United States Postal Service, 742 F.2d 257 (6th Cir.1984); Morgan v. United States Postal Service, 798 F.2d 1162, 1164-65 (8th Cir.1986); Doe v. Garrett, 903 F.2d 1455 (11th Cir.1990). Finally, in Milbert v. Koop, 830 F.2d 354 (D.C.Cir.1987), the District of Columbia Circuit determined that it need not decide whether suits by individuals under sections 504 and 505(a)(2) are barred, but noted that courts that had allowed suits under those provisions had required exhaustion of Title VII remedies prior to suit, and strongly suggested plaintiffs suing federal agencies for handicap discrimination in the future “seek relief under section 501 rather than under section 504.” Id. at 357. After examination of this case law, and adopting Judge Posner’s analysis in McGuinness, we conclude that a plaintiff must exhaust Title VII remedies before bringing suit under sections 504 and 505(a)(2) of the Rehabilitation Act, just as he or she must before" } ]

[ { "docid": "15133866", "title": "", "text": "on the merits of Petrosky’s claims. A. Gender Claims In her first, fourth and fifth causes of action, Petrosky alleges that she was the victim of sexual harassment in violation of Title VII, the Equal Protection Clause of the Fourteenth Amendment and the HRL respectively. It is now beyond peradventure that sexual harassment is a form of prohibited gender discrimination. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 act. 998, 1002-03, 140 L.Ed.2d 201 (1998); Meritor Sav. Bank, FSB. v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Galdien-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998). Sexual harassment itself may take two forms: quid pro quo harassment and harassment based on a hostile work environment. Burlington Indus., Inc. v. El-lerth, 524 U.S. 742, 118 S.Ct. 2257, 2264-65, 141 L.Ed.2d 633 (1998); Meritor, 477 U.S. at 64-65, 106 S.Ct. 2399; Distasio, 157 F.3d at 61. Petrosky asserts hostile work environment as the basis for her statutory claims. For purposes of defendants’ motion here, the legal standard which governs claims of sexual harassment based on a hostile work environment under Title VII also governs such claims asserted under both the Equal Protection Clause, see Wise v. New York City Police Dep’t, 928 F.Supp. 355, 367 (S.D.N.Y.1996) (citing cases); Reynolds v. Atlantic City Convention Ctr. Auth., No. 88-Civ.A.-4232, 1990 WL 267417, at *16 (D.N.J. May 26, 1990), aff'd, 925 F.2d 419 (3d Cir.1991); Shinault v. City of Chicago, No. 84-C-2009, 1987 WL 16902, at *2 (N.D.Ill. Sept. 8, 1987); and the HRL, see Pace v. Ogden Servs. Corp., 257 A.D.2d 101, 692 N.Y.S.2d 220, 223 n. 1 (3d Dep’t 1999). As discussed above in Part III, the statutes of limitations applicable to these three causes of actions differ. Thus, under the Title VII claim, only those acts occurring on or after May 23, 1994 may be considered while under the Equal Protection Clause and HRL claims, those acts occurring on or after Jun 5, 1993 may be considered. As noted above, Petrosky has offered a plethora of evidence supporting her gender discrimination" }, { "docid": "3699290", "title": "", "text": "United States Postal Service.” de la Torres v. Bolger, 781 F.2d 1134, 1135 (5th Cir.1986) citing 29 U.S.C. § 791(b). Section 504 of the Act prohibits discrimination against any “ ‘otherwise qualified handicapped individual... as defined in section 706(7)..., solely by reason of his handicap...’” Id., citing 29 U.S.C. sec. 794. As originally drafted, the Rehabilitation Act did not specifically contain authority permitting suits against federal agencies for violations of its provisions. Prewitt v. United States Postal Service, 662 F.2d 292, 302 (5th Cir.1981) In 1978 the Act was amended to provide a cause of action for handicapped individuals against the federal government and its agencies under both sections 501 and 504. Prewitt, 662 F.2d at 301-04; Spence v. Straw, 54 F.3d 196, 199 (3rd Cir.1995). Federal agencies, including the Postal Service, may be sued under either provision of the Act. Bolger, 781 F.2d at 1135 n. 1; Spence, 54 F.3d at 199-200. The 1978 amendments provided that suits under § 501 should be patterned after Title VII of the Civil Rights Act of 1964, whereas claims under § 504 should be patterned upon Title VI of the Civil Rights Act of 1964. Bolger, 781 F.2d at 1135 citing 29 U.S.C. § -794a(a)(l) & (2). While the 1978 amendments to the Act establish that the Postal Service may be sued for handicap discrimination under § 501 or § 504, the extent to which the elements proof under each section coincide is not so clear. It is settled that under § 504, a plaintiff must establish the following elements to prove his prima facie case: (l)that he is an individual with a handicap; (2) that he was otherwise qualified to perform the position in question; (3) that he worked for the United States Postal Service; and (4) that he was adversely treated solely because of his handicap. 29 U.S.C. § 794; Magee v. United States Postal Service, 903 F.Supp. 1022, 1026 (W.D.La.1995) see also Chandler v. City of Dallas, 2 F.3d 1385, 1389-90 (5th Cir.1993)(a § 504 claim against a recipient of federal funds) In contrast, under § 501, the elements" }, { "docid": "19811065", "title": "", "text": "regulations were promulgated thereunder in 1969. 5 C.F.R. § 713.401. In 1970, Congress enacted legislation establishing the Postal Service as an independent entity and transferring to it the responsibilities of its predecessor, the Post Office Department. 39 U.S.C. § 101 et seq. As a part of such legislation, the antidiscrimination statute quoted above was expressly made applicable to the Postal Service with the qualification that “no regulation issued [thereunder] shall apply to the Postal Service unless expressly made applicable.” Id. § 410(b)(1). The regulations were never amended to make them applicable to the Postal Service. The Postal Service contends that the regulations are thus not binding on it and that section 7153 provides no basis for relief to plaintiff because no private right of action is provided thereunder. Plaintiff, on the other hand, baldly asserts that the statute creates a right of action “whereby [he] may seek to have his employment reinstated.” Neither party has provided the court any authority as to whether or not a private right of action exists under section 7153. Due to the lack of assistance provided by plaintiff’s counsel, the court has been compelled to research not only the jurisdictional issue, but also the question of availability of a private right of action for handicap discrimination by the Postal Service. One federal district court has granted relief for handicap discrimination on the basis of 5 C.F.R. § 713.401, promulgated under 5 U.S.C. § 7153. Smith v. Fletcher, 393 F.Supp. 1366 (S.D.Tex.1975). On appeal, the Fifth Circuit affirmed the relief granted by the district court on the basis of the trial court’s finding of sex discrimination. Smith v. Fletcher, 559 F.2d 1014 (5th Cir. 1977). The appellate court declined to rule on the existence of a private right of action under section 7153. Id. at 1018 & n.9. The district court’s decision did not recognize a private right of action under section 7153 apart from the right of judicial review of agency action under 5 U.S.C. § 702. 393 F.Supp. at 1369. In addition, the trial court implicitly recognized exhaustion of administrative remedies as a prerequisite" }, { "docid": "8996339", "title": "", "text": "fit to resolve by strengthening section 501. The joint House-Senate conference committee could have chosen to eliminate the partial overlap between the two provisions, but instead the conference committee, and subsequently Congress as a whole, chose to pass both provisions, despite the overlap. ‘When there are two acts upon the same subject, the rule is to give effect to both if possible.' United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939). By this same principle, in order to give effect to both the House and the Senate 1978 amendments finally enacted, we must read the exhaustion of administrative remedies requirement of section 501 into the private remedy recognized by both section 501 and section 504 for federal government handicap discrimination. Prewitt, 662 F.2d at 304 (emphasis in original). Since 1978, the right of a federal governmental employee to sue his employing agency under the Rehabilitation Act has been unquestioned. See, e.g., Morgan v. United States Postal Service, 798 F.2d 1162 (8th Cir.1986); Boyd v. United States Postal Service, 752 F.2d 410 (9th Cir.1985); Shirey v. Devine, 670 F.2d 1188 (D.C.Cir.1982). But there exists a split among the courts as to whether such a suit may be brought under section 504 as well as under section 501. Compare Morgan v. United States Postal Service, 798 F.2d 1162, 1165 (8th Cir.1986) and cases stated thereat; Smith v. United States Postal Service, 742 F.2d 257, 259-60 (6th Cir.1984); Prewitt v. United States Postal Service, 662 F.2d 292, 304 (5th Cir.1981), answering the question in the affirmative, with Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985); McGuinness v. United States Postal Service, 744 F.2d 1318, 1321 (7th Cir.1984), indicating a negative response to that question. However, those courts which have taken the approach that a private cause of action exists under either section 501 or section 504 or both, have read into section 504 the requ:. ment of exhaustion of administrative remedies in the manner prescribed by section 505(a)(1) and thus by Title VII. The court below seemingly did not decide the" }, { "docid": "21212131", "title": "", "text": "the victim’s employment and create an abusive working environment that violates Title VII.’ ” Walker v. Thompson, 214 F.3d 615, 626 (5th Cir.2000) (quoting Wallace, 80 F.3d at 1049 n. 9); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Felton, 315 F.3d at 485; Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997). “Hostile work environment” racial harassment occurs when an employer’s conduct “ ‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive environment.’ ” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting 29 C.F.R. § 1604.11(a)). To survive summary judgment on a hostile work environment claim based on race, the non-movant must create a fact issue as to each of the following elements: “(1) racially discriminatory intimidation, ridicule and insults that are; (2) sufficiently severe or pervasive that they; (3) alter the conditions of employment; and (4) create an abusive working environment.” Walker, 214 F.3d at 625 (citing DeAngelis, 51 F.3d at 594); accord Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir.2005); Felton, 315 F.3d at 485. Whether a work environment meets these criteria depends upon the totality of the circumstances. See Harris, 510 U.S. at 23, 114 S.Ct. 367; Harvill, 433 F.3d at 434; Hockman, 407 F.3d at 325; Septimus, 399 F.3d at 611; Walker, 214 F.3d at 625; DeAngelis, 51 F.3d at 594. To be actionable, the challenged conduct must be sufficiently severe or pervasive as to create an environment that a reasonable person would find hostile or abusive considering all the circumstances. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Septimus, 399 F.3d at 611; Felton, 315 F.3d at 485; Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002); Allen v. Michigan Dep’t of Corr., 165 F.3d 405, 410 (6th Cir.1999); Wright-Simmons v. City of Oklahoma City," }, { "docid": "23018628", "title": "", "text": "Co. v. Satty, 434 U.S. 136, 145, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), was superseded by the 1978 amendments to the Civil Rights Act of 1964. See Pub.L. No. 95-555, 92 Stat. 2076 (1979) (codified as amended at 42 U.S.C. § 2000e(k)); Somers v. Aldine Indep. Sch. Dist., 464 F.Supp. 900, 902-03 (S.D.Tex.1979). .According to Mota’s doctors and his own testimony, Mota experienced an array of psychological and minor medical problems in the wake of the incidents involving Caffesse. . A jury also could have concluded that the University intended to create immigration difficulties for Mota, as his visa was set to expire on July 14, 1998. Given the impending expiration of Mota’s visa, a jury could have inferred that the University’s denial of additional leave was motivated by retaliatory animus. . The University does not contest the proposition that Title VII prohibits same-sex harassment. The Supreme Court conclusively resolved this issue in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). . Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir.2001). . See DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir.1995). . Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996). . Walker v. Thompson, 214 F.3d 615, 626 (5th Cir.2000). . Tangible detriment to an employee's work performance is only one factor to be considered in a hostile work environment claim. See Hands v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). . Title VII does not govern aliens employed outside the United States. See 42 U.S.C. §§ 2000e(Q (2001) (“With respect to employment in a foreign country, such term [employee] includes an individual who is a citizen of the United States.’’); 2000e-l(a) (\"This sub-chapter shall not apply to an employer with respect to the employment of aliens outside any Slate....’’); Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973); Iwata v. Stryker Corp., 59 F.Supp.2d 600, 603 (N.D.Tex.1999). The University implicitly concedes that Title VII protections" }, { "docid": "17212865", "title": "", "text": "a rebuttál on March 28, 2012, in which he contested LSU’s version of the events articulated in its reprimand, and generally denied responsibility for putting the student-athlete at risk. (Doc. 59-10 at p. 119). However, Minnis was not terminated as a result of the incident. (Doc. 59-2). Indeed, there is no indication that the reprimand served any purpose other than to put Minnis on notice of LSU’s concern and the possibility of liability arising from such an incident. Importantly, Title VII does not set forth “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Its focus is on tangible, adverse employment actions. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761-62, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). As a result, actionable adverse employment actions are generally limited to “action[s] [that] constitute! ] a significant change in employment status.” Id. at 761, 118 S.Ct. 2257. Moreover, the United States Court of Appeals for the Fifth Circuit has adopted a “strict interpretation of the adverse employment element.” Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir.2004). Thus, “where pay, benefits, and level of responsibility remain the same,” employment actions are typically not considered adverse. Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir.1999); see also Thompson v. City of Waco, 764 F.3d 500, 504 (5th Cir.2014) (citations omitted) (mere “loss of some responsibilities” does not amount to an adverse employment action). See, e.g., Harrington v. Harris, 118 F.3d 359, 366 (5th Cir.1997) (concluding that criticism alone is insufficient to constitute an actionable employment action). Here, Minnis has failed to present any evidence that he experienced a change in employment status of any kind, let alone one that might be considered significant, as a result of the reprimand. Thus, under these authorities, Minnis’s February 2012 reprimand does not amount to an adverse employment action sufficient to support a claim of discrimination under Title VII. See King v. Louisiana, 294 Fed.Appx. 77, 85 (5th Cir.2008) (holding that “allegations of unpleasant work meetings, verbal reprimands, improper" }, { "docid": "21212130", "title": "", "text": "term, condition, or privilege of employment. See Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003); Felton v. Polles, 315 F.3d 470, 484 (5th Cir.2002); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353-54 (5th Cir.2001); Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.1999); DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.), cert. denied, 516 U.S. 974, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995). When a supervisory employee is involved, once the plaintiff satisfies these four elements, an “ ‘employer is subject to vicarious liability to a victimized employee.’ ” Watts, 170 F.3d at 509 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Edüd 633 (1998); Ackel v. National Commc’ns., Inc., 339 F.3d 376, 383 (5th Cir.2003); Felton, 315 F.3d at 484. Racially “ ‘discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment that violates Title VII.’ ” Walker v. Thompson, 214 F.3d 615, 626 (5th Cir.2000) (quoting Wallace, 80 F.3d at 1049 n. 9); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Felton, 315 F.3d at 485; Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997). “Hostile work environment” racial harassment occurs when an employer’s conduct “ ‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive environment.’ ” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting 29 C.F.R. § 1604.11(a)). To survive summary judgment on a hostile work environment claim based on race, the non-movant must create a fact issue as to each of the following elements: “(1) racially discriminatory intimidation, ridicule and insults that are; (2) sufficiently severe or pervasive that" }, { "docid": "13546825", "title": "", "text": "v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1419 (8th Cir.1996), vacated & remanded, 521 U.S. 1114, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997), reinstated in relevant part, 141 F.3d 854, 856 (8th Cir.1998); Lawson, 85 F.3d at 511-12. . Pub.L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb to 2000bb-4). . See Cutter, 544 U.S. at 714-16, 125 S.Ct. 2113 (recounting the history of RFRA and RLUIPA). Compare 42 U.S.C. § 2000bb-1, with 42 U.S.C. § 2000cc-1. . See McKinley v. Abbott, 643 F.3d 403, 407-08 (5th Cir.2011) (\"Last, we consider whether the Barratry Statute violates the United States Constitution’s First Amendment guarantee to free speech. This is a mixed question of fact and law, which we review de novo.\"). . DeMoss v. Crain, 636 F.3d 145, 149 (5th Cir.2011) (per curiam) (citing Cerda v. 2004— EQR1 L.L.C., 612 F.3d 781, 786 (5th Cir.2010)). . FedJRCiv.P. 52(a)(1). . Chandler v. City of Dallas, 958 F.2d 85, 88 (5th Cir.1992) (per curiam) (citing Tex. Extrusion Corp. v. Palmer, Palmer & Coffee (In re Tex. Extrusion Corp.), 836 F.2d 217, 220 (5th Cir.1988)). . Burma Navigation Corp. v. Reliant Seahorse MV, 99 F.3d 652, 657 (5th Cir.1996) (quoting Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir.1993)). . Id. (citing Schlesinger, 2 F.3d at 139; Collins v. Baptist Memorial Geriatric Ctr., 937 F.2d 190, 194 (5th Cir.1991)). . Id. (citing Interfirst Bank of Abilene, N.A. v. Lull Mfg., 778 F.2d 228, 234 (5th Cir.1985)). . 636 F.3d 145 (5th Cir.2011) (per curiam). . 353 Fed.Appx. 885 (5th Cir.2009) (per cu-riam). . DeMoss, 636 F.3d at 153-55. . Gooden, 353 Fed.Appx. at 887-89. . Id. at 889. . Id. at 889 n. 3. . DeMoss, 636 F.3d at 154 (citing Baranow-ski v. Hart, 486 F.3d 112, 125 (5th Cir.2007)); see also Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (noting that Congress recognized that courts would apply RLUIPA’s standard with \"due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to" }, { "docid": "21212129", "title": "", "text": "525-26 (5th Cir.2005); Scales v. Slater, 181 F.3d 703, 709 n. 5 (5th Cir.1999); Garcia v. BRK Brands, Inc., 266 F.Supp.2d 566, 578 n. 17 (S.D.Tex.2003); Edwards v. Texas-New Mexico Power Co., 259 F.Supp.2d 544, 547 (N.D.Tex.2003); see also Stearman v. Comm’r of Internal Revenue, 436 F.3d 533, 537 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 2900, 165 L.Ed.2d 919 (2006); Bursztajn v. United States, 367 F.3d 485, 491 (5th Cir.2004); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993); Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir.1991). Hence, this claim, to the extent it is alleged in the complaint, has been waived and is subject to dismissal. 2. Hostile Work Environment Racial Harassment To establish a prima facie case of racial harassment by a supervisor with immediate or successively higher authority over the employee under Title VII, a plaintiff must show that: (1) he belongs to a protected class; (2) he was subject to unwelcome harassment; (3) the harassment was based on race; and (4) the harassment affected a term, condition, or privilege of employment. See Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003); Felton v. Polles, 315 F.3d 470, 484 (5th Cir.2002); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353-54 (5th Cir.2001); Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.1999); DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.), cert. denied, 516 U.S. 974, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995). When a supervisory employee is involved, once the plaintiff satisfies these four elements, an “ ‘employer is subject to vicarious liability to a victimized employee.’ ” Watts, 170 F.3d at 509 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Edüd 633 (1998); Ackel v. National Commc’ns., Inc., 339 F.3d 376, 383 (5th Cir.2003); Felton, 315 F.3d at 484. Racially “ ‘discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of" }, { "docid": "16627644", "title": "", "text": "Br. Supp. Mot. Prelim. Inj. at 12. . 975 F.Supp. 928 (W.D.Tex.1997). . See id. at 934-35. . See id. at 934. . See id. at 942^)3. . See United States v. Western Pacific R.R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). . See id. . FTA § 253(d) states: “If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b) of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.\" . See AT & T v. Austin, 975 F.Supp. at 939; Ameritech Advanced Data Servs., Inc. v. Public Serv. Comm’n, No. 97-1516, 1998 WL 176735, at *3 (Wis.Ct.App. Apr.16, 1998). . AT & T v. Austin, 975 F.Supp. at 938 (citing 47 U.S.C. §§ 255(f), 613(h) (\"The Commission shall have exclusive jurisdiction with respect to any complaint under this section.”)). . See Western, 352 U.S. at 63-64, 77 S.Ct. 161. . See id. at 64, 77 S.Ct. 161; Wagner & Brown v. ANR Pipeline Co., 837 F.2d 199, 201 (5th Cir.1988); Gulf States Util. Co. v. Alabama Power Co., 824 F.2d 1465, 1473 (5th Cir.1987); AT & T v. Austin, 975 F.Supp. at 938. . See AT & T v. Austin, 975 F.Supp. at 939 (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); Ameritech, 1998 WL 176735, at *3. . See, e.g., In re of TCI Cablevision of Oakland County, Inc., 9 Communications Reg. (P & F), 1997 WL 580831 (F.C.C.1997); In re Classic Telephone, Inc., 11 F.C.C.R. 13082, 1996 WL 554531 (F.C.C.1996). . See AT & T v. Austin, 975 F.Supp. at 939. . Sierra Club v. City of San Antonio, 112 F.3d 789, 793 (5th Cir.1997) (citing Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991)). .See AT & T v. Austin, 975 F.Supp. at 940 & n." }, { "docid": "2009996", "title": "", "text": "Morgan v. United States Postal Serv., 798 F.2d 1162, 1165-66 (8th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987) (answering affirmatively); Smith v. United States Postal Serv., 742 F.2d 257, 259-60 (6th Cir.1984); Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir.1981); but see Johnson v. United States Postal Serv., 861 F.2d 1475, 1478 (10th Cir.1988) (§ 791 exclusive remedy); McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984). See also Milbert v. Koop, 830 F.2d 354, 357 (D.C.Cir.1987) (not deciding the question). We, however, have stated: [I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies (as distinct from employment by recipients, themselves nonfederal, of federal money) in section 501 [§ 791], would have done so again a few sections later in section 504 [§ 794]. Boyd, 752 F.2d at 413 (citing McGuinness, 744 F.2d at 1321). Although Boyd and most of the cases deciding this question find that § 791 is the exclusive remedy for an employee alleging handicap discrimination by the Postal Service, we hold that a federal employee, like Johnston, may not under § 794 sue the federal employing agency. See 752 F.2d at 413. If Postal Service employees, mentioned specifically in § 794, may not sue, it follows that federal employees may not. Johnston has no cause of action under § 794. Ill Johnston alleges that the Shipyard retaliated against him by retiring him after he filed an EEOC complaint. To establish a prima facie case of retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a), a plaintiff must show that: (1) he engaged in activity protected by Title VII; (2) the employer made an adverse employment decision; and (3) a causal connection existed between the two. Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987). The district court here found no causal connection between Johnston’s EEOC complaint and his medical retirement. To show the requisite causal link, he must raise the inference that the EEOC complaint was the likely reason for his" }, { "docid": "2292316", "title": "", "text": "(1st Cir.1990), cert. denied, 498 U.S. 1027, 111 S.Ct. 679, 112 L.Ed.2d 671 (1991) (“in cases brought against the Postal Service, the Postmaster General is the only properly named defendant”); Rys v. U.S. Postal Service, 886 F.2d 443, 444 (1st Cir.1989) (Postmaster General “is the only statutorily appropriate defendant”); Pierce v. Runyon, 857 F.Supp. 129, 131 (D.Mass.1994) (“only proper defendant in a Title VII action is the head of the agency, here Marvin Runyon”). Accordingly, plaintiffs causes of action under Title VII shall proceed only against Runyon, who is the current Postmaster General. Sections 501 and 505(a)(1), as amended, 29 U.S.C. § 791 and 794a(a), of the Rehabilitation Act incorporate the remedies and procedures of Title VII. See Nunnally v. MacCausland, 996 F.2d 1, 2 (1st Cir.1993); DesRouches v. United States Postal Service, 631 F.Supp. 1375, 1378 (D.N.H.1986); Connolly v. United States Postal Service, 579 F.Supp. 305, 307 (D.Mass.1984). Hence, the only proper defendant with respect to a suit brought under these provisions of the Rehabilitation Act is the agency head, in this instance Runyon. See McGuinness v. United States Postal Service, 744 F.2d 1318, 1322 (7th Cir.1984). Although the ADEA is silent as to the identity of the proper defendant, the provision of the ADEA applicable to the federal employment sector is patterned after Title VII. Lavery v. Marsh, 918 F.2d 1022, 1024 (1st Cir.1990) (applying Title VII limitations period to age discrimination claim by federal employee). Thus, courts reason that the only proper defendant “in a federal employee’s ADEA action is the head of the federal agency that employs the plaintiff.” Abanco v. Veterans Administration Medical Center, 1987 WL 17471 (N.D.Ill. September 18, 1987); accord Ellis v. United States Postal Service, 784 F.2d 835, 838 (7th Cir.1986) (dismissing age discrimination claim for failure to name Postmaster General as defendant); Attwell v. Granger, 748 F.Supp. 866, 873 (N.D.Ga.1990) (collecting cases finding that only proper defendant is agency head in ADEA claim by former federal employee); Roche v. United States Postal Service, 1988 WL 141540 (D.Mass. December 13, 1988) (Postmaster General is only proper defendant in federal letter carrier’s age" }, { "docid": "2292315", "title": "", "text": "Act”), on the basis of plaintiffs handicap of carpal tunnel syndrome (Fourth Claim for Relief). Plaintiff also brings two state common law causes of action based on Concannon’s and Henderson’s tortious interference with plaintiffs employment (Fifth Claim for Relief) and defamation (Sixth Claim for Relief). (Docket Entry # 1). Plaintiff states that she “has not claimed that she has sued the individual defendants in their official capacities.” (Docket Entry # 13, p. 17). Nor, according to plaintiff, has she “brought suit under the Federal Tort Claims Act.” (Docket Entry # 13, p. 17). Therefore, this court will not address defendants’ argument that plaintiffs state law claims against Concannon and Henderson in their official capacity are barred under provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (Docket Entry # 11, pp. 11-14). The complaint fails to identify whether the federal claims apply only to Runyon. The only proper defendant in a Title VII case is the head of the agency. 42 U.S.C. § 2000e-16(e); Soto v. U.S. Postal Service, 905 F.2d 537, 539 (1st Cir.1990), cert. denied, 498 U.S. 1027, 111 S.Ct. 679, 112 L.Ed.2d 671 (1991) (“in cases brought against the Postal Service, the Postmaster General is the only properly named defendant”); Rys v. U.S. Postal Service, 886 F.2d 443, 444 (1st Cir.1989) (Postmaster General “is the only statutorily appropriate defendant”); Pierce v. Runyon, 857 F.Supp. 129, 131 (D.Mass.1994) (“only proper defendant in a Title VII action is the head of the agency, here Marvin Runyon”). Accordingly, plaintiffs causes of action under Title VII shall proceed only against Runyon, who is the current Postmaster General. Sections 501 and 505(a)(1), as amended, 29 U.S.C. § 791 and 794a(a), of the Rehabilitation Act incorporate the remedies and procedures of Title VII. See Nunnally v. MacCausland, 996 F.2d 1, 2 (1st Cir.1993); DesRouches v. United States Postal Service, 631 F.Supp. 1375, 1378 (D.N.H.1986); Connolly v. United States Postal Service, 579 F.Supp. 305, 307 (D.Mass.1984). Hence, the only proper defendant with respect to a suit brought under these provisions of the Rehabilitation Act is the agency head, in this instance Runyon." }, { "docid": "18011963", "title": "", "text": "provides a private cause of action for federal employees ... alleging employment discrimination based on handicap”) (emphasis in original); Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir.1985) (“section 501 is the exclusive remedy for discrimination in employment by [a federal agency] on the basis of handicap”); McGuinness, 744 F.2d at 1321. But see Gardner v. Morris, 752 F.2d 1271, 1277 (8th Cir.1985) (recognizing cause of action for employment discrimination against federal employer under both §§ 501 and 504); Smith v. U.S. Postal Serv., 742 F.2d 257 (6th Cir.1984) (same); Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir.1981) (same). Taylor also argues that dismissal of her claim was inappropriate, notwithstanding her failure to invoke the correct section of the Act, because she had set forth all the elements of a claim under § 501. Taylor’s argument is unavailing, at least in the circumstances of this case. The Smithsonian’s motion for summary judgment put Taylor on notice of her error. Taylor’s only response was that she had inadver tently cited § 505(1) rather than § 505(a)(1) as the source of the district court’s jurisdiction. As the Smithsonian had argued in its motion, however, the problem is that she premised her claim upon § 504 rather than § 501. Taylor could have sought leave to amend her complaint but instead she staked her all on § 504, and the district court properly concluded that she failed to state a claim upon which relief may be granted. Even if Taylor had pleaded her claim under § 501, we doubt the district court would have had jurisdiction to entertain it because she failed to exhaust her administrative appeal rights. See, e.g., Downey v. Runyon, 160 F.3d 139, 145 (2d Cir.1998) (exhaustion required before federal court can hear claim under § 501); Spence v. Straw, 54 F.3d 196, 200 (3d Cir.1995) (exhaustion required for claims under both §§ 501 and 504); Doe v. Garrett, 903 F.2d 1455, 1459-60 (11th Cir.1990) (exhaustion required under § 501); Boyd v. United States Postal Service, 752 F.2d 410, 412-13 (9th Cir.1985) (same); McGuinness, 744 F.2d" }, { "docid": "17202589", "title": "", "text": ". Black’s Law Dictionary at 328 (emphasis added). . Restatement (Second) of Torts § 886A (2d ed. 1979) (emphasis added). . Id. at § 886A cmt. b. . See 18 Am.Jur.2d Contribution § 9 (1985) (emphasis added) (footnotes omitted). . See W. Page Keeton Et AL, Prosser and Keeton on the Law of Torts § 30, at 338 (5th ed. 1984) (collecting cases). . See Restatement (Second) of Torts at § 886A. . See 42 U.S.C. § 9613(f)(1) (emphasis added). . 22 F.3d 1357 (5th Cir.1994). . See 12 U.S.C. § 1821(k) (emphasis added). . Miramon, 22 F.3d at 1361 n. 6. . See 42 U.S.C. § 9613(f)(1). .S.Rep. No. 99-11, at 103 (1985) (emphasis added). The savings clause read as follows: “Except as provided in paragraph (4) of the subsection, this subsection shall not impair any right of indemnity under existing law.” Id. . H.R.Rep. No. 99-253, pt. 1, at 188 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2862 (emphasis added). . Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). . S.Rep. No! 99-11, at 44 (1985). . See, e.g., Amoco Oil v. Borden, Inc., 889 F.2d 664 (5th Cir.1989) (permitting contribution claim under § 113(f)(1) to proceed in the absence of a civil action under § 106 or § 107(a)); PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir.1998); Centerior Service Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344 (6th Cir.1998); Sun Company, Inc., v. Browning-Ferris, Inc., 124 F.3d 1187 (10th Cir.1997). . 258 F.3d 292 (4th Cir. 2001). . 16 F.Supp.2d 983 (C.D.Ill.1998). . 107 F.3d 1235 (7th Cir.1997). . Id. at 1241. . 974 F.Supp. 684 (N.D.Ind. 1997). . See id. at 691. . 786 F.Supp. 971 (N.D.Ga.1991). . Id. at 975. The plaintiffs' state-law claims alleged nuisance and trespass to land, . Id. . 916 F.Supp. 1090 (D.Kan.1996). . See id. at 1095. . 156 F.Supp.2d 203 (D.Conn. 2001). . See id. at 208. . No. 99C2464, 2000 WL 263985 (N.D.Ill. Feb. 29, 2000). . See id. at *5. . 88 F.Supp.2d 339" }, { "docid": "23237783", "title": "", "text": "v. Lone Star Co., 21 F.3d 649, 651 (5th Cir.1994). (\"We have refused to impose liability for backpay on individual public employees. [The plaintiff] offers no persuasive argument why Congress would not have intended to protect private employees, as well, from individual title VII liability.”); Harvey v. Blake, 913 F.2d 226, 227 (5th Cir.1990) (holding that the doctrine of qualified immunity does not protect a government official who is sued in an official capacity under Title VII because Title VII does not impose personal liability'). . Aside from the instant case and Allen, several other cases in the Eastern District of Louisiana have dismissed claims against supervisors in their official capacities when the plaintiff also sued the corporation under Title VII. See Davillier v. State through Dep't. of Health and Hosps., No.CIV.A.96-4169, 1997 WL 276091, at *1 (E.D.La., May 22, 1997); Oubre v. Entergy Operations, Inc., No.CIV.A.95-3168, 1996 WL 28508, at *2 (E.D.La. Jan.22, 1996), aff'd, 102 F.3d 551 (5th Cir.1996) (per curiam), rev’d on other grounds, 522 U.S. 422, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998); Minshew v. Brown, No. 95-2507, 1996 WL 3916, at *2 (E.D.La. Jan.4, 1996). But see Douglas v. DynMcDermott Petroleum Operations Co., No.CIV.A. 95-1967, 1996 WL 365671, at *4 (E.D.La. July 2, 1996) (permitting suit against both supervisor and company in a Title VII suit despite objections raised by the defendants), rev’d on other grounds, 144 F.3d 364 (5th Cir.1998). .The district court relied upon Sims v. Brown & Root Indus. Servs., Inc., 889 F.Supp. 920 (W.D.La.1995), aff'd, 78 F.3d 581 (5th Cir.1996), which held that a plaintiff must prove the lack of prompt and remedial action to maintain either a hostile work environment or quid pro quo sexual harassment claim. See id. at 925. The Sims decision also' stated that this element must be proved even when the alleged harasser is the employee’s supervisor. See id. at 927. This court affirmed Sims in an unpublished opinion, which, according to our court’s policy, is not a precedential decision. . Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71, 126 L.Ed.2d" }, { "docid": "2009995", "title": "", "text": "Claim Section 794 provides: No otherwise qualified handicapped individual with handicaps ... as defined in section 706(8) of this title, shall, solely by reason of his handicap ... be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. An “otherwise qualified handicapped individual” under § 794 may bring a private cause of action for handicap discrimination against an activity or program that receives federal funds. Boyd, 752 F.2d at 413 (citing Kling v. County of Los Angeles, 633 F.2d 876, 879 (9th Cir.1980)) (private plaintiff brought suit against federally assisted activity). Section 794 does not create a private cause of action for handicap discrimination against a federal employer by a federal employee. Boyd, 752 F.2d at 413-14. Section 791 is the exclusive remedy for handicap discrimination claims by federal employees. Id. We acknowledge a split among the circuits as to whether a federal employee may sue the federal employing agency under § 794. See Morgan v. United States Postal Serv., 798 F.2d 1162, 1165-66 (8th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987) (answering affirmatively); Smith v. United States Postal Serv., 742 F.2d 257, 259-60 (6th Cir.1984); Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir.1981); but see Johnson v. United States Postal Serv., 861 F.2d 1475, 1478 (10th Cir.1988) (§ 791 exclusive remedy); McGuinness v. United States Postal Serv., 744 F.2d 1318, 1321 (7th Cir.1984). See also Milbert v. Koop, 830 F.2d 354, 357 (D.C.Cir.1987) (not deciding the question). We, however, have stated: [I]t is unlikely that Congress, having specifically addressed employment of the handicapped by federal agencies (as distinct from employment by recipients, themselves nonfederal, of federal money) in section 501 [§ 791], would have done so again a few sections later in section 504 [§ 794]. Boyd, 752 F.2d at 413 (citing McGuinness, 744 F.2d at 1321). Although Boyd and most of the cases deciding this question find that § 791 is the exclusive remedy for an employee" }, { "docid": "22392395", "title": "", "text": "relief under the ADA, a plaintiff must establish (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that the employer terminated him be cause of his disability. See Mason v. Frank, 32 F.3d 315, 318-19 (8th Cir.1994); Tyndall v. National Educ. Ctrs., 31 F.3d 209, 212 (4th Cir.1994); Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994); Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1538, 128 L.Ed.2d 190 (1994); Gilbert v. Frank, 949 F.2d 637, 640-42 (2d Cir.1991); Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.1990). Once the plaintiff produces evidence sufficient to make a facial showing that accommodation is possible, the burden of production shifts to the employer to present evidence of its inability to accommodate. See Mason, 32 F.3d at 318; Barth, 2 F.3d at 1187; Gilbert, 949 F.2d at 642. If the employer presents such evidence, the plaintiff may not simply rest on his pleadings. He “has the burden of coming forward with evidence concerning his individual capabilities and suggestions for possible accommodations to rebut the employer’s evidence.” Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th Cir. Unit A 1981); see Mason, 32 F.3d at 318; Chiari v. City of League City, 920 F.2d 311, 318 (5th Cir.1991). As with discrimination cases generally, the plaintiff at all times bears the ultimate burden of persuading the trier of fact that he has been the victim of illegal discrimination based on his disability. See St. Mary’s Honor Ctr. v. Hicks, — U.S. -, -, 113 S.Ct. 2742, 2747-49, 125 L.Ed.2d 407 (1993); Tyndall, 31 F.3d at 213; Barth, 2 F.3d at 1186; Pushkin, 658 F.2d at 1385; see also Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994). In this case, the district court found that White had" }, { "docid": "19811066", "title": "", "text": "to the lack of assistance provided by plaintiff’s counsel, the court has been compelled to research not only the jurisdictional issue, but also the question of availability of a private right of action for handicap discrimination by the Postal Service. One federal district court has granted relief for handicap discrimination on the basis of 5 C.F.R. § 713.401, promulgated under 5 U.S.C. § 7153. Smith v. Fletcher, 393 F.Supp. 1366 (S.D.Tex.1975). On appeal, the Fifth Circuit affirmed the relief granted by the district court on the basis of the trial court’s finding of sex discrimination. Smith v. Fletcher, 559 F.2d 1014 (5th Cir. 1977). The appellate court declined to rule on the existence of a private right of action under section 7153. Id. at 1018 & n.9. The district court’s decision did not recognize a private right of action under section 7153 apart from the right of judicial review of agency action under 5 U.S.C. § 702. 393 F.Supp. at 1369. In addition, the trial court implicitly recognized exhaustion of administrative remedies as a prerequisite to judicial review. Id. at 1370. In Ryan v. Federal Deposit Insurance Corp., 184 U.S.App.D.C. 187, 565 F.2d 762 (1977), the court considered a claim of handicap discrimination under section 7153 and 29 U.S.C. § 791 (requiring federal executive agencies, including the Postal Service, to develop an affirmative action program for the benefit of handicapped persons). The plaintiff in Ryan urged the court to find a private right of action, but the court declined to do so, holding that the statutes impose a duty upon federal agencies to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion. If an agency fails to comply with its duty, then the aggrieved individual is entitled to seek judicial review of the agency action Id. 184 U.S.App.D.C. at 188, 565 F.2d at 763. Although the judicial review provisions of the Administrative Procedure Act, specifically 5 U.S.C. § 702, are expressly inapplicable to the Postal Service by virtue of 39 U.S.C. § 410(a), the courts have recognized" } ]

[ { "docid": "17726841", "title": "", "text": "law, is maritime in nature.... This would be true even though the conduct complained of may have been negligent construction or defective design and may have occurred ashore.”) Watz v. Zapata Off-Shore Co., 431 F.2d 100, 112-14 (5th Cir.1970); Sears, Roebuck & Co. v. American President Lines, Ltd., 345 F.Supp. 395, 402 (N.D.Cal.1971); Taisho Fire & Marine v. Vessel Montana, 335 F.Supp. 1238, 1239 (N.D.Cal.1971); In re Alamo Transp. Co., 320 F.Supp. 631, 634 (S.D.Tex.1970). Concluding, therefore, that it is not fatal to plaintiff’s allegation of admiralty jurisdiction that hers is a products liability claim against a manufacturer with no independent connection to maritime activity, we turn to plaintiff’s decedent’s activity. Defendant concedes that if the asbestos products had caused a ship to sink, or had caused injury to a crewmember or passenger, admiralty jurisdiction would be proper. It argues, however, that the decedent’s work was not significantly related to traditional maritime activity involving navigation and commerce, as required by the Court in Executive Jet; that injuries to shipyard workers are not a traditional concern of admiralty law; and that the policy justifications for a uniform maritime law do not support admiralty jurisdiction in this case. After much reflection, we agree. The Court in Executive Jet emphasized the traditional concerns and expertise of admiralty courts: “The law of admiralty has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world, beyond whose shores they cannot go. That law deals with navigational rules — rules that govern the manner and direction those vessels may rightly move upon the waters. When a collision occurs or a ship founders at sea, the law of admiralty looks to those rules to determine fault, liability, and all other questions that may arise from such a catastrophe. Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage.” 409" } ]

[ { "docid": "17726834", "title": "", "text": "court rely on prejudice in denying the plaintiff’s request. It apparently determined, instead, that the requested amendment would have been futile. While we agree that futility may be a proper reason for denying a motion to amend, see Foman, supra, 371 U.S. at 182, 83 S.Ct. at 230, we do not think that it was a valid one in this case. To explain why, we, like the trial judge, must reach the merits of the admiralty jurisdiction issue. B. Merits of the Admiralty Jurisdiction Issue In Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court rejected the traditional “strict locality” test for admiralty tort jurisdiction and required also that “the wrong bear a significant relationship to traditional maritime activity.” Id. at 268, 93 S.Ct. at 504. While it appears that the injury must generally still occur on navigable waters, the claim here clearly meets the locality prong of the Executive Jet test. The ships on which the plaintiff worked and where he was injured were situated in navigable waters — in the Kenne-bec River. The only issue, therefore, is whether the wrong bears a significant relationship to traditional maritime activity. In addressing this question, we note that there is already some disagreement among the circuits both as to the proper analysis and as to the ultimate resolution of the issue. See Keene Corp. v. United States, 700 F.2d 836 (2d Cir.1983) (admiralty jurisdiction not proper over indemnity suit by asbestos manufacturer against the government for, inter alia, designing and specifying asbestos insulation products and failing to inspect the workplaces); Owens-Illinois, Inc. v. United States District Court for the Western District of Washington, 698 F.2d 967 (9th Cir.1983) (admiralty jurisdiction not proper over claim by shipyard worker against asbestos manufacturer); White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981) (admiralty jurisdiction proper over claim by shipyard worker against asbestos manufacturer). For reasons set out below, we disagree, in part, with the analysis of all three courts, but we are persuaded that the result reached by the Second and Ninth Circuits" }, { "docid": "13632047", "title": "", "text": "up on vessels, without more, is insufficient to justify the extension of admiralty jurisdiction; and the lack of any unique maritime connection counsels against the extension of admiralty jurisdiction to this dispute. Appellants argue that their functions aboard vessels in navigable waters were so tied to maritime activity that admiralty jurisdiction should be invoked. They argue first, relying on White, that their jobs of repairing and replacing asbestos insulation aboard ships in navigation were crucial to the performance of the maritime functions of the vessels. The holding in White that admiralty jurisdiction applied to the claims of land-based asbestos workers was based in part on the importance of the plaintiffs’ roles. The court stated that “[wjithout such shipyard efforts, these vessels would have been unable to perform their maritime role as carriers of people and cargo. Thus, installation of insulation materials ... is clearly essential to the maritime industry. Therefore, the work done by these shipyards bears a “significant relationship to traditional maritime activity.” White, 662 F.2d at 239. This reasoning has been rejected. Lowe, 723 F.2d at 1188; Harville, 731 F.2d at 784; Owens, 698 F.2d at 971. We agree with the Eleventh Circuit in Harville that more is required than merely importance to the maritime industry: Here the plaintiffs’ occupations were undeniably connected to maritime commerce; indeed, the plaintiffs’ work is vital to the shipping industry. But importance to maritime commerce is not alone sufficient to bring an activity within the scope of admiralty jurisdiction____ More germane is whether the activity itself is of a “maritime” nature. Harville, 731 F.2d at 784 (emphasis in original). We agree with the courts in Austin and Harville that in examining the relationship between the plaintiffs’ function and traditional maritime activity, we should look to the factors that governed in seaworthiness cases. “[T]he question properly asked is whether the actual tasks the workers perform bear any inherent relationship to maritime activity, that is, whether the plaintiffs’ jobs are identical to those undertaken by land-based workers and are connected to maritime affairs merely because performed aboard ship, or whether they are tasks somehow" }, { "docid": "23036769", "title": "", "text": "indemnity claims might be maritime, apparently on the theory that they may have related to ship repair. Id. at 232 and n. 9. Subsequently, similar issues have been considered by the Ninth, Second and First Circuits. Owens-Illinois v. United States District Court, 698 F.2d 967 (9th Cir.1983); Keene Corp. v. United States, 700 F.2d 836 (2d Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983), cert. dismissed, _ U.S. _, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983). In Owens-Illinois the issue was whether the former shipyard worker’s asbestosis suit against the asbestos material manufacturer was in admiralty for jury trial purposes. The plaintiff alleged exposure while doing ship construction work on ships that “were launched but before they were completed.” Id. at 969. The opinion recognizes that under the pre-Executive Jet law torts on partially constructed ships lying in navigable waters were maritime because of their situs, even though the nature of the work, ship construction, was not maritime. 698 F.2d at 969, 970. However, the Ninth Circuit concluded that under Executive Jet such a tort was not maritime, as it lacked the required “maritime relationship,” since ship construction contracts were not maritime. Relying in part on our opinion in Hollister, the court stated “the torts alleged here, arising solely in the process of new ship construction, lack the ‘maritime flavor’ necessary to invoke the jurisdiction of the federal courts under 28 U.S.C. § 1333(1).” 698 F.2d at 970. The court noted that White II was “perhaps distinguishable” since, it involved ship repair, but went on to express its disagreement with White II insofar as it might hold that torts on ships under construction lying in navigable waters were maritime. Id. at 971. Stating its view that “torts occurring during the construction of new vessels are no more related to traditional maritime activity than are disputes arising out of contracts for ship construction,” the court elected to follow Hollister insofar as it might conflict with White II. Id. We are in agreement with Owens-Illinois. White II’s" }, { "docid": "163580", "title": "", "text": "and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage. Id. at 269-270, 93 S.Ct. at 505. Although the Executive Jet case involved an aviation tort claim, the Court in Foremost Insurance Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982) made clear that the principle was not limited to aviation cases, but was applicable to admiralty cases in general. Emphasizing the need for certainty in the protection of maritime commerce and the need for uniform rules governing navigation, the Supreme Court in Foremost Insurance found that a tort claim involving the negligent operation of a noncommercial vessel had a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction in the district court. Id. at 674-677, 102 S.Ct. at 2658-2660. The Supreme Court’s analysis in Executive Jet and Foremost Insurance provides the basis for evaluating whether the district court properly invoked admiralty jurisdiction in this case. Ill Since Myhran was exposed to asbestos products during the repair of vessels floating on navigable waters, the locality requirement is satisfied. Admiralty jurisdiction in 'this case turns on whether Myhran’s exposure to asbestos products bears a significant relationship to traditional maritime activity. We recently considered whether tort claims arising out of exposure to asbestos products during construction of ships floating on navigable waters satisfied the maritime relationship requirement of admiralty jurisdiction. Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir.1983) (per curiam). In Owens-Illinois, we indicated that four factors must be considered in determining whether an alleged tort bears a significant relationship to traditional maritime activity: “(1) traditional concepts of the role of admiralty law; (2) the function and role of the parties; (3) the types of vehicles and instrumentalities involved; and (4) the causation and nature of the injury suffered.” Id. at 970. We noted the traditional distinction in admiralty between construction and repair contracts and determined that exposure to asbestos products during the construction of ships lacked the “maritime flavor” necessary" }, { "docid": "163582", "title": "", "text": "to invoke admiralty jurisdiction. Id. Myhran’s injury arose out of asbestos exposure during the repair of ships; however, to uphold admiralty jurisdiction by applying a mechanical analysis based solely on the distinction between repair and construction of ships would be inconsistent with the Supreme Court’s analysis in Executive Jet. Although the traditional distinction between contracts for construction versus contracts for repair of ships that was noted in Owens-Illinois added support to the conclusion reached there, that distinction alone cannot be determinative. As pointed out in a factually similar case in the First Circuit, the traditional contractual distinction may shed light on the nature of the injured worker’s activity and may thus be relevant to the inquiry required by Executive Jet; but the inquiry must be broader and must be based upon the work actually performed by the injured worker. See Austin v. Unarco Industries, Inc., 705 F.2d 1, 10 n. 4, 12 n. 5 (1st Gir.), cert. dismissed, — U.S.-, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983). The issue is whether Myhran’s tort claims bear a significant relationship to traditional maritime activity— not whether the tort occurred during the repair as opposed to the construction of ships. We therefore proceed to consider fully the four factors listed in Owens-Illinois to resolve this issue. Our analysis of the four factors indicates that Myhran’s claims are not cognizable in admiralty. First, the Supreme Court’s discussion of the history and purpose of admiralty law in both Executive Jet and Foremost Insurance suggests that admiralty law is not concerned with tort claims such as those of Myhran. None of the issues listed by the Supreme Court in Executive Jet are involved in Myhran’s suit. Rather, as the Eleventh Circuit observed in a case factually similar to this case, “the issues that this litigation presents are identical to those presented in countless other asbestos suits; they involve questions of tort law traditionally committed to local resolution.” Harville v. Johns-Manville Products Corp., 731 F.2d 775, 786 (11th Cir.1984). Resolution of Myhran’s tort claims does not require the special expertise of a court in admiralty as to" }, { "docid": "163581", "title": "", "text": "Myhran was exposed to asbestos products during the repair of vessels floating on navigable waters, the locality requirement is satisfied. Admiralty jurisdiction in 'this case turns on whether Myhran’s exposure to asbestos products bears a significant relationship to traditional maritime activity. We recently considered whether tort claims arising out of exposure to asbestos products during construction of ships floating on navigable waters satisfied the maritime relationship requirement of admiralty jurisdiction. Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir.1983) (per curiam). In Owens-Illinois, we indicated that four factors must be considered in determining whether an alleged tort bears a significant relationship to traditional maritime activity: “(1) traditional concepts of the role of admiralty law; (2) the function and role of the parties; (3) the types of vehicles and instrumentalities involved; and (4) the causation and nature of the injury suffered.” Id. at 970. We noted the traditional distinction in admiralty between construction and repair contracts and determined that exposure to asbestos products during the construction of ships lacked the “maritime flavor” necessary to invoke admiralty jurisdiction. Id. Myhran’s injury arose out of asbestos exposure during the repair of ships; however, to uphold admiralty jurisdiction by applying a mechanical analysis based solely on the distinction between repair and construction of ships would be inconsistent with the Supreme Court’s analysis in Executive Jet. Although the traditional distinction between contracts for construction versus contracts for repair of ships that was noted in Owens-Illinois added support to the conclusion reached there, that distinction alone cannot be determinative. As pointed out in a factually similar case in the First Circuit, the traditional contractual distinction may shed light on the nature of the injured worker’s activity and may thus be relevant to the inquiry required by Executive Jet; but the inquiry must be broader and must be based upon the work actually performed by the injured worker. See Austin v. Unarco Industries, Inc., 705 F.2d 1, 10 n. 4, 12 n. 5 (1st Gir.), cert. dismissed, — U.S.-, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983). The issue is whether Myhran’s tort claims bear" }, { "docid": "19118706", "title": "", "text": "jurisdictional issue. We conclude, therefore, that the plaintiffs have met the location test for at least that part of their claims that is the result of exposures that occurred on navigable waters. C. The Nexus Test Nevertheless, we hold maritime jurisdiction inapplicable to the plaintiffs’ claims because those claims do not “bear a significant relationship to traditional maritime activity.” The Fifth Circuit, in the leading case of Kelly v. Smith, supra, set out four factors as relevant in analyzing the relationship a given claim bears to traditional maritime activity: “the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law.” 485 F.2d at 525. In Kelly, the defendants had fired rifles from a private game preserve on an island in the Mississippi at the plaintiffs who were poachers fleeing across the river in a motorboat. The plaintiffs sought to invoke federal admiralty jurisdiction in their suit for damages. In deciding that admiralty law applied to the dispute, the Court relied primarily on the last of its four factors, stating that admiralty’s preeminent interest in protecting navigation on major interstate waterways was strongly implicated. Id. at 526. The five other Courts of Appeals that have faced this issue have demonstrated little agreement about those factors that are critical to the “nexus” analysis. In White II, supra, the Fourth Circuit held that admiralty did recognize claims of shipyard workers similar to those asserted by the plaintiffs here. That court focused on the “function of these shipyard workers,” 662 F.2d at 239, and concluded that, because their efforts made it possible for vessels “to perform their maritime role as carriers of people and cargo,” id., a sufficient nexus existed between the workers’ claims and traditional maritime activity. But the court limited its holding to circumstances in which “the materials used by these shipyard workers were designed, advertised and marketed as maritime asbestos products.” Id. at 240. In Owens-Illinois, supra, the Ninth Circuit focused on the distinction between new ship construction and ship repair. The" }, { "docid": "23036768", "title": "", "text": "manufacturers of the products, as these “were designed, advertised and marketed as maritime asbestos products.” Id. at 239, 240. Judge Widener’s concurring opinion relied on the fact that the plaintiffs claimed “that at least 90% and as much as 97% of their exposure to the manufacturers’ products occurred on navigable waters.” Id. at 241, 242. White I dealt with the manufacturer’s indemnity claims against the shipyard, and held that insofar as these claims were contractual or based on an implied warranty assertedly arising from the purchase contracts they were non maritime, but insofar as they were tort claims they were maritime because the workers’ claims against the manufacturer were maritime. Id. at 247. Glover also involved asbestos manufacturers’ indemnity claims against the shipyard employer, though in this instance the employer was the United States. As respects the tort-based indemnity claims, Judge Widener’s opinion indicates their maritime nature was uncertain since the situs of the exposure was not established as being on navigable waters. Id. at 229 n. 4. The opinion also indicates that the contractual indemnity claims might be maritime, apparently on the theory that they may have related to ship repair. Id. at 232 and n. 9. Subsequently, similar issues have been considered by the Ninth, Second and First Circuits. Owens-Illinois v. United States District Court, 698 F.2d 967 (9th Cir.1983); Keene Corp. v. United States, 700 F.2d 836 (2d Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983), cert. dismissed, _ U.S. _, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983). In Owens-Illinois the issue was whether the former shipyard worker’s asbestosis suit against the asbestos material manufacturer was in admiralty for jury trial purposes. The plaintiff alleged exposure while doing ship construction work on ships that “were launched but before they were completed.” Id. at 969. The opinion recognizes that under the pre-Executive Jet law torts on partially constructed ships lying in navigable waters were maritime because of their situs, even though the nature of the work, ship construction, was not maritime. 698 F.2d" }, { "docid": "19118707", "title": "", "text": "dispute, the Court relied primarily on the last of its four factors, stating that admiralty’s preeminent interest in protecting navigation on major interstate waterways was strongly implicated. Id. at 526. The five other Courts of Appeals that have faced this issue have demonstrated little agreement about those factors that are critical to the “nexus” analysis. In White II, supra, the Fourth Circuit held that admiralty did recognize claims of shipyard workers similar to those asserted by the plaintiffs here. That court focused on the “function of these shipyard workers,” 662 F.2d at 239, and concluded that, because their efforts made it possible for vessels “to perform their maritime role as carriers of people and cargo,” id., a sufficient nexus existed between the workers’ claims and traditional maritime activity. But the court limited its holding to circumstances in which “the materials used by these shipyard workers were designed, advertised and marketed as maritime asbestos products.” Id. at 240. In Owens-Illinois, supra, the Ninth Circuit focused on the distinction between new ship construction and ship repair. The court relied on cases deciding whether a contract dispute lies within admiralty jurisdiction. It pointed out that a contract for repair of a vessel is considered maritime, but a contract for construction of a vessel is not. 698 F.2d at 970. The court reasoned that, because the plaintiffs in that suit were involved in ship construction, their claims were outside the jurisdiction of admiralty courts. The Second Circuit in Keene Corp., supra, placed emphasis on both the construction/repair distinction and on the non-maritime nature of the offending product. Because the plaintiffs there were involved in ship construction and because the dangerous products were not designed for exclusive maritime use, the court held maritime jurisdiction inapplicable. In Austin, supra, the First Circuit preferred to focus on the nature of the decedent’s job rather than on the type of project, vessel construction or repair, on which he worked. That court concluded that the plaintiff was entitled to invoke admiralty law only if her decedent was “injured while doing work traditionally done by members of the crew and" }, { "docid": "17726835", "title": "", "text": "were situated in navigable waters — in the Kenne-bec River. The only issue, therefore, is whether the wrong bears a significant relationship to traditional maritime activity. In addressing this question, we note that there is already some disagreement among the circuits both as to the proper analysis and as to the ultimate resolution of the issue. See Keene Corp. v. United States, 700 F.2d 836 (2d Cir.1983) (admiralty jurisdiction not proper over indemnity suit by asbestos manufacturer against the government for, inter alia, designing and specifying asbestos insulation products and failing to inspect the workplaces); Owens-Illinois, Inc. v. United States District Court for the Western District of Washington, 698 F.2d 967 (9th Cir.1983) (admiralty jurisdiction not proper over claim by shipyard worker against asbestos manufacturer); White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981) (admiralty jurisdiction proper over claim by shipyard worker against asbestos manufacturer). For reasons set out below, we disagree, in part, with the analysis of all three courts, but we are persuaded that the result reached by the Second and Ninth Circuits is sound. The issue that appears to be creating the most confusion in this situation is whether Executive Jet requires that there be some maritime flavor to the manufacture or supply of the offending asbestos product. The Second Circuit, in Keene Corp., supra, at 844, focused on two critical elements in determining that the acts and omissions alleged were not sufficiently related to traditional maritime activity: “First, Keene does not allege that its insulation was designed specifically for maritime use.... Second, many of the roles attributed to the government and allegedly giving rise to Keene’s cause of action — the government’s sale of asbestos to Keene, its specification of asbestos as a component of insulation it purchased from Keene, its alleged breach of its duty to inspect the work place, its obligations as a promulgator of health regulations— do not bear a significant relationship to traditional maritime activities such as ‘navigation and commerce.’ ” Similarly, The Fourth Circuit, in White v. Johns-Manville, 662 F.2d 234 (4th Cir.1981), found admiralty jurisdiction proper, but limited its holding" }, { "docid": "163583", "title": "", "text": "a significant relationship to traditional maritime activity— not whether the tort occurred during the repair as opposed to the construction of ships. We therefore proceed to consider fully the four factors listed in Owens-Illinois to resolve this issue. Our analysis of the four factors indicates that Myhran’s claims are not cognizable in admiralty. First, the Supreme Court’s discussion of the history and purpose of admiralty law in both Executive Jet and Foremost Insurance suggests that admiralty law is not concerned with tort claims such as those of Myhran. None of the issues listed by the Supreme Court in Executive Jet are involved in Myhran’s suit. Rather, as the Eleventh Circuit observed in a case factually similar to this case, “the issues that this litigation presents are identical to those presented in countless other asbestos suits; they involve questions of tort law traditionally committed to local resolution.” Harville v. Johns-Manville Products Corp., 731 F.2d 775, 786 (11th Cir.1984). Resolution of Myhran’s tort claims does not require the special expertise of a court in admiralty as to navigation or water-based commerce, nor is there any federal interest in uniformity of decision requiring the application of federal substantive law. See Owens-Illinois, 698 F.2d at 971. Second, Myhran’s “function and role” as a pipefitter in shipyards does not justify admiralty jurisdiction over his tort claims. While personal injuries to seamen and others doing seamen’s work do fall within the traditional concerns of admiralty law and are claims over which admiralty tort jurisdiction would be proper, Myhran was not a seaman, nor did he perform work traditionally done by seamen. See Har-ville, 731 F.2d at 785 (“The plaintiffs here were engaged in trades, such as pipefit-ting, welding, and insulating, linked more with the land than with the sea. Their skills and training are those of landsmen, not of sailors.”); see also Owens-Illinois, 698 F.2d at 970-971 (installing and cleaning up around the installation of asbestos is not a maritime role); cf. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 879, 90 L.Ed. 1099 (1946) (a stevedore is entitled to the seaman’s" }, { "docid": "9655861", "title": "", "text": "White v. Johns-Manville Corp., 662 F.2d 234, 240 (4th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). We note, however, that the plaintiff in that case alleged exposure to asbestos during repair of completed vessels as well as during new construction. 662 F.2d at 239. Given that the repair of a vessel involved in service in water-based commerce has traditionally been recognized as a maritime activity, Hall Brothers, 249 U.S. at 128, 39 S.Ct. at 223-24, White is perhaps distinguishable. This distinction notwithstanding, we have difficulty with the court’s reasoning. The court’s statement in White that asbestos installation during ship construction was “clearly essential” to the maritime industry, 662 F.2d at 239, is undoubtedly correct. The conclusion that the work and torts arising therefrom had a significant relationship to traditional maritime activity is not compelled, however. In our view, torts occurring during the construction of new vessels are no more related to traditional maritime activity than are disputes arising out of contracts for ship construction, or, for that matter, the construction of a railroad line or the insulation of a power plant. No need exists for the special expertise of a court in admiralty about navigation or water-based commerce nor is there any federal interest in uniformity of decision requiring the application of federal substantive law. To the extent that we must choose between the Fourth Circuit’s reasoning in White and the Fifth Circuit’s in Hollister, we deem the latter more consistent with Executive Jet. As admiralty jurisdiction is lacking here, there is no basis for denying defendants a jury trial. Even were we to find some basis for the assertion of admiralty jurisdiction, however, we would still be compelled to issue the writ. The record is clear that certain of the asbestos exposures allegedly responsible for plaintiff’s injuries could not be brought before the district court in admiralty. Diversity of citizenship is the sole basis for federal jurisdiction over these claims. The right to a jury trial in these circumstances is constitutional in origin and, where common issues of fact are involved, may not" }, { "docid": "6239703", "title": "", "text": "United States District Court, 698 F.2d 967, 971 (9th Cir.1983) (“[Bjoth the injury and its cause are far more closely affiliated with the clearly land-based negligence arising in the construction industry generally than with negligence taking place in commerce and navigation on the navigable waters.”) We agree that the causation and type of injuries to the plaintiffs do not support the invocation of admiralty jurisdiction. Third we examine the types of vehicles and instrumentalities involved. Although these plaintiffs were exposed to asbestos aboard ships, the involvement of the ships is at most tangential to the nature of their tort claims and has no effect on the character of those claims. These claims would be exactly the same if the plaintiffs had been employed constructing or repairing buildings on land. Myhran, 741 F.2d at 1122; Harville, 731 F.2d at 785. While ships were obviously involved here, the tools and safety equipment (or lack thereof) present in the installation and clean-up of asbestos — unlike the navigational equipment and safety devices of a vessel — possess few maritime attributes. The use of masks, unlike the provision of lifeboats, is hardly a precautionary measure distinctively connected to traditionally maritime activity. Owens-Illinois, 698 F.2d at 971. The simple fact that these plaintiffs were injured aboard ship does not support or justify admiralty jurisdiction. Insulation containing asbestos is the other instrumentality involved. Although the particular insulation products may have been designed, manufactured, and advertised as maritime or marine insulation, such insulation has no uniquely maritime character and exposure to asbestos does not bear any inherent relationship to maritime activity. Myhran, 741 F.2d at 1122; Harville, 731 F.2d at 785. Finally we consider the traditional concepts of the role of admiralty law, the most important factor. We have previously discussed the history and purpose of admiralty law as described by the Supreme Court in Executive Jet and Foremost Insurance. Disputes which do not involve these interests should not fall within the admiralty jurisdiction of the federal courts. None of the issues listed by the Supreme Court in Executive Jet and Foremost Insurance are involved in this" }, { "docid": "6239704", "title": "", "text": "maritime attributes. The use of masks, unlike the provision of lifeboats, is hardly a precautionary measure distinctively connected to traditionally maritime activity. Owens-Illinois, 698 F.2d at 971. The simple fact that these plaintiffs were injured aboard ship does not support or justify admiralty jurisdiction. Insulation containing asbestos is the other instrumentality involved. Although the particular insulation products may have been designed, manufactured, and advertised as maritime or marine insulation, such insulation has no uniquely maritime character and exposure to asbestos does not bear any inherent relationship to maritime activity. Myhran, 741 F.2d at 1122; Harville, 731 F.2d at 785. Finally we consider the traditional concepts of the role of admiralty law, the most important factor. We have previously discussed the history and purpose of admiralty law as described by the Supreme Court in Executive Jet and Foremost Insurance. Disputes which do not involve these interests should not fall within the admiralty jurisdiction of the federal courts. None of the issues listed by the Supreme Court in Executive Jet and Foremost Insurance are involved in this action. Rather, the issues that this litigation presents are identical to those presented in countless other asbestos suits; they involve questions of tort law traditionally committed to local resolution. Absent congressional action, the federal interest in these claims is insufficient to justify federal courts supplanting state law with the federal common law of admiralty. Harville, 731 F.2d at 786. Furthermore, the resolution of these tort claims does not “require the special expertise of the court in admiralty as to navigation or water-based commerce, nor is there any federal interest in uniformity of decision requiring the application of federal substantive law.” Myhran, 741 F.2d at 1122. The federal interest in uniformity of the law governing maritime matters favors our decision in this case. Each circuit that has considered the issues raised in White II and in this case has rejected the exercise of admiralty jurisdiction. Thus, White II is a deviation from a uniform view held by the other circuits. With this decision uniformity is restored. V Plaintiffs argue that this decision should be applied prospectively" }, { "docid": "19118700", "title": "", "text": "that construction in Foremost Insurance Co. v. Richardson, 457 U.S. 668, 673, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982). Within the past three years, five other Courts of Appeals have had occasion to apply the Executive Jet test in shipyard worker asbestos eases. Lowe v. Ingalls Shipbuilding, 723 F.2d 1173 (5th Cir.1984); Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.), cert.. dismissed, — U.S. -, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983); Keene Corp. v. United States, 700 F.2d 836 (2d Cir.), cert. denied, — U.S. -, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Owens-Illinois v. United States District Court, 698 F.2d 967 (9th Cir.1983); Glover v. Johns-Manville Corp., 662 F.2d 225 (4th Cir.1981); White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982) (“White II”); White v. JohnsManville Corp., 662 F.2d 243 (4th Cir.1981) (“White I”). Only the Fourth Circuit has held admiralty jurisdiction applicable to the personal injury claims of shipyard workers afflicted with asbestos-related disease. The First, Second, and Ninth Circuits have all held that admiralty jurisdiction does not extend to claims similar to those the plaintiffs assert here. The Fifth Circuit, in Lowe, supra, held that the complaint did not allege facts sufficient to support a claim of maritime jurisdiction, but the court concluded that because it was not “inconceivable that one or more plaintiffs would be able to establish admiralty jurisdiction by amended complaint,” 723 F.2d at 1190, the cause should be remanded to give the plaintiffs an opportunity to amend. Although we do not agree fully with the analysis of any of our sister circuits, we find ourselves joining what appears to be the emerging majority view: Admiralty jurisdiction does not extend to damage claims such as these by land-based ship repair or construction workers for employment-related, asbestos-induced disease. B. The Location Test Executive Jet did not replace, but rather supplemented, the traditional location requirement for maritime tort jurisdiction. In order for the federal maritime courts to exercise jurisdiction over a tort claim the tort still must occur at a" }, { "docid": "163584", "title": "", "text": "navigation or water-based commerce, nor is there any federal interest in uniformity of decision requiring the application of federal substantive law. See Owens-Illinois, 698 F.2d at 971. Second, Myhran’s “function and role” as a pipefitter in shipyards does not justify admiralty jurisdiction over his tort claims. While personal injuries to seamen and others doing seamen’s work do fall within the traditional concerns of admiralty law and are claims over which admiralty tort jurisdiction would be proper, Myhran was not a seaman, nor did he perform work traditionally done by seamen. See Har-ville, 731 F.2d at 785 (“The plaintiffs here were engaged in trades, such as pipefit-ting, welding, and insulating, linked more with the land than with the sea. Their skills and training are those of landsmen, not of sailors.”); see also Owens-Illinois, 698 F.2d at 970-971 (installing and cleaning up around the installation of asbestos is not a maritime role); cf. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 879, 90 L.Ed. 1099 (1946) (a stevedore is entitled to the seaman’s traditional and statutory protections because he is doing a seaman’s work and incurring a seaman’s hazards). Third, although Myhran was exposed to asbestos aboard ships, the involvement of the ships is at most tangential to the nature of Myhran’s tort claims. Apart from the advantages of admiralty jurisdiction, Myhran’s claims would be exactly the same if all of his exposure to asbestos occurred during the construction of ships or during the construction or repair of buildings on land. See Harville, 731 F.2d at 785. Our observations in Owens-Illinois with regard to this factor are directly on point: While ships were obviously involved here, the tools and safety equipment (or lack thereof) present in the installation and clean-up of asbestos — unlike the navigational equipment and safety devices of a vessel — possess few maritime attributes. The use of masks, unlike the provision of lifeboats, is hardly a precautionary measure distinctively connected to traditional maritime activity. 698 F.2d at 971. The relationship of maritime vehicles and instrumentalities to Myhran’s tort claims is too attenuated to justify" }, { "docid": "6239698", "title": "", "text": "Jet and Foremost Insurance. Under this requirement the nexus test would be met with some products whose use in maritime commerce is important but which do not raise the traditional maritime concerns discussed in Executive Jet. Other products which were not designed, advertised, and marketed as maritime products, but do invoke those maritime concerns, would not satisfy the nexus test. See Austin, 705 F.2d 9-11. IV Instead of the White II analysis, we adopt a nexus test by which we must consider four factors in analyzing the relationship a given claim bears to traditional maritime activity: (1) the functions and roles of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and the type of injury; and (4) traditional concepts of the role of admiralty law. Myhran, 741 F.2d at 1121; Harville, 731 F.2d at 783; Owens-Illinois v. United States District Court, 698 F.2d 967, (9th Cir.1983). Although the plaintiffs have met the locality test, we hold that their claims are not cognizable in admiralty because their claims do not bear a significant relationship to traditional maritime activity under our application of the four part nexus test. First we must consider the functions and roles of both the plaintiffs and the defendants. The function and role of the defendants slightly favor the exercise of admiralty jurisdiction. The materials used by the shipyard workers were “designed, advertised and marketed as maritime asbestos products____” White II, 662 F.2d at 240; but see Harville, 731 F.2d at 784 (“The defendants [as in this case Johns-Manville] ... are land-based manufacturers whose asbestos products, although important components in the construction and maintenance of vessels, were not designed specifically for maritime use.”); Austin, 705 F.2d at 10 (“... whatever advantage accrues from a uniform national law governing those cases would be severely undercut by distinguishing between manufacturers according to whether they designed or intended their products for maritime use”). Of the four factors this part of the first factor is the only one which favors the exercise of admiralty jurisdiction. Next we consider the function and role of the plaintiffs. All four" }, { "docid": "23036770", "title": "", "text": "at 969, 970. However, the Ninth Circuit concluded that under Executive Jet such a tort was not maritime, as it lacked the required “maritime relationship,” since ship construction contracts were not maritime. Relying in part on our opinion in Hollister, the court stated “the torts alleged here, arising solely in the process of new ship construction, lack the ‘maritime flavor’ necessary to invoke the jurisdiction of the federal courts under 28 U.S.C. § 1333(1).” 698 F.2d at 970. The court noted that White II was “perhaps distinguishable” since, it involved ship repair, but went on to express its disagreement with White II insofar as it might hold that torts on ships under construction lying in navigable waters were maritime. Id. at 971. Stating its view that “torts occurring during the construction of new vessels are no more related to traditional maritime activity than are disputes arising out of contracts for ship construction,” the court elected to follow Hollister insofar as it might conflict with White II. Id. We are in agreement with Owens-Illinois. White II’s rationale that because the products “become an appurtenance, or integral part, of the ship,” therefore their installation “has a direct effect on marine navigation and commerce,” 662 F.2d at 239, seems contrary to the rule that ship construction contracts are not maritime and to the statement in Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), that neither a ship construction worker’s “general employment” nor his work on an incomplete ship lying in navigable waters “had any direct relation to navigation or commerce.” Id. at 476, 421 S.Ct. at 158. White II gives no express consideration to these principles. In Keene the Second Circuit considered several extremely general indemnity claims by asbestos products manufacturers against the United States in its capacity as a shipyard employer. The court held that these claims were nonmaritime, relying in part on our Hollister decision that “a tort arising out of work on an uncompleted vessel . .. fall[s] outside admiralty jurisdiction,” and on its view that not only ship building contracts but" }, { "docid": "17726840", "title": "", "text": "and remanded, 388 U.S. 459, 87 S.Ct. 2115, 18 L.Ed.2d 1319 (1967), on remand, 390 F.2d 353 (9th Cir.1968) (implicit Supreme Court approval of admiralty’s acceptance of land based products liability law), then whatever advantage accrues from a uniform national law governing those cases would be severely undercut by distinguishing between manufacturers according to whether they designed or intended their products for maritime use. For similar reasons, we find misplaced any reliance on whether the contract between the manufacturer and shipbuilder was for ship construction, which is non-maritime, or for ship repair, which is maritime. Determining what would be the nature of a contract dispute between Bath Iron Works and Raybestos sheds little light on the nature of this products liability claim. Several courts apparently agree. See, e.g., Jig the Third Corp. v. Puritan Marine Ins. Corp., 519 F.2d 171, 174 (5th Cir.1975) (“When an oceangoing shrimpboat sinks in 15 fathoms of water in the Gulf of Mexico and the sinking is allegedly tortious, there is maritime activity, and the tort, if recognized by the law, is maritime in nature.... This would be true even though the conduct complained of may have been negligent construction or defective design and may have occurred ashore.”) Watz v. Zapata Off-Shore Co., 431 F.2d 100, 112-14 (5th Cir.1970); Sears, Roebuck & Co. v. American President Lines, Ltd., 345 F.Supp. 395, 402 (N.D.Cal.1971); Taisho Fire & Marine v. Vessel Montana, 335 F.Supp. 1238, 1239 (N.D.Cal.1971); In re Alamo Transp. Co., 320 F.Supp. 631, 634 (S.D.Tex.1970). Concluding, therefore, that it is not fatal to plaintiff’s allegation of admiralty jurisdiction that hers is a products liability claim against a manufacturer with no independent connection to maritime activity, we turn to plaintiff’s decedent’s activity. Defendant concedes that if the asbestos products had caused a ship to sink, or had caused injury to a crewmember or passenger, admiralty jurisdiction would be proper. It argues, however, that the decedent’s work was not significantly related to traditional maritime activity involving navigation and commerce, as required by the Court in Executive Jet; that injuries to shipyard workers are not a traditional concern" }, { "docid": "9655860", "title": "", "text": "precautionary measure distinctively connected to traditional maritime activity. Finally, the nature of the injury, an asbestos-related disease, and its causation, the unprotected inhalation of asbestos fibers, bear little maritime connection. Both the injury and its cause are far more closely affiliated with the clearly land-based negligence arising in the construction industry generally than with negligence taking place in commerce and navigation on the navigable waters. See Jones v. Bender Welding & Machine Works, Inc., 581 F.2d 1331, 1337 (9th Cir.1978) (admiralty jurisdiction lies over products liability claim based on defective engine which failed on high seas, where engine installed in repair of vessel); Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 565 F.2d 1129, 1133 (9th Cir.1977) (by implication) (same). We conclude that plaintiffs claims do not bear a significant relationship to traditional maritime activity and that admiralty jurisdiction is therefore lacking. In so holding we decline to follow the holding of the Fourth Circuit, which recently determined that admiralty jurisdiction existed in an action substantially similar to the one underlying this mandamus proceeding. White v. Johns-Manville Corp., 662 F.2d 234, 240 (4th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). We note, however, that the plaintiff in that case alleged exposure to asbestos during repair of completed vessels as well as during new construction. 662 F.2d at 239. Given that the repair of a vessel involved in service in water-based commerce has traditionally been recognized as a maritime activity, Hall Brothers, 249 U.S. at 128, 39 S.Ct. at 223-24, White is perhaps distinguishable. This distinction notwithstanding, we have difficulty with the court’s reasoning. The court’s statement in White that asbestos installation during ship construction was “clearly essential” to the maritime industry, 662 F.2d at 239, is undoubtedly correct. The conclusion that the work and torts arising therefrom had a significant relationship to traditional maritime activity is not compelled, however. In our view, torts occurring during the construction of new vessels are no more related to traditional maritime activity than are disputes arising out of contracts for ship construction, or, for that matter, the" } ]

[ { "docid": "22686908", "title": "", "text": "that this error did not prejudice Kermaree. By returning a verdict in his favor, the jury necessarily found that Kermaree had not in fact been guilty of contributory negligence “even in the slightest degree.” The district judge refused to submit the issue of unseaworthiness to the jury for the reason that an action for unseaworthiness is unknown to the common law of New York. Although the basis for its action was inappropriate, the court was correct in eliminating the unseaworthiness claim from this case.- Kermaree was not a member of the ship’s company, nor of that broadened class of workmen to whom the admiralty law has latterly extended the absolute right to a seaworthy ship. See Mahnich v. Southern S. S. Co., 321 U. S. 96; Seas Shipping Co. v. Sieracki, 328 U. S. 85; Pope & Talbot, Inc., v. Hawn, 346 U. S. 406. Kermaree was aboard not to perform ship’s work, but simply to visit a friend. It is apparent, therefore, that prejudicial error occurred in this case only if the maritime law imposed upon the shipowner a standard of care higher than the duty which the district judge found owing to a gratuitous licensee under the law of New York. If, in other words, the shipowner owed Kermaree the duty of exercising ordinary care, then upon this record Kermaree was entitled to judgment, the jury having resolved the factual issues in his favor under instructions less favorable to him than should have been given. Stated broadly, the decisive issue is thus whether admiralty recognizes the same distinctions between an invitee and a licensee as does the common law. It is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew. Leathers v. Blessing, 105 U. S. 626; The Max Morris, 137 U. S. 1; The Admiral Peoples, 295 U. S. 649. But this Court has never determined whether a different and lower standard of care is demanded if the ship’s visitor is a person to whom the label" } ]

[ { "docid": "10550579", "title": "", "text": "no bystander; he was squarely within the zone of danger in connection with the Kila events in question. As the captain, responsible for the operation of the vessel at sea and for his own safety as well as that of the crew, Nelsen was much more than a mere observer of a potential disaster. RCUH also argues that as an experienced ship’s captain, Nelsen’s reaction was not that of a “reasonable person normally constituted.” I find, however, that it was not unreasonable for a person in Nelsen’s position with responsibility for himself and the crew to experience depression as a result of his involvement in a succession of incidents caused by equipment failure and unseaworthy conditions. It is reasonably foreseeable that the events aboard the Kila could contribute to a depressive disorder. Based on the evidence presented, I find that RCUH was negligent when it sent the Kila out to sea at the time of the January 1987 flooding incident without a working bilge alarm and with inadequate and defective bilge pumps. I also find that it was negligent to order the Kila out to sea at the time of the overheating incident in September 1986 without lagging surrounding its exhaust stacks. The incidents referred to above and the unseaworthy condition of the Kila, discussed below, contributed to Nelsen’s depression. C. General Maritime Law Under general maritime law the owner/operator of a vessel has an absolute duty to provide a seaworthy vessel. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 542, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Hudson Waterways Corp. v. Schneider, 365 F.2d 1012, 1014 (9th Cir.1966). This duty is not dependent on a finding of knowledge or negligent conduct; it is liability without fault. Mitchell, 362 U.S. at 549, 80 S.Ct. at 932. A “seaworthy” vessel is one that is reasonably fit and suitable for its intended use. Id. at 550, 80 S.Ct. at 933; Litherland, 546 F.2d at 132. General maritime law also requires that the vessel be reasonably fit to enable the crew to perform their duties with reasonable safety. Reinhart v. United States, 457" }, { "docid": "12197601", "title": "", "text": "be a seaman, was not entitled to a negligence claim under general maritime law against the vessel owner, Resource. First, they argue that a seaman cannot have a cause of action under general maritime law. This ar gument overlooks the fact that Tullos is not asserting his general maritime law claim against his Jones Act employer, but against Resource, the owner of the vessel upon which he was working when he was injured. A seaman injured while performing duties for his employer aboard a vessel may sue the vessel owner under general maritime law. See Reed, 521 F.Supp. at 326-27. Second, they argue that Tullos was on board the rig for purposes inimicable to the legitimate interests of the rig owner and therefore was owed no duty of care by the vessel owner. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959). Appellants’ argument is based on the following holding in Kermarec: “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not mimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” Id. The intent of the holding was to eliminate distinctions between licensees and invitees as to the duty of care owed. Id. at 630, 79 S.Ct. at 409. No evidence or argument has been presented to support the allegation that Tullos was on board for purposes inimical to the vessel. To the contrary, his work on board the vessel was to monitor drilling operations by Resource which had been hired by Tullos’ employer to drill an oil and gas well in Louisiana coastal waters. As a separate issue, appellants claim there was insufficient evidence on which to submit the question of negligence to the jury because Tullos failed to prove that Resource knew or had reason to believe that the steps had mud on them prior to Tullos’ fall. Tullos points to testimony by the “mud man” that: (1) during February the mud pumps were leaking because inadequate packing was being" }, { "docid": "1504141", "title": "", "text": "proving that the shipowner knew or had reason to know of any unreasonably dangerous condition existing at the time Plaintiff left the vessel.” Smith contends that the court applied the wrong standard of care and erred in not finding Southern Gulf liable. We agree that Southern Gulf should have been held liable. The United States Supreme Court has held that under maritime law “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” Kermerac v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959). Kermerac sought to clear away the tangle of common law concepts pertinent to the duty of care owed to invitees and licensees on land from the duty of care owed to passengers on a ship. It rejected the use of a conceptual framework based on the duties of owners and occupiers of land as adaptable to the peculiar needs of maritime activities. See 358 U.S. at 630-32 & nn. 7-10, 79 S.Ct. at 409-10 & nn. 7-10. Instead, Kermerac created a standard of “reasonable care under the circumstances of each case.” In this Circuit, the standard of care owed to passengers on a ship, including their embarkation and disembarkation, has variously been stated as a “high degree of care,” as a “duty ... of ordinary care,” as a “reasonably safe means” of boarding and leaving the vessel, as a duty of “reasonable care”, and as a “duty of reasonable care under the circumstances.” Despite the various formulas enunciated in these cases, a review of the facts and the stated standards of care shows that shipowners, relatively speaking, are held to a high degree of care for the safety of passengers. In Tittle, supra, for instance, a passenger aboard a charter fishing boat sustained injuries as she was disembarking from the ship and slipped on the ship’s transom, striking her back against the dock. Although we implicitly adopted the district court’s standard of “ordinary care” in" }, { "docid": "11348796", "title": "", "text": "face of actual disaster even common custom that gets by most of the time is not the test of unseaworthiness in particular circumstances. See Trahan v. Superior Oil Co., 204 F.Supp. 627, 631-632 (W.D.La.1962), aff’d, 322 F.2d 234 (5 Cir. 1963). The ship was expecting a person, of uncertain lay status, not a professional pilot, to board a rope ladder while the vessel was making a lee with waves as high as three to four feet. In these circumstances someone should have been on the platform of the accommodation ladder to be ready to lend a hand if necessary and a man rope and a boat rope should have been made available. The operating negligence of the crew rendered the vessel unseaworthy. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); Mitchell v. Trawler Racer, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967). I find that the vessel was unseaworthy for boarding in the circumstances and that the unseaworthiness was the proximate cause of the death. That conclusion is based on the assumption that United States law governs, for I have not heard evidence on the foreign law respecting the unseaworthiness doctrine. But I also find that the shipowner was negligent in not supplying the safeguards mentioned in the circumstances. Under maritime law the owner of a ship owes a duty of reasonable care to all who are on board and boarding for purposes not inimical to the shipowner’s legitimate interests. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). See Rivera v. Farrell Lines, Inc., 474 F.2d 255 (2 Cir. 1973); Grillo v. Royal Norwegian Government, 139 F.2d 237 (2 Cir. 1943). Thus, whether Nye qualified as a member of a ship’s crew or not under the doctrine of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), a duty of care was owed him to provide a reasonably safe method of" }, { "docid": "20564666", "title": "", "text": "603 (5th Cir. 1969). MONK’S RECOVERY Mr. Monk was not a crew member or one doing the traditional work of a seaman when he was aboard the CARRYBACK at the time of the explosion, fire, and his ensuing death. It may be assumed that he was on the CARRY-BACK using the phone and other facilities provided t,here for the convenience of his work as supervisor of the platform. Accordingly, the shipowner owed Mr. Monk the duty of exercising reasonable care without any encumbrances or distinctions drawn as to the nature of his “common law status” on the boat, i. e., business invitee or licensee. The Supreme Court commented on this issue in Kermarec v. Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 409, 3 L.Ed.2d 550 (1959): “It is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew. Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192; The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633. But this Court has never determined whether a different and lower standard of care is demanded if the ship's visitor is a person to whom the label ‘licensee’ can be attached. The issue must be decided in the performance of the Court’s function in declaring the general maritime law, free from inappropriate common-law concepts. The Lottawanna (Rodd v. Heartt) (U.S.) 21 Wall, 558, 22 L.Ed. 654; The Max Morris (U.S.) supra. * * We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” 358 U.S. 632, 79 S.Ct. 410, 3 L.Ed.2d 554, 555. A California district court elaborated on the Kermarec language in a case involving the ship’s duty of care to a stevedore and developed the argument of duty to a business invitee in the following way: “It is, of" }, { "docid": "212087", "title": "", "text": "unanimous Court replied: For the admiralty law at this late date to import such conceptual distinctions would be foreign to its traditions of simplicity and practicality. We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case. 358 U.S. at 631-32, 79 S.Ct. at 410, 3 L.Ed.2d at 555, 1959 A.M.C. at 602. Gibboney owed a duty to exercise reasonable, care to passengers on the LOVE MACHINE. Kermarec v. Compagnie Generale Transatlantique, 1959, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550, 1959 A.M.C. 597; Fidelity & Casualty Co. v. C/B MR. KIM, 5 Cir., 1965, 345 F.2d 45, 1965 A.M.C. 1944; Tullis v. Fidelity & Casualty Co., 5 Cir., 1968, 397 F.2d 22, 1968 A.M.C. 1451. Although any negligence on the part of Creekmore or Ma-honey & Co. was not such as to constitute his own privity or knowledge of the defect, there was ample basis under familiar maritime principles to impute their negligence to Gibboney so far as liability is concerned. Affirmed. . The two were not in agreement, however, as to the probable source of the spark that ignited the fire. There is testimony in the record to indicate that Wright, and perhaps others, had a lighted cigarette in his hand at the time of the fire. Captain Jones’ opinion was that this cigarette was the most likely source of combustion. Inspector Williams, on the other hand, believed that the pattern of the flash fire — bursting up through the companionway rather than emanating from beneath the cockpit floor — indicated that the probable source was the ignition system of the motor itself. The question, although an interesting one, need not be resolved on this appeal. . There is no indication why, in the limitation proceeding filed solely by Gibboney as vessel owner, the injunction ran specifically against Creekmore as well. The sparse appendix reveals no basis on which the builder could claim limitation. Cf. Guillot v. Cenac Towing Co.," }, { "docid": "3264788", "title": "", "text": "his right knee, twisting his right ankle. Plaintiff was not contributorily negligent. The fall was witnessed by a fellow longshoreman, Mr. Anthony Misseri; the latter saw a skid-mark in the vicinity of plaintiff’s fall. Plaintiff claims that defendant is liable to him on two grounds — unseaworthiness and negligent failure to provide a safe place to work. Unseaworthiness Although the 1972 Amendments preclude a longshoreman from bringing an action for unseaworthiness against a vessel owner, the law which antedates the statute and is applicable here permits such an action. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). A platform is unseaworthy where there is such a condition of slipperiness that it is not reasonably fit for its intended use by the crew, see Rice v. Atlantic Gulf & Pacific Co., 484 F.2d 1318, 1321 (2d Cir. 1973). In this court’s judgment, the existence of the slippery patches, together with inadequate handrails or other support aids rendered the platform not reasonably fit for its intended use. It follows that the platform was unseaworthy at the time of plaintiff’s fall. Since the unseaworthy condition proximately caused plaintiff’s fall, defendant is liable for damages caused by the unseaworthy condition of the platform. Negligence A shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew. Kermarec v. Compagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). The duty of exercising reasonable care entails providing a longshoreman with a safe place to work and safe passage to and from that place. Mendoza v. A/S J. Ludwig Mowinckels Rederi, 293 F.Supp. 1319 (S.D.N.Y.1968); 1A Benedict on Admiralty § 112. To establish that defendant shipowner negligently failed to meet his duty, plaintiff must show that defendant’s actions or failure to act created an unsafe condition of which defendant had actual or constructive notice. Rice, 484 F.2d at 1320. To recover damages, plaintiff must show that defendant’s negligence proximately caused his injuries. The portion of the platform where plaintiff slipped was in an unsafe condition because of" }, { "docid": "15837409", "title": "", "text": "board, and more particularly the life ring on board without any rope attached was of no use under the circumstances. I also find that the life jackets were not readily available. I find that the ship was not only unseaworthy because of the above facts, but that the owners of the FRAM were negligent in not providing adequate lifesaving equipment. The Court does not find that there was any unseaworthiness of the O/S FRAM because of the lack of a workable toilet, because I find that shrimpers, even though they have toilet facilities on board, do not use them. The Respondents argue that Lindy Adams Moore, as captain of the O/S FRAM, was himself negligent because he had been drinking, contrary to orders of the owners, on board the FRAM prior to the accident; that it was also his duty to see that there was proper lifesaving equipment on board and that the same be readily available; and that he should have known it was dangerous for him to sit on the railing; and that all of these acts of negligence were a proximate cause of his demise. From the evidence before me, I find that Lindy Adams Moore was not intoxicated at the time of his death. I further find that the Respondents have failed to prove any contributory negligence on the part of Lindy Adams Moore. Lindy Adams Moore, at the time of his death, was 28 years of age. He was survived by Susana Ramirez Moore, his common-law wife; Sandra Jean Moore, a daughter born September 9, 1958; and Lindy James Moore, born March 10,1962, after his death; that he had two children by a previous marriage, Timothy Moore, minor son, born July 18, 1954, and Michael Lee Moore, born May 21, 1953; and was also survived by his mother, Gertrude Moore, who was 54 years of age at the time of his death. I, therefore, conclude that this Court has jurisdiction of the subject-matter and of the parties to this action; that the total sum, including pain and suffering and loss of contributions to those entitled" }, { "docid": "20801362", "title": "", "text": "the endeavors of men who have dared to navigate the oceans in far less seaworthy craft. In sum, this Court is not convinced that the Star of India, in her present stated condition, does not supply the “maritime nexus” for this tort which admittedly occurred on navigable waters. Ships are the traditional source of admiralty jurisdiction and in view of the foregoing discussion the Court finds that the Star of India is a ship. By its efforts and conduct over the years the defendant Association has enhanced her status as a ship and has held her out as such, practically speaking. The fact that the Star currently rests at dockside detracts not at all from her colorful past nor her future capacities. In view of the foregoing, it is the holding of this Court that the plaintiff’s tort claim does lie within the admiralty jurisdiction .of the federal courts. IV The defendant Association has also moved to strike paragraph VII of the plaintiff’s complaint on the grounds that it is immaterial. Rule 12(f), Federal Rules of Civil Procedure. Paragraph VII alleges: “That the defendants have the duty to furnish the plaintiff with a safe vessel and that the defendants failed to provide a safe vessel for the passengers, and more particularly, for the plaintiff.” Insofar as the allegation implies that the plaintiff may avail herself of the doctrine of unseaworthiness, the Court is inclined to agree with the defendants that she is in error, since the warranty of seaworthiness extends only to crewmembers of the vessel and not to passengers or visitors. Kermarec v. Compagne Generale Transatlantique, 358 U.S. 625, 629, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). In that case, Justice Stewart, speaking for a unanimous Court, stated the pertinent rule as follows: “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” 358 U.S. at 632, 79 S.Ct. at 410. This is obviously a rather broad statement of the shipowner’s" }, { "docid": "11593488", "title": "", "text": "that, under the correct standard of care, Captain Martin’s handling of the COUNTESS was reasonable under the circumstances. We review a district court’s finding of negligence for clear error. See Ludwig v. Pan Ocean Shipping Co., 941 F.2d 849, 850 (9th Cir.1991). “The question whether the district court applied the proper standard of care, however, is one of law and is, therefore, subject to de novo review.” Id. We conclude that the district court applied the proper standard of care. The district court correctly noted that a shipowner owes a duty of reasonable care to those aboard the ship who are not crew members. See Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 409-10, 3 L.Ed.2d 550 (1959). In Kermarec, the Supreme Court held' that “the Owner of a ship in navigable waters owes to. all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.”- Id. at 632, 79 S.Ct. at 410; accord Morton v. De Oliveira, 984 F.2d 289, 291 (9th Cir.), cert. denied, 510 U.S. 907, 114 S.Ct. 289, 126 L.Ed.2d 238 (1993). The degree of care required is always that which is reasonable, but the application of reasonable will of course change with the circumstances of each particular ease. The Second Circuit has described the standard accurately: What is required ... is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility, is merely one of the circumstances, demanding only an increased amount of care. In some instances, reasonable care under the circumstances may be a very high degree of care; in other instances, it may be something less. Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 170-71 (2d Cir.1983) (internal quotations and citations omitted). The district court correctly determined that the standard of care is one of reasonableness, but in a situation such as this, where the risk is great because of high seas, an increased amount of care and precaution is reasonable. • Furthermore, the" }, { "docid": "1504140", "title": "", "text": "affirm the court’s ruling in favor of McMoran. Smith sought to prove that McMoran was responsible for the decision to transport the relief workers by crewboat in rough weather and was therefore also responsible for any consequential injuries that occurred. The ultimate decision about whether to proceed, however, rested with the crewboat captain, an employee of Southern Gulf, not of McMoran. McMoran requested the alternative travel arrangement, but it could not override the judgment of the crewboat captain about the risk of making the trip. Moreover, as the court found, the decision to proceed by crewboat was not unreasonable. SOUTHERN GULF Finally, in regard to Southern Gulf, we reverse and render judgment for Smith and remand for an assessment of damages. The district court found that “all reasonable measures were taken by the vessel owner to ensure Smith’s safety and, considering all existing circumstances, it was not negligent for the vessel to proceed with the voyage under the weather conditions then existing.” The court also found that “the Plaintiff failed to satisfy his burden of proving that the shipowner knew or had reason to know of any unreasonably dangerous condition existing at the time Plaintiff left the vessel.” Smith contends that the court applied the wrong standard of care and erred in not finding Southern Gulf liable. We agree that Southern Gulf should have been held liable. The United States Supreme Court has held that under maritime law “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” Kermerac v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959). Kermerac sought to clear away the tangle of common law concepts pertinent to the duty of care owed to invitees and licensees on land from the duty of care owed to passengers on a ship. It rejected the use of a conceptual framework based on the duties of owners and occupiers of land as adaptable to the peculiar needs of" }, { "docid": "11593487", "title": "", "text": "alter course so that the vessel would be headed in a more easterly direction. This alteration immediately alleviated the severity of the rolling, and the ride became much smoother. On August 10, 1994, Catalina Cruises filed a petition seeking limitation of or exoneration from liability pursuant to 46 U.S.CApp. §§ 181-196 (1994), and Rule.F of the Federal Rules of Civil Procedure Supplemental Rules for Certain Admiralty and Maritime Claims. Magistrate Rupert J. Groh, Jr. directed all potential claimants to file their claims by October 10,1994. Thirty-two claimants filed, contending that Catalina Cruises negligently operated the COUNTESS. Following a bench trial, Senior District Judge A. Andrew Hauk determined that Catalina Cruises operated the COUNTESS in a manner which breached its duty of care to the passengers. The issues of causation and damages are to be determined in a later trial. Catalina Cruises appeals the district court’s finding that it breached its duty of care. We affirm. II. DISCUSSION On appeal, Catalina Cruises claims that the district court faded to apply the correct standard of care, and that, under the correct standard of care, Captain Martin’s handling of the COUNTESS was reasonable under the circumstances. We review a district court’s finding of negligence for clear error. See Ludwig v. Pan Ocean Shipping Co., 941 F.2d 849, 850 (9th Cir.1991). “The question whether the district court applied the proper standard of care, however, is one of law and is, therefore, subject to de novo review.” Id. We conclude that the district court applied the proper standard of care. The district court correctly noted that a shipowner owes a duty of reasonable care to those aboard the ship who are not crew members. See Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 409-10, 3 L.Ed.2d 550 (1959). In Kermarec, the Supreme Court held' that “the Owner of a ship in navigable waters owes to. all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.”- Id. at 632, 79 S.Ct. at 410; accord Morton v. De" }, { "docid": "17378772", "title": "", "text": "his ulcer. As we described above, we think a jury could find the requisite causation between the fishhook accident and the ulcer even if the ship’s captain and crew did not know Napier’s medical history. D. Unseaworthiness Unseaworthiness has been defined by the Supreme Court as a separate cause of action and unique from a claim under the Jones Act. Ferrara, 99 F.3d at 452 (1st Cir.1996) (quoting Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971)). The doctrine of unseaworthiness places an absolute duty upon shipowners to furnish a “seaworthy” ship and compensate seamen for injuries caused by any defect in a vessel or its appurtenant appliances or equipment. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 548-49, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st Cir.1980). A shipowner is not bound to provide an accident-free ship, but rather the duty is “to furnish a vessel and appurtenances reasonably fit for their intended use.” Mitchell, 362 U.S. at 550, 80 S.Ct. 926. That duty extends to all situations aboard the ship, whether transient or permanent, developing before the ship leaves its home port or at sea. Id. at 549-50, 80 S.Ct. 926. The absolute duty is such that even a temporary and unforeseeable malfunction or failure of a piece of equipment is sufficient to establish an unseaworthy condition. Ferrara, 99 F.3d at 453 (quoting Hubbard, 626 F.2d at 199). Liability based upon a claim of unseaworthiness does not require a showing of negligence, but instead imposes a strict liability regime upon shipowners. “The reason, of course, is that unseaworthiness is a condition, and how that condition came into being — whether by negligence or otherwise — is quite irrelevant to the owner’s liability for personal injuries resulting from it.” Usner, 400 U.S. at 498, 91 S.Ct. 514. For liability to exist, a plaintiff must first establish the existence of an unsea-worthy condition on board the vessel and then demonstrate the unseaworthy condition to be the proximate cause of his injury. Ferrara, 99 F.3d" }, { "docid": "16427308", "title": "", "text": "M/V MYRNA ANN. A ship owner is entitled to limit its liability to the amount of the vessel only if it shows that the negligence or unseaworthy condition causing the injury occurred without its privity and knowledge. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir.1976). Here, L & L has failed to carry its burden of proving lack of privity and knowledge. Thus, it is not entitled to limitation. B. Unseaworthiness 6. Independent of its duty under the Jones Act, a shipowner or operator of a vessel owes a duty to furnish a seaworthy ship to members of the vessel’s crew. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). The duty of seaworthiness is absolute, but “it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use.” Id. at 550, 80 S.Ct. 926. That is, the duty is reasonableness, not perfection. For a vessel to be found unseaworthy, the seaman must establish a causal connection between his injury and the breach of duty that rendered the vessel unseaworthy. Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir.2001). The standard required to prove causation for unseaworthiness is more strict than for a Jones Act claim of negligence. Comeaux v. T.L. James & Co., Inc., 702 F.2d 1023, 1025 (5th Cir.1983). Causation in unseaworthiness requires a showing of “proximate causation in the traditional sense.” Id. Under this standard, the Plaintiff must show that the captain’s chair was not fit for its intended use and that this condition was a direct and substantial cause of his injuries. See Alverez v. J. Ray McDermott & Co., Inc., 674 F.2d 1037, 1043 (5th Cir.1982). 7. In this case, the Plaintiff has established a claim of unseaworthiness. When put to its normal and intended use, the captain’s chair collapsed, causing the Plaintiff to fall to the floor and suffer injuries. The unseaworthy condition, however, was due to the defective condition of the chair pedestal. As such," }, { "docid": "17411211", "title": "", "text": "the performance of the duty is delegated acts for his own purposes and with no intent to benefit the principal or master is immaterial. Restatement (Second) of Agency § 214 cmt. e (1958) (emphasis added). Further, we reject the defendants’ claim that the Supreme Court abandoned the Jopes rule in Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). In Kermarec, the plaintiff was not a passenger, but was visiting a crew member. While on board the ship, the plaintiff fell on a staircase allegedly due to the improp-ef way a runner was attached to the stairs. The plaintiff sued for personal injury due to the ship owner’s negligence. Id. at 626-27, 79 S.Ct. at 407-08. The district court in Kermarec concluded that the ship owed a lower standard of care to the plaintiff as a “gratuitous licensee” under the laws of New York. Id. at 629, 79 S.Ct. at 409. The Supreme Court in Kermarec decided that admiralty law need not import the land-based common law distinctions between “invitees” and “licensees,” id. at 631, 79 S.Ct. at 410, and concluded “that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” Id. at 632, 79 S.Ct. at 410. In analyzing the ship’s liability to the visitor, the Supreme Court in Kermarec also stated that, “[i]t is a settled principle of maritime law that a shipowner owes a duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Id. at 630, 79 S.Ct. at 409. While this reasonable care language in Kermarec is broad, the Supreme Court was answering only a narrow question of law regarding whether the distinction between “licensees” and “invitees” imposed a lower standard of care on ship owners in a slip-and-fall case. More importantly, Kermarec did not involve an assault or any intentional tort committed by a crew member on a passenger. Rather, Kermarec was a common," }, { "docid": "21527925", "title": "", "text": "(45 USCA §§ 51-59), relating to the recovery of common carriers in case of death of an employee due to negligence of the carrier. While it may or may not follow that the vessel was unseaworthy due to negligence of the owner in failing to inspect the vessel before leaving port to determine whether the compressed air whistle was on board, in order for the representative of a deceased seaman to recover under the Merchant Marine Act under either count, the relationship of employee and employer must be shown to exist between the seaman and owner, since only by virtue of this act can there be a recovery for the death of a seaman, there being no liability in admiralty in case of death resulting from the unseaworthiness of a vessel. Kunschman v. United States (C. C. A.) 54 F.(2d) 987; Lindgren v. United States, 281 U. S. 38, 50 S. Ct. 207, 74 L. Ed. 686. The plaintiff, therefore, to recover in this action, must prove not only that her husband is dead, and his death was due to a personal injury resulting from the negligence of the defendant, but that he was at the time of his death in the employ of the defendant. The Henrietta on this trip was being operated on what is known as a “broken fifth lay,” under which, out of the gross receipts of the trip, was first taken the lost and condemned gear, a certain percentage for the engineer, and the watchman’s charge. Of the balance the vessel was to take one-fifth, out of which the captain had a certain percentage, viz., 12% per cent. The remainder of the proceeds of the catch, after paying for all supplies, including food, bait, ice, fuel, lubricating oil, etc., and an agreed-upon sum to the cook, was to be divided among the captain and crew. The operation of fishing vessels under agreements, or lays, so called, for sharing the proceeds of the catch, has been familiar to those engaged in the business and to the courts for more than a century; and it has been" }, { "docid": "5825997", "title": "", "text": "not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service.” Trawler Racer, 362 U.S. at 550, 80 S.Ct. 926. An owner is not “obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use.” Id. One such imperfection that does not create liability is that of a personal, negligent act of another seaman. An important distinction exists between “transitory unseaworthiness,” for which liability exists, and “instant unseaworthiness,” defined as a single act of “operational negligence” that does not result in liability. Usner, 400 U.S. at 496, 91 S.Ct. 514. Nor is a seamen-relieved of his burden of showing causation: “A seaman must show that an unsafe condition on the vessel caused his injury; dispensing with the need to prove that some ‘fault’ led to this condition does not dispense with the need to establish that there was one.” Hughes, 6 F.3d at 1197. “[A]s we have many times said, the mere fact that an accident occurs and a seaman is injured while using an appurtenance in the performance of his duties cannot, without more, establish that a vessel is unseaworthy.” Mosley, 314 F.2d at 228-29. The lower standard of causation familiar in Jones Act cases does not apply, and thus the plaintiff must show that the defective condition was a “substantial factor” in causing his injury. Brown v. OMI Corp., 863 F.Supp. 169, 170 (S.D.N.Y.1994). Further, “the rule of comparative negligence applies,” Jones v. Spentonbush-Red Star Co., 155 F.3d 587, 596 (2d Cir.1998); 2 Martin J. Norris, The Law of Seamen § 27:19 (4th ed.1985), and is measured by “‘the traditional negligence standard of whether [the seaman] exercised the care which a reasonably prudent man would have exercised under the circumstances.’ ” Brown, 863 F.Supp. at 170-71 (quoting Ktistakis v. United Cross Navigation Corp., 324 F.2d 728, 729 (2d Cir.1963)). C. Maintenance and Cure “A claim for maintenance and cure concerns the vessel owner’s obligation to provide" }, { "docid": "22956527", "title": "", "text": "In the Jones Act negligence context, Seacoast vigorously argues that Captain Dixon’s salvage operation was a frolic of sorts which exceeded the scope of his authority. Leaving aside the question of whether the scope of the authority of a seaman’s superior is even relevant where a seaman is injured aboard ship, we hold that Captain Dixon’s actions were not and could not have been outside of the scope of his authority. Salvage of both life and property is so encouraged that it is practically a mariner’s duty. See page 358 supra. Not only is salvage the favorite of the common law of admiralty, it is also a statutorily-approved reason for deviation by a carrier. Nor was the captain’s power and responsibility to salve property at sea even limited by policy or actions of Seacoast. Seacoast’s argument that Captain Dixon exceeded the scope of his authority by undertaking what the law in all ways encourages — salvage—has the buoyancy of an anchor in water. Because we reject Seacoast’s respondeat superior argument, we find Seacoast vicariously liable under the Jones Act. We alternatively consider vicarious liability for unseaworthiness. The vessel owner’s duty to prevent unseaworthy conditions is absolute, continuing, and non-delegable. Lack of knowledge of or opportunity to correct such conditions does not mitigate the vessel owner’s duty. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, 1960 A.M.C. 1503 (1960). See Mahnich v. Southern S.S. Co., supra; 2 M. Norris, supra, §§ 621-22. Indeed the breadth of the owner’s responsibility for unseaworthy conditions is well-illustrated by the Sieracki-Ryan-Yaka-Italia cases tried before Congress limited that avenue of longshoremen’s relief. Frequently, those cases involved unseaworthy conditions created by longshoremen without knowledge of vessel owner, Captain, or crew, and in violation of the stevedore’s contract with the vessel owner. Nevertheless, the vessel owner was held responsible for unseaworthiness-induced injuries. E. g., Bonura v. Sea Land Service, Inc., 505 F.2d 665, 1975 A.M.C. 462 (5th Cir. 1974) (safety rigging should have been placed around cargo hatch); Kyzar v. Vale Do Ri Doce Navegacai, S.A., 464 F.2d 285, 1972 A.M.C. 1661" }, { "docid": "12197600", "title": "", "text": "furtherance of the mission of the vessel. 521 F.Supp. at 326-27. Similarly, in Welch the plaintiff was a welding inspector employed by FB & D which contracted to perform engineering work on a pipeline. He slipped in a bathroom on a barge not owned or operated by his employer. He was also found to be a seaman under the Robison requirements. 336 F.Supp. at 384. The undisputed facts pertaining to Tullos’ employment on the vessel owned by Resource are sufficient to satisfy the Robison requirements and permit a ruling as a matter of law that Tullos was a seaman. It should be noted, however, that meeting the Robison requirements usually merely provides sufficient evidence for seaman status to reach the jury. The district judge, in this case, however, felt bound by the very similar factual situation in Parks to make the ruling as a matter of law. He did not err in doing so. 2. Negligence under General Maritime Law Appellants make two preliminary arguments that Tullos, acknowledged for the purposes of this issue to be a seaman, was not entitled to a negligence claim under general maritime law against the vessel owner, Resource. First, they argue that a seaman cannot have a cause of action under general maritime law. This ar gument overlooks the fact that Tullos is not asserting his general maritime law claim against his Jones Act employer, but against Resource, the owner of the vessel upon which he was working when he was injured. A seaman injured while performing duties for his employer aboard a vessel may sue the vessel owner under general maritime law. See Reed, 521 F.Supp. at 326-27. Second, they argue that Tullos was on board the rig for purposes inimicable to the legitimate interests of the rig owner and therefore was owed no duty of care by the vessel owner. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959). Appellants’ argument is based on the following holding in Kermarec: “We hold that the owner of a ship in navigable waters owes to all" }, { "docid": "23031222", "title": "", "text": "explain the captain’s duty under the circumstances and what would constitute negligence. At the end of the charge proper, the Court charged plaintiff's seaworthy points practically verbatim saying: “Because of the condition of the seaman’s employment, the policy of the maritime law has been to consider the seamen as a ward of the admiralty and the law places a great responsibility upon the operator of the vessel for the safety and welfare of the members of the crew. The seaman is subject to the strict discipline of the sea and all the conditions of his service require him to accept without question and without protest such working conditions and appliances as are furnished by the vessel once he embarks on the voyage. These conditions have generated the exacting requirements that the vessel must provide seamen with safe and seaworthy appliances with which to do his work and likewise require that safe appliances be furnished when and where the woric is to be done.” “The operator must not only provide but must also maintain and keep in proper working order all of the appliances and equipment appurtenant to the vessel.” “A much higher obligation as to equipment and appliances is imposed by law upon employers of seamen than upon employers of shoreworkers who may at anytime withdraw from the service and refuse to use equipment and appliances considered unsafe. Under the maritime law, there is an absolute duty on the part of the ship and her owners or operators to provide a seaworthy vessel and to supply and keep in order the proper appliances and equipment appurtenant to the ship. This obligation does not depend upon the exercise of reasonable care but is absolute. In other words, there is absolute liability on the part of the owners or operators of a merchant vessel for injuries sustained by a seaman by reason of the unseaworthiness of the vessel or the failure to supply and keep in order the proper appliances appurtenant to the ship.” \"If you find that the throttle in tire engine room was not in proper operating condition and required" } ]

[ { "docid": "8067696", "title": "", "text": "McMILLIAN, Circuit Judge. Appellant Donald Clay appeals from a judgment finding him guilty of possession of a firearm as a convicted felon, 18 U.S.C. App. § 1202(a)(1). The district court imposed an eighteen-month suspended sentence and four years of probation. For reversal appellant argues that the district court erred in failing to sustain his motion to suppress physical evidence obtained as a result of an alleged illegal search and seizure in violation of his fourth amendment rights. For the reasons discussed below, we reverse and vacate the judgment of the district court. I. Background Pursuant to a state search warrant issued on March 23, 1979, police entered the residence of Donald Love, located at 6213 Walrond, Kansas City, Missouri, in search of drugs, contraband and firearms. The search warrant was executed by uniformed and undercover agents during the early evening hours. Shortly after the search began, appellant, who was neither a suspect in the investigation nor an anticipated subject of the search, approached the house, knocked on the storm door and was confronted by Sergeant Tom Moss, an undercover police agent who was dressed in blue jeans and a T-shirt. Sgt. Moss opened the door, displayed his badge and identification, and ordered appellant into the house. Appellant immediately stepped backwards but did not attempt to run away. Sgt. Moss pulled out his revolver and again ordered appellant into the house. Appellant entered the house whereupon Sgt. Moss requested his investigator to conduct a pat down search. A small quantity of marijuana and a gun were discovered. Appellant moved to suppress the evidence seized. Appellant argued that the search was unconstitutional because it was done without a warrant, without probable cause, without consent, and not incident to a valid arrest. Appellant stressed that the stop and frisk was not based upon objective facts from which a police officer could reasonably conclude that appellant was involved in criminal activity. The government sought to justify the frisk under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A full evidentiary hearing was held on November 26," } ]

[ { "docid": "8279684", "title": "", "text": "OPINION SCHWARZER, Senior District Judge. Defendant-appellant Altonio Paulette, having been convicted of being a felon in possession of a firearm, appeals his conviction and sentence. 18 U.S.C. § 922(g). Paulette contends (I) that the denial of his motion to suppress evidence was error; (II) that the evidence was insufficient to support his conviction for possession of a firearm; (III) that the district court erred in its Guidelines calculation by applying a two-level enhancement for obstruction of justice; and (IV) that the court’s denial of a reduction for acceptance of responsibility was error. For the reasons that follow, we vacate Paulette’s sentence to the extent it rests on the obstruction of justice enhancement and remand for resentencing. In all other respects, we affirm. FACTS AND PROCEDURAL HISTORY On November 1, 2002, two Memphis police officers observed Paulette and another individual engage in a hand-to-hand transaction. The officers, based on their knowledge of the area and experience with drug crimes, believed the transaction to be related to drugs. When Paulette noticed the officers approaching in their marked squad car, he quickly moved his hand to his pocket and began to walk away from the officers. The officers pursued Paulette and eventually detained him. Believing that Paulette had a weapon, they conducted a pat down search and discovered two plastic bags of marijuana on his person. The officers examined Paulette’s driver’s license, which listed his address as the Memphis-suburb Cordova. When asked by the officers what he was doing in Memphis, Paulette stated that he was currently staying with his aunt nearby. One of the officers later testified that he suspected Paulette was dealing drugs out of the home of a female relative, a practice he considered to be common in the area. The officers accompanied Paulette to his aunt’s home. His aunt answered the door and gave the officers permission to search her residence. She directed the officers to the room where Paulette “generally slept,” in which they discovered more drugs, firearm ammunition, and a loaded 9 mm assault rifle. The officers found the drugs and ammunition in drawers exclusively used by" }, { "docid": "10621099", "title": "", "text": "at 1244 (quotation omitted). Furthermore, the police officers in this case knew that the apartment in which Mr. Garcia was found was connected with at least one member of the Lay Low Crips, a violent street gang with a history of firearms violence toward police officers. In fact, Detective Wyant had identified Kilgrow, the gang member, as one of the persons present at the apartment at the time the officers approached. See United States v. Flett, 806 F.2d 823, 828 (8th Cir.1986) (holding that “the location of the appellant in the home of a known gang member charged with a narcotic violation” was one factor that supported “a reasonable inference that the appellant may be a gang member and may be armed and dangerous”). Sergeant Robertson also observed another individual at the apartment who was dressed in gang-related attire and who he recognized from previous gang investigations. Mr. Garcia emphasizes that, unlike the appellant in Flett, he was not dressed in gang attire and that nothing about his appearance indicated to the officers that he was a member of a gang. He also emphasizes that the officers did not recognize him as a gang member and argues that a frisk may not be justified based solely on the company one keeps. See United States v. Clay, 640 F.2d 157 (8th Cir.1981) (suppressing evidence found during a pat-down search of a man who stopped by a house at which police were executing a search warrant for drugs and firearms). We nonetheless conclude that it was reasonable for the officers to believe that the persons present in the front room, who were all apparently connected to drug transactions involving known and suspected gang members, all had some degree of gang affiliation. Although not necessarily determinative by itself, that gang connection further supports the reasonableness of a weapons frisk of those present, including Mr. Garcia. Mr. Garcia further emphasizes that he was compliant with requests made by the officers, that he made no threatening statements or movements, and that the officers were able to see the hands of everyone in the front room." }, { "docid": "19816438", "title": "", "text": "at the time was that any visitors were trespassing because the landlord had previously told him that no one other than Young was permitted in the unit. At Rock’s request, Wilson agreed to let the police search the apartment. For his own part, Rock later testified that he did not believe Wilson had authority to consent to the search. Asked why he bothered obtaining her written authorization, he explained, “to cover all my bases.” Wilson accompanied Rock to the apartment, knocked on the door and exclaimed that she was with the police. An unknown person in the apartment opened the door. Officer Rock and his partner entered. Washington was among those who were immediately visible, and he became belligerent and told Rock that he was not allowed in the apartment. Officer Rock testified that drug paraphernalia in the living room was in plain view once he was inside the apartment. Nothing in the record suggests this material was visible from the doorway. Upon seeing this evidence of criminal activity, Rock asked the defendant if he had anything illegal in his possession. Washington replied, “You can’t search me.” Officer Rock informed Washington that he was suspected of criminal trespass and would be patted down. Washington then stated, “I’m dirty.” Rock asked again whether Washington possessed anything illegal. Washington nodded affirmatively. Rock asked if it was a firearm, and Washington nodded affirmatively a second time. Rock and his partner placed Washington in handcuffs and retrieved a .357 revolver from the waistband of Washington’s pants and a crack pipe from his pocket. A criminal history check revealed that Washington was a previously convicted felon imprisoned for more than one year and so he was charged under 18 U.S.C. § 922(g)(1) for being in possession of a firearm. Although the district court initially denied the defendant’s motion to suppress for lack of standing, it then granted the defendant’s motion to reconsider and suppressed the evidence in light of defendant’s evidence showing that he had an expectation of privacy in the unit and that the search violated the Fourth Amendment. In its motion to reconsider," }, { "docid": "9905823", "title": "", "text": "WOLLMAN, Circuit Judge. Sylvester Cornelius pleaded guilty to being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). He appeals from the district court’s denial of his suppression motion. The government cross-appeals from the district court’s sentencing determination. We affirm the denial of the suppression motion and reverse as to the sentencing determination. I. Kansas City Police Officers Vernon Huth and Randy Evans observed Cornelius walking down a street at approximately 10:00 a.m. on January 20, 2003. Officer Huth recognized Cornelius from previous arrests and recalled seeing two outstanding drug-distribution felony warrants for him on the police computer the day before. As the officers approached Cornelius in their patrol car, they observed him change direction and place his left hand in his pocket. Officer Huth got out of the car and directed Cornelius to remove his hand from his pocket. When Cornelius failed to comply, Officer Huth grabbed him and compelled him to lean over the hood of the patrol car. Cornelius removed his left hand from his pocket and attempted to throw a plastic bag of brown paper and “white rock” into the vent of the patrol car (the bag was later determined to contain crack cocaine). As Officer Huth handcuffed him, Cornelius disclosed that he had a weapon, which was uncovered in a search incident to arrest. After being advised of his rights, Cornelius admitted to purchasing the crack cocaine and possessing the firearm. He subsequently moved to suppress these admissions and the physical evidence discovered during the search. The government contended that the evidence was properly obtained because the officers had a reasonable suspicion of ongoing criminal conduct. The district court, adopting the recommendation of the magistrate judge, rejected the government’s position but denied the suppression motion under the good faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Following Cornelius’s guilty plea, the district court rejected the government’s argument that Cornelius’s four prior drug convictions (based on four separate sales to an undercover officer over an eight-day period)" }, { "docid": "1405128", "title": "", "text": "OPINION GILMAN, Circuit Judge. Corey Clay was arrested as part of a drug investigation in Detroit, Michigan. He was charged in a two-count indictment with possession of a controlled substance and for being a felon in possession of a firearm. During his trial, Clay twice moved to dismiss the charges pursuant to Rule 29 of the Federal Rules of Criminal Procedure. These motions were denied. After Clay was convicted by a jury on both counts, the district court sentenced him to 63 months of imprisonment and two years of supervised release. Clay contends on appeal that (1) the evidence was insufficient to establish his guilt, (2) the district court erred in apprising the jury pool of his prior drug conviction, and (3) he should not have received a sentencing enhancement. For the reasons set forth below, we AFFIRM the judgment of the district court. I. BACKGROUND On March 3, 2001, three police officers were investigating the possibility of drug dealing at an uninhabited apartment in Detroit, Michigan. They walked up to the open front door, where they observed suspicious activity inside. The officers noticed two individuals in the apartment. One of the individuals, later identified as Clay, ran toward the back of the apartment and tossed a plastic bag on the floor. While one officer apprehended Clay, another officer retrieved the bag, which contained an off-white lumpy material that one of the officers later identified as crack cocaine. The third officer searched Clay and found a firearm and $575 on his person; A laboratory report showed that the material weighed 1.1 grams and contained cocaine. Clay was indicted on one count of possession of “a controlled substance, to wit: approximately 1.6 grams of a mixture of substance containing crack cocaine, also known as cocaine base,” in violation of 21 U.S.C. § 844(a), and on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (No explanation is found in the record regarding the discrepancy between the 1.1 grams stated in the laboratory report and the 1.6 grams alleged in the indictment.) The" }, { "docid": "8067710", "title": "", "text": "dangerous, Cole’s mere presence on the premises did not justify a personal search.” Id. at 899. The governing principle in both cases is the same : an officer’s pat down of a person cannot be justified solely by the individual’s mere presence on the premises described in the search warrant. In our view, Sgt. Moss had nothing more than “mere suspicion” of possible criminal activity or danger based upon appellant’s approach to the house. After reviewing the circumstances surrounding the stop as a whole, we conclude that Sgt. Moss did not have reasonable suspicion, based on objective facts that Clay was involved in any criminal activity. We hold that on the facts presented, the district court erred in refusing to suppress the gun seized. Such error went to the heart of the government’s case. The judgment of the district court is reversed and vacated. . Three other men approached the house and were detained inside by the police. Two of the men were identified as Edgar Wright and Theotis Byers; the third man’s identity was never determined. Wright and Byers testified that they had arrived at the home before Clay and had also been detained by the police officers. Sgt. Moss testified that Clay arrived first and the others came shortly after. The district court accepted the officer’s account of the order of arrival. At trial the testimony of the officers present during the search indicated that the defendants were frisked immediately upon arrival at the house. The defense witnesses, however, all testified that a delay of between five and ten minutes transpired after they entered the house and the officers frisked them. The district court also credited the police account of these events surrounding the timeliness of the search and concluded that the frisk was conducted immediately upon the arrival of the visitors. The factual findings of the district court do not appear to be clearly erroneous, thus are left undisturbed by this court. . See also United States v. Palmer, 603 F.2d 1286 (8th Cir. 1979) (racial unrest in area and rumors of possible gang action not sufficient" }, { "docid": "14794518", "title": "", "text": "brown paper bag Clay was holding split and a smaller bag fell to the porch. Lewis picked the smallc-r bag up and said, “This is it”, and both officers told Clay he was under arrest. At this particular moment, Morris, another agent who had physical custody of the search warrant which had been procured in anticipation of Clay’s arriving at the house, requested Mrs. Anderson to open the front door, advising her that he had a search warrant to search the premises, and upon her refusal, the officers jerked the screen door open and entered the house. Mrs. Anderson refusing to accept the warrant, Pair laid it on the television set in the living room where she was, and proceeded with his search and seizure. At the hearing on the motions to suppress, Clay testified that 140 Morton Avenue was his personal residence, that on June 21, when he drove up into the yard, got out of bis car, and started to go into tbe house,—and he had a right to go into it,—if he had not been arrested he would have entered it. He further testified that when he was at the house he had free run of it, and in effect every room in it was under his custody and control. After the brown bag had been seized from him, Olay was subjected to a perfunctory search and so was the automobile. The officers who produced the search warrant and executed the search and seizure were experienced investigators and they testified fully as to how the operation was conducted. They also testified on the trial: that they had received reliable information to the effect that Clay was operating a lottery and that he was checking up at Athens; that they first determined that he had not complied with the requirements of the wagering tax act and then established a watch over his activities. Having observed him for several days, they procured the search warrant to search the place which, in the affidavit for the search warrant and in his testimony one of them swore was being used as" }, { "docid": "22458184", "title": "", "text": "Mr. Hayes was eventually released upon convincing his assailants he worked for James Jenkins, Jr., and was not a snitch. That evening, after treatment at a hospital, Mr. Hayes gave a complete statement to the KBI. Upon consultation with an assistant attorney general assigned to the KBI, Agents Lundin and Sabel decided to obtain search warrants for 1201 Lincoln and what they believed to be an upstairs apart ment at 1261 S.W. Clay. On the night of February 18, 1991, based on an affidavit submitted by Agent Lundin, a Kansas district judge signed search warrants for the two residences. The warrant for 1261 S.W. Clay authorized a search of “[t]he upstairs apartment ... the door being on the second floor facing West at the rear of the building.” The warrant listed the following items for which the officers could search: Blood, $275.00 in cash, a small caliber blue semi auto pistol, a single barrel sawed off shot gun, a black cloth trench coat, a blue sweat shirt with pocket on left sleeve and loop in back, and a sports insignia on the left breast, a key with room 161 engraved on it, and items identifying occupants of the premises including mail and utility bills etc. At about 11:40 p.m. February 18, 1991, officers of the Topeka Police Department assisted KBI agents in executing the search warrant at 1261 S.W. Clay. The search began with a member of the Topeka Police Department throwing a distraction device known as a “flash bang” through the second story entrance. Another Topeka Police officer rammed open the second story door, allowing the search team to enter the home. As the officers entered the home they yelled, “Police search warrant.” James Jenkins, Sr. (hereinafter Mr. Jenkins), his wife, Lula Jenkins, and their daughters were the only persons in the house when the officers executed the search warrant. According to Mr. Jenkins’ later testimony, James Jenkins, Jr., had not lived in the house for over a year. As it turned out, there was no upstairs apartment at 1261 S.W. Clay, though the home did have outside stairs" }, { "docid": "16029063", "title": "", "text": "and frisk. Officer Carter did not find a weapon, but did find and retrieve from Reid’s front shirt pocket a large plastic bag. The bag contained 23 ziplock bags of crack cocaine, several empty ziplock bags, and one ziplock bag which contained a razor blade. Officer Carter returned the large plastic bag to Reid’s shirt pocket and detained Reid while the other officers broke down the door to the apartment and executed the search warrant. After the officers entered the apartment, Reid was taken inside, placed on the floor and again patted down. The officers again retrieved the large plastic bag from Reid’s shirt pocket, and also discovered two much larger pieces of crack cocaine in Reid’s pants pocket. Reid was then arrested for possession of crack cocaine. Reid sought to have the evidence suppressed prior to trial, and, at the suppression hearing, additional pertinent facts were brought forth. Officer Carter testified that his reason for believing that Reid should be stopped stemmed from his leaving of the apartment just as it was about to be searched for drugs. Officer Carter explained that he searched Reid for weapons “[bjecause in my experience as a police officer in executing narcotics search warrants, it’s always a chance that sometime there is weapons in the premises or on persons in that premises.” When Officer Carter patted Reid’s chest, he felt a “hard object” that “could have been a gun.” He further testified that the first two officers who preceded him up the steps had specific functions in the prospective search: the first officer was carrying the ram, with which the door to the apartment was in fact knocked down; the second officer was the “announce” officer who informed the residents of the apartment that the police had a warrant and were entitled to entry. The trial court denied the motion to suppress the evidence that was seized from Reid. Judge Richey concluded that the police had a reasonable basis for the stop: “under the totality of the circumstances here, the conduct of the police was reasonable .... ” The trial court found that" }, { "docid": "10979392", "title": "", "text": "PER CURIAM. In this appeal, Royston C. Patterson challenges his conviction by jury of one count of possession of cocaine base (“crack”) with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) and 924, and one count of using a firearm in relation to the possession of five or more grams of cocaine base with intent to distribute in violation of 18 U.S.C. § 924(c). Patterson’s sole contention on appeal is that the district court erred in refusing to grant his motion for judgment of acquittal because the evidence is insufficient to support his conviction on each of the three counts. We disagree, and affirm. The undisputed evidence presented at trial indicates that on the evening of April 2, 1988, in connection with an assault investigation Officers Kevin Byrd and Troy Meyer of the Kansas City Police Department were searching for an orange Toyota driven by Patterson and an individual named Daryl Moore. Byrd and Meyer had received a report that Patterson was carrying an Uzi submachine gun. The officers located the Toyota in a driveway and went to the front door where they were greeted by a third man who gave them consent to search the premises for the occupants of the Toyota and any weapons. The officers found Moore behind a closet door in a first floor bedroom. After the arrival of two backup officers, they searched the basement of the residence where they found Patterson behind the furnace, lying crouched on top of a rock and mortar wall. The officers pulled Patterson off of the ledge when he refused to comply with their request to come down; as they did so, a plastic bag containing fifty-seven baggies filled with 87.8 per cent pure cocaine base was knocked off of the ledge. The officers testified that the bag had been located on the ledge in front of Patterson’s feet. After Patterson’s removal, the officers observed an Intra Tec 9mm. semi-automatic pistol loaded with thirty-four rounds of" }, { "docid": "22682675", "title": "", "text": "PRYOR, Circuit Judge: The main question presented in these cross-appeals is the contention of the government that John Windell Clay’s 60-month sentence for possessing methamphetamine precursors is unreasonably lenient, when the advisory Guidelines range was 188 to 235 months and the variance was based primarily on Clay’s postoffense rehabilitation. Several witnesses, including drug counselors and corrections workers, testified at Clay’s sentencing hearing that Clay’s rehabilitation was extraordinary, and the district court credited their testimony. In his appeal, Clay argues that the district court erred when it denied his motion to suppress evidence and when it enhanced his sentence based on acquitted conduct. We affirm Clay’s conviction and sentence. I. BACKGROUND On October 10, 2004, Sergeant James Eissler stopped Clay’s car because only one headlight was operating. While Clay looked for his insurance card, Sergeant Eissler saw a shotgun between the driver’s seat and the door. Sergeant Eissler asked Clay to get out of the car and conducted a pat-down search of Clay’s person before placing him in the squad car. Sergeant Eissler’s search of Clay’s pants pocket revealed an empty barrel from a ball-point pen, which is often used as a device for ingesting narcotics. Sergeant Eissler removed the item from Clay’s pocket because he could not tell by feel whether it was a weapon; he thought it might be a screwdriver. Sergeant Eissler advised Clay of his Miranda rights. Clay, who did not appear impaired, consented to a search of his car. Sergeant Eissler left the window of the squad car open so that Clay could stop the search at any time. Sergeant Eissler discovered in the trunk of the vehicle ten unopened boxes of cold and allergy medication containing pseudoephedrine and arrested Clay. At the police station, after waiving his Miranda rights, Clay told police that he had purchased the pseudoephedrine pills for a man he occasionally supplied with such pills and admitted involvement with methamphetamine manufacturing and distribution. Six months later, Clay was indicted with five others on charges of conspiracy to manufacture and possess with intent to distribute more than 500 grams of methamphetamine, 21 U.S.C." }, { "docid": "8067709", "title": "", "text": "to be frisked, simply because the person happens to arrive at the premises where an authorized narcotics search is taking place. We reject the invitation to do so. Recently, the Fifth Circuit also rejected that argument in United States v. Cole, 628 F.2d 897 (5th Cir. 1980). In that case, state police officers lawfully obtained a warrant to search an apartment for narcotics. As the police approached the apartment, they observed Cole parking his truck at the carport attached to the rear of the premises. Cole was not a target of the warrant and was merely a visitor on the premises. Cole got out of his truck and immediately an officer frisked him for weapons, uncovering a small pistol tucked behind his belt. At trial, Cole moved that the gun be suppressed. That motion was denied and the district court later convicted Cole of unlawful possession of firearms. The Fifth Circuit reversed the district court’s decision on that count holding that, “in the absence of specific articulable facts to believe that appellant was armed and dangerous, Cole’s mere presence on the premises did not justify a personal search.” Id. at 899. The governing principle in both cases is the same : an officer’s pat down of a person cannot be justified solely by the individual’s mere presence on the premises described in the search warrant. In our view, Sgt. Moss had nothing more than “mere suspicion” of possible criminal activity or danger based upon appellant’s approach to the house. After reviewing the circumstances surrounding the stop as a whole, we conclude that Sgt. Moss did not have reasonable suspicion, based on objective facts that Clay was involved in any criminal activity. We hold that on the facts presented, the district court erred in refusing to suppress the gun seized. Such error went to the heart of the government’s case. The judgment of the district court is reversed and vacated. . Three other men approached the house and were detained inside by the police. Two of the men were identified as Edgar Wright and Theotis Byers; the third man’s identity was" }, { "docid": "5272751", "title": "", "text": "HENLEY, Circuit Judge. The defendant, Terrance Michael Corbett, was convicted by a jury on one count of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871 and on two counts of possession of a firearm, after having been convicted of a felony, in violation of 18 U.S.C. App. § 1202(a)(1). On appeal the defendant assigns several points of error. We affirm the judgment of conviction. Validity of the Search. The defendant challenges the scope of a search of his house which produced a sawed-off shotgun and a .38 caliber revolver. The facts surrounding the search were developed during a suppression hearing and again by the government during the trial. On June 6, 1974 Officer Thomas Bishop of the Bridgeton, Missouri Police Department obtained a search warrant from a St. Louis County magistrate. The application was supported by two affidavits based on information supplied by reliable informants. Each affidavit stated that a large quantity of marijuana had been stored at 57 Beacon, Ferguson, Missouri “under a bed in a first floor bedroom.” Each informant was purported as saying that “. . he was personally present in the above described location on June 6, 1974 and had occasion to observe a large quantity of marijuana being placed under the bed in the bedroom of the residence and believes that drugs are being kept therein for the purpose of being broken down into smaller packages for eventual distribution by the residents of the dwelling house.” The search warrant stated that probable cause existed to believe that marijuana would be found “under a bed in a first floor bedroom” and authorized a search of the “said premises.” Officers Bishop and Haun of the Bridgeton Police, along with several officers of the Ferguson Police, went to the defendant’s premises and executed the search warrant at approximately 8:15 p. m. on June 6, 1974. The house had three bedrooms on the first floor. After knocking on the door and speaking with one of the occupants, the officers entered the house from a side door. They proceeded to make a quick search" }, { "docid": "6895340", "title": "", "text": "(“Task Force”). As an informant, Pante made four controlled purchases of crack from 1105 Clay Street, the last of which he made directly from Colon. After the controlled purchases, the Task Force obtained a search warrant for 1105 Clay Street. On January 29, 1998, the Task Force executed the search warrant, recovering 44.7 grams of heroin in a dresser, fourteen bags of crack cocaine in a leather jacket in a bedroom closet, and an electronic scale capable of measuring hundredths of a gram. The officers also recovered numerous firearms, including a loaded semiautomatic pistol located on the couch in the living room. Following the search, Colon was arrested but later released, although it is unclear from the record the charges filed or the basis for his release. In any event, after his release, Colon continued to sell drugs from 1105 Clay Street, and at some point he expanded his operations to the residence attached to 1105 Clay Street, 1113 Clay Street, a house owned by William Price. When Price confronted Colon about his operation, Colon threatened Price with a gun and told Price that he wasn’t leaving. Notwithstanding this threat, on June 26, 1998 Price called the Gary Police and informed them of Colon’s drug dealing and threats. The police responded to Price’s complaint, going to 1105 Clay Street. Dennis Allen answered the door. After identifying themselves, the officers asked if they could come in and Allen allowed them to enter. In doing so, Allen told the officers that no one else was home. Once inside, the officers saw a package of marijuana lying on the floor. At that point, appellant Marc Flores walked out of the kitchen. Now knowing that drugs were involved and that Allen was not alone in the house, the police immediately conducted a protective sweep of the residence. In the kitchen on a table, the officers found packaging material near a plate on which there were several rocks of crack cocaine and a razor blade. Upstairs they found a .38 caliber revolver. Upon recovering this evidence of drug trafficking, the Gary Police turned the case" }, { "docid": "626792", "title": "", "text": "said he did not know. Officer Fitzpatrick reached across Defendant and pat-searched his waist area, checking for guns or weapons for officer safety. He then frisked Defendant’s right front pants pocket, felt a pistol, and said “gun” to advise Officer Gregory of the weapon’s existence. Officer Fitzpatrick removed the gun from Defendant’s pocket. The officers handcuffed Defendant, placed him in the squad car, and transported him to jail. On the basis of these facts, a grand jury returned an indictment charging Banks with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Banks moved to suppress the handgun, arguing that it was discovered as the result of an unlawful search and seizure. The magistrate judge held a hearing on the matter and recommended denying the motion to suppress. The district court held a second suppression hearing on the matter and denied the motion to suppress. At trial, Banks refused to stipulate to the fact that he had prior felony convictions and moved to exclude the names of the prior convictions. He attempted to limit the government’s proof to the fact of a conviction punishable by a term of imprisonment exceeding one year. The district court denied the motion, stating that the government could not meet its burden of proof without the names of the prior felonies because certain felonies cannot be used to support a felon-in-possession charge. The district court also considered the marginal prejudice that Banks would suffer by having the names of his convictions admitted. In February 2008, a jury found Banks guilty as charged, and, in July 2008, the district court sentenced Banks to 27 months’ imprisonment. This appeal follows. DISCUSSION I. The district court did not err by denying Banks’s motion to suppress. Banks argues first that his “seizure for a petty misdemeanor bicycle equipment violation was unreasonable under the Fourth Amendment.” Banks also argues that, even if his seizure was legal, the officers did not have reasonable suspicion to conduct the pat-down search, which resulted in the recovery of a firearm. “We review the district court’s factual" }, { "docid": "22007308", "title": "", "text": "WOLLMAN, Circuit Judge. James E. Gilliam, Jr., entered a conditional guilty plea to one count of being a drug user in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). The plea agreement preserved Gilliam’s right to appeal the district court’s denial of his motion to suppress. Gilliam appeals, arguing that the Terry stop and frisk that revealed his possession of a firearm violated his Fourth Amendment rights. We affirm. I. Background On October 25, 2005, seven officers conducted a warrant sweep throughout Kansas City, Missouri, by visiting the addresses listed on outstanding felony warrants. The officers went to the address listed on the arrest warrant for Kenio Simpson, who was sought for failing to appear in court on a drag trafficking charge. After the officers knocked on the door, Gilliam opened the door and the officers asked Gilliam if he was Simpson. After Gilliam responded that he was not Simpson, the officers asked if he knew Simpson or if Simpson was at the residence. At that point, Simpson appeared behind Gilliam and was identified by Gilliam as being Simpson. The officers asked Simpson to confirm his identity, but Simpson denied it. After Gilliam and Simpson began arguing over Simpson’s identity, Gilliam grabbed Simpson and tried to push him outside toward the officers. The officers separated Gilliam and Simpson and attempted to determine who was who. Two of the officers took Simpson into custody, handcuffed him, conducted a pat-down search, and questioned him regarding his identity. Before the officers could positively identify Simpson, Gilliam reentered the residence and headed toward an unsecured area therein. One of the officers told Gilliam to come back. Gilliam responded that the officers did not want him but rather the person on the porch. Gilliam continued to disobey the officer’s orders to step outside, causing the officer to walk toward Gilliam. Thereafter, Gilliam walked toward the officer, who put his hand on Gilliam’s shoulder and told Gilliam he was going to do a pat-down search to ensure that Gilliam was not carrying any weapons. Gilliam said “okay” and put his hands" }, { "docid": "10621100", "title": "", "text": "was a member of a gang. He also emphasizes that the officers did not recognize him as a gang member and argues that a frisk may not be justified based solely on the company one keeps. See United States v. Clay, 640 F.2d 157 (8th Cir.1981) (suppressing evidence found during a pat-down search of a man who stopped by a house at which police were executing a search warrant for drugs and firearms). We nonetheless conclude that it was reasonable for the officers to believe that the persons present in the front room, who were all apparently connected to drug transactions involving known and suspected gang members, all had some degree of gang affiliation. Although not necessarily determinative by itself, that gang connection further supports the reasonableness of a weapons frisk of those present, including Mr. Garcia. Mr. Garcia further emphasizes that he was compliant with requests made by the officers, that he made no threatening statements or movements, and that the officers were able to see the hands of everyone in the front room. Although those factors likely helped avoid escalating an already tense situation, we conclude that it did not eliminate the officers’ reasonable suspicion that one or more of the persons present in the front room was armed and dangerous or make the weapons frisk of Mr. Garcia unreasonable. See Flett, 806 F.2d at 828 (“The fact that the appellant made no threatening moves toward the officer or that the officer did not notice any bulge does not lessen the reasonableness of the officer’s actions.”); cf. United States v. Holmes, 376 F.3d 270, 278 (4th Cir.2004) (“[Gjiven the number of police on the scene and the tactics the officers used, that [the defendants] cooperated with the police is entirely unsurprising. However, a reasonable officer in this situation — knowledgeable of the suspects’ criminal history and that the gang to which the suspects belonged was known to be armed — would be aware of the risk that absent a protective search ..., the suspects might, as the stop proceeded, seek to take advantage of a gap in the" }, { "docid": "244196", "title": "", "text": "SOUTHWICK, Circuit Judge: Michael Dewayne Vickers was convicted, after a jury trial, of being a felon in possession of a firearm in violation of federal law. Vickers timely appeals and challenges both his conviction and sentence. We AFFIRM. I. BACKGROUND On August 5, 2005, at approximately 3:00 p.m., the Dallas Police Department received a 911 call reporting a burglary. The caller described the burglar as a black male dressed in a red T-shirt and a dark-colored pair of shorts, and stated that the perpetrator might still be in the area. Vickers was walking down the street of his neighborhood in Dallas, Texas. The Dallas Police Department dispatched officers to investigate. The first officer to arrive at the scene observed a black male wearing a red T-shirt and dark shorts walking on the sidewalk near the house that had been burglarized. It was Vickers. The officer stepped out of his patrol car and ordered Vickers to put his hands on the hood of the police vehicle. Vickers initially complied, but as the officer began to pat him down, Vickers said, “I can’t go to jail,” and attempted to flee. Vickers ran only a few steps before he was subdued and handcuffed. After Vickers was subdued, the officers completed the search and discovered a .38 caliber pistol in the front left pocket of Vickers’s pants. After Vickers’s arrest, the person who had placed the 911 call approached and told the officers they “had the wrong guy.” It is now undisputed that Vickers was not involved in the burglary that prompted the 911 call. Vickers’s arrest was based solely on possession of the weapon found as a result of the search. Vickers was charged with being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1) & 924(e)(1). Vickers’s prior felony convictions justifying the charge included murder, burglary of a habitation, and unlawful delivery of a controlled substance. At his trial, Vickers presented no defense. His counsel informed the jury in closing arguments that the trial essentially “pertain[ed] to Mr. Vickers’ right to appeal.” After brief deliberations, the jury returned a" }, { "docid": "3504857", "title": "", "text": "maximum for the offense of conviction”). B. Cross-Appeal — Enhancement Under U.S.S.G. § 2Dl.l(b)(l) During the trial, the government presented evidence that in July 1999, pursuant to a search warrant, authorities seized drugs and various firearms from Riley’s French Street residence. Authorities also seized numerous firearms from Riley’s main residence located at Portsmouth Drive. Information regarding the search of Clay’s residence, however, was not presented at trial because the district court previously had granted Clay’s motion to suppress the search of his residence. The government also presented Blanding’s testimony that he had passed out drugs for Riley and that, between 1996 and 1999, Clay had picked up drugs at Riley’s French Street residence on a weekly basis. The district court, however, later found at the sentencing hearing that Blanding’s testimony was not fully credible, particularly with regard to the number of drug trans actions between Clay and Blanding, “because of the way he testified.” [R-26 at 16-17]. At sentencing, the government objected to the presentence investigation report’s failure to recommend a two point enhancement to the offense level for possession of a firearm. The government explained that firearms were seized from the closet of Clay’s residence during a search warrant, and that, although the items seized were suppressed before trial, information regarding them was admissible for sentencing purposes. The government also reasoned that Riley possessed firearms at his French Street residence, the “stash house for the drugs,” where, it asserted, Clay received drugs for distribution. The district court overruled the government’s objection. The court found that it was clearly improbable that the firearms found in the closet of Clay’s residence were connected to the offense of conviction. The court also found that the firearms found in Riley’s residence were not reasonably foreseeable to Clay. On appeal, the government argues that the firearms found at co-conspirator Riley’s French Street residence and Portsmouth Drive residence were reasonably foreseeable to Clay, asserting that possession of firearms is a common tool of the drug trafficking trade. The government also contends that Clay qualifies for the firearm enhancement because (1) the conspiracy involved a significant" }, { "docid": "23502705", "title": "", "text": "to her begging for pills. She saw Westry sell pills from Boykin Towers. She saw Carter selling drugs. In 2003 Hogue started supplying pills to people. Beckham, Lucious’ nephew, pled guilty to conspiracy to distribute drugs. He was involved in drug distribution from the Clay Street home beginning in 2001. He had seen Carter selling drugs at the Clay Street home since 2003. According to Beckham, Woodyard was involved in selling drugs there, “but not very often.” Beckham knew Westry was involved in drug distribution at the Clay Street home, and saw Chill (Hinton) “shooting pills” at the Clay Street home. In addition to the testifying Co-Defendants, several purchasers of the narcotics supplied by the extended Westry family testified at trial. Their testimony concerns drug purchases as early as 1992 at the Clay Street home. Stephanie Healy, who after being arrested worked undercover for the police, testified that when there were no drugs at the Clay Street home, somebody would drive or ride with her to the house at 459 Maple Street. She bought morphine from Carter “probably 25, 30 times.” Gary Brown bought pills from the Clay Street home as often as three times a day, and purchased oxycontin or morphine from Carter approximately 20 times from 2001 to 2002. Stephen Allen bought drugs from Westry once or twice, and obtained pills from Carter 15-20 times. He also bought drugs at 459 Maple Street. Discovery of Firearms Guns possessed by members of the conspiracy were found during three searches. On October 1, 1998, a “plethora of pills” were found in Lucious’ brassiere, and crack cocaine and a pistol were discovered in Lucious’ bedroom at the Clay Street home during a search, following a con trolled buy. Several years later, on July 27, 2004, a search warrant was executed at the residence of Co-Defendant, Riley, who Jones identified as a supplier of drugs for herself and other conspirators, including Carter and Woodyard. At the July 27 search, officers found 20 pills in Riley’s shirt pocket, another estimated 5,755 pills in the residence (of which approximately 1,500 were hydrocodone tablets), and" } ]

[ { "docid": "4676861", "title": "", "text": "operation of law; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. The legislative history indicates: Section 523(a)(5) is a compromise between the House bill and the Senate amendment. The provision excepts from discharge a debt owed to a spouse, former spouse or a child of the debtor, in connection with a separation agreement, divorce decree, or property settlement agreement, for alimony to, maintenance for, or support of such spouse or child but not to the extent that the debt is assigned to another entity. If the debtor has assumed an obligation of the debtor’s spouse to a third party in connection with a separation agreement, property settlement agreement, or divorce proceeding, such debt is dischargeable to the extent that payment of the debt by the debtor is not actually in the nature of alimony, maintenance or support of debtor’s spouse, former spouse, or child. 124 Cong.Rec.H 11,095-6 (Sept. 28, 1978); S 17,412-3 (Oct. 6, 1978). The apparent intent and purpose of 11 U.S.C. § 523(a)(5) is to prevent a debtor from discharging his responsibilities to an ex-spouse or children, even to the extent that such support was in the form of a debt to be paid to a third party. In re Mullins, 14 B.R. 771, 5 C.B.C. 368, 370 (Bkrtcy.W.D.Oklahoma 1981). Since the nature of the claim underlying the debt determines the extent of the dischargeability, it is necessary to examine the agreement and all the circumstances surrounding the creation of the liability to determine if the debt is in the nature of alimony, maintenance or support. In re Lineberry, 9 B.R. 700, 704 (Bkrtcy.W.D.Missouri 1981). Among the factors which the Court must consider in determining whether a husband’s debt is in the nature of alimony, maintenance or support are the length of the marriage, the relative earning power of the parties and whether there was issue of the marriage. See, In re Cartner, 9 B.R. 543, 545 (Bkrtcy.M.D.Alabama 1981), In re Henry, 5 B.R. 342, 343 (Bkrtcy.M.D.Florida 1980). Additionally, the" } ]

[ { "docid": "19889447", "title": "", "text": "a spouse or former spouse or a debt to be paid to a third party in the nature of alimony, maintenance, or support pursuant to a divorce decree is excepted from discharge under Section 523(a)(5). In re Long, 794 F.2d 928, 930 (4th Cir.1986). Section 523(a)(5) sets forth three requirements to except a marital obligation from discharge: (1) the debt must be in the nature of alimony, maintenance or support; (2) the debt must be owed to a former spouse or child; and (3) the debt must be in connection with a separation agreement, divorce or property settlement agreement. 11 U.S.C. § 523(a)(5) (1996). The parties do not dispute that the second or third elements are satisfied. Therefore, the only issue before the court is whether the lump sum obligation is in the form of support. Whether or not the lump sum obligation is in the nature of support is a matter of federal bankruptcy law, rather than state law. Long, 794 F.2d at 930 (citing Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984)). The party seeking to establish an exception to the dischargeability of a debt bears the burden of proof. Long, 794 F.2d at 930 (citing Bankruptcy Rule 4005). Under federal bankruptcy law, the critical determination in classifying indebtedness as support or division of property is the intent of the parties at the time of the execution of the separation agreement. Tilley v. Jessee, 789 F.2d 1074 (4th Cir.1986). The intent of the trier of fact is dispositive when the issue of alimony, support and division of property is before a judge or jury. Long, 794 F.2d at 931; Hirschler, Fleischer, Weinberg, Cox & Allen v. El-Amin (In re El-Amin), 145 B.R. 836, 838 (Bankr.E.D.Va.1991). If proof of intent is clear, then the determination of intent will control the classification of the obhgation. Id. at 1078 n. 4; Melichar v. Ost, 661 F.2d 300, 303 (4th Cir.1981) (citing Shacter v. Shacter, 467 F.Supp. 64 (D.Md.1979)), aff'd, 610 F.2d 813 (4th Cir.1979) (unpublished); In re Sledge, 47 B.R. 349 (E.D.Va.1981). In this case, the parties submitted the issues" }, { "docid": "18571175", "title": "", "text": "917 F.2d 759, 762 (3d Cir.1990)); e.g., Sampson v. Sampson (In re Sampson), 997 F.2d 717, 722-23 (10th Cir.1993) (citations omitted); Morel v. Morel (In re Morel), 983 F.2d 104, 105 (8th Cir.1992); Davidson v. Davidson (In re Davidson), 947 F.2d 1294, 1296 (5th Cir.1991); Long v. West (In re Long), 794 F.2d 928, 931 (4th Cir.1986); Telgmann v. Maune (In re Maune), 133 B.R. 1010, 1014 (Bankr.E.D.Mo.1991) (the court must “determine what function the award was intended to serve and on that basis either discharge it as a property settlement or except it from discharge as a support obligation”). Bankruptcy courts have developed a number of factors to be considered in ascertaining the parties’ intent, and in determining whether a particular obligation is a dis-chargeable property settlement or a non-disehargeable obligation for support or maintenance; a non-exhaustive list of such factors routinely includes the following: (1) whether the obligation terminates upon the death or remarriage of either spouse, upon any children reaching majority or upon some other similar event; (2) how the obligation is characterized in the parties’ settlement agreement or divorce decree, and the context in which it appears; (3) whether the payments appear to balance disparate income between the former spouses; (4) whether the payments are to be made directly to the spouse or to a third party; (5) whether the payment is payable in a lump sum or in installments over time; (6) whether the parties intended to create an obligation of support or to divide marital property; (7) whether an assumption of debt has the effect of providing necessary support to insure that the daily needs of the former spouse and any children of the marriage are met; (8) whether an assumption of debt has the effect of providing support necessary to insure a home for the non-debtor spouse and his or her minor children. Mackey v. Kaufman (In re Kaufman), 115 B.R. 435, 440—11 (Bankr.E.D.N.Y.1990) (numerous citations given); see also Goin v. Rives (In re Goin), 808 F.2d 1391, 1392-93 (10th Cir.1987) (citing Shaver v. Shaver (In re Shaver), 736 F.2d 1314, 1316 (9th" }, { "docid": "5139361", "title": "", "text": "incomes, but was intended to distribute the obligation for marital debts and was dischargeable). The debtor’s obligation under his assumption of certain debts listed in the separation agreement is also dischargeable as a property settlement. Not only does the division of joint debts appear in a separate paragraph entitled “Debts”, but the debt- or’s obligation to pay these assumed debts continues independently of whether or not his former wife dies or remarries and irrespective of the emancipation of his two minor children. There was no proof as to whether or not the debts were incurred for living expenses of the family. Moreover, there was no proof as to the debtor's income when the separation agreement was executed, although the plaintiff testified as to the amount of her salary at that time and at the present time. The inferences that can be drawn from the placement of these items in the paragraph dealing with the division of the parties’ debts and not in the section dealing with maintenance and support is an additional factor pointing to the fact that a property settlement was intended. In determining whether obligations in separation agreements represent alimony, maintenance or support as distinguished from property settlements, the courts have usually considered a lengthy list of factors and then point to certain critical factors which are significant with respect to the items in question. Coverdale v. Coverdale (In re Coverdale), 65 B.R. 126 (Bankr.M.D.Fla.1986); Anderson v. Anderson (In re Anderson), 62 B.R. 448 (Bankr.D.Minn.1986); Tosti v. Tosti (In re Tosti), 62 B.R. 131 (Bankr.D.N.J.1986); Ramey v. Ramey (In re Ramey), 59 B.R. 527 (Bankr.E.D.Ark.1986); Hawkins v. Hawkins (In re Hawkins), 25 B.R. 430 (Bankr.E.D.Tenn.1982). Some of these factors were delineated in In re Ramey, 59 B.R. at 530-531 as follows: 1. whether the obligation terminates on the death or remarriage of either spouse; Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984), In re Ingram, 5 B.R. 232 (Bkrtcy.N.D.Ga., Rome D., 1980), In re Altavilla, 40 B.R. 938 (Bkrtcy.Mass.1984); 2. the characterization of the payment in the decree and the context in which the disputed provisions appear; In" }, { "docid": "1137070", "title": "", "text": "Cir.1987); In re Maitlen, 658 F.2d 466 (7th Cir.1981); In re Doyle, 70 B.R. 106 (9th Cir.BAP 1986); Matter of Story, 36 B.R. 546 (Bankr.M.D.Fla.1983). Although the label may be a factor to be considered it is not necessarily conclusive or dispositive and the test is the substance of the obligation and not the form or title. In re Cowley, 35 B.R. 520 (Bankr.D.Kan.1983). Thus, the label may be helpful in ascertaining the parties’ and the state court’s intention. In re Altavilla, 40 B.R. 938 (Bankr.D.Mass.1984). However, where necessary, a court must look beyond the language of the decree to the intent of the parties or the Court. Shaver v. Shaver, 736 F.2d at 1314, supra; In re Yeates, 807 F.2d at 878, supra; In re Calhoun, 715 F.2d at 1109, supra; Melichar v. Ost, 661 F.2d 300 (4th Cir.1981). In the final analysis, a court must attempt to ascertain the parties’ and the divorce court’s intent in determining whether an obligation created in a divorce decree is dischargeable in bankruptcy. In re Grimes, 46 B.R. 84 (Bankr.D.Md.1985); In re Bowers, 43 B.R. 333 (Bankr.E.D.Pa.1984); In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984); Stamper v. Stamper, 17 B.R. 216 (Bankr.S.D.Ohio 1982). Various federal courts have enumerated many tests, factors, and guidelines to determine whether or not a given obligation flowing from a divorce decree is in the nature of a property settlement and dis-chargeable, or is in the nature of support, maintenance and alimony and nondis-chargeable. The Seventh Circuit has spoken on the issue in Matter of Coil. There the Court stated: An indebtedness for a former spouse for alimony, maintenance, or support of the spouse or the couple’s children which is memorialized in the divorce decree is not dischargeable in bankruptcy. 11 U.S.C. § 523(a)(5). An indebtedness in the divorce decree that merely divides the marital property, however, is dis-chargeable. In re Maitlen, 658 F.2d 466 (7th Cir.1981). In In re Woods, [561 F.2d 27, 3 B.C.D. 750 (7th Cir.1977) ] we noted that in determining whether an obligation memorialized in a divorce decree is dischargea-ble, the bankruptcy court must" }, { "docid": "214943", "title": "", "text": "courts have focused on numerous factors. The most significant factors include: 1.whether the obligation terminates on the death or remarriage of either spouse; Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984); In re Altavilla, 40 B.R. 938 (Bankr.Mass.1984); In re Ingram, 5 B.R. 232 (Bankr.N.D.Ga.1980); 2. the characterization of the payment in the decree and the context of in which the disputed provisions appear; In re Sledge, 47 B.R. 349 (E.D.Va.1981); In re Thumm, 2 Bankr.Ct.Dec. 1347 (Bankr.E.D.Wis.1976); 3. whether the payments appear to balance disparate [sic] income; In re Seidel, 48 B.R. 371 (Bankr.C.D.Ill.1984); In re Nelson, 16 B.R. 658 (Bankr.M.D.Tenn.1981), aff'd in part and rev’d in part, 20 B.R. 1008 (M.D.Tenn.1982); 4. whether the payments are to be made directly to the spouse or to a third party; In re Calhoun, 715 F.2d 1103 (6th Cir.1983); In re Holt, 40 B.R. 1009 (S.D.Ga.1984); In re Edwards, 33 B.R. 942 (Bankr.N.D.Ga.1983); Nelson, 16 B.R. 658; 5. whether the obligation is payable in a lump sum or in installments over a period of time; In re Elder, 48 B.R. 414 (Bankr.W.D.Ky.1985); In re Story, 36 B.R. 546 (Bankr.M.D.Fla.1983); Edwards, 33 B.R. 942; 6. whether the parties intended to create an obligation of support; Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984); Elder, 48 B.R. 414; In re Bedingfield, 42 B.R. 641 (S.D.Ga.1983); 7. whether an assumption of the debt has the effect of providing the support necessary to insure that the daily needs of the former spouse and any children of the marriage are met; Calhoun, 715 F.2d 1103; But see In re Lewis, 39 B.R. 842, 846 (Bankr.W.D.N.Y.1984); and 8. whether an assumption of the debt has the effect of providing the support necessary to insure a home for the spouse and minor children; In re Mencer, 50 B.R. 80 (Bankr.E.D.Ark.1985); But see Nelson, 16 B.R. 658; In re Demkow, 8 B.R. 554 (Bankr.N.D.Ohio 1981). In re Kaufman, 115 B.R. at 440-41; In re Freyer, 71 B.R. 912, 918 (Bankr.S.D.N.Y.1987). It is a “well-established principle of bankruptcy law that dischargeability must be determined by the substance of the liability" }, { "docid": "13605500", "title": "", "text": "this approach also consider the dependent spouse’s need for or use of the payment. 1 Norton Bankruptcy Law and Practice § 27.56, pp. 80-82. “The Courts have consistently held that in the context of a Bankruptcy Discharge, whether an obligation is in the nature of alimony, maintenance or support is a matter to be determined by Federal Bankruptcy Law and not by state law. Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984); In re Williams, 703 F.2d 1055 (8th Cir.1983); In re Calhoun, 715 F.2d 1103 (6th Cir.1983); In re Mencer, 50 B.R. 80 (Bankr.E.D.Ark.1985); In re Seidel, 48 B.R. 371 (Bankr.C.D.Ill.1984); In re Yeates, 44 B.R. 575 (D.C.D.Utah 1984) aff'd. 807 F.2d 874 (10th Cir.1986). “State law, however, should be looked to by the Bankruptcy Court as a criteria in indicating whether a given award is in the nature of or characterized as a property settlement and dischargeable or an award of support, alimony or maintenance and thus nondischargeable. In re Seablom, 45 B.R. 445 (Bankr.D.N.D.1984); In re Kagan, 42 B.R. 563 (Bankr.N.D.Ill.1984). Thus, the Bankruptcy Court need not ignore well developed state law principles of domestic relations in determining whether a particular obligation is in the nature of support. In re Holland, 48 B.R. 874 (Bankr.N.D.Tex.1984); In re Vogt, 14 B.R. 743 (Bankr.E.D.Va.1981). This is particularly true in light of the fact that there is no federal law of alimony and support and all domestic relations law is of state origin. Matter of Holt, 40 B.R. 1009 (S.D.Ga.1984); In re Bonhomme, 8 B.R. 645 (Bankr.W.D.Okla.1981). “The label placed on an obligation by the parties or the Court is not necessarily determinative of its character as nondis-chargeable alimony, maintenance and support. Matter of Story, 36 B.R. 546 (Bankr.M.D.Fla.1983). Although the label may be a factor to be considered it is not necessarily conclusive or dispositive and the test is the substance of the obligation and not the form or title. In re Cowley, 35 B.R. 520 (Bankr.D.Kan.1983). Thus, the label may be helpful in ascertaining the parties’ and the state court’s intention. “The Court would also note some basic" }, { "docid": "1137069", "title": "", "text": "or characterized as a property settlement and dischargeable or an award of support, alimony or maintenance and thus nondischargeable. In re Yeates, supra; In re Seablom, 45 B.R. 445 (Bankr.D.N.D.1984); In re Kagan, 42 B.R. 563 (Bankr.N.D.Ill.1984). Thus, the bankruptcy court need not ignore well developed state law principles of domestic relations in determining whether a particular obligation is in the nature of support. In re Holland, 48 B.R. 874 (Bankr.N.D.Tex.1984); In re Vogt, 14 B.R. 743 (Bankr.E.D.Va.1981). This is particularly true in light of the fact that there is no federal law of alimony and support, and all domestic relations law is of state origin. Matter of Holt, 40 B.R. 1009 (D.C.S.D.Ga.1984); In re Bonhomme, 8 B.R. 645 (Bankr.W.D.Okla.1981). Dischargeability must be determined by the substance of the liability rather than the form. In re Spong, 661 F.2d 6, 9 (2nd Cir.1981). The label placed on an obligation by the parties or a court is not necessarily determinative of its character as nondischargeable alimony, maintenance and support. Matter of Benich, 811 F.2d 943 (5th Cir.1987); In re Maitlen, 658 F.2d 466 (7th Cir.1981); In re Doyle, 70 B.R. 106 (9th Cir.BAP 1986); Matter of Story, 36 B.R. 546 (Bankr.M.D.Fla.1983). Although the label may be a factor to be considered it is not necessarily conclusive or dispositive and the test is the substance of the obligation and not the form or title. In re Cowley, 35 B.R. 520 (Bankr.D.Kan.1983). Thus, the label may be helpful in ascertaining the parties’ and the state court’s intention. In re Altavilla, 40 B.R. 938 (Bankr.D.Mass.1984). However, where necessary, a court must look beyond the language of the decree to the intent of the parties or the Court. Shaver v. Shaver, 736 F.2d at 1314, supra; In re Yeates, 807 F.2d at 878, supra; In re Calhoun, 715 F.2d at 1109, supra; Melichar v. Ost, 661 F.2d 300 (4th Cir.1981). In the final analysis, a court must attempt to ascertain the parties’ and the divorce court’s intent in determining whether an obligation created in a divorce decree is dischargeable in bankruptcy. In re Grimes, 46" }, { "docid": "16761543", "title": "", "text": "criteria in indicating whether a given award is in the nature of or characterized as a property settlement and dischargeable or an award of support, alimony or maintenance and thus nondischargeable. In re Yeates, supra; In re Seablom, 45 B.R. 445 (Bankr.D.N.D.1984); In re Kagan, 42 B.R. 563 (Bankr.N.D.Ill.1984). Thus, the bankruptcy court need not ignore well developed state law principles of domestic relations in determining whether a particular obligation is in the nature of support. In re Holland, 48 B.R. 874 (Bankr.N.D.Tex.1984); In re Vogt, 14 B.R. 743 (Bankr.E.D.Va.1981). This is particularly true in light of the fact that there is no federal law of alimony and support, and all domestic relations law is of state origin. Matter of Holt, 40 B.R. 1009 (D.C.S.D.Ga.1984); In re Bonhomme, 8 B.R. 645 (Bankr.W.D.Okla.1981). Dischargeability must be determined by the substance of the liability rather than the form. In re Spong, 661 F.2d 6, 9 (2nd Cir.1981). The label placed on an obligation by the parties or a court is not necessarily determinative of its character as nondis-chargeable alimony, maintenance and support. Matter of Benich, 811 F.2d 943 (5th Cir.1987); In re Doyle, 70 B.R. 106 (B.A.P. 9th Cir.1986); Matter of Story, 36 B.R. 546 (Bankr.M.D.Fla.1983). Although the label may be a factor to be considered it is not necessarily conclusive or dispositive and the test is the substance of the obligation and not the form or title. In re Cowley, 35 B.R. 520 (Bankr.D.Kan.1983). Thus, the label may be helpful in ascertaining the parties’ and the state court’s intention. In re Altavilla, 40 B.R. 938 (Bankr.D.Mass.1984). However, where necessary, a court must look beyond the language of the decree to the intent of the parties or the Court. Shaver v. Shaver, 736 F.2d at 1314, supra; In re Yeates, 807 F.2d at 878, supra; In re Calhoun, 715 F.2d at 1109, supra; Melichar v. Ost, 661 F.2d 300 (4th Cir.1981). Although the true intent of the parties rather than labels attached to an agreement or the application of state law controls, an examination of a written agreement is not precluded as" }, { "docid": "19034046", "title": "", "text": "Nashville D.1982); In re Carrigg, 14 B.R. 658 (Bkrtcy.D.S.C.1981); 3 Collier on Bankruptcy ¶ 523.15(1) (15th ed. 1980). The rationale for this rule is to promote the congressional intent to have questions of dis-chargeability determined by the Bankruptcy Court rather than state court in order to develop appropriate federal standards. In re Carrigg, 14 B.R. at 658; In re Netherton, 2 B.R. 50 (Bkrtcy.M.D.Tenn.1979). Section 523 was written to overrule prior decisions that deferred to state law any question of whether a debt is alimony, maintenance or support. 3 Collier on Bankruptcy ¶ 523.15 (15th ed.). Compare In re Waller, 494 F.2d 447 (6th Cir.1974) (legislatively overruled) with Fife v. Fife, 1 Utah 2d 281, 265 P.2d 642 (1954). Often property settlements which are incorporated in divorce decrees are characterized for tax purposes or other considerations not connected with bankruptcy. In re Warner, 5 B.R. 434 (Bkrtcy.D.Utah 1980); In re Carrigg, 14 B.R. at 658; In re Nelson, 16 B.R. at 658, aff'd in part, rev’d in part, 20 B.R. at 1008. While obligations for alimony, support and child support are not dischargeable in bankruptcy, obligations which are in the nature of a property settlement are dischargeable. In re Brown, 7 B.R. 268 (Bkrtcy.W.D.N.Y.1980); In re Demkow, 8 B.R. 554 (Bkrtcy.N.D.Ohio, E.D.1981). Court's have considered the following factors in determining whether obligations represent alimony, maintenance or support as opposed to property settlement: 1. whether the obligation terminates on the death or remarriage of either spouse; Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984), In re Ingram, 5 B.R. 232 (Bkrtcy.N.D.Ga., Rome D., 1980), In re Altavilla, 40 B.R. 938 (Bkrtcy.Mass.1984); 2. the characterization of the payment in the decree and the context in which the disputed provisions appear; In re Salinas, 2 B.C.D. 864 (D.C.Ore.1976); In the Matter of Thumm, 2 B.C.D. 1347 (Bkrtcy.E.D.Wisc.1976); In re Sledge, 47 B.R. 349 (D.C.Va.1981); 3. whether the payments appear to balance disparte income; Hoover v. Hoover, 38 B.R. 325 (D.C.Ohio 1983), In re Seidel, 48 B.R. 371 (Bkrtcy.Ill.1984); 4. whether the payments are to be made directly to the spouse or to a" }, { "docid": "214942", "title": "", "text": "of such State); or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support.... 11 U.S.C. § 523(a)(5). The legislative history of § 523(a)(5) indicates that the issue of whether a debt “constitutes alimony, maintenance or support, will be determined under the bankruptcy law.” H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 364 (1977), U.S.Code Cong. & Admin. News, 1978, pp. 5787, 6320. The bankruptcy court is not obligated to find a debt nondischargeable solely because of the characterization of the debt under state law. In re Silberfein, 138 B.R. 778, 780 (Bankr.S.D.N.Y.1992); In re Kaufman, 115 B.R. 435, 440 (Bankr.E.D.N.Y.1990); In re Raff, 93 B.R. 41, 44 (Bankr.S.D.N.Y.1988). However, reference may be made to state law to provide guidance. Forsdick v. Turgeon, 812 F.2d 801, 802-03 (2d Cir.1987); In re Spong, 661 F.2d 6 (2d Cir.1981). In determining whether an award pursuant to a divorce action represents a debt for alimony, maintenance or support which is nondischargeable under § 523(a)(5), courts have focused on numerous factors. The most significant factors include: 1.whether the obligation terminates on the death or remarriage of either spouse; Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984); In re Altavilla, 40 B.R. 938 (Bankr.Mass.1984); In re Ingram, 5 B.R. 232 (Bankr.N.D.Ga.1980); 2. the characterization of the payment in the decree and the context of in which the disputed provisions appear; In re Sledge, 47 B.R. 349 (E.D.Va.1981); In re Thumm, 2 Bankr.Ct.Dec. 1347 (Bankr.E.D.Wis.1976); 3. whether the payments appear to balance disparate [sic] income; In re Seidel, 48 B.R. 371 (Bankr.C.D.Ill.1984); In re Nelson, 16 B.R. 658 (Bankr.M.D.Tenn.1981), aff'd in part and rev’d in part, 20 B.R. 1008 (M.D.Tenn.1982); 4. whether the payments are to be made directly to the spouse or to a third party; In re Calhoun, 715 F.2d 1103 (6th Cir.1983); In re Holt, 40 B.R. 1009 (S.D.Ga.1984); In re Edwards, 33 B.R. 942 (Bankr.N.D.Ga.1983); Nelson, 16 B.R. 658; 5. whether the obligation is payable in a lump sum or in installments over a period of time; In" }, { "docid": "5139363", "title": "", "text": "re Salinas, 2 B.C.D. 864 (D.C.Ore.1976); In the Matter of Thumm, 2 B.C.D. 1347 (Bkrtcy.E.D.Wisc.1976); In re Sledge, 47 B.R. 349 (D.C.Va.1981); 3. whether the payments appear to balance disparte [sic] income; Hoover v. Hoover, 38 B.R. 325 (D.C.Ohio 1983), In re Seidel, 48 B.R. 371 (Bkrtcy.Ill.1984); 4. whether the payments are to be made directly to the spouse or to a third party; In re Nelson, 16 B.R. 658 (Bkrtcy.M.D.Tenn.1981); Matter of Holt, 40 B.R. 1009 (D.C.Ga.1984); In re Calhoun, 715 F.2d at 1103; In re Edwards, 33 B.R. at 942; 5. whether the obligation is payable in a lump sum or in installments over a period of time; In re Elder, 48 B.R. 414 (Bkrtcy.Ky.1985), Matter of Story, 36 B.R. 546 (Bkrtcy.Fla.1983), In re Edwards, 33 B.R. 942 (Bkrtcy.Ga.1983); 6. whether the parties intended to create an obligation of support; In re Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984), In re Bedingfield, 42 B.R. 641 (D.C.Ga.1983), In re Elder, 48 B.R. 414 (Bkrtcy.Ky.1985); 7. whether an assumption of debt has the effect of providing the support necessary to insure that the daily needs of the former spouse and any children of the marriage are met; In re Calhoun, 715 F.2d 1103 (6th Cir.1983); But see In re Lewis, 39 B.R. 842, 846 (Bkrtcy.W.D.N.Y.1984); and 8. whether an assumption of debt has the effect of providing the support necessary to insure a home for the spouse and minor children; In re Mencer 50 B.R. 80 (Bkrtcy.E.D.Ark.1985). But see In re Demkow, 8 B.R. 554 (Bkrtcy.N.D.Ohio, E.D.1981); In re Nelson, 16 B.R. 658 (Bkrtcy.M.D.Tenn.1981), aff'd in part, rev’d in part, 20 B.R. 1008 (Bkrtcy.D.C.Tenn.1982). In the instant case, critical factors which reflect that the parties’ division of certain consumer debts listed in the separation agreement represented a property settlement are: (1) The division occurred in the property settlement portion of the separation agreement; (2) The debtor’s liability continues regardless of the emancipation of his children or the death or remarriage of his former wife; (3) The former wife’s support needs were expressly dealt with in the portion of the" }, { "docid": "5139356", "title": "", "text": "a question of federal bankruptcy law and not state law. Long v. West (In re Long), 794 F.2d 928, 930 (4th Cir.1986); Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984); Long v. Calhoun (In re Calhoun), 715 F.2d at 1107; Williams v. Williams (In re Williams), 703 F.2d 1055 (8th Cir.1983); Pauley v. Spong (In re Spong), 661 F.2d at 9; In re Bedingfield, 42 B.R. 641 (S.D.Ga.1983). There is no federal law of domestic relations. DeSylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 980, 100 L.Ed. 1415 (1956). The complaining spouse has the burden of establishing that an obligation is nondischargeable on the ground that it is actually in the nature of alimony, maintenance or support, because the con cept of dischargeability under 11 U.S.C. § 523 must begin with the assumption that dischargeability is favored under the Bankruptcy Code. Tilley v. Jessee, 789 F.2d 1074 at 1077 (4th Cir.1986); Long v. Calhoun (In re Calhoun), 715 F.2d at 1111. In determining whether or not an obligation is designed for the support of a former spouse, the court must look beyond the separation agreement to the intent of the parties and to the substance of the obligation. Long v. West (In re Long), 794 F.2d at 930; Tilley v. Jessee, 789 F.2d at 1077; Shaver v. Shaver, 736 F.2d at 1316. The mere fact that the debtor was responsible for the payment of the $45,000 I.B.M. Credit Union second mortgage loan does not mean that this obligation was in the nature of alimony, maintenance or support. Obviously, every payment by one former spouse of a joint obligation indirectly contributes to the support of the other former spouse to the extent that the latter is relieved of payments and thus has more funds available for other purposes, including support needs. See Long v. Calhoun (In re Calhoun), 715 F.2d at 1108. The debtor’s obligation to pay the $45,000 second mortgage and the consumer debts which he assumed continues regardless of his former spouse’s death or remarriage. Conversely, the plaintiff spouse’s obligation under the separation agreement to pay $45,000" }, { "docid": "16761553", "title": "", "text": "to the estrangement of the parties. 17. Whether the debt is for a past or future obligation, any property division, or any allocation of debt between the parties. 18. Tax treatment of the payment by the debtor spouse. Id. at 638. See also, In re Grijalva, 72 B.R. 334, 336 (S.D.W.Va.1987) (12 factors); In re Anderson, 62 B.R. 448, 454-455 (Bankr.D.Minn.1986) (10 factors); In re Barnett, 62 B.R. 661, 663 (Bankr.E.D.Mo.1981) (18 factors); In re Seidel, 48 B.R. 371, 373 (Bankr.C.D.Ill.1984) (10 factors); In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984) (6 factors); In re Altavilla, 40 B.R. 938 (Bankr.D.Mass.1984) (7 factors). The Court in In re Goin, 808 F.2d 1391, (10th Cir.1987), stated that several factors are pertinent to the Bankruptcy Court’s determination of whether a debt is support. These are: 1. If the agreement fails to provide explicitly for spousal support, the Court may presume that the property settlement is intended for support if it appears under the circumstances that the spouse needs support; 2. When there are minor children and an imbalance of income, the payments are likely to be in the nature of support; 3. Support or maintenance is indicated when the payments are made directly to the recipient and are paid in installments over a substantial period of time; and 4. An obligation that terminates on remarriage or death is indicative of an agreement for support. Id. at 1392-1393, citing, Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984). ****** This adversary proceeding, as opposed to those litigated in [Matter of] Woods, [561 F.2d 27 (7th Cir.1977)] [Matter of] Coil, [680 F.2d 1170 (7th Cir.1982)] and [In re] Maitlen, [658 F.2d 466 (7th Cir.1981)] supra, does not involve an Agreement of the parties that was approved by the State Court and incorporated into the Dissolution Decree whereby the Court would be called upon to construe the intent of the parties to the Agreement as to whether nondischargeable spousal maintenance was intended or a dis-chargeable property settlement. Here, the Dissolution was litigated on the merits and the State Court entered its Decree. In addition, this proceeding does" }, { "docid": "19034047", "title": "", "text": "alimony, support and child support are not dischargeable in bankruptcy, obligations which are in the nature of a property settlement are dischargeable. In re Brown, 7 B.R. 268 (Bkrtcy.W.D.N.Y.1980); In re Demkow, 8 B.R. 554 (Bkrtcy.N.D.Ohio, E.D.1981). Court's have considered the following factors in determining whether obligations represent alimony, maintenance or support as opposed to property settlement: 1. whether the obligation terminates on the death or remarriage of either spouse; Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984), In re Ingram, 5 B.R. 232 (Bkrtcy.N.D.Ga., Rome D., 1980), In re Altavilla, 40 B.R. 938 (Bkrtcy.Mass.1984); 2. the characterization of the payment in the decree and the context in which the disputed provisions appear; In re Salinas, 2 B.C.D. 864 (D.C.Ore.1976); In the Matter of Thumm, 2 B.C.D. 1347 (Bkrtcy.E.D.Wisc.1976); In re Sledge, 47 B.R. 349 (D.C.Va.1981); 3. whether the payments appear to balance disparte income; Hoover v. Hoover, 38 B.R. 325 (D.C.Ohio 1983), In re Seidel, 48 B.R. 371 (Bkrtcy.Ill.1984); 4. whether the payments are to be made directly to the spouse or to a third party; In re Nelson, 16 B.R. 658 (Bkrtcy.M.D.Tenn.1981); Matter of Holt, 40 B.R. 1009 (D.C.Ga.1984); In re Calhoun, 715 F.2d at 1103; In re Edwards, 33 B.R. at 942; 5. whether the obligation is payable in a lump sum or in installments over a period of time; In re Elder, 48 B.R. 414 (Bkrtcy.Ky.1985), Matter of Story, 36 B.R. 546 (Bkrtcy.Fla.1983), In re Edwards, 33 B.R. 942 (Bkrtcy.Ga.1983); 6. whether the parties intended to create an obligation of support; In re Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984), In re Bedingfield, 42 B.R. 641 (D.C.Ga.1983), In re Elder, 48 B.R. 414 (Bkrtcy.Ky.1985); 7. whether an assumption of debt has the effect of providing the support necessary to insure that the daily needs of the former spouse and any children of the marriage are met; In re Calhoun, 715 F.2d 1103 (6th Cir.1983); But see In re Lewis, 39 B.R. 842, 846 (Bkrtcy.W.D.N.Y.1984); and 8. whether an assumption of debt has the effect of providing the support necessary to insure a home for the" }, { "docid": "5139362", "title": "", "text": "the fact that a property settlement was intended. In determining whether obligations in separation agreements represent alimony, maintenance or support as distinguished from property settlements, the courts have usually considered a lengthy list of factors and then point to certain critical factors which are significant with respect to the items in question. Coverdale v. Coverdale (In re Coverdale), 65 B.R. 126 (Bankr.M.D.Fla.1986); Anderson v. Anderson (In re Anderson), 62 B.R. 448 (Bankr.D.Minn.1986); Tosti v. Tosti (In re Tosti), 62 B.R. 131 (Bankr.D.N.J.1986); Ramey v. Ramey (In re Ramey), 59 B.R. 527 (Bankr.E.D.Ark.1986); Hawkins v. Hawkins (In re Hawkins), 25 B.R. 430 (Bankr.E.D.Tenn.1982). Some of these factors were delineated in In re Ramey, 59 B.R. at 530-531 as follows: 1. whether the obligation terminates on the death or remarriage of either spouse; Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984), In re Ingram, 5 B.R. 232 (Bkrtcy.N.D.Ga., Rome D., 1980), In re Altavilla, 40 B.R. 938 (Bkrtcy.Mass.1984); 2. the characterization of the payment in the decree and the context in which the disputed provisions appear; In re Salinas, 2 B.C.D. 864 (D.C.Ore.1976); In the Matter of Thumm, 2 B.C.D. 1347 (Bkrtcy.E.D.Wisc.1976); In re Sledge, 47 B.R. 349 (D.C.Va.1981); 3. whether the payments appear to balance disparte [sic] income; Hoover v. Hoover, 38 B.R. 325 (D.C.Ohio 1983), In re Seidel, 48 B.R. 371 (Bkrtcy.Ill.1984); 4. whether the payments are to be made directly to the spouse or to a third party; In re Nelson, 16 B.R. 658 (Bkrtcy.M.D.Tenn.1981); Matter of Holt, 40 B.R. 1009 (D.C.Ga.1984); In re Calhoun, 715 F.2d at 1103; In re Edwards, 33 B.R. at 942; 5. whether the obligation is payable in a lump sum or in installments over a period of time; In re Elder, 48 B.R. 414 (Bkrtcy.Ky.1985), Matter of Story, 36 B.R. 546 (Bkrtcy.Fla.1983), In re Edwards, 33 B.R. 942 (Bkrtcy.Ga.1983); 6. whether the parties intended to create an obligation of support; In re Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984), In re Bedingfield, 42 B.R. 641 (D.C.Ga.1983), In re Elder, 48 B.R. 414 (Bkrtcy.Ky.1985); 7. whether an assumption of debt has the effect" }, { "docid": "19034048", "title": "", "text": "third party; In re Nelson, 16 B.R. 658 (Bkrtcy.M.D.Tenn.1981); Matter of Holt, 40 B.R. 1009 (D.C.Ga.1984); In re Calhoun, 715 F.2d at 1103; In re Edwards, 33 B.R. at 942; 5. whether the obligation is payable in a lump sum or in installments over a period of time; In re Elder, 48 B.R. 414 (Bkrtcy.Ky.1985), Matter of Story, 36 B.R. 546 (Bkrtcy.Fla.1983), In re Edwards, 33 B.R. 942 (Bkrtcy.Ga.1983); 6. whether the parties intended to create an obligation of support; In re Boyle v. Donovan, 724 F.2d 681 (8th Cir.1984), In re Bedingfield, 42 B.R. 641 (D.C.Ga.1983), In re Elder, 48 B.R. 414 (Bkrtcy.Ky.1985); 7. whether an assumption of debt has the effect of providing the support necessary to insure that the daily needs of the former spouse and any children of the marriage are met; In re Calhoun, 715 F.2d 1103 (6th Cir.1983); But see In re Lewis, 39 B.R. 842, 846 (Bkrtcy.W.D.N.Y.1984); and 8. whether an assumption of debt has the effect of providing the support necessary to insure a home for the spouse and minor children; In re Mencer, 50 B.R. 80 (Bkrtcy.E.D.Ark.1985). But see In re Demkow, 8 B.R. 554 (Bkrtcy.N.D.Ohio, E.D. 1981); In re Nelson, 16 B.R. 658 (Bkrtcy.M.D.Tenn.1981), aff'd in part, rev’d in part, 20 B.R. 1008 (Bkrtcy.D.C.Tenn.1982). In this case the property settlement agreement does label these obligations as alimony, but other factors militate against this characterization. There are other provisions in the agreement which designate support and alimony and do not include the obligations to Merchants and Farmers Bank and Charles P. Allen. Ms. Ramey testified that the settlement was an attempt to divide assets and liabilities equally. There was only a slight disparity in the parties income; both were employed full time. The debt is a short term obligation payable for only thirty-six months to a third party. There was no evidence that the parties intended the obligation to terminate upon the death or remarriage of Ms. Ramey or the death of Mr. Ramey. As the Court observed in Shaver v. Shaver, 736 F.2d at 1314, “support payments tend to mirror" }, { "docid": "5139355", "title": "", "text": "wife for her support and maintenance, the sum of $300 per month, which is $200 per month more than originally provided under the agreement. The plaintiff’s right to receive the additional $200 for maintenance and support is conditioned only on the sale of the marital residence and does not depend upon whether or not the debtor husband made any payments towards the $45,000 I.B.M. Credit Union loan. Thus, the debtor’s responsibility for the I.B.M. Credit Union loan exists independently of the separation agreement and was not assumed by him under such agreement. It might be argued that the separation agreement should be construed as containing an implied promise by the debtor to assume full responsibility for the $45,000 I.B.M. Credit Union second mortgage loan. Even if this were the case, such an implied promise to pay the second mortgage debt would not be regarded as in the nature of alimony, maintenance or support, but as a dischargeable property settlement. Whether or not a debt is a support obligation or part of a property settlement is a question of federal bankruptcy law and not state law. Long v. West (In re Long), 794 F.2d 928, 930 (4th Cir.1986); Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984); Long v. Calhoun (In re Calhoun), 715 F.2d at 1107; Williams v. Williams (In re Williams), 703 F.2d 1055 (8th Cir.1983); Pauley v. Spong (In re Spong), 661 F.2d at 9; In re Bedingfield, 42 B.R. 641 (S.D.Ga.1983). There is no federal law of domestic relations. DeSylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 980, 100 L.Ed. 1415 (1956). The complaining spouse has the burden of establishing that an obligation is nondischargeable on the ground that it is actually in the nature of alimony, maintenance or support, because the con cept of dischargeability under 11 U.S.C. § 523 must begin with the assumption that dischargeability is favored under the Bankruptcy Code. Tilley v. Jessee, 789 F.2d 1074 at 1077 (4th Cir.1986); Long v. Calhoun (In re Calhoun), 715 F.2d at 1111. In determining whether or not an obligation is designed for the support" }, { "docid": "1137077", "title": "", "text": "Whether there were minor children in the care of the creditor spouse. 15. The standard of living of the parties during their marriage. 16. The circumstances contributing to the estrangement of the parties. 17. Whether the debt is for a past or future obligation, any property division, or any allocation of debt between the parties. 18. Tax treatment of the payment by the debtor spouse. Id. at 638. See also, In re Grijalva, 72 B.R. 334, 336 (S.D.W.Va.1987) (12 factors); In re Anderson, 62 B.R. 448, 454-455 (Bankr.D.Minn.1986) (10 factors); In re Barnett, 62 B.R. 661, 663 (Bankr.E.D.Mo.1986) (18 factors); In re Seidel, 48 B.R. 371, 373 (Bankr.C.D.Ill.1984) (10 factors); In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984) (6 factors); In re Altavilla, 40 B.R. 938 (Bankr.D.Mass.1984) (7 factors). The Court in In re Goin, 808 F.2d 1391 (10th Cir.1987), stated that several factors are pertinent to the Bankruptcy Court’s determination of whether a debt is support. These are: 1. If the agreement fails to provide explicitly for spousal support, the Court may presume that the property settlement is intended for support if it appears under the circumstances that the spouse needs support; 2. When there are minor children and an imbalance of income, the payments are likely to be in the nature of support; 3. Support or maintenance is indicated when the payments are made directly to the recipient and are paid in installments over a substantial period of time; and 4. An obligation that terminates on remarriage or death is indicative of an agreement for support. Id. at 1392-1393, citing, Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir.1984). The Seventh Circuit in the case of In re Maitlen, 658 F.2d 466 (7th Cir.1981), had occasion to construe a hold harmless provision as an Indiana Dissolution Decree, and affirmed the decision of the District Court for the reasons set forth in the District Court’s opinion which the Seventh Circuit attached as Appendix A. In Maitlen, the Dissolution Decree incorporated a Property Settlement Agreement between the parties in which the Bankrupt agreed to make the mortgage payment as to the" }, { "docid": "23270395", "title": "", "text": "(9th Cir.1984); In re Freyer, 71 B.R. 912, 916 (Bankr.S.D.N.Y.1987), and generally should disregard labels and titles. Matter of Campbell, 74 B.R. 805, 809 (Bankr.M.D.Fla.1987); Matter of Heverly, 68 B.R. 21, 22 (Bankr.M.D.Fla.1986). If the provision’s intended function is to pro- vide a necessity of life, it is ordinarily held to be nondischargeable maintenance support. Matter of Quinn, 44 B.R. 622, 624-25 (Bankr.W.D.Mo.1984). In interpreting a decree, and even in deciding if it is ambiguous, the court should consider the surrounding circumstances and all other relevant incidents bearing on the parties’ intent when they entered into the decree. Parol evidence is admissible to clarify the parties’ intent. See In re Shaver, 40 B.R. 964, 968 (D.Nev.1983), aff'd, 736 F.2d 1314 (9th Cir.1984). A significant factor is whether there are other provisions in the agreement separate and distinct from the provision in question which is designated as support payments and which terminate at a specific date or upon a specific event. In re Smith, 61 B.R. 742, 745-46 (Bankr.D.Mont.1986). Bankruptcy courts have employed various factors to determine the intent of the parties of an ambiguous divorce decree. Some of these factors include: 1. The label given to the payments; 2. The context or location of the disputed provision in the decree; 3. The parties’ negotiations and understanding of the provision; 4. Whether a lump sum or periodic monthly payments were provided for; 5. The relative earning power of the parties; 6. Whether the recipient spouse would be entitled to alimony under state law; 7. Whether interest accrues on the entire debt or only on the monthly payments past due; and 8. Whether the debtor’s obligation of payment terminates on the death or remarriage of the recipient, or on the death of the debtor. See In re Freyer, 71 B.R. 912, 918 (Bankr.S.D.N.Y.1987); In re Anderson, 62 B.R. 448, 454-55 (Bankr.D.Minn.1986); In re Ramey, 59 B.R. 527, 530-31 (Bankr.E.D.Ark.1986). See also In re Shaver, 736 F.2d 1314, 1316 (9th Cir.1984); In re Albin, 591 F.2d 94, 97 (9th Cir.1979). In the instant case, the facts and the record clearly indicate that the" }, { "docid": "16761544", "title": "", "text": "nondis-chargeable alimony, maintenance and support. Matter of Benich, 811 F.2d 943 (5th Cir.1987); In re Doyle, 70 B.R. 106 (B.A.P. 9th Cir.1986); Matter of Story, 36 B.R. 546 (Bankr.M.D.Fla.1983). Although the label may be a factor to be considered it is not necessarily conclusive or dispositive and the test is the substance of the obligation and not the form or title. In re Cowley, 35 B.R. 520 (Bankr.D.Kan.1983). Thus, the label may be helpful in ascertaining the parties’ and the state court’s intention. In re Altavilla, 40 B.R. 938 (Bankr.D.Mass.1984). However, where necessary, a court must look beyond the language of the decree to the intent of the parties or the Court. Shaver v. Shaver, 736 F.2d at 1314, supra; In re Yeates, 807 F.2d at 878, supra; In re Calhoun, 715 F.2d at 1109, supra; Melichar v. Ost, 661 F.2d 300 (4th Cir.1981). Although the true intent of the parties rather than labels attached to an agreement or the application of state law controls, an examination of a written agreement is not precluded as persuasive evidence of intent. Tilley v. Jessee, 789 F.2d 1074 (4th Cir.1986). While the written agreement constitutes persuasive evidence of whether the debt- or’s obligation is a nondischargeable support obligation when the agreement is ambiguous the Court may look to extrinsic evidence to determine whether the debtor’s obligation is nondischargeable. In re Yeates, 807 F.2d at 878, supra. The determination must be made by looking at the substance of the agreement “viewed in the crucible of the surrounding circumstances” In re Crist, 632 F.2d 1226, 1229 (5th Cir.1988). In the final analysis, a court must attempt to ascertain the parties' and the divorce court’s intent in determining whether an obligation created in a divorce decree is dis-chargeable in bankruptcy. In re Grimes, 46 B.R. 84 (Bankr.D.Md.1985); In re Bowers, 43 B.R. 333 (Bankr.E.D.Pa.1984); In re Pody, 42 B.R. 570 (Bankr.N.D.Ala.1984); Stamper v. Stamper, 17 B.R. 216 (Bankr.S.D.Ohio 1982). In the context of a voluntarily executed marital agreement the proper test lies in whether the parties intended that the payment be for support rather then as" } ]

[ { "docid": "22642856", "title": "", "text": "of “Disabled” or “Not Disabled.” The other means by which the ALJ may determine whether the claimant has the ability to adjust to other work in the national economy is by the use of a vocational expert. A vocational expert is an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments. When the ALJ uses a vocational expert, the ALJ will pose hypothetical question(s) to the vocational expert to establish whether someone with the limitations that the ALJ has previously determined that the claimant has will be able to secure employment in the national economy. Under step five, the ALJ used only the grids in Phillips’s case and did not rely on a vocational expert. In so doing, the ALJ considered: (1) Phillips’s RFC to perform entry-level sedentary work; (2) that Phillips was 45 years old; (3) that Phillips had a high school application and one year of secretarial school; and (4) Phillips’s prior work experience. The combination of these factors under the grids led to the conclusion that Phillips was not disabled. II. DISCUSSION Phillips appeals, arguing that the ALJ improperly rejected the medical conclusions of Dr. Schatten when determining Phillips’s RFC. Phillips also argues that the ALJ was required to consult a vocational expert in this case. A. Treating Physician’s Opinion We first consider Phillips’s argument that the ALJ erred when rejecting Dr. Schatten’s opinion concerning Phillips’s medical condition. Because the ALJ articulated several legitimate reasons for giving less weight to Dr. Schatten’s opinion, we readily conclude that the ALJ’s determination that Dr. Schatten’s opinion should be given little weight is supported by substantial evidence. The opinion of a treating physician, such as Dr. Schatten, “must be given substantial or considerable weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997). This Court has concluded “good cause” exists when the: (1) treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records." } ]

[ { "docid": "786926", "title": "", "text": "in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or 4. Repeated episodes of deterioration or decompensation in work or worklike settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors). Id. Garcia argues that the ALJ was bound to accept Dr. Loculatolo’s opinion that he satisfied the criteria for Listing 12.04; however, a treating physician’s opinion as to the nature and severity of a claimant’s impairments are entitled to controlling weight only “if it is well supported by medical findings and not inconsistent with other substantial record evidence.” Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000). Given Dr. Loculatolo’s admissions at the March 13, 2003 hearing, as well as Dr. Fine’s testimony that the dosages of antidepressants Dr. Locuratolo prescribed were inconsistent with the severity of his diagnosis, the ALJ was within his rights to reject Dr. Locuratolo’s opinion. The same cannot be said of the ALJ’s rejection of the opinions of Drs. Antonelli and Goldstein. Because they did not treat Garcia, their opinions were not entitled to any particular weight; nevertheless, the ALJ was required to explain his reasoning. See 20 C.F.R. § 404.1527(f)(ii) (“Unless the treating source’s opinion is given controlling weight, the [ALJ] must explain in the decision the weight given to ... any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us.”). Lest this requirement become a meaningless formality, courts have held that “[a]n ALJ can reject an examining physician’s opinion only for reasons supported by substantial evidence.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir.2003); see also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005) (“To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing rea sons that are supported by substantial evidence.” (emphasis added)). The ALJ’s reasons for rejecting Dr. Antonelli’s and Dr. Goldstein’s opinions are unpersuasive. That Dr. Antonelli did not explore the possibility that Garcia suffered from dementia does not detract from" }, { "docid": "22231422", "title": "", "text": "Also, contrary to Prosch’s contention, we believe that the ALJ properly found that Dr. Yellin’s evaluation encompassed Prosch’s back condition and not just an unrelated shoulder injury. Finally, Dr. Andrew Steiner, the impartial medical expert who testified at the administrative hearing after reviewing Prosch’s medical records, concluded that Prosch was able to perform sedentary work if appropriate sitting and lifting restrictions were imposed. Prosch offers two final challenges to the ALJ’s decision to reject Dr. Crowe’s opinion, both of which rely upon the regulations. First, Prosch contends that 20 C.F.R. § 404.1527(d)(2) mandates that an ALJ cannot refuse to grant a treating physician’s opinion controlling weight unless the ALJ finds that the opinion was not “well-supported by medically acceptable clinical and laboratory diagnostic techniques,” a finding not made by the ALJ in this case. Although a finding that a treating physician’s opinion is not so supported may in certain circumstances support the discrediting of a treating physician’s evaluation, we do not believe that such a finding is required. This conclusion is fully supported by section 404.1527(d)(2) itself, which provides that a treating physician’s opinion is accorded controlling weight only if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2) (emphasis added). Second, Prosch argues that the opinion of Dr. Crowe, an orthopedic specialist, is entitled to greater weight than the opinions of the other physicians of record because of 20 C.F.R. § 404.1527(d)(5), which provides that the opinion of a specialist is accorded greater weight than the opinion of a general physician. We have held, however, that this rule does not apply where the opinion of the specialist is controverted by substantial evidence or is otherwise discredited. See Riley v. Shalala, 18 F.3d 619, 622-23 (8th Cir.1994). Because Dr. Crowe’s opinion was contrary to other substantial medical evidence, it accordingly was not entitled to special deference under section 404.1527(d)(5). In sum, we hold that substantial evidence supports the ALJ’s decision not to abide by the opinion of Prosch’s treating physician, Dr. Crowe." }, { "docid": "22231416", "title": "", "text": "the administrative hearing, Prosch submitted a residual functional capacity evaluation performed by Dr. Crowe in which Dr. Crowe opined that Prosch had been unable to perform any form of sedentary work since 1990. This evaluation, if given the controlling weight that Prosch claims was proper, would have required the ALJ to find that Prosch was unable to perform any job in the national economy and therefore was disabled. The ALJ, however, rejected Dr. Crowe’s opinion in favor of the evaluations of three other physicians. Prosch contends that the ALJ failed to provide sufficient reasons for doing so and thus erred in rejecting Dr. Crowe’s opinion. The opinion of a treating physician is accorded special deference under the social security regulations. The regulations provide that a treating physician’s opinion regarding an applicant’s impairment will be granted “controlling weight,” provided the opinion is “well-supported by medically ac ceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2). Consistent with the regulations, we have stated that a treating physician’s opinion is “normally entitled to great weight,” Rankin v. Apfel, 195 F.3d 427, 430 (8th Cir.1999), but we have also cautioned that such an opinion “do[es] not automatically control, since the record must be evaluated as a whole.” Bentley v. Shalala, 52 F.3d 784, 785-86 (8th Cir.1995). Accordingly, we have upheld an ALJ’s decision to discount or even disregard the opinion of a treating physician where other medical assessments “are supported by better or more thorough medical evidence,” Rogers v. Chater, 118 F.3d 600, 602 (8th Cir.1997), or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions, see Cruze v. Chater, 85 F.3d 1320, 1324-25 (8th Cir.1996). Whether the ALJ grants a treating physician’s opinion substantial or little weight, the regulations provide that the ALJ must “always give good reasons” for the particular weight given to a treating physician’s evaluation. 20 C.F.R § 404.1527(d)(2); see also SSR 96-2p. Prosch contends that the ALJ failed to do so in this case. We disagree, for we believe that the" }, { "docid": "22327796", "title": "", "text": "hand osteoarthritis and paresthesias. The ALJ declined to accord controlling weight to Dr. Combs’s 1997 report on the grounds that it was unsup ported by medical evidence and inconsistent with Clifford’s description of her daily activities. Prior to reaching this determination, the ALJ properly noted that more weight is generally given to the opinion of a treating physician because of his greater familiarity with the claimant’s conditions and circumstances. See Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir.1982); 20 C.F.R. § 404.1527(d)(2). A treating physician’s opinion regarding the nature and severity of a medical condition is entitled to controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2). A claimant, however, is not entitled to disability benefits simply because a physician finds that the claimant is “disabled” or “unable to work.” Under the Social Security regulations, the Commissioner is charged with determining the ultimate issue of disability. See 20 C.F.R. § 404.1527(e). Here, the ALJ stated that Clifford’s description of her daily activities did not appear to preclude “all competitive work.” In support of this contention, the ALJ noted that Clifford walks six blocks, performs household chores, and shops. According to the ALJ, these activities were inconsistent with Dr. Combs’s opinion regarding Clifford’s limitation on performing work that requires standing or walking. We have repeatedly stated, however, that an ALJ must “minimally articulate his reasons for crediting or rejecting evidence of disability.” Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir.1992). The ALJ did not provide any explanation for his belief that Clifford’s activities were inconsistent with Dr. Combs’s opinion and his failure to do so constitutes error. We have likewise insisted that an ALJ must not substitute his own judgment for a physician’s opinion without relying on other medical evidence or authority in the record. Rohan, 98 F.3d at 968 (“[A]s this Court has counseled on many occasions, ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.”); see 20 C.F.R. § 404.1527(d)(2) (“We will always" }, { "docid": "22231423", "title": "", "text": "404.1527(d)(2) itself, which provides that a treating physician’s opinion is accorded controlling weight only if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2) (emphasis added). Second, Prosch argues that the opinion of Dr. Crowe, an orthopedic specialist, is entitled to greater weight than the opinions of the other physicians of record because of 20 C.F.R. § 404.1527(d)(5), which provides that the opinion of a specialist is accorded greater weight than the opinion of a general physician. We have held, however, that this rule does not apply where the opinion of the specialist is controverted by substantial evidence or is otherwise discredited. See Riley v. Shalala, 18 F.3d 619, 622-23 (8th Cir.1994). Because Dr. Crowe’s opinion was contrary to other substantial medical evidence, it accordingly was not entitled to special deference under section 404.1527(d)(5). In sum, we hold that substantial evidence supports the ALJ’s decision not to abide by the opinion of Prosch’s treating physician, Dr. Crowe. B. Proseh also claims that the hypothetical question posed to the vocational expert at the administrative hearing did not accurately reflect the limitations imposed on Proseh by his back condition. Prosch’s argument, however, rests upon his belief that the ALJ should have granted controlling weight to Dr. Crowe’s testimony and that, accordingly, the hypothetical should have incorporated the limitations set forth by Dr. Crowe. This argument fails, however, in light of our holding that the ALJ properly rejected Dr. Crowe’s opinion in favor of other substantial medical evidence. The hypothetical posed by the ALJ properly reflected the impairments that the ALJ found to be supported by the record; the ALJ was not required to include impairments not so supported. See Haggard) 175 F.3d at 595 (“A hypothetical question is sufficient if it sets forth the impairments which are accepted as true by the ALJ.” (citations omitted)). The judgment is affirmed. . The Honorable Paul A. Magnuson, Chief Judge, United States District Judge for the District of Minnesota. . \"Sedentary work involves lifting no more than" }, { "docid": "2285230", "title": "", "text": "is less than a preponderance but is enough that a reasonable mind would find it adequate to support the decision.” Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir.2004). Even if substantial evidence supports a contrary outcome, we may not reverse so long as the Commissioner’s decision also is supported by substantial evidence. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004). Randolph argues that the ALJ erred by discrediting the opinions and findings of Dr. Vega, Randolph’s treating physician. Under the applicable regulations, the ALJ will give “a treating source’s opinion on the issue[s] of the nature and severity of [an] impairment[ ]” controlling weight if such opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2). The ALJ did not give Vega’s opinion controlling weight because “the weight of all the objective medical evidence of record, including from the mental health clinic [CCMHC], does not support Dr. Vega’s opinion that claimant is unable to work.” Soc. Sec. Admin. Office of Hearings and Appeals, Decision at 4 (May 23, 2001); see also Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th Cir.2000) (“It is well established that an ALJ may grant less weight to a treating physician’s opinion when that opinion conflicts with other substantial medical evidence contained within the record.”). Substantial evidence supports the ALJ’s refusal to give Vega’s opinion controlling weight. The ALJ did not reject Vega’s opinion in toto. At the second step of the sequential analysis, he determined that Randolph’s depression was a severe impairment. This decision is supported by substantial evidence on the record; all of the medical sources, both treating and examining, de termined that Randolph suffered from a major depressive disorder. The ALJ accepted that Randolph’s depression was a severe impairment but rejected Randolph’s contention that it was sufficient to meet listing level. The ALJ did not err in refusing to give Vega’s disability checklist or her opinion that Randolph was unable to work controlling weight. The checklist mirrored the affective disorder" }, { "docid": "23081974", "title": "", "text": "whether she could perform any other kind of work. Travis, 477 F.3d at 1040 (citing 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)). In this case, the ALJ determined Halverson was unable to perform past relevant work as a receptionist, waitress, administrative clerk, and bill sorter. However, the ALJ concluded there was other work she could perform, such as a document preparer, table worker, photocopy machine operator, and order caller. As a result, the ALJ determined she was not disabled and was not entitled to benefits. A. The ALJ’s Decision to Discount the Treating Physician’s Opinion Halverson first argues the ALJ did not properly consider the medical evidence from her treating psychiatrist, Dr. Michael Taylor. “A treating physician’s opinion is given controlling weight if it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant’s] case record.’ ” Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir.2009) (quoting 20 C.F.R. § 404.1527(d)(2)). “The record must be evaluated as a whole to determine whether the treating physician’s opinion should control.” Id. When a treating physician’s opinions “are inconsistent or contrary to the medical evidence as a whole, they are entitled to less weight.” Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir.2002). Dr. Taylor diagnosed Halverson with major depressive disorder, generalized anxiety disorder, and PTSD. According to Dr. Taylor, Halverson’s prognosis was poor and she was unable to perform a number of job-related tasks essential in the average workplace. Halverson contends the ALJ improperly discounted Dr. Taylor’s opinions when it determined the medical records did not generally support Dr. Taylor’s conclusions. Halverson also asserts the ALJ relied exclusively on the February 2006 office visit, during which Dr. Taylor noted Halverson’s attire and makeup bordered on outlandish, and her mental status examination was “totally inconsistent with her subjective complaints.” Halverson contends this was only the second time she had visited Dr. Taylor, and his assessment of her impairments changed significantly in subsequent visits in March and April 2006 as he came to know her better. Finally, Halverson argues it was" }, { "docid": "17456910", "title": "", "text": "the opinions of treating physicians.” Arroyo v. Secretary of Health and Human Services, 932 F.2d 82, 89 (1st Cir.1991); accord Keating v. Secretary of Health and Human Services, 848 F.2d 271, 276 (1st Cir.1988) (“treating physician’s conclusions regarding total disability may be rejected by the Secretary especially when, as here, contradictory medical advisor evidence appears in the record”). “Controlling weight” is typically afforded a treating physician’s opinion on the nature and severity of an impairment where it is “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the claimant’s case. 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2). The relevant regulations further permit the ALJ to downplay the weight afforded a treating physician’s assessment of the nature and severity of an impairment where, as here, it is internally inconsistent or inconsistent with other evidence in the record including treatment notes and evaluations by examining and nonexamining physicians. 20 C.F.R. §§ 404.1527(d)(2)-(4) & 416.927(d)(2)-(4). Dr. Stern examined Arruda only once in January 2001. Such a brief review warrants less weight than a review given by a physician such as Dr. Patrick who has a more longstanding relationship with Arruda and a more in depth knowledge of her ailments. See 20 C.F.R. §§ 404.1527(d)(2)(i) & 416.927(d)(2)® (“the more times you have been seen by a treating source, the more weight we will give to the source’s medical opinion”). In addition, Dr. Stern’s two page letter to Dr. Patrick wherein he notes that Arruda “walked slowly but steadily” and had normal power in her lower extremities (Tr. 273-274) contravenes his assessment in the physical capacity evaluation form that she could never lift or carry even up to five pounds of weight. (Tr. 267); see 20 C.F.R. §§ 404.1527(d)(2)-(4) & 416.927(d)(2)-(4). Dr. Stern’s conclusions relative to the inability to sit, stand and walk are also inconsistent with the report itself which, as the ALJ recognized, only characterizes Arruda’s pain as “moderate” as opposed to “severe.” (Tr. 268). Finally, Dr. Stern’s physical capacity evaluation form is a brief list of checked answers to form questions unaccompanied" }, { "docid": "10816843", "title": "", "text": "“Dr. Manzella Letter”) that listed a number of conditions from which Plaintiff reportedly suffers and concluded that Plaintiff was “incapable of work” and recommended she receive “full disability.” (Tr. 249-51). The ALJ explained that although the Dr. Manzella Letter listed 12 conditions, this list was “an exaggeration and unfounded” because most of it was either unconfirmed or contradicted by the objective medical tests. (Tr. 22). Treating physicians “may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations.... ” 20 C.F.R. §§ 404.1527(c)(2), 416.927(C)(2). The “treating physician rule” requires the ALJ to give “controlling weight” to the opinion of a claimant’s treating physician “regarding the nature and severity of [the claimant’s] impairments ... [if it] is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). As explained by the Second Circuit Court of Appeals: An ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various “factors” to determine how much weight to give to the opinion. 20 C.F.R. § 404.1527(d)(2). Among those factors are: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration’s attention that tend to support or contradict the opinion. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004). An ALJ does not have to explicitly walk through these factors, so long as the Court can “conclude that the ALJ applied the substance of the treating physician rule ... and provide[d] ‘good reasons’ for the weight she gives to the treating source’s opinion.” Id. In this case, ALJ Brady properly applied the treating physician rule by explicitly stating that he was giving little weight to the Dr. Manzella Statement" }, { "docid": "9869234", "title": "", "text": "supported by substantial evidence and is based on a misapplication of the law; and (2) the ALJ’s determination her subjective complaints were not entirely credible is not supported by substantial evidence. Social security regulations require an ALJ to give “controlling weight” to the opinion of a treating physician on the issue of the nature and severity of a claimant’s impairment if that opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(d)(2). The ALJ concluded Dr. Erby’s opinion was not entitled to any controlling weight because: (1) it failed to address Pate-Fires’s long history of substance abuse and non-compliance with recommended medications and treatment; and (2) it was contradicted by other evidence, notably the opinion of Dr. DeRoeck and the more recent opinions of Dr. Erby himself. First, the ALJ rejected Dr. Erby’s opinion based on the ALJ’s own opinion Pate-Fires had a long “history of substance abuse and non-compliance with recommended medications and treatment....” Add. at 10. This is an improper basis to reject a treating physician’s opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.2004) (“[T]he ALJ appears to have rejected [the treating physician’s] opinion based upon his own speculative lay opinion that claimant failed to comply with prescribed treatment, an improper basis to reject the treating physician’s opinion.”). The ALJ explained Dr. Erby’s evaluation did not address the claimant’s capacity when compliant with recommended treatment. According to the ALJ, more recent evaluations of Pate-Fires, at times when she was compliant with recommended treatment, were inconsistent with Dr. Erby’s February 27, 2004, evaluation. Specifically, the ALJ noted in a June 7, 2005, evaluation of Pate-Fires’s mental status, Dr. Erby concluded her “schizoaffective disorder [was] in remission with the medication management therapy and her GAF was listed as 56.” Add. at 10 (citing R. at 230). While Dr. Erby did note Pate-Fires’s schizoaffective disorder was in remission, his treatment notes from this evaluation do not indicate he believed she was sufficiently stable to return to work, even if" }, { "docid": "20631707", "title": "", "text": "full range of light work, there are still a significant number of jobs he can perform that are available in the national economy. II. We review de novo the district court’s decision upholding the denial of benefits, and affirm if substantial evidence on the record as a whole supports the outcome. Ellis v. Barnhart, 392 F.3d 988, 993 (8th Cir.2005). Substantial evidence is evidence that a reasonable mind would find adequate to support the decision of the Commissioner. Id. The ALJ applied the appropriate five-step test to determine whether Choate was disabled: 1) whether the claimant is currently employed, 2) whether the claimant is severely impaired, 3) whether the impairment is, or is comparable to, a listed impairment, 4) whether the claimant can perform past relevant work, and if not, 5) whether the claimant can perform any other kind of work. Cox v. Barnhart, 345 F.3d 606, 608 n. 1 (8th Cir.2003). The ALJ found that Choate was not fully credible and determined at the fifth step of the analysis that Choate was not disabled. A. On appeal, Choate argues that the ALJ erred in failing to give controlling weight to the opinions of the treating physicians, Dr. Troné and Dr. Freiman. A treating physician’s medical opinion is given controlling weight if that opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). These opinions are not automatically controlling, however, because the record must be evaluated as a whole. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.2005). We will uphold an ALJ’s decision to discount or even disregard the opinion of a treating physician where “other medical assessments are supported by better or more thorough medical evidence, or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions.” Id. at 920-21 (internal quotations omitted). The ALJ declined to give controlling weight to Dr. Trone’s opinion on the length of time Choate can sit or stand or to Dr. Freiman’s opinion that Choate is disabled. The ALJ determined" }, { "docid": "15577910", "title": "", "text": "assistance of a vocational expert at this fifth step. This case was resolved at the fifth step. Plaintiff argues that the Commissioner erred in three respects: 1) assessing his credibility; 2) evaluating the medical evidence; and 3) evaluating the vocational expert’s testimony. We will address the second argument first. A. Evaluation of the Medical Evidence Plaintiffs first argument is that the ALJ erred in his assessment of the medical evidence; specifically, he argues that the ALJ erroneously declined to give Dr. Brocker’s opinion controlling weight. The ALJ did not explicitly specify the weight he attributed to Dr. Brocker’s opinion that Plaintiff was worsening, although it appears that he rejected it altogether. (AR at 20). Plainly, the ALJ did not give it controlling weight or great weight. He found it to be inconsistent with the physician’s conclusion that Plaintiffs major systems were stable, and specifically criticized Dr. Brocker for not explaining this inconsistency in his examination notes. Id. Later in his opinion, the ALJ purported to give controlling weight to Dr. Andres’ opinion, stating that “the State Agency physicians support the conclusion of Dr. Andres that the claimant should return to work.” Id. An “ALJ may reject a treating physician’s opinion on the basis of contradictory medical evidence, and may afford a medical opinion more or less weight depending upon the degree to which supporting explanations are provided and whether the treating doctor is a specialist.” Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir.1988); 20 C.F.R. § 404.1527(d). A treating physician’s medical opinion is to be given controlling weight when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(d)(2). Even when a treating physician’s opinion is not given controlling weight, it is entitled to “great weight, especially when [it] reflects] expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.’ ” Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir.2000) (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999)). Finally, in rejecting" }, { "docid": "20843919", "title": "", "text": "10 pounds occasionally. (T at 324). In addition, Dr. DiGiovanni, a treating orthopedic specialist, opined that Plaintiff was limited to sedentary work in a July 2007 note. (T at 266). Dr. Kenny, another treating orthopedic specialist, indicated on several occasions that Plaintiff was totally disabled. (T at 284, 287, 289, 292, 294, 305, 309, 312). Plaintiff contends that the ALJ did not properly weigh these medical opinions when rendering his RFC determination. Under the “treating physician’s rule,” the ALJ must give controlling weight to the treating physician’s opinion when the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000). Even if a treating physician’s opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper weight to afford the treating physician’s opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. 20 C.F.R. § 404.1527(d)(1) — (6); see also de Roman, 2008 WL 21511160, at *9; Shaw, 221 F.3d at 134; Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998). In this case, the ALJ discussed the medical evidence, discounted the assessments of the treating physicians, and rendered a detailed, function-by-function assessment concerning Plaintiffs RFC. (T at 17-22). This Court finds the ALJ’s determination supported by substantial evidence, as outlined below. Plaintiff consulted Dr. Robert Mantica, an orthopedist, for pain management. In a February 2009 progress note, Dr. Manti-ca assessed that Plaintiff had “some type of soft tissue injury in his back.” (T at 387)." }, { "docid": "18061889", "title": "", "text": "treating physician’s opin ion “controlling weight” if it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). If these conditions are not satisfied, less weight may be given to the treating physician’s opinion, but the ALJ must always “give good reasons” for doing so. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir.2012) (quoting 20 C.F.R. § 404.1527(c)(2)). Here, some conflict exists among the opinions of various physicians as to the nature and extent of Cline’s medical condition. In assessing this evidence, the ALJ gave “little weight” to the opinion of Dr. Allen, Cline’s treating physician, on the ground that “it is inconsistent with [his] treatment records and the objective medical evidence as a whole.” The record does not support this conclusion. Dr. Allen’s treatment notes are not inconsistent with his medical source statement. Dr. Allen’s notes reflect that from November 2008 to March 2010, he frequently treated Cline for severe back pain and prescribed her medication for pain management. Cline’s chronic back pain is consistent with Dr. Allen’s opinion that Cline is unable to perform light work. Moreover, the lack of physical abnormalities found by Dr. Allen during his examination of Cline on March 5, 2010, is hardly inconsistent with the medical source statement he completed that same day. The “General Examination” listed in Dr. Allen’s March 2010 treatment notes appears to be exactly that: general. The examination lacks any indicia that it was targeted at diagnosing more complex conditions such as fibromyalgia or spinal abnormalities. And even if the examination was more thorough than the treatment notes indicate, the ALJ failed to acknowledge that a physical examination yielding normal results is consistent with a diagnosis of fibromyalgia — -a condition that Dr. Allen listed as a basis for his opinion that Cline is unable to perform light work. See Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir.2003) (noting that physical examinations of those with fibromyalgia “will usually yield normal results — a full range of motion, no joint" }, { "docid": "23023783", "title": "", "text": "416.920(a)(4)(iii). The ALJ must determine whether a “med ical equivalence” exists between a claimant’s impairment and a listed impairment. Id. §§ 404.1526(e), 416.926(e). To be medically equivalent, a claimant’s impairment must be “at least equal in severity and duration to the criteria of any listed impairment.” Id. §§ 404.1526(a), 416.926(a). In determining severity, an ALJ must give controlling weight to a treating source’s opinion if that opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.” Id. §§ 404.1527(c)(2), 416.927(c)(2). If medical equivalence is established, the claimant will be found disabled. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Myers argues primarily that the ALJ was required to give Dr. Horvath’s opinion controlling weight. A treating source’s opinion is not “inherently entitled” to controlling weight. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir.2006). Because the regulations only accord such weight to source opinions if they are “not inconsistent with the other substantial evidence,” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), we have upheld an ALJ’s decision to discount a treating physician’s opinions where those opinions were internally inconsistent, see Prosch, 201 F.3d at 1013, and where the physician’s opinion was inconsistent with the claimant’s own testimony. See Hacker, 459 F.3d at 937-38. Myers argues that Dr. Horvath’s opinion was consistent with his treatment notes, so the ALJ’s decision to discount it as inconsistent with the treatment record is not supported by substantial evidence. We disagree. Dr. Horvath’s July 2009 opinion concluded that Myers suffered from “[mjarked” limitations in social functioning. The regulations define “marked” to mean “more than moderate but less than extreme.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C). On all but one occasion throughout Dr. Horvath’s treatment of Myers — including four of the five times he estimated her score after her alleged onset date — the doctor estimated Myers’s GAF score in a range indicating at worst “moderate difficulty in social [or] occupational ... functioning.” Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.2000). Although the SSA does not consider GAF scores to" }, { "docid": "23696837", "title": "", "text": "is not inconsistent with the other substantial evidence in [the claimant’s] case record,” it will be given controlling weight. See id. But when the opinion of a treating physician is not supported by medical evidence and is inconsistent with the substantial evidence in the claimant’s record, the ALJ will not give the opinion controlling weight. See id. Instead, the ALJ will determine independently the weight to give the opinion on the basis of the following factors: the length, frequency, nature and extent of the treatment relationship; the degree to which the medical signs and laboratory findings support the opinion; the consistency of the opinion with the record as a whole; and the specialization of the physician. See 20 C.F.R. § 404.1527(d)(2), (3), (4) & (5). In this case, the ALJ was not persuaded by Mr. Smith’s description of his symptoms and limitations and found that Dr. Baraglia’s opinion, which was largely based upon Mr. Smith’s subjective complaints, was entitled to little weight. Upon review of all the evidence in the record, the ALJ decided to credit the opinion of Dr. Bharti, the consulting physician, over that of Dr. Baraglia. The ALJ was entitled to make this determination. See Reynolds v. Bowen, 844 F.2d 451, 455 (7th Cir.1988) (“[Wjhile the treating physician’s opinion is important, it is not the final word on a claimant’s disability.”); accord Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir.1995) (“[A] treating physician’s opinion is not conclusive in determining disability status and must be supported by medically acceptable clinical or diagnostic data.”) (quotations and citations omitted). Nothing in the regulatory scheme or the precedent of this court “mandates that the opinion of a treating physician always be accepted over that of a consulting physician, only that the relative merits of both be duly considered.” Books, 91 F.3d at 979. In this case, the ALJ took into account the relevant criteria in determining the weight to give Dr. Bar-aglia’s opinion and provided sufficient explanation for his decision. See 20 C.F.R. § 404.1527(d)(2) (requiring the ALJ to provide good reasons for the weight given to the claimant’s treating" }, { "docid": "11632707", "title": "", "text": "time two months later, he opined that Minnick could not do any bending or twisting, was unable to be reeducated for work, and was “clearly disabled.” Dr. Kachmann then diagnosed severe fibro-myalgia and migraines. The ALJ found the opinions inconsistent. The ALJ also found that Dr. Kachmann’s opinions regarding hiring practices were outside the scope of his expertise and that his opinions regarding Minnick’s ability to bend and twist were unsupported by the record. For these reasons, the ALJ gave Dr. Kachmann’s opinion only limited weight. Under 20 C.F.R. § 404.1527(c)(1), an ALJ should “give more weight to the opinion of a source who has examined [the claimant] than to the opinion of a source who has not examined [the claimant]” because of his greater familiarity with the claimant’s conditions and circumstances. Section 404.1527(c)(2) further provides “[i]f [the ALJ] find[s] that a treating source’s opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2). In discounting Dr. Kachmann’s opinion that Minnick could not bend or twist, the ALJ stated the limitation to occasional stooping in the RFC was better supported by the record as a whole. The ALJ failed to explain why Dr. Kachmann’s opinion that Minnick could not bend or twist was not supported by the record, particular as to twisting. This was error. See Roddy, 705 F.3d at 636-37 (finding ALJ should have, but did not, explain why treating physician’s opinion about severity of claimant’s pain was inconsistent with record evidence indicating pain); see also Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir.2007) (finding ALJ erred in failing to explain disregard of pertinent record evidence). First, it is unclear from the ALJ’s opinion how the ability to occasionally stoop would mean Minnick could also twist. Second, the record contains a number of other doctors’ opinions suggestive of Min-nick’s inability to bend or twist. For example, Dr. Karl and Dr." }, { "docid": "23238970", "title": "", "text": "testimony about his pain and muscle weakness because “his allegations were not reasonably consistent with the medical evidence.” The ALJ noted, for instance, that Gudgel damaged his credibility “when he acknowledged that he normally did not use the wheelchair in which he appeared at the hearing.” Our review of the Social Security Administration’s decision to deny disability benefits is limited to determining whether the decision “is supported by substantial evidence” in the record. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir.2000). Substantial evidence is such “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cannon v. Apfel, 213 F.3d 970, 974 (7th Cir.2000) (internal quotations omitted). A treating physician’s opinion regarding the nature and severity of a medical condition is entitled to controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2). More weight is given to the opinion of treating physicians because of their greater familiarity with the claimant’s conditions and circumstances. Clifford, 227 F.3d at 870; 20 C.F.R. § 404.1527(d)(2). Gudgel contends that the ALJ improperly credited Dr. Hutson’s testimony over the medical opinion of Drs. Baker and Koopman. Gudgel argues generally that the ALJ improperly rejected his treating physicians’ opinions without finding contradictory evidence in the record. Gudgel also argues that the ALJ should not have rejected Dr. Baker’s opinion without first allowing him to provide additional evidence to support the post-polio diagnosis. An ALJ can reject an examining physician’s opinion only for reasons supported by substantial evidence in the record; a contradictory opinion of a non-examining physician does not, by itself, suffice. Moore v. Barnhart, 278 F.3d 920, 924 (9th Cir.2002). Dr. Baker, a doctor trained in treating neurological disorders such as post-polio syndrome, had the opportunity to physically examine Gudgel on three occasions and to run a battery of tests on him. After conducting these examinations, Dr. Baker concluded that both clinical and diagnostic results supported the diagnosis. The ALJ did not explain how the evidence in the record contradicts Dr. Baker’s diagnosis of" }, { "docid": "20843918", "title": "", "text": "capacity determination, the ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis. 20 C.F.R. § 404.1545(a). An RFC finding will be upheld when there is substantial evidence in the record to support each requirement listed in the regulations. LaPorta v. Bowen, 737 F.Supp. 180, 183 (N.D.N.Y.1990). As noted above, the ALJ concluded that Plaintiff retained the RFC to perform light work, as defined in 20 C.F.R. § 416.967(b), subject to the following: Plaintiff can lift/carry/push/pull 10 pounds; stand for 5 hours in an 8-hour workday (but no more than 1 hour at a time); walk for 5 hours in an 8-hour workday (but not more than 1 hour at a time); sit for 5 hours in an 8-hour workday (but not more than 1 hour at a time); occasionally climb and stoop; and frequently kneel, crouch, and crawl. (T at 19). Plaintiff challenges the ALJ’s RFC determination. Dr. Balagtas, a consultative examiner, found that Plaintiff could only lift 10 pounds occasionally. (T at 324). In addition, Dr. DiGiovanni, a treating orthopedic specialist, opined that Plaintiff was limited to sedentary work in a July 2007 note. (T at 266). Dr. Kenny, another treating orthopedic specialist, indicated on several occasions that Plaintiff was totally disabled. (T at 284, 287, 289, 292, 294, 305, 309, 312). Plaintiff contends that the ALJ did not properly weigh these medical opinions when rendering his RFC determination. Under the “treating physician’s rule,” the ALJ must give controlling weight to the treating physician’s opinion when the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000). Even if a treating physician’s opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper" }, { "docid": "5365856", "title": "", "text": "positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the denial of benefits.” Id. (citation and internal quotation marks omitted). Vandenboom first argues that substantial evidence does not support the ALJ’s failure to give controlling weight to the opinion of Dr. Hines, the treating neurologist. See 20 C.F.R. § 404.1527(d)(2) (2005) (requiring the Commissioner to give controlling weight to the opinion of a treating physician if “it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence”). Here, the ALJ gave good reasons for not giving controlling weight to Dr. Hines’s opinions, stating that inconsistencies in the medical record as well as Dr. Hines’s failure to document objective medical evidence to support Vandenboom’s subjective complaints justified giving his opinions less weight. See Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir.2000) (“We [will] uph[o]ld an ALJ’s decision to discount or even disregard the opinion of a treating physician where other medical assessments are supported by better or more thorough medical evidence or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions.” (citations and internal quotation marks omitted)). The record supports the ALJ’s conclusion that Dr. Hines’s diagnosis and impressions were based largely on Vandenboom’s subjective complaints with little objective medical support, and the medical report on which he relied was inconsistent with the whole record. Dr. Hines relied on the March 2001 evaluation by one-time examining physician, Dr. McMordie, which noted a disturbance in higher cortical functioning and significant memory problems. The cognitive deficits noted in the testing performed by Dr. McMordie, however, are inconsistent with the prior opinions of both Dr. Fattal and Dr. Hines, finding that Vandenboom’s cognitive functioning was normal. Also, a CT scan in April 2002 revealed no abnormalities. “It is the ALJ’s function to resolve conflicts among the various treating and examining physi- dans.” Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.2002) (internal quotation marks omitted). Dr. Hines was of the opinion that Vandenboom would not be able to return to work, but" } ]

[ { "docid": "7375839", "title": "", "text": "the full faith and credit clause; 3. Appellees’ complaint does not state such a claim; and 4. Appellees have failed to state a claim that the Registrar’s action denied them equal protection of the laws. We REVERSE and REMAND for entry of a judgment of dismissal by the district court. I. FULL FAITH AND CREDIT A Justiciability The Registrar initially contends that Appellees lack standing to sue and that the federal courts lack jurisdiction over the full faith and credit claim. The threshold justiciability questions are novel, but settled principles guide their resolution. In order to establish standing, plaintiffs must show that (1) they have suffered an injury in fact, (2) a causal connection exists between the injury and challenged conduct, and (3) a favorable decision is likely to redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 295 (5th Cir.2001). We find Appellees have standing because they have been denied a revised birth certificate containing the names of both Smith and Adar as parents — the practical significance of which is undisputed — and through this action seek to redress the denial directly. Because standing does not depend upon ultimate success on the merits, Appellees are properly before this court. See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); Hanson v. Veterans Admin., 800 F.2d 1381, 1385 (5th Cir.1986) (“It is inappropriate for the court to focus on the merits of the case when considering the issue of standing.”). Further, the court must assume jurisdiction to decide whether Appellees’ complaint states a cause of action on which relief can be granted. Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Since the absence of a valid cause of action does not necessarily implicate subject-matter jurisdiction unless the claim “clearly appears to be immaterial and made solely for the purpose of obtain ing jurisdiction or where such a claim is wholly insubstantial and frivolous,” Steel Co." } ]

[ { "docid": "15327021", "title": "", "text": "L.Ed.2d 866 (2004) (citations omitted). . Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 223 (5th Cir.2012). . Id. (quoting 13 Charles Alan Wright, et ah, Fed. Practice & Procedure § 3522 at 12223 (3d ed.2008)). . Defs.' Cross-Mot. Summ. J., Ex. Tab 1 to App., Bremen Dep. at 16:15-17:13, 18:5— 19:14, 44:144:6, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 96 [hereinafter Bremen Dep.]; Ishop Aff. V 5, ECF No. 96; Defs.' Cross-Mot. Summ. J., Ex. Tab 2 to App., Ishop Dep. at 22:1320, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 96 [hereinafter Ishop Dep.]. . Ishop Aff. ¶ 5, ECF No. 96. . Id. ¶ 14. The AI scores are placed on one axis and the PAI scores are placed on the other axis. Students are then grouped based on their combination of AI and PAI scores. . United States v. Lee, 358 F.3d 315, 321 (5th Cir.2004) (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993)). . Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). . Notably, in her supplemental briefing Fisher argues only that she had suffered an \"injury in fact.” Supp. Br. of Appellant 12-13. Instead of addressing redressability, she argues only that the question of remedies is a separate inquiry. Id. at 13-14. Regardless of the district court’s bifurcation of merits and remedies, the redressability of an injury is integral to the standing inquiry. . See Br. of Resp. 6-20. . 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). . 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). . See, e.g., Spector v. Norwegian Cruise Line, Ltd., 427 F.3d 285, 286 (5th Cir.2005); United States v. Williamson, 47 F.3d 1090 (11th Cir.1995); FW/PBS, Inc. v. City of Dall., 896 F.2d 864, 865 (5th Cir.1990). . Fisher v. Univ. of Tex. at Austin, - U.S. -, 133 S.Ct. 2411, 2421, 186 L.Ed.2d 474 (2013). . Id. . 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). . Defs.’ Mot. to Remand at 4. . Fisher," }, { "docid": "15327039", "title": "", "text": "warned against inferring jurisdictional holdings from its opinions not explicitly addressing that subject. See Steel Co., 523 U.S. at 91, 118 S.Ct. 1003. Accordingly, the issue of standing remains open, and this court is obliged to address it. Id. at 94-95, 118 S.Ct. 1003. In our previous opinion, we held that Fisher had standing to “challenge [her] rejection and to seek money damages for [her] injury.” Fisher, 631 F.3d at 217. Only one relevant fact has changed since then-in 2012, Fisher graduated from Louisiana State University. The University contends that by graduating, “her forward-looking request for relief became moot” because she could no longer seek reconsideration of her undergraduate application. Fisher’s graduation does not alter our previous standing analysis because, as she correctly observes, that determination did not depend on a claim for forward-looking injunctive relief. Id. We held that Fisher had standing to seek nominal monetary damages, and we should reach the same conclusion now. The University relies on Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam), for the proposition that Fisher lacks standing because she would not have been admitted regardless of her race. But even if Lesage is a standing case (which is a debatable premise — the case seems to address statutory liability under § 1983), it does not affect the outcome here. Lesage stands for the proposition that a plaintiff challenging governmental use of racial classifications cannot prevail if “it is undisputed that the government would have made the same decision regardless” of such use. Id. at 21, 120 S.Ct. 467 (emphasis added). The University asserts that Fisher would not have been admitted even if she had a “perfect” PAI score. The majority agrees. Ante, at 639 (“If [Fisher] had been a minority the result would have been the same.”). While Fisher would have been denied admission during the 2008 admissions cycle even if she had a top PAI score, this is not the relevant inquiry. Rather, as Fisher explains, the proper question is whether she would have fallen above the admissions cut-off line if that line had" }, { "docid": "20779181", "title": "", "text": "“If a proposed amendment is not clearly futile, then denial of leave to amend is improper.” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1487 (4th ed. 2010). B. Standing to Bring a § 502(a)(2) Claim The “irreducible constitutional minimum” of Article III standing consists of an injury-in-fact, a causal connection between the injury and the conduct complained of, and the likelihood, as opposed to the mere speculation, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury-in-fact requirement exists to ensure that litigants have a personal stake in the litigation. The Pitt News v. Fisher, 215 F.3d 354, 360 (3d Cir;2000). The requirement is very generous, requiring only that the claimant allege some, specific, identifiable trifle of injury. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir.2005) (noting that “[w]hile it is difficult to reduce injury-in-fact to a simple formula, economic injury is one of its paradigmatic forms”); see also Bowman v. Wilson, 672 F.2d 1145, 1151 (3d Cir.1982); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (recognizing that “an identifiable trifle is enough”); Gen. Instrument Corp. v. NuTek Elects. & Mfg., Inc., 197 F.3d 83, 87 (3d Cir.1999) (same); Pub. Interest Research Grp. of N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 71 (3d Cir.1990) (same). The Supreme Court has made clear that, while Congress can identify those persons whom it intends to be protected by a statute, “the requirement of injury in fact is a hard floor of Article.Ill jurisdiction that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). To bring an ERISA lawsuit a plan participant must not only satisfy standing under the statute, but must also meet the standing requirements of Article III. See Horvath v. Keystone Health Plan E., Inc., 333 F.3d 450, 455 (3d" }, { "docid": "6040742", "title": "", "text": "is only appropriate if the plaintiff can establish to a legal certainty that the claim is for less than the requisite amount.” Bell, 557 F.3d at 956 (citing Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir.2006)). Hargis has not met this burden. She could have restricted her putative class in her original complaint or stipulated that the class would not seek damages above $5 million, but she did neither. The district court’s denial of Hargis’s motion to remand to state court is affirmed. III. We review de novo a district court’s determination of whether a plaintiff has standing. Jones v. Gale, 470 F.3d 1261, 1265 (8th Cir.2006). “Under Article III of the United States Constitution, federal courts may only adjudicate actual cases or controversies.” Constitution Party of S.D. v. Nelson, 639 F.3d 417, 420 (8th Cir.2011) (quoting Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151, 1157 (8th Cir.2008)). “A plaintiff has the burden of establishing subject matter jurisdiction, for which standing is a prerequisite.” Jones, 470 F.3d at 1265 (citations omitted). To satisfy Article III standing, a plaintiff must establish (1) that she has suffered “injury in fact” which is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical;” (2) there must be a causal connection such that the injury is “fairly traceable” to the defendant’s conduct; and (3) it must be “likely” and not merely “speculative” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). Because the requirements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof....” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citations omitted). At the summary judgment stage, the plaintiff cannot rest on allegations, but “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ Fed. Rule Civ. Proc. 56(e), which for purposes of" }, { "docid": "6040743", "title": "", "text": "1265 (citations omitted). To satisfy Article III standing, a plaintiff must establish (1) that she has suffered “injury in fact” which is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical;” (2) there must be a causal connection such that the injury is “fairly traceable” to the defendant’s conduct; and (3) it must be “likely” and not merely “speculative” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). Because the requirements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof....” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citations omitted). At the summary judgment stage, the plaintiff cannot rest on allegations, but “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true.” Id. “To survive a standing challenge at [the summary judgment] stage of the litigation, then, the plaintiff[] must have submitted affidavits or other evidence showing that [she] suffered an injury-in-fact. ...” Constitution Party of South Dakota, 639 F.3d at 421 (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). Hargis’s claims depend on her ability to prove that she paid Webster and Access for performing services that constitute the unauthorized practice of law. See Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 703 (Mo.2008) (after the two-year filing period for an unauthorized practice of law claim has expired a plaintiff may still bring a “Money Had and Received” claim to recover fees); Bauer Dev. LLC v. BOK Fin. Corp., 290 S.W.3d 96, 100 (Mo.Ct.App.2009) (to recover for unjust enrichment a plaintiff must have conferred a benefit on defendant); Freeman Health Sys. v. Wass, 124 S.W.3d 504, 507-08 (Mo.Ct.App.2004) (to bring a claim under the MMPA a plaintiff must suffer an ascertainable financial loss); Bray" }, { "docid": "20779180", "title": "", "text": "Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir.2006) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). A court may deny leave to amend when “(1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other parities].” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000); see also Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir.1993) (“In the absence of substantial or undue prejudice, denial instead must be based on bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment.” (citation omitted)). To determine futility, we apply the same analysis that would govern a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997). “ ‘Futility’ means that the complaint, as amended, would fail to state a claim upon which relief may be granted.” Id. “If a proposed amendment is not clearly futile, then denial of leave to amend is improper.” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1487 (4th ed. 2010). B. Standing to Bring a § 502(a)(2) Claim The “irreducible constitutional minimum” of Article III standing consists of an injury-in-fact, a causal connection between the injury and the conduct complained of, and the likelihood, as opposed to the mere speculation, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury-in-fact requirement exists to ensure that litigants have a personal stake in the litigation. The Pitt News v. Fisher, 215 F.3d 354, 360 (3d Cir;2000). The requirement is very generous, requiring only that the claimant allege some, specific, identifiable trifle of injury. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir.2005) (noting that “[w]hile it is difficult to reduce injury-in-fact to a simple formula, economic injury is" }, { "docid": "23624833", "title": "", "text": "challenged conduct — the minority utilization requirement.” Op. at 11. It reached this conclusion by focusing on those portions of the complaint alleging that Independent had submitted bids in compliance with the utilization requirements and that those bids were rejected because of the Sirabella memorandum. Standing is “an essential and unchanging part of the case-or-controversy requirement of Article III” of the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). In order to satisfy the standing requirement, a party must demonstrate (1) an “injury in fact” which is both “concrete and particularized” and “actual or imminent”; (2) a causal relationship between the injury and the challenged conduct such that the injury “fairly can be traced to the challenged action of the defendant”; and (3) a likelihood that the injury will be redressed by a favorable decision. Northeastern Florida Chapter of Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 2302, 124 L.Ed.2d 586 (1993) (citations omitted). At this stage in the proceeding, we look to the plaintiffs complaint to determine whether these requirements for standing have been met. In construing the plaintiffs complaint, we are of course bound by the Federal Rules of Civil Procedure. Rule 8(e)(2) of those Rules provides that: A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses____ A party may also state as many separate claims or defenses as the party has, regardless of consistency.... This Rule permits inconsistency in both legal and factual allegations, see, e.g., Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531, 536 (8th Cir.1970); Dugan v. Bell Telephone of Pa., 876 F.Supp. 713, 722 (W.D.Pa.1994); 5 Wright & Miller, Federal Practice & Procedure § 1283, at 533 (1990), and has been interpreted to mean that a court “may not construe [a plaintiffs] first claim as an admission against another alternative or inconsistent claim.” Henry v. Daytop Village, 42 F.3d 89, 95 (2d Cir.1994); Molsbergen" }, { "docid": "15327017", "title": "", "text": "effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command — due only a courtesy salute in passing. For these reasons, we AFFIRM. Appendix 1 Appendix 1 Appendix 2 Appendix 2 . Along with Fisher, Rachel Michalewicz was originally a plaintiff against UT Austin; Mi-chalewicz is no longer a party to this action. . Defs.’ Cross-Mot. Summ. J., Ex. Tab 7 to App., Ishop Aff. at ¶ 2, Fisher v. Univ. of Tex. at Austin, 645 F.Supp.2d 587 (W.D.Tex.2009) (No. 08-263), ECF No. 96 [hereinafter Ishop Aff.]. . Office of Admissions, Univ., of Tex.' at Austin, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin: Demographic Analysis of Entering Freshmen Fall 2008 and Academic Performance of Top 10% and Non-Top 10% Students Academic Years 2003-2007 (Report 11), at 7 tbl.la (Oct. 28, 2008) [hereinafter 2008 Top Ten Percent Report], Defs.’ Cross-Mot. Summ. J., Ex. Tab 8 to App., Lavergne Aff., Ex. C, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 96, available at http://www.utexas.edu/studenVadmissions/ research/HB588-Reportl 1 .pdf. . Ishop Aff. ¶ 16, ECF No. 96. Additionally, Fisher did not apply for any academic programs with special application processes, such as the Plan II Honors program or a Fine Arts program. . Id. ¶ 13. . 2008 Top Ten Percent Report at 9 tbl.2b; id. at 8 tbl.2. Table 2 shows 8,984 Top Ten Percent students were admitted in 2008. The UT Associate Director of Admissions reported that 10,200 admissions slots are available.for Texas residents. Ishop Aff. ¶ 12, ECF No. 96. . Id. . Id. ¶ 18. . Id." }, { "docid": "6225603", "title": "", "text": "in the wings and willing to become a party to the action, had a claim that could be “appropriately resolved through the judicial process.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). The Zurich Insurance Co. court declined to permit the substitution, even though the kinds of concerns typically raised by a standing challenge, such as the risk that “a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large,” id. at 573-74, 112 S.Ct. 2130—would inadequately present or defend his claim, would have been absent had the substitution been allowed. The only bar to the court’s jurisdiction was a complaint heading containing the wrong client’s name. To be sure, the Supreme Court has frequently said that a federal court’s constitutional authority to hear the merits of a case must be established at the outset of the litigation. See, e.g., Mollan v. Torrance, 9 Wheat. 537, 22 U.S. 537, 539, 6 L.Ed. 154 (1824) (“[Jjurisdiction ... depends upon the state of things at the time of the action brought.”). This is said to be so both with respect to standing, see, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (standing “must exist at the commencement of the litigation”), and with respect to other aspects of subject matter jurisdiction, see, e.g., Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 570-71, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (“Th[e] time-of-filing rule ... measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing.”). But the jurisdiction-at-commencement rule is not absolute. “In cases where the plaintiff lacked initial standing or the case suffered from some other jurisdictional defect at the time suit is commenced, the Supreme Court’s" }, { "docid": "15327024", "title": "", "text": "omitted). . Id. (quoting Grutter, 539 U.S. at 337, 123 S.Ct. 2325) (internal quotation marks and citations omitted). . Id. (quoting Baldee, 438 U.S. at 305, 98 S.Ct. 2733). . Id. . Id. (emphasis added). . Id. (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (internal quotation marks omitted)). . Id. . Id. at 2421. . 2008 Top Ten Percent Report at 6 tbl.1. . 78 F.3d 932 (5th Cir. 1996), abrogated by Grutter, 539 U.S. at 322, 123 S.Ct. 2325. . Grutter, 539 U.S. at 340, 123 S.Ct. 2325. .Pis.’ Mot. Summ. J., Ex. 27, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 94 (HB 588, House Research Organization Digest, Apr. 15, 1997). . 2008 Top Ten Percent Report at 7 tbl. la. . Office of Admissions, Univ. of Tex. at Austin, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin: Demographic Analysis of Entering Freshmen 2006 and Academic Performance of Top 10% and Non-Top 10% Students Academic Years 1996-2005, at 5 tbl.la (Dec. 6, 2007) [hereinafter 2006 Top Ten Percent Report], Pis.’ Mot. Summ. J., Ex. 25, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 94, available at htt p://www.utexas. edu/student/ad missions/research/HB5 8 8-Re-port-VolumeI.pdf. . Later editions of the same reports available as public data show that as the take of the Top Ten Percent Plan continued to grow, this effect intensified. In 2009, when the holistic review program was left with only 14.4% of the seats available for Texas residents, only 6.3% of Hispanic enrolled students were admitted through holistic review and 10.0% of blacks, but 18.8% of whites. Office of Admissions, Univ. of Tex. at Austin, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin: Demographic Analysis of Entering Freshmen Fall 2009 and Academic Performance of Top 10% and Non-Top 10% Students Academic Years 20042008 (Report 12), at 8 tbl.la (Oct. 29, 2009) [hereinafter 2009 Top Ten Percent Report], available at http://www.utexas.edu/student/admissions/ researclVHB588-Reportl2.pdf; see also Office" }, { "docid": "11677910", "title": "", "text": "the Delaware Uniform Trade Practices Act will be taken up in Parts IV and V. Constitutional standing “is the ‘irreducible constitutional minimum’ of standing.” Trump Hotels, 140 F.3d at 484 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Constitutional standing has three elements, all of which must be met: (1) the plaintiff must have suffered an injury in fact; (2) there must be a causal nexus between that injury and the conduct complained of; and (3) it must be likely that the injury will be redressed by a favorable judicial decision. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Pitt News, 215 F.3d at 359-61; Trump Hotels, 140 F.3d at 484-85; Conte Bros., 165 F.3d at 225. “These requirements ensure that plaintiffs have a ‘personal stake’ or ‘interest’ in the outcome of the proceedings, ‘sufficient to warrant ... [their] invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on ... [their] behalf.’ ” Wheeler v. Travelers Ins. Co., 22 F.3d 534, 537-38 (3d Cir.1994) (citations omitted) (quoting Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Furthermore, when standing is called into question at the summary judgment stage, as it was in this case, the plaintiff cannot rely on mere allegations “but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true.” Id. The plaintiffs in the case before us claim that they have suffered or are suffering seven injuries due to the defendants’ illegal conduct. These are: (1) the barrier to entry into the United States vodka market “erected by Defendants’ false advertising, false designation of origin, and illegally obtained trademarks”; (2) the plaintiffs’ “inability to enter into distribution contracts in the United States”; (3) their “inability to control the use of the name and designations of their predecessor”; (4) the" }, { "docid": "3150043", "title": "", "text": "Probable Cause Before this Court can consider the constitutionality of the challenged police patrol guide, Wu must demonstrate that he has standing to challenge that guide. Standing exists if a plaintiff can demonstrate (1) concrete injury-in-fact, (2) a causal connection between the injury and the challenged conduct, and (3) that a favorable decision will likely redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). Wu must therefore demonstrate, first, that he was injured by his arrest and, second, that there is a causal link between his injury and Patrol Guide 116-43. This in turn requires convincing the Court that Officers Santoro, Ziegler, and Monahan did not have probable cause to arrest Wu and would not have done so if not for Patrol Guide 116-43. A. Legal Standards of Probable Cause Under the Fourth Amendment, a warrantless arrest is constitutionally valid only if the arresting officers had probable cause to make the arrest at the time of the arrest. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). As explained by the Second Circuit, The quantum of evidence required to establish probable causé to arrest need not reach the level of evidence necessary to support a conviction, but it must constitute more than rumor, suspicion, or even a “strong reason to suspect.” Although the existence of probable cause must be determined with reference to the facts of each case, in general probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested. United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983) (citations omitted). See Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir.1989). In determining probable cause, “facts relied upon must not be susceptible to innocent or" }, { "docid": "8187483", "title": "", "text": "it. That finding was incorrect. Proper jurisdiction for a federal court is fundamental and necessary before touching the substantive claims of a lawsuit. Even if defendants failed to challenge jurisdiction at a prior stage of the litigation, they are not prohibited from raising it later. See Menchaca v. Chrysler Credit. Corp., 613 F.2d 507, 511 (5th Cir.1980). “[A] factual attack under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist.” Id. (citations omitted). Because a party may not waive the defense of subject matter jurisdiction, it is clear that the issue may be raised for the first time on appeal. [T]he independent establishment of subject-matter jurisdiction is so important that [even] a party ostensibly invoking federal jurisdiction may later challenge it as a means of avoiding adverse results on the merits. 13 Charles Alan Wright et al., Fed. Practice & Procedure § 3522 at 122-23 (3d ed. 2008). “A litigant generally may raise a court’s lack of subject matter jurisdiction at anytime in the same civil action, even initially at the highest appellate instance.” Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 576, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (citations omitted). The law is clear on this point and the district court had a duty to consider newly submitted evidence despite the defendants’s failure to produce it before the entry of judgment. When a defendant makes a “factual” attack on a court’s subject-matter jurisdiction, the court is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Morris v. U.S. Dept, of Justice, 540 F.Supp. 898, 900 (S.D.Tex.1982) aff'd, 696 F.2d 994 (5th Cir.1983), cert, denied, 460 U.S. 1093, 103 S.Ct. 1794, 76 L.Ed.2d 360 (1983). “[F]ederal courts must address jurisdictional questions whenever they are raised and must consider jurisdiction sua sponte if not raised by the parties.” Howery, 243 F.3d at 919 (citing Kidd v. Southwest Airlines, Co., 891 F.2d 540, 546 (5th Cir. 1990)); see also Griffin v. Lee, 621 F.3d 380," }, { "docid": "16412123", "title": "", "text": "(3) ⅛ is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Consol. Cos., Inc. v. Union Pacific R.R. Co., 499 F.3d 382, 385 (5th Cir. 2007); Fla. Dep’t of Ins. v. Chase Bank of Tex. Nat’l Ass’n, 274 F.3d 924, 929 (5th Cir. 2001) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “Standing to seek declaratory judgment is subject to these, same requirements.” BroadStar Wind Sys. Grp. Ltd. Liab. Co. v. Stephens, 459 Fed.Appx. 351, 356 (5th Cir. 2012) (citing Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). The general rule is that “standing is to be determined as of the commencement of the suit.” Lujan, 504 U.S. at 571-72, 112 S.Ct. 2130. Though a plaintiff may later amend her complaint, post-filing events generally cannot cure a jurisdictional defect that existed at the time the original complaint was filed. Camsoft Data Sys., Inc. v. S. Elec. Supply, Inc., 756 F.3d 327, 337 (5th Cir. 2014); see also Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 218 (5th Cir. 2012) (“Although 28 U.S.C. § 1653 and [Rule] 15(a) allow amendments to cure defective jurisdictional allegations, these rules do not permit the creation of jurisdiction when none existed at the time the original complaint was fiied[.]”). II. Application The State seeks, a declaratory judgment as to the constitutionality of a statute prior to the law taking effect. Because Defendants move to dismiss this lawsuit for lack of subject matter jurisdiction, the Court does not reach the merits of the State’s claim, but instead only examines whether the claim, based on the record before the Court, can proceed. Because the Court finds the State lacks standing to bring this claim, the Court GRANTS Defendants’ motions to dismiss. The State asserts two primary arguments in an. attempt to establish standing: first, because Defendants have standing to challenge the" }, { "docid": "15327040", "title": "", "text": "for the proposition that Fisher lacks standing because she would not have been admitted regardless of her race. But even if Lesage is a standing case (which is a debatable premise — the case seems to address statutory liability under § 1983), it does not affect the outcome here. Lesage stands for the proposition that a plaintiff challenging governmental use of racial classifications cannot prevail if “it is undisputed that the government would have made the same decision regardless” of such use. Id. at 21, 120 S.Ct. 467 (emphasis added). The University asserts that Fisher would not have been admitted even if she had a “perfect” PAI score. The majority agrees. Ante, at 639 (“If [Fisher] had been a minority the result would have been the same.”). While Fisher would have been denied admission during the 2008 admissions cycle even if she had a top PAI score, this is not the relevant inquiry. Rather, as Fisher explains, the proper question is whether she would have fallen above the admissions cut-off line if that line had been drawn on a race-neutral distribution of all applicants’ scores. This record does not indicate whether Fisher would have been admitted if race were removed from the admissions process altogether. At the least, this is a complex question that is far from “undisputed.” See Lesage, 528 U.S. at 21, 120 S.Ct. 467. Even the University acknowledges that the answer to this question is practically unknowable: It concedes that re-engineering the 2008 admissions process by retroactively removing consideration of race is virtually impossible since race has an immeasurable, yet potentially material, impact on the placement of the final admissions cut-off lines for all programs. In sum, the record does not show that Fisher’s rejection under a race-neutral admissions process is “undisputed,” and remanding to the district court could not alter the record in this regard. The University further challenges Fisher’s standing on redressability grounds. The University’s theory is that even if Fisher had been admitted through the race-conscious admissions program, and had not suffered the injury of rejection, she still would have paid the non-refundable application" }, { "docid": "15327018", "title": "", "text": "Tex.' at Austin, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin: Demographic Analysis of Entering Freshmen Fall 2008 and Academic Performance of Top 10% and Non-Top 10% Students Academic Years 2003-2007 (Report 11), at 7 tbl.la (Oct. 28, 2008) [hereinafter 2008 Top Ten Percent Report], Defs.’ Cross-Mot. Summ. J., Ex. Tab 8 to App., Lavergne Aff., Ex. C, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 96, available at http://www.utexas.edu/studenVadmissions/ research/HB588-Reportl 1 .pdf. . Ishop Aff. ¶ 16, ECF No. 96. Additionally, Fisher did not apply for any academic programs with special application processes, such as the Plan II Honors program or a Fine Arts program. . Id. ¶ 13. . 2008 Top Ten Percent Report at 9 tbl.2b; id. at 8 tbl.2. Table 2 shows 8,984 Top Ten Percent students were admitted in 2008. The UT Associate Director of Admissions reported that 10,200 admissions slots are available.for Texas residents. Ishop Aff. ¶ 12, ECF No. 96. . Id. . Id. ¶ 18. . Id. ¶ 4. . Id. V 3. The AI score is generated by adding the predicted grade point average (\"PGPA”) and the curriculum-based bonus points (\"units plus”). Id. The PGPA is calculated using an applicant's SAT or ACT scores and class rank. Id. A units plus bonus of 0.1 points is added to the PGPA if the applicant took more than UT Austin's minimum high school coursework requirements in at least two of three designated subject areas. Id. . Id. ¶ 5. The PAI is calculated as follows: PAI = ((((essay score 1 + essay score 2)/2)*3) -I- ((personal achievement score)*4))/7. Defs.’ Cross-Mot. Summ. J., Ex. Tab 3 to App., Lavergne Dep. at 57:1117, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 96 [hereinafter Lavergne Dep.]. . Id. ¶ 18. . Id. . Id. At the preliminary injunction stage, UT Austin suggested that it was unable to determine whether Fisher (or Michalewicz) would have been admitted without re running the entire admissions process. Opp. Mot. Prelim. Injunction at 12, Fisher, 645 F.Supp.2d 587 (No. 08-263), EOF" }, { "docid": "15326964", "title": "", "text": "received for each of two required essays and (ii) a personal achievement score based on a holistic review of the entire application, with slightly more weight being placed on the latter. In calculating the personal achievement score, the staff member conducts a holistic review of the contents of the applicant’s entire file, including demonstrated leadership qualities, extracurricular activities, honors and awards, essays, work experience, community service, and special circumstances, such as the applicant’s socioeconomic status, family composition, special family responsibilities, the socioeconomic status of the applicant’s high school, and race. No numerical value is ever assigned to any of the components of personal achievement scores, and because race is a factor considered in the unique context of each applicant’s entire experience, it may be a beneficial factor for a minority or a non-minority student. To admit applicants through this holistic review, the admissions office generates an initial AI/PAI matrix for each academic program, wherein applicants are placed into groups that share the same combination of AI and PAI scores. School liaisons then draw stair-step lines along this matrix, selecting groups of students on the basis of their combined AI and PAI scores. This process is repeated until each program admits a sufficient number of students. Fisher’s AI scores were too low for admission to her preferred academic programs at UT Austin; Fisher had a Liberal Arts AI of 3.1 and a Business AI of 3.1. And, because nearly all the seats in the undeclared major program in Liberal Arts were filled with Top Ten Percent students, all holistic review applicants “were only eligible for Summer Freshman Class or CAP [Coordinated Admissions Program] admission, unless their AI exceeded 3.5.” Accordingly, even if she had received a perfect PAI score of 6, she could not have received an offer of admission to the Fall 2008 freshman class. If she had been a minority the result would have been the same. B This reality together with factual developments since summary judgment call into question whether Fisher has standing. UT Austin argues that Fisher lacks standing because (i) she graduated from another university in" }, { "docid": "15326965", "title": "", "text": "along this matrix, selecting groups of students on the basis of their combined AI and PAI scores. This process is repeated until each program admits a sufficient number of students. Fisher’s AI scores were too low for admission to her preferred academic programs at UT Austin; Fisher had a Liberal Arts AI of 3.1 and a Business AI of 3.1. And, because nearly all the seats in the undeclared major program in Liberal Arts were filled with Top Ten Percent students, all holistic review applicants “were only eligible for Summer Freshman Class or CAP [Coordinated Admissions Program] admission, unless their AI exceeded 3.5.” Accordingly, even if she had received a perfect PAI score of 6, she could not have received an offer of admission to the Fall 2008 freshman class. If she had been a minority the result would have been the same. B This reality together with factual developments since summary judgment call into question whether Fisher has standing. UT Austin argues that Fisher lacks standing because (i) she graduated from another university in May 2012, thus rendering her claims for injunctive and declaratory relief moot, and (ii) there is no causal relationship between any use of race in the decision to deny Fisher admission and the $100 application fee—a nonrefundable expense faced by all applicants that puts at issue whether Fisher suffered monetary injury. Two competing and axiomatic principles govern the resolution of this question. First, jurisdiction must exist at every stage of litigation. A litigant “generally may raise a court’s lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance.” Even if “defendants failed to challenge jurisdiction at a prior stage of the litigation, they are not prohibited from raising it later.” Indeed, the “independent establishment of subject-matter jurisdiction is so important that [even] a party ostensibly invoking federal jurisdiction may later challenge it as a means of avoiding adverse results on the merits.” Second, the “mandate rule,” a corollary of the law of the case doctrine, “compels compliance on remand with the dictates of a superior court" }, { "docid": "15327020", "title": "", "text": "No. 42. Regardless, it became clear in the summary judgment record that whether Fisher would have been admitted even if she had a perfect PAI score presented no genuine issue of fact. She would not have been admitted. The same was true for Michalewicz, then a co-plaintiff. . Plaintiffs \"must show that (1) they have suffered an injury in fact, (2) a causal connection exists between the injury and challenged conduct, and (3) a favorable decision is likely to redress the injury.” Adar v. Smith, 639 F.3d 146, 150 (5th Cir.2011) (en banc) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). . Appellees' Statement Concerning Further Proceedings on Remand at 5. . As we will explain, Fisher's odds of admission were affected by the Top Ten Percent Plan, which filled all but around 1,200 seats of the incoming class. Competition drove the automatic rejection up to a 3.5 AI score. . Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 576, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) (citations omitted). . Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 223 (5th Cir.2012). . Id. (quoting 13 Charles Alan Wright, et ah, Fed. Practice & Procedure § 3522 at 12223 (3d ed.2008)). . Defs.' Cross-Mot. Summ. J., Ex. Tab 1 to App., Bremen Dep. at 16:15-17:13, 18:5— 19:14, 44:144:6, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 96 [hereinafter Bremen Dep.]; Ishop Aff. V 5, ECF No. 96; Defs.' Cross-Mot. Summ. J., Ex. Tab 2 to App., Ishop Dep. at 22:1320, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 96 [hereinafter Ishop Dep.]. . Ishop Aff. ¶ 5, ECF No. 96. . Id. ¶ 14. The AI scores are placed on one axis and the PAI scores are placed on the other axis. Students are then grouped based on their combination of AI and PAI scores. . United States v. Lee, 358 F.3d 315, 321 (5th Cir.2004) (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993)). . Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83," }, { "docid": "15327019", "title": "", "text": "¶ 4. . Id. V 3. The AI score is generated by adding the predicted grade point average (\"PGPA”) and the curriculum-based bonus points (\"units plus”). Id. The PGPA is calculated using an applicant's SAT or ACT scores and class rank. Id. A units plus bonus of 0.1 points is added to the PGPA if the applicant took more than UT Austin's minimum high school coursework requirements in at least two of three designated subject areas. Id. . Id. ¶ 5. The PAI is calculated as follows: PAI = ((((essay score 1 + essay score 2)/2)*3) -I- ((personal achievement score)*4))/7. Defs.’ Cross-Mot. Summ. J., Ex. Tab 3 to App., Lavergne Dep. at 57:1117, Fisher, 645 F.Supp.2d 587 (No. 08-263), ECF No. 96 [hereinafter Lavergne Dep.]. . Id. ¶ 18. . Id. . Id. At the preliminary injunction stage, UT Austin suggested that it was unable to determine whether Fisher (or Michalewicz) would have been admitted without re running the entire admissions process. Opp. Mot. Prelim. Injunction at 12, Fisher, 645 F.Supp.2d 587 (No. 08-263), EOF No. 42. Regardless, it became clear in the summary judgment record that whether Fisher would have been admitted even if she had a perfect PAI score presented no genuine issue of fact. She would not have been admitted. The same was true for Michalewicz, then a co-plaintiff. . Plaintiffs \"must show that (1) they have suffered an injury in fact, (2) a causal connection exists between the injury and challenged conduct, and (3) a favorable decision is likely to redress the injury.” Adar v. Smith, 639 F.3d 146, 150 (5th Cir.2011) (en banc) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). . Appellees' Statement Concerning Further Proceedings on Remand at 5. . As we will explain, Fisher's odds of admission were affected by the Top Ten Percent Plan, which filled all but around 1,200 seats of the incoming class. Competition drove the automatic rejection up to a 3.5 AI score. . Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 576, 124 S.Ct. 1920, 158" } ]

[ { "docid": "1029838", "title": "", "text": "that the procedural safeguards of notice and opt-out are necessary, that is, when the monetary relief being sought is less of a group remedy and instead depends more on the varying circumstances and merits of each potential class member’s case.... Because it automatically provides the right of notice and opt-out to individuals who do not want their monetary claims decided in a class action, Rule 23(b) (3) is the appropriate means of class certification when monetary relief is the predominant form of relief sought ____ Monetary relief predominates ... unless it is incidental to requested injunctive or declaratory relief. Allison, 151 F.3d at 415 (emphasis added). By “incidental” damages, the Allison court meant damages that (1) “flow directly from liability to the class as a whole on the claims forming the basis for the injunctive or declaratory relief;” (2) are “capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances;” (3) “should not require additional hearings to resolve the disparate merits of each individual’s case,” nor “introduce new and substantial legal or factual issues” entailing “complex individualized determinations;” and (4) “will, by definition, be more in the nature of a group remedy.” Id. PCS argues that “[t]he essence of Mulder’s requested relief is monetary” because Mulder has conceded that damages would consist of the allegedly illegal profits PCS obtained from its deals with drug manufacturers. Mulder’s counsel has explained their aim that this money would be “put into a pot ... and drawn down by the individual [employee welfare benefit] plans.” (Def. Suppl. Br. at 14, quoting Mulder’s counsel at February 3, 2003 hearing, Tr. at 15.) The fact that Mulder seeks disgorgement of illegal profits, however, does not mean that his request for relief is predominantly monetary. Examining the Complaint, the Court finds that the requested damages are incidental to the injunctive relief sought. Mulder demands a judgment (1) declaring PCS’s practices unlawful; (2) enjoining PCS from continuing the practices; (3) granting equitable relief including (a) an accounting of all illegal profits, (b) establishing" } ]

[ { "docid": "16925888", "title": "", "text": "particular needed HCBW service but are not receiving it. Thus, apart from the standing issue, it was not an abuse of discretion for the district court to find that Plaintiffs’ claims for injunctive and declaratory relief satisfy the commonality and typicality requirements. We agree with Defendants, however, that Plaintiffs’ claim for damages presents a problem in this case. In addition to their claims for declaratory and injunctive relief from Defendants’ policy, Plaintiffs seek compensatory damages under the ADA for their individual “pain and suffering, mental anguish, and humiliation.” The district court did not address Plaintiffs’ damage claim in the class certification order. Therefore, we assume that the court did not intend to exempt it from class treatment. Monetary relief may be obtained in a Rule 23(b)(2) class action so long as the predominant relief sought is injunctive or declaratory. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.1998); Holmes v. Cont’l Can Co., 706 F.2d 1144, 1155 (11th Cir.1983). “[Mjonetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Allison, 151 F.3d at 415 (emphasis added); see also Lemon v. Int’l Union of Operating Eng’rs., 216 F.3d 577, 581 (7th Cir.2000); Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928-29 (9th Cir.1982). Because the Eleventh Circuit has not yet established specific criteria for determining when monetary damages are incidental to equitable relief, we look to a Fifth Circuit case for guidance. In Allison v. Citgo Petroleum Corp., the court explained: By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. ... Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established.... Liability for incidental damages should not ... entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. 151 F.3d at 415. Here, Plaintiffs do not" }, { "docid": "11291705", "title": "", "text": "classes where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). The advisory committee’s 1966 note to Rule 23(b)(2) specifies that “[t]he subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed.R.Civ.P. 23(b)(2) advisory committee’s note, 1966 Amendment. According to UPS, plaintiffs’ requests for monetary relief — in the form of back pay and compensatory and punitive damages — predominate over the injunctive and declaratory relief sought, in contravention of Rule 23(b)(2). As the District Court acknowledged, we have not yet spoken on how the predominance of monetary relief in the Rule 23(b)(2) context should be measured and our sister circuits are split on that question, with some adopting the “incidental damages” standard set forth by the Court of Appeals for the Fifth Circuit in Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998), and others opting for a more discretionary, “ad hoc balancing” approach such as that used by the Court of Appeals for the Second Circuit in Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir.2001). The court predicted we would follow the rationale of the “incidental damages” approach, and reviewed plaintiffs’ requested relief under that standard. Hohider, 243 F.R.D. at 242. The court found plaintiffs’ claims for compensatory and punitive damages were not incidental to the injunctive and declaratory relief sought, and thus not suitable for 23(b)(2) certification. The court determined, however, that back pay “is precisely the kind of monetary relief that could constitute incidental damages under Allison,” id. at 244, as it is “the kind of equitable remedy that could flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Id. at 243; see also id. at 243-44 (“Recovery of back pay, if it is ‘capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances,’ ‘does not require additional hearings to resolve the disparate merits of each" }, { "docid": "17924699", "title": "", "text": "In Allison v. Citgo, the Fifth Circuit held that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” 151 F.3d at 415. By incidental, the Fifth Circuit stated that it meant only the following: damages that flow directly from liability to the class as a whole forming the basis of the injunctive or declaratory relief. Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objection standards and not dependent in any significant way on intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s ease; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. 151 F.3d at 415 (citations omitted). The Fifth Circuit upheld the district court’s decision denying a motion to certify a class under Rule 23(b)(2) because monetary damages were the predominant relief sought. More recently, in Bolin v. Sears, Roebuck & Co., 231 F.3d 970 (5th Cir.2000), the Fifth Circuit stated that “Rule 23(b)(2) contains two requirements: (1) behavior generally applicable to the class as a whole; (2) injunctive relief predominates over damages sought.” 231 F.3d at 975. In Bolin, the Fifth Circuit held that a district court abused its discretion in certifying class actions under Rule 23(b)(2). The court emphasized that, “To determine whether damages predominate, a court should certify a class on a claim-byelaim basis.” 231 F.3d at 976. The Fifth Circuit found a district court had abused its discretion in certifying a class with respect to claims under five statutes: TILA, RICO, Fair Debt Collection Practices" }, { "docid": "14770993", "title": "", "text": "status. “Actions for class-wide injunctive or declaratory relief are intended for (b)(2) certification precisely because they involve uniform group remedies. Such relief may often be awarded without requiring a specific or time-consuming inquiry into the varying circumstances and merits of each class member’s individual case.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 414 (5th Cir.1998). The incidental monetary damages: should at least be capable of computation by means of objective standards and not dependant in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Id. at 415. The plaintiffs seek “all economic, monetary, actual, consequential, and compensatory damages caused by [Ochsner’s] conduct,” and these damages require such intensely individualized inquiries that they overwhelm any dimension of injunctive relief. The plaintiffs’ breach of contract claim asserts that Ochsner charged “unfair, unreasonable” prices. The third party breach of contract claim asserts that Ochsner charged “excessive, undiscounted” prices. In order to compensate the plaintiffs for unreasonable, unfair, and excessive amounts, there must be some understanding of what a reasonable and fair amount is. However, “the reasonableness of a particular medical fee depends on what is customary in a community for similar [services and procedures].” Travelers Ins. Co. v. Reliable Home Health Care, Inc., 857 So.2d 1039, 1043 (La.Ct.App. 2003) (quoting Adler v. Hosp. Serv. Ass’n, 278 So.2d 177 (La.Ct.App.1973)); see also Spencer v. West, 126 So.2d 423, 428 (La.Ct.App.1960). This class of plaintiffs admittedly received thousands of different treatments and services. Therefore, to determine whether a plaintiff was charged an unreasonable amount, the Court would have to determine what qualifies as a reasonable amount for each of the thousands of different procedures. Because determining each plaintiffs entitlement to relief and damages would require a “specific or time-consuming inquiry into the varying circumstances and merits of each class member’s individual case,” Rule (b)(2) certification is inappropriate. See Allison, 151 F.3d at 414. Plaintiffs seem to" }, { "docid": "300812", "title": "", "text": "While certification under this rule is centered around injunctive relief, a Rule 23(b)(2) certification may also be appropriate when the class seeks monetary relief, so long as the monetary relief does not predominate over the equitable relief sought. Humphrey v. United Way of Tex. Gulf Coast, 2007 WL 2330933, at *8 (S.D.Tex.2007). In pertinent part, the Fifth Circuit has stated: monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief. By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide in-junctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998) (internal citations omitted). In re FIRSTPLUS Financial, Inc., 248 B.R. 60 (Bankr.N.D.Tex.2000) is instructive on this point. In FIRSTPLUS, creditors sought class certification in a suit against a Chapter 11 debtor. Id. at 64. The class proponents alleged, among other things, violations of the Truth in Lending Act and racketeering. The plaintiffs sought restitution of improper charges, an injunction against further malfeasance, at torneys’ fees, and damages (including punitive damages and treble damages). Id. at 66. In considering class certification under Rule 23(b)(2), the court reasoned that the plaintiffs set forth “major demands for monetary relief,” and, as such, “the declaratory relief sought [did] not predominate over [the] potentially huge money demands.” Id. at 76. Therefore, the court in that" }, { "docid": "19332836", "title": "", "text": "requirement for (b)(2) certification, consequently courts must give consideration to the issue of which form of relief actually predominates. See e.g., Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.1998). In accordance with the latter position, the court now addresses the parties’ predominance arguments. Avis’s argument is supported by a recent decision by the Fifth Circuit which held that incidental damages permissible under (b)(2) are those that “flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Allison, 151 F.3d at 411. In other words, “the recovery of incidental damages should typically be concomitant with, not merely consequential to, the injunctive or declaratory relief,” and “should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances.” Id. Incidental damages should not “introduce new and substantial legal or factual issues.” Id.; accord Pickett v. IBP, Inc., 182 F.R.D. 647, 657 (M.D.Ala.1998) (monetary relief not incidental where compensatory and punitive damages would require individualized proof); Rice v. City of Philadelphia, 66 F.R.D. 17, 20 (E.D.Pa.1974) (damages may be awarded under (b)(2) as ancillary relief only in cases in which “the award of damage flows automatically from the grant of injunctive or declaratory relief, and in which the damages are subject to ready calculation on the basis of a formula or principles uniformly applicable to the class.”). The Allison court concluded that compensatory and punitive damages are not incidental in disparate treatment cases because they require proof of how the discrimination affected each plaintiff. Id. at 417. See also Pickett, 182 F.R.D. at 647 (“convinced” that the Eleventh Circuit would apply same analysis as Allison, court held that action filed under unfair trade practices act could not be certified as a class under (b)(2) because plaintiffs’ claims for compensatory and punitive damages would require individualized proof and determinations). Support for Avis’s position also comes from other judges and authorities who have reasoned that claims for punitive damages can never be incidental" }, { "docid": "11291742", "title": "", "text": "injunctive or declaratory relief. Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Id. (citations omitted). In Robinson, the Second Circuit \"decline[d] to adopt the incidental damages approach set out by the Fifth Circuit in Allison,” 267 F.3d at 164, opting instead for an “ad hoc balancing” approach: [Wjhen presented with a motion for (b)(2) class certification of a claim seeking both injunctive relief and non-incidental monetary damages, a district court must consider the evidence presented al a class certification hearing and the arguments of counsel, and then assess whether (b)(2) certification is appropriate in light of the relative importance of the remedies sought, given all of the facts and circumstances of the case. The district court may allow (b)(2) certification if it finds in its informed, sound judicial discretion that (1) the positive weight or value to the plaintiffs of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed, and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy. Although the assessment of whether injunctive or declaratory relief predominates will require an ad hoc balancing that will vary from case to case, before allowing (b)(2) certification a district court should, at a minimum, satisfy itself of the following: (1) even in the absence" }, { "docid": "11291741", "title": "", "text": "of individualized inquiries such a requirement may entail with respect to the class. See id. at 209. As we find the individualized inquiries presented by the ADA’s \"qualified” standard in this case render class certification of plaintiffs’ claims and relief improper, we need not resolve this question. For the reasons discussed supra, however, the District Court should have. Instead of fully assessing whether the element of disability, necessary to a determination of unlawful discrimination under the ADA, could be adjudicated in a manner consistent with Rule 23, the court ended its analysis at the recognition that all plaintiffs allege the same general theory of disability. Such analysis does not meet the level of rigor necessary to support certification. . In Allison, the Fifth Circuit held that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” 151 F.3d at 415. The Fifth Circuit elaborated: By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Id. (citations omitted). In Robinson, the Second Circuit \"decline[d] to adopt the incidental damages approach set out by the Fifth Circuit in Allison,” 267 F.3d at 164, opting instead for an" }, { "docid": "18299225", "title": "", "text": "(2) Inquiry. With little difficulty, the district court concluded that because Plaintiffs’ derivative lawsuit was filed on behalf of the Plan and sought “predominately” equitable remedies, it should be certified as a class pursuant to Rule 23(b)(2). The court did not afford absent class members the option of notice or self-exclusion from the class. Certification of a class under Rule 23(b)(2) is appropriate where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The district court cited this court’s decision in Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998), which held that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Id. at 415. This Allison (b)(2) predominance requirement, “by focusing on uniform relief flowing from defendants’ liability, ‘serves essentially the same functions as the procedural safeguards and efficiency and manageability standards mandated in (b)(3) class actions.’ ” In re Monumental Life Ins. Co., 365 F.3d 408, 417 (5th Cir.2004) (quoting Allison, 151 F.3d at 414-15). Allison also imposed standards for determining whether monetary relief sought in a Rule 23(b)(2) class action is truly incidental, or whether such relief is the true pursuit of the class action: Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Allison, 151 F.Sd at 415 (internal citations omitted). Allison’s test" }, { "docid": "14770992", "title": "", "text": "Eis wirth lost confidence in one of her doctors and now uses another hospital; Maldonado, the most likely to use Ochsner in the future, has already been found to be an inadequate representative. “Most of the class consists of individuals who do not face further harm ... [from Ochsner’s actions] ... These plaintiffs have nothing to gain from an injunction.” Bolin, 231 F.3d at 978. Therefore, since the “declaratory relief [the plaintiffs] seek only serves to facilitate the award of damages,” Rule (b)(2) certification is inappropriate. Id. The only part of the injunction that might still be relevant to Soignet and Eiswirth involves the issue of harassing collection practices. But that, as earlier explained, suffers from substantial specificity issues, and the plaintiffs do not even mention injunctive relief against abusive collection practices in their reply brief. Their notable silence equates with a sigh of weakness. Even if the plaintiffs’ injunction can be said to be specific enough and even if the plaintiffs have standing, this case is plainly not the type appropriate for Rule (b)(2) status. “Actions for class-wide injunctive or declaratory relief are intended for (b)(2) certification precisely because they involve uniform group remedies. Such relief may often be awarded without requiring a specific or time-consuming inquiry into the varying circumstances and merits of each class member’s individual case.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 414 (5th Cir.1998). The incidental monetary damages: should at least be capable of computation by means of objective standards and not dependant in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Id. at 415. The plaintiffs seek “all economic, monetary, actual, consequential, and compensatory damages caused by [Ochsner’s] conduct,” and these damages require such intensely individualized inquiries that they overwhelm any dimension of injunctive relief. The plaintiffs’ breach of contract claim asserts that Ochsner charged “unfair, unreasonable” prices. The third party breach of" }, { "docid": "10100797", "title": "", "text": "is money; not an injunction. The Fifth Circuit recently considered the question of predominance in the case of Allison v. Citgo Petroleum Corp., No. 96-30489, 1998 WL 244989, — F.3d — (5th Cir. May 15, 1998), and states persuasively why eases like the present are not appropriate for certification under (b)(2). In Allison, the court stated a rule that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Id. at *9,-. “By incidental,” the Fifth Circuit meant “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Id. In other words, “the recovery of incidental damages should typically be concomitant with, not merely consequential to, the injunctive or declaratory relief,” and “should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances.” Id. Incidental damages should not “introduce new and substantial legal or factual issues.” Id. Further, such damages will “by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions.” Allison at *9, —. Because of the nature of RESPA, it is impossible to determine liability without individualized findings, much less damages. Although this court would be able to determine the amount of the yield spread premium from a HUD-1 form, the court cannot determine from that form whether the yield spread premium was illegal. There is no indication on the HUD-1 form that the payments was not for goods or services. Plaintiffs have argued that this may be determined because the form does not reveal any goods or services. The court does not see where the form asks for that information, however. Because of the nature of RESPA, this is not the sort of “group” case that is properly certified under (b)(2). The damages sought — and the individualized decision-making that must accompany such damages — clearly prevent them from being “incidental” to the requested injunctive or" }, { "docid": "21633570", "title": "", "text": "is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certified under Rule 23(b)(2) at all. Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U. S. C. § 2000e-5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunctive relief and the payment of “backpay,” see § 2000e~5(g)(2)(A)). C In Allison v. Citgo Petroleum Corp., 151 F. 3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “incidental to requested injunctive or declaratory relief,” which it de fined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunc-tive or declaratory relief.” In that court’s view, such “incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consistent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this standard, and in any event they cannot. Contrary to the Ninth Circuit’s view, Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed remedial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as.may be appropriate, [including] reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate.” §2000e-5(g)(1). But" }, { "docid": "17276862", "title": "", "text": "first federal appellate court to articulate principles for when monetary relief “predominates” so as to preclude certification of a(b)(2) class. After explaining that the predomination requirement “protects the legitimate interests of potential class members who might wish to pursue their monetary claims individually ... and ... preserves the legal system’s interest in judicial economy,” the court held that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Id. at 415. This approach essentially presumes that a class seeking monetary relief cannot be certified under Rule 23(b)(2), but it permits plaintiffs to rebut that presumption if they can show that their requested money damages are only “incidental” to the equitable relief they seek. Further describing how to rebut the presumption against certifying a(b)(2) class that seeks money damages, the Fifth Circuit continued: By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief. Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Id. at 415 (citations omitted). The Eleventh and Seventh Circuits have followed the Fifth Circuit’s “bright-line” approach. See Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898-99 (7th Cir.1999). The Second Circuit, however, noted" }, { "docid": "17924698", "title": "", "text": "“Although the issue has not yet been squarely presented to the Supreme Court, the Court has expressed serious reservations about the propriety of certifying a 23(b)(2) class when compensatory or punitive damages are in issue, due to lack of notice to class members or the opportunity for those members to ‘opt out’ of the class action.” 2000 WL 353502, at * 6 (citing Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 120-21, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994)). Relying on Advisory Committee notes rather than the text of Rule 23(b)(2), some courts have created a narrow category of cases where a Rule 23(b)(2) class can be certified if all other requirements are met and the “predominant” relief sought by plaintiffs is injunctive or declaratory relief. “The Advisory Committee notes on Rule 23 state that certification under (b)(2) ‘does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.’ ” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.1998) (quoting Rule 23 Advisory Committee Notes). In Allison v. Citgo, the Fifth Circuit held that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” 151 F.3d at 415. By incidental, the Fifth Circuit stated that it meant only the following: damages that flow directly from liability to the class as a whole forming the basis of the injunctive or declaratory relief. Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objection standards and not dependent in any significant way on intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s ease; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized" }, { "docid": "1029839", "title": "", "text": "merits of each individual’s case,” nor “introduce new and substantial legal or factual issues” entailing “complex individualized determinations;” and (4) “will, by definition, be more in the nature of a group remedy.” Id. PCS argues that “[t]he essence of Mulder’s requested relief is monetary” because Mulder has conceded that damages would consist of the allegedly illegal profits PCS obtained from its deals with drug manufacturers. Mulder’s counsel has explained their aim that this money would be “put into a pot ... and drawn down by the individual [employee welfare benefit] plans.” (Def. Suppl. Br. at 14, quoting Mulder’s counsel at February 3, 2003 hearing, Tr. at 15.) The fact that Mulder seeks disgorgement of illegal profits, however, does not mean that his request for relief is predominantly monetary. Examining the Complaint, the Court finds that the requested damages are incidental to the injunctive relief sought. Mulder demands a judgment (1) declaring PCS’s practices unlawful; (2) enjoining PCS from continuing the practices; (3) granting equitable relief including (a) an accounting of all illegal profits, (b) establishing a constructive trust on behalf of all affected employee benefit plans, and (c) ordering PCS to disgorge all illegal profits into a constructive trust to be “distributed appropriately to the affected employee benefit plans;” (4) awarding Mulder and other class members their litigation costs and reasonable attorneys’ fees; and (5) “[e]reating an appropriate claims resolution facility for the resolution of individual issues, if any, remaining after resolution of class issues.” (Compl, 1152.) The monetary relief requested meets the Allison court’s definition of incidental damages. First, the illegal profits sought would flow from liability to the class as a whole on the claims — -that PCS breached its ERISA fiduciary duties — forming the basis for the requested injunctive and declaratory relief. If the Court determined that PCS had obtained illegal profits from practices that breached its fiduciary duties to plans and plan beneficiaries, then those illegal profits would be disgorged to a constructive trust to be distributed to the affected employee benefit plans themselves, rather than to individual plan beneficiaries. Such damages would be computable" }, { "docid": "19332835", "title": "", "text": "by all members of the class, it appears that a substantial number of plaintiffs may not be entitled to any compensatory damages because they have not incurred a monetary loss. Avis rejects this contention, arguing that where, as here, plaintiffs seek not only compensatory damages but also punitive damages, the issue of monetary relief will necessarily predominate. Some courts and leading commentators have taken the position that determining whether one form of relief actually predominates in some quantifiable sense is a wasteful and impossible task that should be avoided. See e.g., 7A Wright & Miller, supra at 470. (Disputes over whether an action is primarily for injunctive relief or declaratory relief rather than a monetary award are counterproductive. “If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2). Those aspects of the ease not falling within Rule 23(b)(2) should be treated as incidental.”). Other courts have concluded that the drafters of Rule 23 intended to impose a predomination requirement for (b)(2) certification, consequently courts must give consideration to the issue of which form of relief actually predominates. See e.g., Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.1998). In accordance with the latter position, the court now addresses the parties’ predominance arguments. Avis’s argument is supported by a recent decision by the Fifth Circuit which held that incidental damages permissible under (b)(2) are those that “flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Allison, 151 F.3d at 411. In other words, “the recovery of incidental damages should typically be concomitant with, not merely consequential to, the injunctive or declaratory relief,” and “should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances.” Id. Incidental damages should not “introduce new and substantial legal or factual issues.” Id.; accord Pickett v. IBP, Inc., 182 F.R.D. 647, 657 (M.D.Ala.1998) (monetary relief not" }, { "docid": "9903735", "title": "", "text": "& Jacquelin, 417 U.S. 156, 173, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Fed.R.Civ.P. 23(c)(2). However, the Federal Rules of Civil Procedure do not provide comparable procedural guarantees of those rights for a class certified under subsections (b)(1) or (b)(2), and as a result, Rule 23(b)(2) certification does not ensure personal notice or opportunity to opt out even if some or all the plaintiffs pray for monetary damages. The question therefore is whether the district court abused its discretion in certifying a class under Rule 23(b)(2), without notice or opportunity to, opt out, when the plaintiffs sought monetary damages in addition to equitable relief. In Jefferson, 195 F.3d at 898, we adopted the Fifth Circuit’s reasoning on this point from Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.1998). Allison held that “nonequitable monetary relief may be obtained in a class action certified under Rule 23(b)(2) only if the predominant relief sought is injunctive or declaratory,” Allison, 151 F.3d at 425, and explained further that certification under Rule 23(b)(2), without notice or opportunity to opt out, is impermissible unless the requested monetary damages are “incidental” to requested injunctive or declaratory relief. Id. at 415. The court defined “incidental” as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Id. Thus, incidental damages do not depend “in any significant way on the intangible, subjective differences of each class member’s circumstances” and do not “require additional hearings to resolve the disparate merits of each individual’s case.” Id. Like the Allison plaintiffs, the plaintiffs here sued for both equitable relief and monetary damages to remedy alleged violations of Title VII. Damages can be awarded only after\" proof of discrimination and injury specific to the individual plaintiff, see, e.g., Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1005 (7th Cir.2000), so deciding the damages claims depends on an individualized analysis of each class member’s circumstances and requires additional hearings to resolve the disparate merits of each individual’s case. See Allison, 151 F.3d at 417. Even if" }, { "docid": "17276863", "title": "", "text": "which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Id. at 415 (citations omitted). The Eleventh and Seventh Circuits have followed the Fifth Circuit’s “bright-line” approach. See Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898-99 (7th Cir.1999). The Second Circuit, however, noted that the bright-line approach “forecloses (b)(2) class certification of all claims that include compensatory damages (or punitive damages) even if the class-wide injunctive relief is the form of relief in which the plaintiffs are primarily interested.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 163 (2d Cir.2001) (quotations omitted). Moreover, the Fifth Circuit’s approach ignored “the fact that Rule 23 has historically been understood to vest district courts with the authority to determine whether, in their informed discretion, based on the particulars of the case, the certification prerequisites have been satisfied.” Id. at 164 (quotations omitted). For these reasons, the Second Circuit declined to adopt the bright-line approach, holding instead that: [WJhen presented with a motion for (b)(2) class certification of a claim seeking both injunctive relief and non-incidental monetary damages, a district court must consider the evidence presented at a class certification hearing and the arguments of counsel, and then assess whether (b)(2) certification is appropriate in light of the relative importance of the remedies sought, given all of the facts and circumstances" }, { "docid": "22336833", "title": "", "text": "Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928-29 (9th Cir.), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982). By incidental, we mean damages that flow directly from liability to the class as a tohole on the claims forming the basis of the injunctive or declaratory relief. See Fed.R.Civ.P. 23(b)(2) (referring only to relief appropriate “with respect to the class as a whole”). Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. See Manual for Complex Litigation, supra, at 348 (citing Simer v. Rios, 661 F.2d 655 (7th Cir.1981)); see also, e.g., Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D.Cal.1994) (defendant’s liability entitled class to a statutorily mandated damage award). That is, the recovery of incidental damages should typically be concomitant with, not merely consequential to, class-wide injunctive or declaratory relief. Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations. Thus, incidental damages will, by definition, be more in the nature of a group remedy, consistent with the forms of relief intended for (b)(2) class actions. Our holding in this respect is not inconsistent with our cases permitting back pay under Title VII in (b)(2) class actions. In Pettway, for example, we noted that Rule 23(b)(2), by its own terms, does not preclude all claims for monetary relief. See 494 F.2d at 257. We construed (b)(2) to permit monetary relief when it was an equitable remedy, and the defendant’s conduct made equitable remedies appropriate. See id. Back pay, of course, had long been recognized as an equitable remedy under Title VII. See Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969) (“[a] demand for back pay" }, { "docid": "11291706", "title": "", "text": "Second Circuit in Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir.2001). The court predicted we would follow the rationale of the “incidental damages” approach, and reviewed plaintiffs’ requested relief under that standard. Hohider, 243 F.R.D. at 242. The court found plaintiffs’ claims for compensatory and punitive damages were not incidental to the injunctive and declaratory relief sought, and thus not suitable for 23(b)(2) certification. The court determined, however, that back pay “is precisely the kind of monetary relief that could constitute incidental damages under Allison,” id. at 244, as it is “the kind of equitable remedy that could flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Id. at 243; see also id. at 243-44 (“Recovery of back pay, if it is ‘capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances,’ ‘does not require additional hearings to resolve the disparate merits of each individual’s case,’ and does not ‘introduce new and substantial legal or factual issues, nor entail complex individualized determinations.’ ” (quoting Allison, 151 F.3d at 415)). Accordingly, in its certification order, the court allowed for the possibility that plain tiffs may seek, in addition to injunctive and declaratory relief, “back pay or other equitable relief for individual class members if there is a protocol for identifying those monetary damages which sets forth the objective standards to be utilized in determining the amount of those damages in a way that does not require additional hearings on individualized circumstances.” Id. at 245. Neither party challenges the court’s adoption of the “incidental damages” approach to measure monetary predominance, or the court’s determination that plaintiffs’ requested compensatory and punitive damages are ineligible for class treatment under Rule 23(b)(2). Nor does our preceding analysis of plaintiffs’ claims require us to take up these matters. As discussed, the individualized inquiries necessary to determine whether UPS has engaged in a pattern or practice of unlawful discrimination under the ADA render certification of this" } ]

[ { "docid": "22221718", "title": "", "text": "exclusive jurisdiction, unassailable except by a direct proceeding for its correction or annulment. The execution and record of the patent are the final acts of the officers of the government for the transfer of its title, and as they can be lawfully performed only after certain steps have been taken, that instrument, duly signed, countersigned, and sealed, not merely operates to pass the .title, but is in the nature of an official declaration by that branch of the government to which the alienation of the public lands, under the law, is entrusted, that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action of law.” In Steele v. Smelting Co., 106 U. S. 447, 450, the language of the court was that: “ The Land Department, as we have repeatedly said, was established to supervise various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see that the requirements of different acts of Congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualification of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable except by direct proceedings for its annulment or limitation.” In Heath v. Wallace, 138 U. S. 573, 585, it was held that “ the question whether or not lands returned as ‘ subject to periodical overflow ’ are ‘ swamp and overflowed lands ’ is a question of fact properly determinable by the Land Department.” And Mr. Justice Lamar added: “It is settled by an unbroken line of decisions of this court in land jurisprudence that the decisions of that department upofl matters of fact within its jurisdiction are, in the absence of fraud or imposition, conclusive and binding on the courts of the country.” If the Land Department must decide what lands" } ]

[ { "docid": "22903699", "title": "", "text": "a patent. The original claim was relinquished and the lieu selection made conformably, to directions given by the Land Department, the selected land being represented as vacant and not known to be mineral. Afterwards the selection of a part of Tract No. 4 was called in question on the ground that it was shown by subsequent discoveries to -be mineral. This court sustained the selection and said, p. 332: “The grantees, the Baca heirs, were authorized to select this body of land. They were not at liberty to select lands already occupied by others. The lands must be vacant. Nor were they at liberty to select lands which were then known to contain mineral. Congress did not intend to grant any mines or mineral lands, but with these exceptions their right of selection was coextensive with the limits of New Mexico. We-say ‘lands then known to contain mineral,’ for it cannot be that Congress intended that the grant should be rendered nugatory by any future discoveries of mineral. The selection was to be made within three'years. The title was then to pass, and it would be an insult to the good faith of Congress to suppose that it did not intend that the title when it passed should pass absolutely, and not contingently upon subsequent discoveries. This is in accord with the general rule as to the transfer of title to the public lands of the United States. In cases of homestead, preemption or townsite entries, the law excludes mineral lands, but it was never doubted that the title once passed was free from all conditions of subsequent discoveries of mineral.” In Leonard v. Lennox, 181 Fed. Rep. 760, a contention that an application for a non-mineral final entry, even if regularly presented and based on full compliance with the law, should be disallowed and rejected where the land subsequently is discovered to be minéral (coal) was overruled by the Circuit Court of Appeals of the Eighth Circuit, the court saying, p. 764: “This insistence cannot prevail. It not only is opposed to the settled rule that the character of" }, { "docid": "4243645", "title": "", "text": "ordered to be filed unchanged. A decree was entered accordingly. It was affirmed by the Court of Appeals, as we have said. The crux of the case in the views of the courts below is the question whether title to the lands passed out of the United States in April, 1864, and the careful and elaborate consideration of it makes the discussion of it mere repetition. The contentions of the parties are very accurately opposed. Appellants contend that “under a proper construction of.the act of June 21, 1860, title to the ‘float’ cannot pass until there has been an official survey and a final determination by the proper officers that the land selected in 1863 was of the character which the statute permitted the heirs to take — a matter still sub judice in the Department” except as to certain conflicting grants. The appellees insist, and the courts below, as we have seen, decided, that the location of the grant and the approval of it by the-surveyor general of New Mexico and' subsequently in April, 1864, by Commissioner Edmunds of the-Land Office transferred thé title to the heirs of Baca. There is some controversy upon the fact as to whether the Commissioner had before him the proof he had demanded of the non-mineral character of the land. We think the lower courts rightly deduced from the .evidence “that the Commissioner,” to quote from the opinion of the Court of Appeals, “having carefully considered all the facts in the case, concluded to adopt the approval of the surveyor general of New Mexico of this location to perfect title under the authority of said act [act of 1860], and, in order completely to segregate this land from the public domain, ordered the survey” (41 App. D. C. p. 153). And that this action was within the authority of those officers we may refer to Shaw v. Kelogg, supra. In that case, we 'have seen, the surveyor general of New Mexico was the officer selected and who was most competent to examine and pass upon the question of the character of the lands," }, { "docid": "22352552", "title": "", "text": "division of opinion, but that division was only as to the time at which and the means by which the non-mineral character of the land was settled. The minority were of the opinion that the question was settled at the time of the filing of the map of definite location. The majority, relying on the language in the original act of 1864 making the grant, and also on the joint resolution of January 30, 1865, which expressly declared that such grant should not be ‘ construed as to embrace mineral lands, which in all cases shall be and are reserved exclusively to the United States, ’ held that the question of mineral or non-mineral was open to consideration up to the time of issuing a patent. But there was no division of opinion as to the question that when the legal title did pass — and it passed unquestionably by the patent — it passed free from the contingency of future discovery of minerals.” The exclusion of mineral lands is not confined to railroad land grants, but appears in the homestead, desert-land, timber and stone, and other public-land laws, and the settled course of decision in respect of all of .them has been that the character of the land is a question for the' Land Department, the same as are the qualifications of the applicant and his performance of the acts upon which the . right to receive the title dépends, and that when a patent issues it is to be taken, upon a collateral attack, as affording conclusive evidence of the non-mineral character of the land and of the regularity of the acts and proceedings resulting in its issue, and, upon a direct attack, as affording such presumptive evidence thereof as to require plain and convincing proof to overcome it. Smelting Co. v. Kemp, 104 U. S. 636, 641; Steel v. Smelting Co., 106 U. S. 447; Maxwell Land Grant Case, 121 U. S. 325, 379-381; Heath v. Wallace, 138 U. S. 573, 585; Noble v. Union River Logging Railroad, 147 U. S. 165, 174; Burfenning v. Chicago, &c." }, { "docid": "22221716", "title": "", "text": "patent' which it issues. The act of Congress making the grant to the plaintiff provides for the issue of a patent to the grantee for the land claimed, and as the grant excludes mineral lands in the direction for such patent to issue, the Land Office can examine into the character ■ of the lands, and designate it in its conveyance. It is the established doctrine, expressed in numerous decisions of this court, that wherever Congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the Land Department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack. In Smelting Co. v. Kemp, 104 U. S. 686, 640, 641, this court thus spoke of the Land Department in the transfer of public lands: “The patent of the United States is the conveyance by which the nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions, designating the persons who may acquire it and the terms of its acquisition. That the provisions may be properly carried out the Land Department, as part of the administrative and executive branch of the government, has been created to supervise all the various proceedings taken to obtain the title from their commencement to their close. In the course of their duty the officers of that department are constantly called upon to hear testimony as to matters presented for their consideration and to pass upon its competency, credibility, and weight. In that respect they exercise a judicial function, and therefore it has been held in various instances by this court that their judgment as to matters of fact properly determinable by them is conclusive, when brought to notice in a collateral proceeding. Theiir judgment in such cases is like that of other special tribunals upon matters within their" }, { "docid": "22877329", "title": "", "text": "confirm bona fide grants, and give full effect” to the treaty. It was also provided that “until the final action of Congress on such claims, all lands covered thereby shall be reserved from sale or other disposal by the government, and shall not be subject to the donations granted by the previous provisions of this act.” The 1870 Act directed the Surveyor General for Arizona (which was separated as a Territory from New Mexico in 1863, 12 Stat. 664) “to ascertain and report upon the origin, nature, character, and extent of the claims to lands in said Territory under the laws, usages, and customs of Spain and Mexico.” His report was to be “laid before Congress for such action thereon as shall be deemed just and proper.” These Acts did not extinguish any Indian title based on aboriginal occupancy which the Walapais may have had. In that respect they were quite different from the Act of March 3, 1851, 9 Stat. 631, passed to ascertain and settle certain land claims in California. Under § 13 of that Act “all lands the claims to which shall not have been presented” to the commissioners, appointed to receive and act upon all petitions for confirmation of land claims, “within two years after the date of this act, shall be deemed, held, and considered as part of the public domain of the United States.” This Court passed on that Act in Barker v. Harvey, 181 U. S. 481. The plaintiff there claimed under two Mexican grants. The defendants were Indians who claimed a right of permanent occupancy; but they had not presented their claims to the commissioners within the time specified by § 13. This Court held that as a result of that failure their claims were barred. And see United States v. Title Insurance & Trust Co., supra, 265 U. S. 472. That is to say, the Act of 1851 was interpreted as containing machinery for extinguishment of claims, including those based on Indian right of occupancy. Since Congress had provided a method for ex-tinguishment, its appropriateness raised only a political, not a" }, { "docid": "23080055", "title": "", "text": "And it does not militate against this implication that under another, provision the State may surrender those sections and take.other lands in lieu of them where, although not known to be mineral when the grant takes effect, they are afterwards discovered to be so. See California v. Deseret Water &c. Co. 243 U. S. 415. What has been said demonstrates that the school grant to Utah must be read in the light of the mining laws, the school land indemnity law and the settled public policy respecting mineral lands, and not as though it constituted the sole evidence of the legislative will. United States v. Barnes, 222 U. S. 513, 520. When it is so read it does not, in our opinion, disclose a purpose to include mineral lands. Although couched in general terms adequate to embrace such lands if there were no statute or settled policy to the contrary, it contains no language which explicitly or clearly withdraws the designated sections, where known to be mineral in character, from the operation of the mining laws, , or which certainly shows that Congress intended to depart from its long prevailing policy of disposing of mineral lands only under laws specially including,them. It therefore must be taken as neither curtailing those laws nor departing from that policy. This conclusion is fortified by other considerations. When the grant was made Utah was known to be rich in minerals and salines. Besides this grant the act contains others aggregating 1,570,080 acres. In none is there any mention of mineral lands. As to 110,000 acres there is an express- inclusion of saline lands. This silence as to mineral lands, when contrasted with the special inclusion of saline lands, indicates that the former are not included. See Montello Salt Co. v. Utah, 221 U. S. 452, 466. The committees of Congress, upon whose recommendation the act was passed, construed it as not embracing mineral lands, for in their reports they stated that “All mineral lands are exempt from any grant made under the act.” The Land Department has uniformly placed the same construction upon it." }, { "docid": "8685770", "title": "", "text": "with the location and that the opinion leaves uncertain the effect of this and that therefore it may encourage or require further litigation. Appellants assert that the-effect of the claimed Mexican grants is reserved from decision and yet the Land Department is enjoined from exercising any jurisdiction over the conflicting areas. A few words of explanation will make certain the extent of our decision. In adjustment of the conflict between the Baca grant and the grant to the town of Las Yegas, the act of 1860 was passed. The quantity and the manner of location were defined. The land was to be located in square bodies and be “vacant land, not mineral, in the Territory of Néw Mexico,” and it was made the duty of the Surveyor-General of New Mexico to survey and locate the lands when selected by the heirs of Baca. There were no other conditions, and these were fulfilled in 1864. But it is said that portions of the tract as located were then embraced in two claimed Mexican grants, to-wit, the Tumacacori and Calabazas grant and the San Jose de Sonoita grant, and that by virtue of § 8 of the act of July 22, 1854, c. 103, 10 Stat. 308, 309, the lands covered by such claims were reserved from other disposal and therefore from location under the Baca float. That section made it the duty of the Surveyor-General of New Mexico, under such instructions as might be given by the Secretary of the Interior, to ascertain the character and extent of claims to such lands under the laws, usages and customs of Mexico and Spain and to make full report on all such claims as originated before the cession of the Territory to the United States by the Treaty of Guadalupe Hidalgo of 1848, and report the same to Congress for its consideration and action. It was provided that “Until the final action of Congress on such claims, all lands covered thereby shall be reserved from sale or other disposal by thé government, and shall not be subject to the donations granted by the" }, { "docid": "22352551", "title": "", "text": "other, may be sound. ■ The officers will be governed by the knowledge of the lands obtained at the time as to their real character. The determination of the fact by those officers that they are one or the other will be considered as conclusive.” And then, after quoting approvingly what we have already extracted from Secretary Noble’s decision in Central Pacific Railroad Co. v. Valentine, supra, it was added (p. 330): \"It is true that the patent has’been issued in many instances without the investigation and consideration which the public interest requires; but if that has been done without fraud, though unadvisedly by officers of the Government charged with the duty of supervising and attending to the preparation and issue of such patents, the consequence must be borne- by the Government until by further legislation á stricter regard to their duties in that respect can be enforced upon them.” Of the decision in that case it was concisely said in Shaw v. Kellogg, 170 U. S. 312, 339: “It is true there was a division of opinion, but that division was only as to the time at which and the means by which the non-mineral character of the land was settled. The minority were of the opinion that the question was settled at the time of the filing of the map of definite location. The majority, relying on the language in the original act of 1864 making the grant, and also on the joint resolution of January 30, 1865, which expressly declared that such grant should not be ‘ construed as to embrace mineral lands, which in all cases shall be and are reserved exclusively to the United States, ’ held that the question of mineral or non-mineral was open to consideration up to the time of issuing a patent. But there was no division of opinion as to the question that when the legal title did pass — and it passed unquestionably by the patent — it passed free from the contingency of future discovery of minerals.” The exclusion of mineral lands is not confined to railroad land" }, { "docid": "18175409", "title": "", "text": "defendants. This position is based upon a misconception of the object of subjecting surveys of confirmed claims under Mexican concessions to the consideration of the court. It was not to settle the question of title : so important a matter affecting the rights of parties as that would hardly have been left to proceedings of a summary character. The object of the proceeding was to insure conformity of the survey with the decree upon which it was made. If the decree gave specific boundaries, the court was to see that the survey followed them: if the decree was for quantity, the court was to see that the survey did not embrace a greater quantity; that the land was taken in a compact form, or if the grantee had himself exercised a right of selection, and had settled upon and improved particular parcels, or sold parcels to others, that the survey, if practicable, included such parcels, and also that it was made with proper regard to the rights of others who had settled upon the land, especially when they had been induced to make improvements by the grantee himself. Originally surveys were left entirely to the action of the local surveyor and the land department. Great complaints were sometimes made that surveys thus established were unjustly extended in directions so as to include the settlements and improvements of others; and contests over them were, in consequence, often prolonged for years. To prevent possible abuses in this way, the act of Congress of June 14, 1860, was passed, allowing surveys, when objection was made to their correctness, to be brought before the court and subjected to examination, and requiring them to be corrected if found to vary from the specific directions of the decrees upon which they were founded; or, if the decrees contained no specific directions, from the general rules governing in such cases. The approval of the court established the fact, that the survey was in conformity with the decree of confirmation ; or, if the decree was for quantity only, that the survey was authorized by it; and in" }, { "docid": "13052794", "title": "", "text": "effect the donation or sale of such mines or minerals to the grantee, or unless such grantee became otherwise entitled thereto in law or in equity; the mines and minerals remaining the property of. the United States, with the right of working the same, but no mine was to be worked'or any property confirmed under the act of 1891 without the consent of the owner of such property, until specially-authorized .thereto by an act of Congress thereafter to be passed.- (Section 13, subdivision third, act of 1891.) This provision makes it still plainer, that, so far as regards mineral lands, there was no intention after the passage of the act of 1891 that they should be reserved by a mere claim in a Mexican grant qf ordinary land. Nor does the claim that the Cochiti grant was sub judice at the time of the location of these lands afféet their status- as public -lands belonging to the United States. They were not, in fact, within the limits of the grant. The case of Astiazaran v. Santa Rita Land & Mining Company, 148 U. S. 80, is not in point.' In that case it was held that a private claim to land in Arizona, under a Mexican grant which had been reported to Congress by the surveyor general of. the territory, could not, before Congress had acted on the report, be contested in the courts of justices. It was stated (p. 83) that, “ The case is one of those, jurisdiction of which has been committed to a particular tribunal, and which cannot, therefore— at least, while proceedings are pending before that tribunal — be taken up and' decided by any other.” The .court further said that Congress having constituted itself the tribunal to finally determine upon the report and recommendation of the surveyor general whether the claim was valid or invalid, the proceedings were pending- until Congress acted, and while they were pending the question of the title-of the petitioner could not be con; tested in the ordinary courts of justice. ■ This is no such case. There was no" }, { "docid": "4243644", "title": "", "text": "maintained, notwithstanding the objection made as to want of other parties defendant. Title being out of the United States, it has no interest and is not a necessary party; and the Land Department cannot rightfully treat the tract as open to public entry, and the officers may therefore be enjoined.” The defendants (appellants) then answered. The answer admitted what must be regarded as the fundamental elements of the bill. So far as its denials of any of the averments of the bill or its allegations of fact are material we shall refer to them hereafter. The proofs taken under the bill and answer were not regarded by the Supreme Court as determining a different decision from that expressed on the demurrer to the bill, that is, the court repeated its view that the title passed on April 9, 1864, to the . heirs of Baca and'that the court had authority to enjoin defendants from treating the land as being public land. The injunction prayed for was granted except that the “Contzen” survey and plat were ordered to be filed unchanged. A decree was entered accordingly. It was affirmed by the Court of Appeals, as we have said. The crux of the case in the views of the courts below is the question whether title to the lands passed out of the United States in April, 1864, and the careful and elaborate consideration of it makes the discussion of it mere repetition. The contentions of the parties are very accurately opposed. Appellants contend that “under a proper construction of.the act of June 21, 1860, title to the ‘float’ cannot pass until there has been an official survey and a final determination by the proper officers that the land selected in 1863 was of the character which the statute permitted the heirs to take — a matter still sub judice in the Department” except as to certain conflicting grants. The appellees insist, and the courts below, as we have seen, decided, that the location of the grant and the approval of it by the-surveyor general of New Mexico and' subsequently in April," }, { "docid": "22352557", "title": "", "text": "all mineral lands should any such be found in the tracts aforesaid,” the contention is made, first, that the patent shows that the- Land Department did not consider or determine whether the lands were mineral or not, and, second, that all lands embraced in the patent which then had been or thereafter should be discovered to be mineral were expressly excepted from the operation of the patent’and therefore remained public lands. This contention must be tested in the light of the established practice in the Land Department in such matters and of the office which the granting act intended the patents to perform. The clause relied upon is not peculiar to this patent or to those issued under this grant, but appears in all the patents issued from 1866 to 1904 under railroad land grants containing an exclusion of mineral lands. Its first mention in any public document was in the annual report of the Commissioner of the General Land Office for 1868. It was there said (pp. Í52-154): “In every case reported from the district land officers of selections made under the acts of 1862 and 1864, for the Pacific Railroad, the agent of. the company in the first instance is required to state in his affidavit that the selections are not interdicted, mineral nor- reserved lands, and are of the character contemplated by the grant. Upon the filing of lists with such affidavits attached, it is made the duty of registers and receivers to certify to the correctness of the selections in the particulars mentioned, and in other respects. They subsequently undergo scrutiny in this office, are tested by our plats, and by all the data on our files, sufficient time elapsing after the selections are made for the presentation of any objections to the department before final action is taken; and to more effectually guard the iriatter, there is inserted in all patents issued to said railroad company a clause to the following effect: 'Yet excluding and excepting from the transfer by these presents all mineral lands, should any such be found to exist in the tracts" }, { "docid": "23157799", "title": "", "text": "for appellants and plaintiffs in error. Mr. J. D. Rouse and Mr. William Grant filed a brief for all the defendants. Mr. Solicitor-General filed a brief for the United States. These briefs were handed to the court on the 8th April, 1884. Me. Justice Field delivered the opinion of the court. Of these suits the first three are in- equity; the fourth is at law. They were argued together, as they are all founded upon the supposed validity of the plaintiffs’ title to the Conway division of the Houmas grant in Louisiana beyond the depth of eighty arpents from the Mississippi River. If their title beyond that depth be sustained other questions will arise for consideration, but if that fails those questions will be unimportant. The Houmas grant is famous in the history of land titles in Louisiana, from the protracted controversy in the Land Department to Avhich it gave rise, and the discussion created in Congress by the attempt made to secure its legislative confirmation. The documents to Avhich our attention has been called as sustaining the pretensions of the plaintiffs, or in opposition to them, are scattered through many volumes. They consist of the original proceedings .and concessions under the Spanish government; the orders of the territorial goArernor and certificates of a local surveyor after the cession of the country to the United States; the proceedings of the board of commissioners created by Congress to examine into a,nd report upon land claims in that Territory; various petitions to the officers of the Land Department, and their reports thereon; the opinion of the Secretary of the Treasury and of the Attorney-General upon the nature and extent of the grant, and the proceedings of Congress in passing an act of confirmation, and subsequently repealing it. We shall endeavor to condense the history of the grant, and of the various proceedings taken with reference to it, into as narrow a compass as possible. On the 5th of October, 1774, while Louisiana- was under the dominion of Spain, tribes of Indians, known as the Houmas and Bayou Go'ula tribes, had possession of" }, { "docid": "22221745", "title": "", "text": "or his heirs or successors, and the government has taken no action in respect to the title to this tract since the discovery of the mineral. These decisions, could be supplemented by a score and more in which the same doctrine has been affirmed and reaffirmed until, as said ip. the quotation first above made, “ it is-, so well settled as to be no longer open to discussion.” All these authorities are in effect wholly overthrown by this decision, for there is no identification of the lands passing by the grant unless it is known and can be known at the time what lands pass. Take any particular mile of the road; on either side of the line, as located, there are twenty alternate sections within the place limits. By the rule now laid down, the title to no one of these, twenty sections passes to the company, because it is not known absolutely which are mineral lands.. So far as known, none 'may bé mineral, and yet, as in this case before us, six years after that line of definite location an exploration develops the fact of minerals, and then it is declared that the title did not pass. When you simply say, as the court does in this opinion, that out of those twenty sections there shall pass the title to such lands as shall thereafter be- found or be determined by .the Secretary of the Interior to be non-mineral lands, you say in effect that there is no identification of a single tract. This court has hitherto said that when the line of definite location was fixed the lands granted were identified. -That means, if it means anything, that the particular tracts which passed- by the grant were disclosed. Now it is said that they áre not disclosed, and cannot be identified as passing by the grant until it shall be affirmatively proved that they do not contain mines, or the Secretary of the . Interior has determined that they are not mineral lands. ' There is, therefore, at the time no identification of the particular" }, { "docid": "22221726", "title": "", "text": "grant of. the government against its oft-repeated exception of mineral lands, and give to the plaintiff the vast mineraLwealth of the States through which the grant passes. It would render the plaintiff corporation imperial in its resources — one that would far outshine “the wealth of-Ormus and of Ind.” And, as counsel justly observes, the same rule would apply to all our transcontinental railroads and give to them nearly all our mineral lands, when Congress has time and again declared that they should have no mineral lands, and that no act of Congress should be construed to give them any; and that they “ in all cases shall be and are reserved exclusively to the United States unless otherwise specially provided in the act or acts making the grant.” It is unnecessary to pursue this subject any further. We •mil only observe that we do not notice the numerous assertions made in the argument of the plaintiff, as to what has been decided by this court and what is the settled rule in cases of railroad grants by Congress embracing mineral lands, the correctness of which we do not admit. The official reports will disclose wherein the errors lie sufficiently for the attainment of accuracy of statement in matters of judicial decision. The plaintiff in this case, not having a patent, and relying solely upon its grant, which gives no title to the minerals within any of its lands, shows by its complaint no cause of action for the possession of the mineral lands claimed. The demurrer of the defendants' should have been sustained, and judgment entered thereon in their favor. It follows that the judgment of the Circuit Court in this case must be Reversed and the canse remanded to that court with directions to sustain the demu/rrer of the defendants and enter judgment thereon in their fa/oor with costs. Mr. Justice Brewer, with whom concurred Mr. Justice Gray and Mr. Justice' Shiras, dissenting. I dissent from the opinion and judgment of the court in this case. The burden of the opinion seems to be that the magnitude of" }, { "docid": "4243646", "title": "", "text": "1864, by Commissioner Edmunds of the-Land Office transferred thé title to the heirs of Baca. There is some controversy upon the fact as to whether the Commissioner had before him the proof he had demanded of the non-mineral character of the land. We think the lower courts rightly deduced from the .evidence “that the Commissioner,” to quote from the opinion of the Court of Appeals, “having carefully considered all the facts in the case, concluded to adopt the approval of the surveyor general of New Mexico of this location to perfect title under the authority of said act [act of 1860], and, in order completely to segregate this land from the public domain, ordered the survey” (41 App. D. C. p. 153). And that this action was within the authority of those officers we may refer to Shaw v. Kelogg, supra. In that case, we 'have seen, the surveyor general of New Mexico was the officer selected and who was most competent to examine and pass upon the question of the character of the lands, and to pass upon them at the time of location — not upon evidence collected many years after the location, directed' to what might have been known many years before. The selection and location was to be made within three years of the passage of the act in a comparative wilderness and the “title was then to pass,” and “pass absolutely, and not contingently upon subsequent discoveries.” We recognized in Shaw v. Kellogg that the action of the surveyor general was subject to the supervision of the Land Department and that condition is satisfied in the case at bar. The Commissioner was put in.possession of all of the facts as to the lands, and, exercising his judgment upon them, approved the location. The facts in Shaw v. Kellogg give pertinence to its prin ciples, notwithstanding some differences between its facts and those in the case at bar. In that case there was a positive declaration by the surveyor general of the non-mineral character.of the lands; in the case at bar it is an inference deduced" }, { "docid": "22221727", "title": "", "text": "railroad grants by Congress embracing mineral lands, the correctness of which we do not admit. The official reports will disclose wherein the errors lie sufficiently for the attainment of accuracy of statement in matters of judicial decision. The plaintiff in this case, not having a patent, and relying solely upon its grant, which gives no title to the minerals within any of its lands, shows by its complaint no cause of action for the possession of the mineral lands claimed. The demurrer of the defendants' should have been sustained, and judgment entered thereon in their favor. It follows that the judgment of the Circuit Court in this case must be Reversed and the canse remanded to that court with directions to sustain the demu/rrer of the defendants and enter judgment thereon in their fa/oor with costs. Mr. Justice Brewer, with whom concurred Mr. Justice Gray and Mr. Justice' Shiras, dissenting. I dissent from the opinion and judgment of the court in this case. The burden of the opinion seems to be that the magnitude of that which is supposed to pass by the grant, as construed by defendant in error, is so great that it cannot be believed that Congress intended to make such a donation; and, therefore, rules of decision, repeatedly affirmed and hitherto the settled law in the construction of such grants, are set aside and a new rule established, whether applicable to this grant alone, or also hereafter to be considered as applicable to the whole body of law in respect to public lands I know not, nor is it affirmed. I respectfully insist that the magnitude of the loss supposed to result to the government is a mere chimera of the imagination • — ■ ignotum pro magnifico — and that even if it be ever so great, it furnishes no ground for a departure from settled rules and established law. The grant of land to the Northern Pacific Railroad Company is enormous; no one disputes that; but before being appalled by its magnitude it is fitting that a comparison be made between it and others," }, { "docid": "22882776", "title": "", "text": "of Robinson, except the fees mentioned, and whatever money was thus paid was refunded to the heirs by the government upon the Cancellation of the preemption claim. It is thus seen that when the grant to the Northern Pacific •Railroad Company was made, on the 2d of- July,- 1864, the premises in controversy had been taken up on the preemption claim óf Robinson, and that the preemption entry made was uncancelled ; that by such preemption entry the land was not at the time a part of the public lands; and that no interest therein passed to that company. The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All land, to which any claims or rights of others have attached, does not fall within the designation of public land. The statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within it have been granted, sold, Reserved, occupied by homestead settlers, or preempted or otherwise disposed of, other lands are to be selected in lieu thereof under the direction of the Secretary of the -Interior. There would therefore be no question that the preemption entry by the heirs of Robinson,, the payment of the sums clue to the government having been made, as the law allowed, by them after his death, took the land fróm the operation of the subsequent grant to the Northern Pacific Railroad Company, if the preemption entry had not been subsequently cancelled. But such cancellation had not been made when the act of Congress granting land to the Northern Pacific Railroad Company was passed; it was made more than a year afterwards. As the land preempted then stood on the records of the Land Department, it was severed from the mass of the public lands, and the subsequent cancellation of the preemption entry did not restore it to the" }, { "docid": "22221723", "title": "", "text": "mineral division of the Land Department that, ever since the year 1867 (the date when that division was organized) it has been the uniform practice to allow and maintain mineral locations within the geographical limits of railroad grants, based upon discoveries made at any time before patent or certification where patent is not required. This practice having been uniformly followed and generally accepted for so long a time there should be, in my judgment, the clearest evidence of error as well as the strongest reasons of policy and justice controlling before a departure from it should be sanctioned. It has, in effect, become a rule of property.” It is true that the patent has been issued in many instances ■ without the investigation and consideration which the public interest requires; but if that has been done without fraud, though unadvisedly by officers of the government charged with the duty of supervising and attending to the preparation and issue of such patents, the consequence must be borne by the government until by further legislation a stricter regard to their duties in that respect can be enforced upon. them. The fact remains that under the law the duty of determining the character of the lands granted by Congress, and stating it in instruments, transferring the title of the government to the grantees, reposes in officers of the Land Department. Until such patent is issued, defining the character of the land granted and showing that it is non-mineral, it will not comply with the act of Congress in which the grant before us was made to plaintiff. The grant, even when all the acts required of the grantees are performed, only passes a title to non-mineral lands; but a patent issued in proper form, upon a judgment rendered after a due examination of the subject' by officers of the Land Department, charged with its preparation and issue, that the lands were non-mineral, would, unless set aside and annulled by direct proceedings, estop the government from contending to the contrary, and as we have already said in the absence of fraud in the officers" }, { "docid": "9924242", "title": "", "text": "may hereafter by possibility develop minerals in such quantity as will establish its mineral rather .than its agricultural character, but that, as a present fact, it is mineral in character; and this must appear from actual production of mineral, and not from any theory that it may produce it; in other words, it is fact and not theory Which must control your office in deciding upon the character of this class of lands. Nor- is it sufficient that the mineral claimant shows that the land is of little agricultural value. He must show affirmatively, in order to establish his claim, that the mineral value of the land is greater than its agricultural value.” In the Case of Samuel W. Spong, 5 Land Dec. 193, which was before the Department of the Interior in October, 1886, similar views were expressed. An application had been made by Spong to the local land officers for the Marble Yalley quartz mine, in the Sacramento district, in California, which was refused by them, for the reason that the section of land containing the mine had. been previously patented to the Central Pacific Bailroad Company. On appeal, the Commissioner of the General Land Office affirmed the ruling, upon the ground that “ the exception in the grant to said company and in said patent is construed to mean lands known to contain valuable minerals prior to the issuing of the patent, and that subsequent discoveries would not affect the title of the company to the lands and mines subsequently discovered.” The case being taken to the Interior Department this decision was affirmed. In his opinion Mr. Lamar, who had succeeded Mr. Teller as Secretary of the Interior, said: “It is strenuously insisted by counsel for the appellant, that Congress did not grant mineral lands to said company; that said patent, although including said section in terms, did not operate as a conveyance of the title to any land that may at any time be found to be mineral. It is not denied that said section was returned as agricultural by the United States surveyor; that it" } ]

[ { "docid": "22611194", "title": "", "text": "can be rebutted if the INS establishes by a preponderance of the evidence that the applicant could reasonably avoid persecution by relocating to another part of his or her country or that conditions in the applicant's country have changed so as to make his or her fear no longer reasonable (Reg. §§ 208.13(b)(l)(i) and (ii)). . Even if Abdulrahman had posed the issue to the Board, it is hardly persuasive. Following a recitation of the facts of the case, the IJ outlined the applicable law, correctly stating the standard for determining whether Abdul-rahman had produced sufficient evidence to establish his eligibility for asylum. Abdulrah-man relies instead on the IJ's comment in the context of her credibility determination, in which she concluded that it was more likely than not that Abdulrahman was not telling the truth. That determination was independent of her conclusion that Abdulrahman had failed to meet his burden of proof that he was eligible for relief. Read as a whole, the IJ's decision properly states and applies the law of asylum. . Here the government contends that Abdul-rahman failed to exhaust this issue as well, so that we are also foreclosed from reviewing his due process argument. Although grounded in procedural due process, a claim of IJ bias remains subject to administrative exhaustion requirements mandating that the issue be raised before the Board (see Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th Cir.2001)). While Abdulrahman's appeal to the Board did not frame the matter in due process terms in so many words, both his notice of appeal and his later brief to the Board argued that the IJ impermissibly based her decision on her own speculative beliefs rather than on the evidence. As such, he adequately alerted the Board to the issue, thus preserving it for our review. BECKER, Circuit Judge, concurring. The opinion of the Immigration Judge (IJ) is laden with statements such as the following, which I find troubling in terms of their viability as credibility judgments: (1) “The respondent testified that he was treated with herbs, by his grandmother and mother, and told the Court" } ]

[ { "docid": "12576604", "title": "", "text": "this burden of proof without corroboration, 8 C.F.R. § 1208.16(b). On the other hand, an IJ may find an applicant’s testimony incredible if she “fails to present certain foundational evidence.” Balogun v. Ashcroft, 374 F.3d 492, 502 (7th Cir.2004). While these two concepts can become easily conflated, they are distinct. Essentially, an IJ may disbelieve an applicant because she fails to provide corroborating evidence, and subsequently deny her claim. See id.; Zaidi 377 F.3d at 682 (“[W]hen the IJ does not believe the applicant or does not know what to believe, the applicant’s failure to corroborate his testimony can be fatal.”). But if an IJ believes the applicant’s testimony, corroboration “is not required.” Zheng v. Gonzales, 409 F.3d 804, 810 (7th Cir.2005) (emphasis in original); see also Dong v. Gonzales, 421 F.3d 573, 579 (7th Cir.2005); Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir.2003). To ensure that IJs have the freedom to require supporting evidence, yet do not inappropriately demand it, we require that, before denying a claim for lack of corroboration, an IJ must: (1) make an explicit credibility finding; (2) explain why it is reasonable to have expected additional corroboration; and (3) explain why the petitioner’s reason for not producing that corroboration is inadequate. Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir.2004); see Dong, 421 F.3d at 579 (applying Gontcharova requirements to withholding of removal applications). The second and third of these elements were met in this case. The IJ’s explanation of how Ikama-Obambi reasonably could have obtained corroboration is plausible and deserves deference. The IJ identified evidence that would have been readily obtainable regardless of the political upheaval in Congo, such as a statement from Offounga, who now safely resides in France. After all, Ikama-Obambi’s asylum hearing was conducted three years after she filed her application. And as for documenting her father’s role in the RDD, the BIA explained that “[tjypically, evidence of a persons’s position as the head of a national political party is reasonably accessible.” Ikama-Obambi has never explained how the political instability in Congo prevented her from obtaining this information, and without" }, { "docid": "17580433", "title": "", "text": "immaterial points in the applicant’s testimony. Rodriguez-Galicia, 422 F.3d at 537; Capric v. Ashcroft, 355 F.3d 1075, 1090 (7th Cir.2004); Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir.2003). Further, the contradiction or omission must be substantive, and not easily explained or superficial. Giday, 434 F.3d at 551-52. Even if some of the discrepancies on which the IJ relies to support a credibility determination do concern the heart of the alien’s claims, we must still remand for reconsideration where the vast majority of the reasons relied upon are immaterial. Giday, 434 F.3d at 553 (“[I]t seems unlikely that the immigration judge would make the same credibility determination based on one inconsistency rather than the four he originally noted.”); Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir.2003) (remanding where only one of the six reasons the IJ relied upon was material), but see Korniejew v. Ashcroft, 371 F.3d 377, 386 (7th Cir.2004) (affirming where two of three reasons were material). The majority of the discrepancies the IJ relied upon to discredit Adekpe’s testimony concerned minor, immaterial parts of his testimony. Two discrepancies were arguably important — the failure to mention the Secretary General, a somewhat central character in Adekpe’s story whose friendship explains why Adekpe was able to stay ahead of the government for so long, and the contradiction concerning the reason for Captain Azote’s murder — but the vast majority were unimportant. To begin with, the central point of Adekpe’s testimony about his activities with MELD, for purposes of his claims here, is that he was detained and beaten for his political activities. The points upon which the IJ noted discrepancies — whether the meeting occurred on campus or “at home” (assuming that represents a distinction for a university student), whether the meeting had 13 or 20 participants, what precisely happened to the informant — do not concern this basic core. Korniejew, 371 F.3d at 383; Uwase, 349 F.3d at 1042-43. Additionally, Adekpe failed to mention the electrical shocks on his asylum application, but we find it doubtful that the DHS would deny asylum to the victim of a" }, { "docid": "16996921", "title": "", "text": "2005); Ramos v. Gonzales, 414 F.3d 800, 801-02 (7th Cir.2005). We turn, therefore, to the merits of this part of Feto’s petition. Aliens are entitled to due process during immigration proceedings. Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir.2004). We review de novo claims of due process violations in removal proceedings. Id. Before we can reach most issues, however, the alien is required to raise them before the BIA. Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir.2004). The only exception is where the BIA itself would be powerless to address the problem, as might be the case with some fundamental constitutional claims. As we have noted before, however, many due process arguments are based on procedural failings that the BIA is capable of addressing. Id. In those instances, the alien must exhaust his or her remedies at the BIA before bringing the claim before this court. Moreover, even if this court can reach an unexhausted claim, the petitioner must prove prejudice in order to prevail. Roman v. INS, 233 F.3d 1027, 1033 (7th Cir .2000). In this case, Feto was represented by an attorney in his removal proceeding. Compare Jacinto v. INS, 208 F.3d 725, 734 (9th Cir.2000) (finding a due process violation during pro se petitioner’s removal hearing because the IJ did not explain to the petitioner her right to testify and present evidence). Feto filed a brief in connection with his appeal to the BIA, yet his brief contains no mention of any procedural flaws in the IJ’s handling of the case, much less any of constitutional dimension. The BIA has the power to direct IJs to follow the procedures outlined in the agency’s regulations. We conclude, therefore, that Feto had an obligation to exhaust this argument and that his failure to do so prevents us from reaching it. We add, alternatively, that even if these arguments were not subject to the exhaustion rule, they have no merit. The failure of the IJ to spell out the protections found in 8 C.F.R. § 1240.10 was, if error at all, harmless in Feto’s case. He was represented" }, { "docid": "22682659", "title": "", "text": "at his hearing before the IJ. It is speculative at this juncture, but certainly possible that Soto-Olarte may have had good explanations for the remaining differences between his testimonial report and that filed by the police and also possible that the BIA might have good reasons to reject his explanations. It may be that Soto-Olarte’s explanation that the police don’t like to mention the Shining Path also explains why they would not mention his use of a gun or the home invasion, because these points were part of his story about the Shining Path. In any event, the IJ could not properly base her adverse credibility determination on the inconsistencies between Soto-Olarte’s testimony and the police report that Soto-Olarte did not explain in his declaration, when she did not ask Soto-Olarte about these discrepancies or give him an opportunity to reconcile them. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007) (“[T]he IJ ‘must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.’ ” (quoting Ordonez v. INS, 345 F.3d 777, 786 (9th Cir.2003))); Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004) (finding that the petitioner “was denied a reasonable opportunity to explain what the IJ perceived as an inconsistency in her testimony” and concluding that “[t]he IJ’s doubt about the veracity of her story, therefore, cannot serve as a basis for the denial of asylum”). Because the IJ did not offer Soto-Olarte an opportunity to explain the inconsistencies on which she later relied in finding him not credible and did not address the explanation he gave for some of those inconsistencies, the IJ’s adverse credibility finding, which was subsequently adopted by the BIA, was not supported by substantial evidence. The IJ and BIA alternately held that even if Soto-Olarte were deemed credible, he and his wife still had not met their burden of establishing eligibility for asylum or withholding of removal. Despite the asserted independence of this conclusion, however, neither the IJ nor the BIA took all of Soto-Olarte’s testimony as true" }, { "docid": "17580432", "title": "", "text": "applicant’s claim, rather than to a minor, irrelevant aspect of the story. Giday v. Gonzales, 434 F.3d 543, 550 (7th Cir.2006); Rodriguez-Galicia v. Gonzales, 422 F.3d 529, 537 (7th Cir.2005). In the present case, the IJ’s decision to discredit Adekpe’s story was not based on a reasoned analysis of the evidence as a whole. Her decision to discredit Adekpe’s testimony was based largely on unimportant discrepancies between it and earlier versions of his story regarding sub jects that were not very relevant to Adekpe’s alleged reasons to fear returning to Togo. Even if her analysis of Adekpe’s testimony were sufficiently sound, she failed to rationally consider how letters from Adekpe’s family describing its current situation in Togo might support his story. We address the discrepancies in Adekpe’s testimony first. Inconsistencies between an alien’s hearing testimony and earlier statements, and omissions from those earlier statements, can support an adverse credibility finding. But they can do so only where they go to the heart of the asylum applicant’s claim, rather than when they concern minor and relatively immaterial points in the applicant’s testimony. Rodriguez-Galicia, 422 F.3d at 537; Capric v. Ashcroft, 355 F.3d 1075, 1090 (7th Cir.2004); Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir.2003). Further, the contradiction or omission must be substantive, and not easily explained or superficial. Giday, 434 F.3d at 551-52. Even if some of the discrepancies on which the IJ relies to support a credibility determination do concern the heart of the alien’s claims, we must still remand for reconsideration where the vast majority of the reasons relied upon are immaterial. Giday, 434 F.3d at 553 (“[I]t seems unlikely that the immigration judge would make the same credibility determination based on one inconsistency rather than the four he originally noted.”); Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir.2003) (remanding where only one of the six reasons the IJ relied upon was material), but see Korniejew v. Ashcroft, 371 F.3d 377, 386 (7th Cir.2004) (affirming where two of three reasons were material). The majority of the discrepancies the IJ relied upon to discredit Adekpe’s testimony concerned minor," }, { "docid": "22702469", "title": "", "text": "Act”). See Xiao Ji Chen, 434 F.3d at 154-55 (interpreting REAL ID Act § 106(a)(l)(A)(iii), codified at 8 U.S.C. § 1252(a)(2)(D), as providing jurisdiction in the Court of Appeals to review “constitutional claims or matters of statutory construction,” even in the context of one-year bar determinations). We have not had occasion to decide whether an IJ’s discretionary determination that an alien failed to proffer credible evidence adequate to her burden of proof may constitute a due process violation. Cf. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 659 (9th Cir.2003) (finding a due process violation where the BIA made an adverse credibility finding sua sponte on direct review, after the IJ made no such finding, because the BIA had failed to “provid[e] [the petitioner] with notice that his credibility was at issue and in what specific respect his credibility was being questioned”). But assuming arguendo that an IJ’s egregious disregard of applicable standards or procedures in making a credibility determination might acquire constitutional dimension — a determination we need not, and hence do not, make here — we find no such violation in this case. Under the circumstances presented, we cannot say that the IJ’s determination that Lin failed to prove her date of entry by “clear and convincing evidence” was arbitrary or “denied [her] a full and fair opportunity to present her claims.” Xiao Ji Chen, 434 F.3d at 155; accord Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir.2004) (“Due process requires that an applicant receive a full and fair hearing which provides a meaningful opportunity to be heard”). Because we do not disturb the IJ’s finding that Lin’s asylum application is untimely, our review is limited to Lin’s claim for withholding of removal under the INA. See Xiao Ji Chen, 434 F.3d at 155 (“[Eligibility for withholding of removal is not subject to 8 U.S.C. § 1158(a)(2)(B)’s one-year bar and, accordingly, must be considered by the BIA regardless of the timeliness of the initial asylum request.”). II. Our Standard of Review of Lin’s Withholding Claim In order to qualify for withholding of removal under the INA, an applicant" }, { "docid": "11816469", "title": "", "text": "the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). The IJ in this case declined Torres’s request for relief under the Convention Against Torture. B. The IJ’s Adverse Credibility Determination The IJ rejected all three of Torres’s claims — for asylum, withholding of removal, and protection under the Convention Against Torture — solely because the IJ found that Torres’s evidence lacked credibility. One of an immigration judge’s primary functions is to assess the credibility of an applicant’s evidence. Capric, 355 F.3d at 1085. When making a credibility determination, an IJ evaluates the applicant’s claims “only for internal consistency, detail, and plausibility.” Id. The IJ’s credibility finding is often paramount “[b]e-cause direct authentication or verification of an alien’s testimony and/or evidence is typically very difficult and often impossible.” Id. In lieu of direct evidence, an alien’s credible testimony, by itself, is generally sufficient to sustain the alien’s burden of proof. Lin v. Ashcroft, 385 F.3d 748, 756 (7th Cir.2004); Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir.2003); see also 8 C.F.R. § 208.13(a). If the IJ finds an alien’s testimony to be incredible, however, then the alien must provide either a convincing explanation for the noted discrepancies in his evidence or credible evidence that corroborates his claims. Capric, 355 F.3d at 1086. If the IJ’s credibility determination is supported by “specific, cogent reasons that bear a legitimate nexus to the finding,” then this court will be highly deferential in its review of that conclusion. Capric, 355 F.3d at 1086 (internal quotation marks omitted); see also Hysi v. Gonzales, 411 F.3d 847, 852 (7th Cir.2005) (“We give great deference to an IJ’s credibility determinations so long as they are supported by cogent reasons that bear a legitimate nexus to the finding.” (emphasis added)); Ahmad v. INS, 163 F.3d 457, 461 (7th Cir.1999). We will not, however, “defer to credibility determinations drawn from insufficient or incomplete evidence, nor shall we uphold adverse credibility determinations based on speculation or conjecture, rather than on evidence in the record.”" }, { "docid": "7004323", "title": "", "text": "Asylum Ms. Korniejew maintains that her testimony before the IJ established that she had suffered past persecution in Poland. This testimony, she continues, was credible. She argues that the inconsistencies cited by the IJ and the BIA are either illusory or negligible, and, therefore, they cannot form the basis of an adverse credibility determination. It is well-established that the credible testimony of an alien, without more, may be sufficient to sustain an asylum claim. See Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004); see also 8 C.F.R. § 208.13(a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”). “However, if the IJ finds the testimony to be incredible, then a convincing explanation of the discrepancies or extrinsic — and credible — corroborating ev idence is required.” Capric, 355 F.3d at 1086. On review, it is not the province of this court to “ ‘second guess th[e] ... factual findings and credibility determinations’ ” made by the IJ or the BIA. See Mansour v. INS, 230 F.3d 902, 906 (7th Cir.2000) (quoting Karapetian v. INS, 162 F.3d 933, 936 (7th Cir.1998)). However, we shall not “automatically yield” to the agency’s conclusions. Georgis v. Ashcroft, 328 F.3d 962, 968 (7th Cir.2003). “[Credibility determinations ... must be supported by ‘specific, cogent reasons.’ In addition, these reasons must ‘bear a legitimate nexus to the finding.’ ” Ahmad v. INS, 163 F.3d 457, 461 (7th Cir.1999) (quoting Nasseri v. Moschorak, 34 F.3d 723, 726 (9th Cir.1994), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir.1996)). We shall not defer to credibility determinations “drawn from insufficient or incomplete evidence,” Georgis, 328 F.3d at 969, nor shall we uphold “[a]d-verse credibility determinations based on speculation or conjecture, rather than on evidence in the record,” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). 1. Discrepancies in the Evidence In the present case, the IJ relied on several discrepancies, as well as other shortcomings, in the evidence to deny Ms. Korniejew relief. In its affirmance, the BIA relied specifically on three of the inconsistencies" }, { "docid": "22426754", "title": "", "text": "by substantial evidence. We remand for further proceedings, accepting Marcos’s testimony as credible and as establishing a well-founded fear of future persecution, to determine his eligibility for asylum, withholding of removal, and relief under CAT. See He v. Ashcroft, 328 F.3d 593, 603-04 (9th Cir.2003). PETITION FOR REVIEW DENIED in part, GRANTED in part, and REMANDED. .Marcos also raises a due process challenge to the BIA’s decision to streamline his case. See 8 C.F.R. § 1003.1(e)(4) (2002). That argument is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 850 (9th Cir.2003). In light of our disposition, Marcos’s argument that the decision to streamline violates the streamlining regulations is moot. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1253 (9th Cir.2004). . The NPA is \"a violent, revolutionary Communist group which actively opposes the Philippine government” and has “a well-documented history of political violence Borja v. INS, 175 F.3d 732, 734 (9th Cir.1999) (en banc). . Marcos testified to this’ incident at hi's hearing although he ■ did not include it in the declaration that he submitted with his asylum application. . As noted above, Marcos testified that his failure to disclose Edralin’s death was simply a misunderstanding rather than an attempt to avoid detection. The IJ never doubted the veracity of that testimony. Even if Marcos had lied at his asylum hearing about his reasons for the omission, however, that would not support an adverse credibility determination. See Akinmade, 196 F.3d at 956 (\"Whether the petitioner was directly involved in falsifying the Canadian passport, or whether hé lied about how he obtained his airline ticket from South Korea to the United States, has little, if anything, to do with whether he fled Nigeria for fear of persecution.”). Marcos’s visa application \"concerns facilitating travel and entry into the United States and is 'incidental' to [his] claim of persecution.” Id. . Furthermore, the IJ never suggested that the nondisclosure had any bearing on Marcos’s \"general propensity to tell the truth,” as the dissent proposes. Dissent at 1121. Even if the IJ had, such a general finding would not provide the specific, cogent," }, { "docid": "22074988", "title": "", "text": "F.3d 722, 727 (10th Cir.2004). This standard of review is a deferential one, but we do not blindly accept an IJ’s determination that an alien seeking asylum or restriction on removal is not credible. Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996); see also Aguilera-Cota v. U.S. INS, 914 F.2d 1375, 1381 (9th Cir.1990) (“The fact that an IJ considers a petitioner not to be credible constitutes the beginning not the end of our inquiry.”). An IJ’s adverse credibility determination may appropriately be based upon such factors as inconsistencies in the witness’ testimony, lack of sufficient detail, or implausibility. See Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004); Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc). Additionally, an IJ may find a witness not to be credible because of his or her testimonial demeanor. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir.2003) (“[W]e grant special deference to the IJ’s eyewitness observations regarding demeanor evidence.”) In our case, the IJ did not fault Petitioner’s testimony for containing inconsistencies or lacking detail, nor did he make any findings regarding Petitioner’s demeanor. Rather, the IJ’s adverse credibility finding was based solely on his conclusion that Petitioner’s account of persecution was implausible. An IJ’s finding that an applicant’s testimony is implausible may not be based upon speculation, conjecture, or unsupported personal opinion. See Wiransane v. Ashcroft, 366 F.3d 889, 898 (10th Cir.2004) (“Adverse credibility determinations based on speculation or conjecture are reversible.”) (quotation and alterations omitted); see also Vera-Villegas v. INS, 330 F.3d 1222, 1231 (9th Cir.2003) (“[C]onjecture is not a substitute for substantial evidence.”) (quotation omitted). Accordingly, when an IJ finds that the alleged behavior of a foreign government is implausible, that conclusion must be supported by substantial evidence in the record. See Dia, 353 F.3d at 249 (“Where an IJ bases an adverse credibility determination in part on ‘implausibility,’ ... such a conclusion will be properly grounded in the record only if it is made against the background of general country conditions.”); El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir.2003) (“While we" }, { "docid": "21591837", "title": "", "text": "Moreover, the BIA held that even if Rashad’s asylum application were timely filed and his testimony before the IJ deemed credible, his appeal would be denied because he failed to sustain the burden of proof applicable to asylum petitions as well as the more stringent burden applicable to claims for withholding of removal or protection under the Convention Against Torture. Specifically, the BIA held that the record did not show that he would be mistreated by the government of Pakistan on account of a protected ground. Additionally, the BIA concluded that Rashad failed to proffer an adequate torture claim. The BIA dismissed Rashad’s appeal, and the instant petition for review followed. STANDARD OF REVIEW When this Court has jurisdiction to review, we uphold determinations by the BIA or the IJ if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted). This deferential standard is applied to findings of fact including credibility determinations. Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.2008). Likewise, the “substantial evidence” standard applies to claims for asylum, withholding of removal, and relief under the Convention Against Torture. Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.2004). Under this standard, “[w]e will reverse only if the petitioner’s evidence would compel a reasonable factfinder to conclude that relief was warranted.” Id.; see also 8 U.S.C. § 1252(b)(4)(B)(“adminis-trative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). Usually, this Court confines its review to the BIA’s order that is being challenged by the petitioner. Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). If the BIA has simply adopted or deferred to the IJ’s reasoning, the Court must look to that decision instead, “treating the findings and conclusion of the IJ as the Board’s own opinion.” Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir.2003). However, when as here, the BIA adopts the decision of the IJ, and provides some analysis of its own, the Court reviews both" }, { "docid": "21313757", "title": "", "text": "considers to be a more adequate or proper basis. Id. at 196, 67 S.Ct. 1575 (Chenery II). Therefore, if the BIA based its conclusion upon an improper basis, we are powerless to affirm that judgment. The IJ premised his adverse credibility finding upon five different aspects of Mr. Moab’s testimony, discussed above. The bases for the IJ’s adverse credibility findings resulted essentially from Mr. Moab’s failure to mention his homosexuality when he appeared pro se at his airport and credible fear interviews, his submission of an application for asylum that was not as detailed as his oral testimony nor as the affidavit he had submitted in support of his application and the fact that the IJ found, generally, that Mr. Moab’s testimony lacked sufficient detail. The BIA simply stated that it “agree[d] with the Immigration Judge that it appears that as [Mr. Moabj’s claim progressed, his alleged account of harm became markedly more egregious.” A.R. 3. The BIA also stated that it agreed with the IJ that Mr. Moab had failed credibly to establish that he would more likely than not be tortured if removed to Liberia. We review the denial of a petition for asylum, withholding of removal and CAT protection for substantial evidence. Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir.2004). We must therefore uphold a BIA’s decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal citations and quotation marks omitted). We shall overturn the BIA’s determination only where the evidence. “compels” a contrary conclusion and not merely because we might have decided the case differently. Capric, 355 F.3d at 1086. The BIA premised its determination to dismiss Mr. Moab’s appeal on the fact that, in its view, Mr. Moab’s account of alleged harm became more egregious as his case progressed. We believe the BIA misapprehended the basis of the IJ’s opinion, failed to address any other issues, and, therefore, is unsustainable. In our view, while Mr. Moab failed to mention that he" }, { "docid": "22682660", "title": "", "text": "a denial of asylum.’ ” (quoting Ordonez v. INS, 345 F.3d 777, 786 (9th Cir.2003))); Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004) (finding that the petitioner “was denied a reasonable opportunity to explain what the IJ perceived as an inconsistency in her testimony” and concluding that “[t]he IJ’s doubt about the veracity of her story, therefore, cannot serve as a basis for the denial of asylum”). Because the IJ did not offer Soto-Olarte an opportunity to explain the inconsistencies on which she later relied in finding him not credible and did not address the explanation he gave for some of those inconsistencies, the IJ’s adverse credibility finding, which was subsequently adopted by the BIA, was not supported by substantial evidence. The IJ and BIA alternately held that even if Soto-Olarte were deemed credible, he and his wife still had not met their burden of establishing eligibility for asylum or withholding of removal. Despite the asserted independence of this conclusion, however, neither the IJ nor the BIA took all of Soto-Olarte’s testimony as true for the purposes of determining his and La Torre’s eligibility for asylum, as they are required to do when deeming a petitioner to be credible in an alternate holding. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004) (“Testimony must be accepted as true in the absence of an explicit adverse credibility finding.”). In reaching the conclusion that the experiences Soto-Olarte had suffered in Peru did not rise to the level of persecution on the basis of a protected ground, both the IJ and BIA referred to the June 2003 incident as a “criminal robbery,” thus crediting the police report’s version of what happened that night instead of accepting the version offered by Soto-Olarte that his home was invaded by Shining Path terrorists who were motivated to threaten or harm Soto-Olarte because of his political views. This alternate holding of the BIA and IJ is not controlling, because its explicit reasoning relied on an adverse credibility determination that we have determined is not supported by substantial evidence. B There have been cases in our" }, { "docid": "22093616", "title": "", "text": "denied Raj’s application for withholding of removal because that standard is more difficult to meet than the asylum standard. He ruled that because Raj could not meet the lesser asylum standard, he necessarily could not meet the stricter standard for withholding of removal. Lastly, the IJ determined that Raj was not entitled to relief under CAT. The IJ cited his credibility ruling and further held that, even if Raj’s allegations were true, the harm that he had suffered at the police station did not rise to the level of torture as that term is defined under CAT. On December 13, 2002, the BIA affirmed the IJ’s decision without an opinion. Raj filed a motion to reopen, which the BIA denied. He subsequently petitioned for review of both rulings. This appeal consolidates the two petitions for review, although Raj’s brief does not address the denial of his motion to reopen. STANDARD OF REVIEW We review for substantial evidence the BIA’s decision that an applicant has not established eligibility for asylum. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under that standard, the BIA’s determination must be upheld if it is supported by reasonable, substantial and probative evidence from the record. Knezevic v. Ashcroft, 367 F.3d 1206, 1210-11 (9th Cir.2004); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (“[t]o reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it”). We also review under the substantial evidence standard the BIA’s decision that an applicant has not met the higher burden required for withholding of removal, Thomas v. Ashcroft, 359 F.3d 1169, 1174 (9th Cir.2004) reh’g en banc granted, 382 F.3d 1154 (9th Cir.2004), superceded sub nom. Thomas v. Gonzales, 409 F.3d 1177 (9th Cir.2005), and the findings underlying its decision that an applicant is not eligible for relief under CAT. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.2004). Adverse credibility determinations are also reviewed under the substantial evidence standard. Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir.2004). Where, as here, the BIA" }, { "docid": "7004335", "title": "", "text": "forgot, to testify to the 1989 kidnapping, nor does-she offer an explanation for the discrepancy in her testimony and application concerning her education. Consequently, we believe that Ms. Korniejew’s situation is not analogous to that of the applicant in Georgis and that there is sufficient evidence, although certainly not overwhelming, to support the BIA’s conclusion that Ms. Korniejew- was not credible. Although we uphold the decision of the BIA in this case, we note the increasing reliance by the BIA and IJs upon perceived inconsistencies in testimony and upon lack of corroboration as the basis for adverse credibility determinations. See Ememe v. Ashcroft, 358 F.3d 446, 2004 WL 253552 (7th Cir. Feb.12, 2004) (reversing decision of BIA based upon adverse credibility finding when inconsistencies may have been due to limited language skills and no inquiry into proficiency was made); Uwase v. INS, 349 F.3d 1039, 1044 (7th Cir.1992) (granting petition for review when the IJ relied on minor inconsistencies and an unfounded lack of corroboration to deny asylum request); Georgis, 328 F.3d at 970 (vacating removal order and remanding for further proceedings where the bases for the IJ’s adverse credibility determination were, in large part, undermined). Although it remains the province of the agency to evaluate the credibility of an applicant’s evidence, the reason for this deference is that “direct authentication or verification of an alien’s testimony and/or evidence is typically very difficult and often impossible.” Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004). Indeed, we frequently have acknowledged that it is unreasonable to expect asylum applicants to procure corroborating documents when official records are “in disarray,” either because of war, revolution or simply lack of institutional regularity. Kourski v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir.2004). We trust that IJs will not continue to insist on corroborating evidence when common sense and institutional experience suggest that there is none to be had. Additionally, we remind those evaluating administrative records that adverse credibility determinations should not be grounded in trivial details or easily explained discrepancies; as recounted above, an adverse credibility determination must be supported by “specific, cogent reasons”" }, { "docid": "11816470", "title": "", "text": "v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir.2003); see also 8 C.F.R. § 208.13(a). If the IJ finds an alien’s testimony to be incredible, however, then the alien must provide either a convincing explanation for the noted discrepancies in his evidence or credible evidence that corroborates his claims. Capric, 355 F.3d at 1086. If the IJ’s credibility determination is supported by “specific, cogent reasons that bear a legitimate nexus to the finding,” then this court will be highly deferential in its review of that conclusion. Capric, 355 F.3d at 1086 (internal quotation marks omitted); see also Hysi v. Gonzales, 411 F.3d 847, 852 (7th Cir.2005) (“We give great deference to an IJ’s credibility determinations so long as they are supported by cogent reasons that bear a legitimate nexus to the finding.” (emphasis added)); Ahmad v. INS, 163 F.3d 457, 461 (7th Cir.1999). We will not, however, “defer to credibility determinations drawn from insufficient or incomplete evidence, nor shall we uphold adverse credibility determinations based on speculation or conjecture, rather than on evidence in the record.” Korniejew v. Ashcroft, 371 F.3d 377, 383 (7th Cir.2004) (international quotation marks and citations omitted). In addition, we have recognized that an IJ’s improper behavior while conducting an immigration hearing can render his credibility determinations unreliable. See, e.g., Huang v. Gonzales, 403 F.3d 945, 950-51 (7th Cir.2005). The record reveals that the IJ’s conduct had that effect here. Thus, before beginning our substantive review of the specific reasons the IJ gave in support of his adverse credibility determination, we find it necessary to discuss our disapproval of the IJ’s conduct during Torres’s hearings. 1. The Immigration Judge’s Conduct During the Hearings For purposes of developing the record, an immigration judge may question an applicant for asylum during a hearing. Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th Cir.2004). In so doing, the IJ may not “demonstrate impatience, hostility, or a predisposition against the applicant’s claim.” Huang, 403 F.3d at 948. We have overturned an IJ’s credibility findings when the IJ does more than “ask ... a few questions,” but instead “actively interject[s] himself into the" }, { "docid": "3912594", "title": "", "text": "allegedly was tortured, A.R.358, and his reference, made during cross-examination, to an uncle named Ben Jjuko who allegedly was killed in 1998. Both the IJ and the BIA held this inconsistency against Mr. Ssali in making credibility determinations. However, we think that the question of the relationship of Ben Jjuko to Mr. Ssali is merely peripheral to Mr. Ssali’s asylum claim. In both his asylum application and his hearing testimony, Mr. Ssali made his politics the central issue. The relationship of Ben Jjuko to Mr. Ssali is incidental to Mr. Ssali’s asylum claim. See Korniejew v. Ashcroft, 371 F.3d 377, 387 (7th Cir.2004) (“[Ajdverse credibility determinations should not be grounded in trivial details or easily explained discrepancies ....”). The same rationale must govern the Board’s insistence that Mr. Ssali’s credibility was diminished by his failure to mention, in his hearing testimony, the detention of other family members to which he had alluded in his asylum application. Having determined that the IJ and the BIA’s other reasons for discrediting Mr. Ssali’s testimony are not probative, we do not believe that an adverse credibility determination can be supported by the relationship of Ben Jjuko to Mr. Ssali and the occurrences related to Mr. Ssali’s other family members. See Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir.2003) (noting that court was “not inclined to defer to [the IJ’s] credibility determination on [one] remaining ... ground alone” when it had found that all but one of the grounds for the IJ’s adverse credibility determinations were not supported by the evidence). In light of the IJ and the BIA’s credibility determination errors, we conclude that the decision to deny Mr. Ssali’s asylum application was not based on substantial evidence. See Uwase v. Ashcroft, 349 F.3d 1039, 1045 (7th Cir.2003). Therefore, we remand the case. B. Motion to Reopen Because we have granted the petition for review and reverse and remand Mr. Ssali’s asylum petition, we also vacate the judgment of the BIA with respect to the motion to reopen. In doing so, we pause to note that, even if we had denied the asylum" }, { "docid": "22426753", "title": "", "text": "the [State Department reports] to the specific threat faced by [the petitioner].” Id. at 739. As noted above, the IJ relied only on her irrelevant conclusion that the Philippine government “generally respects” human rights. But, while other excerpts of the Country Report cite changing conditions and decreasing NPA power, the IJ did not make any individualized determination whether the changed conditions reported in the Country Report will affect Marcos’s specific situation. See id. at 738. An “individualized analysis” is required in this circuit, and the IJ “erred as a matter of law in failing to do the requisite analysis.” Id. at 739 (citing Garrovillas, 156 F.3d at 1017). IV. Conclusion The IJ’s adverse credibility determination was not supported by substantial evidence. Taking Marcos’s testimony as true, therefore, we conclude that, although the evidence does not compel a finding of past persecution, Marcos has established a well-founded fear of future persecution by the NPA if he were to return to the Philippines. Moreover, we conclude that the IJ’s determination of changed country conditions was not supported by substantial evidence. We remand for further proceedings, accepting Marcos’s testimony as credible and as establishing a well-founded fear of future persecution, to determine his eligibility for asylum, withholding of removal, and relief under CAT. See He v. Ashcroft, 328 F.3d 593, 603-04 (9th Cir.2003). PETITION FOR REVIEW DENIED in part, GRANTED in part, and REMANDED. .Marcos also raises a due process challenge to the BIA’s decision to streamline his case. See 8 C.F.R. § 1003.1(e)(4) (2002). That argument is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 850 (9th Cir.2003). In light of our disposition, Marcos’s argument that the decision to streamline violates the streamlining regulations is moot. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1253 (9th Cir.2004). . The NPA is \"a violent, revolutionary Communist group which actively opposes the Philippine government” and has “a well-documented history of political violence Borja v. INS, 175 F.3d 732, 734 (9th Cir.1999) (en banc). . Marcos testified to this’ incident at hi's hearing although he ■ did not include it in the declaration that he" }, { "docid": "22801018", "title": "", "text": "omitted). “Minor inconsistencies that reveal nothing about an asylum applicant’s fear for her safety are not an adequate basis for an adverse credibility finding.” Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.2004) (internal quotation marks and brackets omitted). “An IJ must ... afford petitioners a chance to explain inconsistencies, and must address these explanations.” Singh, 439 F.3d at 1105. III. Discussion The BIA affirmed the IJ based on only four of the reasons the IJ provided in support of his adverse credibility finding. “We independently evaluate each ground cited by the IJ for his adverse credibility findings.” Chen v. Ashcroft, 362 F.3d 611, 617 (9th Cir.2004). “So long as one of the identified grounds is supported by substantial evidence and goes to the heart of [the] claim of persecution, we are bound to accept the IJ’s adverse credibility finding.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003). We conclude that the BIA has failed to provide “specific, cogent reasons” in support of the adverse credibility finding. Therefore, the adverse credibility finding is not supported by substantial evidence. The four grounds upon which the BIA relied were as follows: A. Duration of Torture First, the IJ found that Tekle’s testimony was internally inconsistent with respect to the duration of her torture. The IJ asserted that On direct examination today, the respondent stated that she was “continuously tortured during the two-week detention.” During cross examination, the respondent stated that she was beaten on the soles of her feet on one occasion only for several hours. When the Court sought to give to the respondent the opportunity to clarify this inconsistency or discrepancy, she simply stated that she saw no inconsistency between ... her testimony on direct or testimony on cross. The IJ’s conclusion is based on the IJ’s and the government attorney’s misrepresentation of Tekle’s testimony. Tekle never testified or even suggested that she had been beaten throughout her two-week detention. Rather, when her attorney was questioning her about the duration of one particular interrogation during those two weeks, she responded that she could not “quantify it in hours, but" }, { "docid": "22723815", "title": "", "text": "Naturalization, 831 F.2d 906, 908 (9th Cir.1987) (holding due process claims predicated on procedural errors subject to exhaustion requirement). Amaya’s allegation of a due process violation — that he was denied a full and fair hearing before a neutral factfinder — is precisely the kind of procedural error which requires exhaustion. See, e.g., Abdulrahman v. Ashcroft, 330 F.3d 587, 596 n. 5 (3d Cir.2003) (noting “[although grounded in procedural due process, a claim of IJ bias remains subject to administrative exhaustion”); Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th Cir.2001) (same). Moreover, unlike his challenge to the adverse credibility determination, the BIA did not consider the merits of Ama-ya’s due process argument, and, therefore, there is no final agency decision with respect to this claim. Thus, because Amaya failed to raise his due process claim before the BIA, we lack jurisdiction to consider it. Accordingly, we dismiss this part of his petition for lack of jurisdiction. III. CONCLUSION For the foregoing reasons, we dismiss Amaya’s petition for review. PETITION DISMISSED. . Because Amaya's removal and asylum proceedings commenced after April 1, 1997, the permanent provisions of IIRIRA govern his petition for review. . Amaya also sought relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). Because he does not appeal the denial of CAT relief, we need not discuss this claim. . Amaya's third claim — that the IJ was obligated to make a finding regarding past persecution with respect to his claim for withholding of removal — is without merit. The IJ denied Amaya asylum relief, and it is axiomatic that where an applicant fails to meet the burden for asylum, he necessarily cannot meet the more stringent burden for withholding of removal. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir.2001); see also Forgue v. U.S. Att'y Gen., 401 F.3d 1282, 1288 n. 4 (11th Cir.2005). Thus, because Amaya failed to meet the burden on his asylum claim, his claim for withholding of removal necessarily failed. Having disposed of Amaya's asylum claim as" } ]

[ { "docid": "10853965", "title": "", "text": "of stock in the Weatherford Milling Company resulted from his activities in such avocation. Section 204 (a) and (b) of the Revenue Act of 1921 provides that a loss, in order to be deductible as a “net loss,” must not only have been incurred from the operation of -a trade or business, but from a trade or business regularly carried on by the taxpayer. Under the rule that a trade or business regularly carried on must be held to mean a vocation and not occasional or isolated transactions, we are of the opinion the loss sustained by the plaintiff in the transaction involving the purchase of the shares of stock in the Weatherford Milling Company w.as not a loss sustained from the operation of a trade or business regularly carried on by him within the meaning of the statute; During the year 1920, in which the plaintiff purchased the shares of the Weather-ford Milling Company, he had no other transaction of any kind in stocks and leases, and had no real estate transaction. The purchase of these shares constituted his sole and only transaction as a capitalist and broker. For the year 1921 he purchased one-half interest in a lease and royalty in Jefferson county, Okl., for the sum of $500. He did not purchase or sell any real estate during the year. During the year 1922 he made no purchase or sale of stocks or leases, and his activity as a broker and capitalist was confined to the purchase of a 240-aere farm in Dewey county, Okl. For the three years, 1920,1921, and 1922, aside from the purchase of the shares in the Weatherford Milling Company, the plaintiff engaged in but three transactions in the purchase and sale of stocks, leases, and real estate. This was the extent of his activities in the avocation of broker and capitalist and falls far short of the requirements of section 204 (a) “that as used in this section the term ‘net loss’ means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer.” These" } ]

[ { "docid": "21490499", "title": "", "text": "the construction and holding of houses for sale to their customers. In short, they are in the real estate business. “To defendant, these facts lead inexorably to the conclusion that plaintiff is also individually engaged in the real estate business. Yet, no suggestion is made that these corporations are sham organizations with no business purpose. So far as the record shows, they have been treated as separate taxable entities, and no effort has been made to attribute their income, losses, deductions, etc. to plaintiff. It is only their business which defendant would attribute to plaintiff. “However, it has long been settled that, in determining the trade or business of a taxpayer, the business activities of his closely-held corporation will not be attributed to the taxpayer. See for example, Whipple v. Commissioner, 373 U.S. 193 [83 S.Ct. 1168, 10 L.Ed.2d 288] (1963); Burnet v. Clark, 287 U.S. 410 [53 S.Ct. 207, 77 L.Ed. 397] (1932); Watson v. Commissioner, 124 F.2d 437 (2d Cir. 1942); Jarvis v. Commissioner, 32 T.C. 173 (1959); Gordy v. Commissioner of Internal Revenue, 36 T.C. 855 (1961) Acq. 1964-2 C.B. 5; and Fink v. Commissioner, 23 C.C.H. Tax Ct.Mem. 475 (1964). In the Gordy case, supra, the Tax Court had occasion to consider the status of a taxpayer who, like plaintiff, was the controlling stockholder in a number of corporations engaged in the real estate business. In holding that the taxpayer’s sale of a tract of land to one of his residential development corporations resulted in capital gain, the Tax Court stated at 36 T.C. 859-860: ‘All that we have here are two isolated transactions. They are transfers of property by petitioner, the president of two corporations, to each of the two corporations both of which were engaged in the business of real estate development, including the sale of lots to individual purchasers and both of which were controlled (60 percent) by petitioner. We see nothing in this record which would warrant the conclusion that at the time of the transfer petitioner held this property primarily for sale to customers in the ordinary course of his trade" }, { "docid": "3490603", "title": "", "text": "was the bank’s gain. Petitioner strongly relies upon the case of Peoples-Pittsburgh Trust Co. v. Commissioner, 21 B. T. A. 588, affirmed by the Circuit Court of Appeals for the Third Circuit, 60 F.(2d) 187, 188. This decision dealt with different sections of the Revenue Act (section 214 (a) (1) and section 215 (a) of the Revenue Act of 1921, 42 Stat. 239, 242), wherein the court was considering the allowance of a loss incurred “during the taxable year in carrying on any trade or business” (see, also, on the same subject, Blackmer v. Com’r (C. C. A.) 70 F.(2d) 255, 92 A. L. R. 982; Pantages Theatre Co. v. Welch (C. C. A.) 71 F.(2d) 68; Welch v. Helvering, 290 U. S. 111, 54 S. Ct. 8, 78 L. Ed. 212) and not the question of the right to carry over a net loss from one year to another authorized by sections 204 (a), 206 (f), 206 (e), supra, dealing with a “loss in- a trade or business regularly carried on by the taxpayer.” (Italics ours.) There are some decisions of the Circuit Court of Appeals which tend to support the petitioner’s contention. In Washburn v. Com’r of Int. Rev. (C. C. A. 8) 51 F.(2d) 949, decided August 11, 1931, a loss was suffered by an attorney who was actively engaged in managing and directing a number of corporations in which he had investments. It was held that a loss sustained m the sale of stock in one of the corporations was a loss incurred in the business regularly carried on by him and was deductible from income of the next succeeding year under section 206 (e), supra. That decision, however, was prior to four decisions rendered by the Supreme Court upon the interpretation of sections 204 (a) and 206, supra; Dalton v. Bowers, 287 U. S. 404, 53 S. Ct. 205, 77 L. Ed. 389; Burnet v. Clark, 287 U. S. 410, 53 S. Ct. 207, 77 L. Ed. 397; Burnet v. Commonwealth Imp. Co., 287 U. S. 415, 53 S. Ct. 198, 77 L. Ed. 399;" }, { "docid": "11031701", "title": "", "text": "Secretary. Although, petitioner’s liquor business as it had formerly been carried on was somewhat restricted by prohibition legislation and his conclusion at the end of 1922 to discontinue avs soon as he could dispose of the liquor on hand, we are of the opinion from the evidence that he was regularly engaged in the sale of liquor as a business in the year 1928 and that the loss sustained in the operation of that business, amounting to $2,408.65, is deductible from net income for the year 1924. From the evidence in this proceeding we are of the opinion that the real estate loss of $16,709.74 sustained by the petitioner in the sale of property hereinbefore mentioned was not a loss sustained in the operation of a trade or business regularly carried on by the petitioner within the meaning of section 204 of the Revenue Act of 1921. The position of the Commissioner is that petitioner had no regular business, that he was merely an officer and employee of the corporation, all of the stock of which he owned. The question here is not whether the corporation may deduct the petitioner’s net Iofss, nor whether the petitioner may deduct a loss of the corporation. For this reason this proceeding is to be distinguished from Wm. J. Robb, 5 B. T. A. 827, and W. C. Hams, 8 B. T. A. 1234. Petitioner’s activities during the year 1923, outside of his liquor business, were confined almost entirely to the management aud furtherance of the business of the real estate corporation. It appears from the evidence that over the period from 1915 to 1923, inclusive, he occasionally and for convenience made real estate contracts in his own name but these transactions were for and on behalf of the corporation and can not be regarded as establishing that petitioner, as an individual, was regularly engaged in the real estate business within the meaning of the statute. The purchase in 1920 and sale at a loss in 1923 of the house and lot in New Jersey is the only real estate transaction in which petitioner" }, { "docid": "1599068", "title": "", "text": "204 of the Revenue Act of 1921 (42 Stat. 231). Section 204(a) of that act, among other things, provides as follows: “That as used in this section the term ‘net loss’ means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business)” etc. Subdivision (b) of this section provides as follows: “If for any taxable year beginning after December 31, 1920, it appears upon the production of evidence satisfactory to the Commissioner that any taxpayer has sustained a net loss, the amount thereof shall be deducted from the net ineome of the taxpayer for the succeeding taxable year,” etc. Subdivision (e) of the section provides that: “The benefit of this section shall be allowed to the members of a partnership and the beneficiaries of an estate or trust, and to insurance companies subject to the tax imposed by section 243 or 246, under regulations prescribed by the Commissioner with the approval of the Secretary.” The income for the year 1921, as disclosed by the findings, consisted of such items as in-eome from liquidation on notes receivable, income from crops on farms rented out on shares, interest on bank deposits, notes, mortgages and bonds, rents, profits from sale of real estate, profits from sale of securities and dividends from stock, and the deductions or expenditures for that year consisted of such items as federal estate tax, personal property tax, real estate taxes, interest on legacies, interest on residence taxes, interest on land contracts, salaries, revenue stamps, attorney fees, recording fees, upkeep on farms, commission on sales, repairs, accountant’s fees, and sundries. For the year 1922 the gross in-eome consisted of interest on bank deposits, notes, mortgages and corporation bonds, rents and royalties, profit from sale of real estate, stoeks, bonds, etc., dividends on stock of domestic corporations, notes receivable paid in excess of probate appraisal, sale of crops, and sale of hunting licenses. As has already been" }, { "docid": "23654770", "title": "", "text": "selling real estate was carried on through a corporation. He owned the entire stock of the corporation, but it was a distinct entity, and the business of appellant was not the business of the corporation. The loss sustained in the individual transaction was held to have resulted from a private transaction andi not sustained in appellant’s regular trade or business. In Mente v. Eisner (C. C. A.) 266 F. 161, 11 A. L. R. 496, it was held that deductions incurred in trade -are limited to losses incurred in the actual business of the taxpayer as distinguished from isolated transactions, and do not include losses sustained through dealings on an exchange by one engaged in another business. In Pabst v. Lucas, Commissioner of Internal Revenue, 6 B. T. A. 843 (affirmed in 59 App. D. C. 154, 36 F.(2d) 614) petitioner’s business was that of pharmaceutical preparations, and an operating owner of and investor in mines. He claimed a loss under section 204 (a) by reason of an investment in a corporation to manufacture porch shades and in the management of which he had no voice. The Board refused to allow it, and the Court of Appeals of the District of Columbia sustained the Board. In Rogers v. United States (Ct. Cl.) 41 F.(2d) 865, 868, the court held that the investment of his professional income by a physician did not in itself constitute a “business regularly carried on.” The Board of Tax Appeals regarded the loss in the sale of the railroad as an isolated transaction, and referred to it as a business in which petitioner had an investment. The railroad corporation was not a separate and distinct enterprise — it was no different than if petitioner had built a wagon road in order to haul lumber out of his timber lands. It was constructed- solely as an aid to his timber holding companies, and was a part of the general enterprise. It was merely the alter ego of petitioner. The statute refers particularly, to losses “sustained from the sale or other disposition of real estate, machinery, and other" }, { "docid": "3695969", "title": "", "text": "year, “in addition to his regular employment as secretary of an insurance company on salary, (he) was engaged in a business regularly carried on for profit which * * * Was the purchase and sale of shares of stock listed on” various exchanges. The Commissioner by. his answer denied this averment. At the hearing it was stipulated that if the petitioner were present he would testify to its substance. The Commissioner introduced no evidence in contradiction nor did the Board pass upon the matter in its opinion. Taking the record and the evidence as they stand we must determine whether there was enough shown to compel the finding which the petitioner asks and to call in play the cited statute. We cannot find on the petitioner’s averment and meager evidence that his case falls within tho statute. It is clear that in certain situations a person who has organized a corporation and invested in its stock and lias devoted most of his time to its management may be regarded as having regularly carried on the business and be entitled; under the statute, to malee appropriate deductions of stock losses from income. Washburn v. Commissioner (C. C. A.) 51 F.(2d) 919; Schwinn v. Commissioner, 9 B. T. A. 1304. But lacking convincing evidence of a claimed trade or business regularly carried on, it is generally held that deductions of losses incurred in trade in a given tax year are limited to losses incurred in the actual business of the taxpayer as distinguished from isolated transactions, and do not include losses sustained through dealings on an exchange by one engaged in another business. Mente v. Eisner (C. C. A.) 866 F. 161,11 A. L. R. 496; Washburn v. Commissioner (C. C. A.) 51 F.(2d) 949. We must assume from the order under review that, notwithstanding' the silence of the Board on the subject, it found, that the petitioner was not engaged in the trade or business he averred. This finding on what may be a mixed question of law and fact is, in our opinion, sustained by the record. The order of" }, { "docid": "22779986", "title": "", "text": "wholly independent transactions.” We agree with the Commissioner and the Board of Tax Appeals. The judgment below must be reversed. The respondent was employed as an officer of the corporation; the business which he conducted for it was not his own. There were other stockholders. And in no sense can the corporation be regarded as his alter ego, or agent. He treated it as a separate entity for taxation; made his own personal return and claimed losses through dealings with it. He was not regularly engaged in endorsing notes, or buying and selling corporate securities. The unfortunate endorsements were no part of his ordinary business, but occasional transactions intended to preserve the value of his investment in capital shares. A corporation and its stockholders are generally to be treated as separate entities. Only under exceptional circumstances — not present here — can the difference be disregarded. Reversed. Revenue Act, 1921: “ Sec. 204 (a). That as used in this section the term ‘ net loss ’ means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business); and when so resulting means the excess of the deductions allowed by section 214 or 234, as the ease may be, over the sum of the following: (1) The gross income of the taxpayer for the taxable year, (2) the amount by which the interest received free from taxation under this title exceeds so much of the interest paid or accrued within the taxable year on indebtedness as is not permitted to be deducted by paragraph (2) of subdivision (a) of section 214 or by paragraph (2) of subdivision (a) of section 234, (3) the amount by which the deductible losses not sustained in such trade or business exceed the taxable gains or profits not derived from such trade or business, (4) amounts received as dividends and allowed as a deduction under paragraph (6) of subdivision (a) of section" }, { "docid": "7766591", "title": "", "text": "in which one acts as trustee for another, with the incidental buying, selling, advising, etc., does not constitute the carrying on of business within the meaning of the Revenue Act. The next question is whether the fact that the trustees are officers in corporations, shares in which are held by them as trustees for this estate, makes any difference. According to the facts found, one of the trustees is president of Sunnyside, Inc. All the capital stock of Sunnyside, -Inc., is owned by the trustees. The other trustee is a member of the board of directors of the Health Products Corporation, 8,500 shares of whose stock is the chief asset of the estate. Each has had some activity, as the findings of fact show, because of his holding of the office of president or director, respectively. Does this additional fact throw the balance the other way and establish that the petitioners are engaged in business ? In Washburn v. Commissioner, 8 Cir., 1931, 51 F.2d 949, 953 the analogous question was presented. This case turned upon the section of the Revenue Act of 1921 providing that losses resulting from the operation of any business regularly carried on by the taxpayer might be carried over to the next taxable year. The taxpayer there was actively engaged in the management of a number of corporations in which he had large investments and it was held that he was engaged in carrying on a business and could carry over a loss from a sale of stock of one of the corporations which he had organized. The court said that the corporation, the sale of whose stock resulted in the loss, was “merely the alter ego” of the taxpayer. This seems to disregard the existence of. the corporate entity which, of course, courts sometimes do when the ends of justice seem to require it. But the distinction between a, corporation and the shareholder, even in the case of a corporation whose shares are wholly owned by one individual, is one which is kept pretty clear in judicial opinions. Mr. Justice McReynolds says in Dalton" }, { "docid": "10853961", "title": "", "text": "$14,516 of such losses. The Commissioner of Internal Revenue disallowed the deductions for the years 1922 and 1923, and on December 15, 1925, assessed an additional tax against the plaintiff in the sum of $1,992.82. Thereafter, and on May 13, 1926, the said Commissioner made a further assessment against plaintiff in amount of $279.53, covering interest on the aforesaid additional tax. On June 4, 1926, plaintiff paid to the collector of internal revenue the amount of the aforesaid assessments, totaling $2,272.35, and, on June 12, 1926, filed a claim for refund thereof, which was rejected on August 27, 1926. The plaintiff claims he was entitled to the deductions taken by him for the years stated by virtue of the provisions of section 204 (a) and (b) of the Revenue Act of 1921 (42 Stat. 227, 231), which reads: “See. 204 (a) That as used in this section the term ‘net loss’ means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business). * * * “(b) If for any taxable year beginning after December 31, 1920, it appears upon the production of evidence satisfactory to the Commissioner that any taxpayer has sustained a net loss, the amount thereof shall be deducted from the net income of the taxpayer for the succeeding taxable year, and if such net loss is in excess of the net income for such succeeding taxable year, the amount of such excess shall be allowed as a deduction in computing the net income for the next succeeding taxable year. * * * ” Article 1601 of Treasury Regulations, No. 62 reads: “1601. Net losses, definition and computation: The term ‘net loss’ as used in the statute means only a net loss resulting from the operation during the taxable year of any trade or business regularly carried on by the taxpayer. Included therein are losses from the sale or other disposition of real estate," }, { "docid": "13412145", "title": "", "text": "is made that these corporations are sham organizations with no business purpose. So far as the record shows, they have been treated as separate taxable entities, and no effort has been made to attribute their income, losses, deductions, etc. to plaintiff. It is only their business which defendant would attribute to plaintiff. “However, it has long been settled that, in determining the trade or business of a taxpayer, the business activities of his closely-held corporation will not be attributed to the taxpayer. See for example, Whipple v. Commissioner, 373 U.S. 193 (1963) ; Burnet v. Clark, 287 U.S. 410 (1932) ; Watson v. Commissioner, 124 F. 2d 437 (2d. Cir. 1942) ; Jarvis v. Commissioner, 32 T.C. 173 (1959) ; Gordy v. Commissioner, 36 T.C. 855 (1961) Acq. 1964—2 C.B. 5 ; and Fink v. Commissioner, 23 C.C.H. Tax Ct. Mem. 475 (1964). In the Gordy case, supra, the Tax Court had occasion to consider the status of a taxpayer who, like plaintiff, was the controlling stockholder in a number of corporations engaged in the real estate business. In holding that the taxpayer’s sale of a tract of land to one of his residential development corporations resulted in capital gain, the Tax Court stated at 36 T.C. 859-860: ‘All that we have here are two isolated transactions. They are transfers of property by petitioner, the president of two corporations, to each of the two corporations both of which were engaged in the business of real estate development, including the sale of lots to individual purchasers and both of which were controlled (60 percent) by petitioner. We see nothing in this record which would warrant the conclusion that at the time of the transfer petitioner held this property primarily for sale to customers in the ordinary course of his trade or business. ‘Kespondent’s argument ignores the corporate entities of which petitioner was merely an executive officer. It attributes the corporation’s sales of lots to individual purchasers, to petitioner. Kespondent recognizes no distinction between a taxpayer holding property for sale to his customers and a taxpayer holding property for sale to his" }, { "docid": "1218783", "title": "", "text": "Jersey, which he sold in 1923 and on which he sustained a net loss of $16,709.74. During the year 1923 appellant’s net income amounted to $11,119.-72. Allowing for his loss sustained from his liquor business and from the real estate transaction, amounting to $19,118.39, his losses exceeded his income in the sum of $7,998.67. The Commissioner determined that appellant’s net income for the year 1924 was $20,-025, from which appellant sought a deduction of the net loss sustained in 1923 of $7,-998.67. The Board held that he was entitled to a deduction of $2,408.65, the net loss sustained in 1923 in the operation of his liquor business.; but that he was not entitled to any deduction resulting from loss sustained by the sale of the house and lot, since it was a single isolated business venture and consequently not a loss “resulting from the operation of any trade or business regularly carried on” by him, within the meaning of section 204(a) of the Revenue Act of 1921,42 Stat. 227,231. This section defines “net loss” as meaning “only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer.” It appears that the purchase and sale of the house and lot in New Jersey was the only individual real estate transaction which appellant had conducted since the organization of the New York corporation. His regular business of buying and selling real estate was carried on through the corporation and not in his individual capacity. The question at once arises, therefore, whether he may deduct this loss, sustained in an individual transaction, from profits resulting in income from the operation of the corporation. While it is true that this was a one-man corporation, of which appellant owned the entire stock, it nevertheless was a separate and distinct corporate entity, and the business transacted in the name of the corpora^ tion was not the business of appellant but the business of the corporation, and as such entirely separate and distinct from the private affairs of appellant. The New Jersey ¡house and lot purchase and sale was a" }, { "docid": "1218782", "title": "", "text": "VAN ORSDEL, Associate Justice. This appeal from the United States Board of Tax Appeals involves the right of appellant to a deduction of net loss suffered in 1923 from his taxable income for the year 1924. It appears from the facts found by the Board that appellant, a resident and citizen of New York, was for many years prior to 1923 engaged in business as a wholesale and retail liquor dealer. He continued this business until 1922, after which he ceased purchasing liquors, but continued through 1923 to dispose of liquors on hand. Prom his sales in 1923, he sustained a loss of $2,408.65. In 1915 appellant organized a New York corporation to engage in the business of buying, selling, and renting real estate. Prom 1915 to 1923 he was president, treasurer, and sole stockholder of this corporation. During this period appellant in some instances entered into real estate contracts in his own name and transferred them later to the corporation. In 1920 he purchased a House and lot in His own name in New Jersey, which he sold in 1923 and on which he sustained a net loss of $16,709.74. During the year 1923 appellant’s net income amounted to $11,119.-72. Allowing for his loss sustained from his liquor business and from the real estate transaction, amounting to $19,118.39, his losses exceeded his income in the sum of $7,998.67. The Commissioner determined that appellant’s net income for the year 1924 was $20,-025, from which appellant sought a deduction of the net loss sustained in 1923 of $7,-998.67. The Board held that he was entitled to a deduction of $2,408.65, the net loss sustained in 1923 in the operation of his liquor business.; but that he was not entitled to any deduction resulting from loss sustained by the sale of the house and lot, since it was a single isolated business venture and consequently not a loss “resulting from the operation of any trade or business regularly carried on” by him, within the meaning of section 204(a) of the Revenue Act of 1921,42 Stat. 227,231. This section defines “net loss” as" }, { "docid": "7766592", "title": "", "text": "upon the section of the Revenue Act of 1921 providing that losses resulting from the operation of any business regularly carried on by the taxpayer might be carried over to the next taxable year. The taxpayer there was actively engaged in the management of a number of corporations in which he had large investments and it was held that he was engaged in carrying on a business and could carry over a loss from a sale of stock of one of the corporations which he had organized. The court said that the corporation, the sale of whose stock resulted in the loss, was “merely the alter ego” of the taxpayer. This seems to disregard the existence of. the corporate entity which, of course, courts sometimes do when the ends of justice seem to require it. But the distinction between a, corporation and the shareholder, even in the case of a corporation whose shares are wholly owned by one individual, is one which is kept pretty clear in judicial opinions. Mr. Justice McReynolds says in Dalton v. Bowers, 1932, 287 U.S. 404, 410, 53 S.Ct. 205, 207, 77 L.Ed. 389: “Certainly, under the general rule for tax purposes, a corporation is an entity distinct from its stockholders * * To the same effect see Burnet v. Clark, 1932, 287 U.S. 410, 53 S.Ct. 207, 77 L.Ed. 397; Burnet v. Commonwealth Improvement Co 1932, 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399. See, also, New Colonial Ice Co., Inc. v. Helvering, 1934, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348; Goldberg v. Commissioner, 1929, 59 App.D.C. 147, 36 F.2d 551; Nixon v. Lucas, 2 Cir., 1930, 42 F.2d 833. In McGinn v. Commissioner, 9 Cir., 1935, 76 F.2d 680, 99 A.L.R. 564, it was stated that the Washburn case was considered overruled and the same opinion has been expressed in this Circuit; Du Pont v. Deputy, D.C.Del.1938, 22 F.Supp. 589, 596. But see Foss v. Commissioner, 1 Cir., 1935, 75 F.2d 326. It seems to us that the Washburn decision can hardly stand in view of the later pronouncements by" }, { "docid": "23654757", "title": "", "text": "to reimburse him for actual expenses in connection with services rendered. Certain bonuses were paid him in appreciation of his services, but there was no legal obligation to pay either salary or bonus. The stock in most of the corporations, which was originally acquired by him as an investment, was closely held and seldom traded in. In order to open up the timber lands of one of the companies he organized in 1913 what was known as the Gales Creek & Wilson Eiver Eailroad Company, which built a fourteen-mile railroad to said property. He was the principal stockholder therein, managed its affairs, and selected its officers and directors, who were persons residing in Oregon where the railroad was built. He advanced the money with which to build, and took back stock. In 1922 he sold this stock, which had cost him $365,300 for $252,600.89, sus-’ taining a loss in the amount of $112,699.11, which he sought to carry over to the year 1923 and secure credit therefor in the adjustment of income taxes for that year. Ee-spondent concedes that a loss was sustained for the taxable year 1922, but denies that it resulted from the operation of a regular trade or business. The issue here arose under subdivisions (a) and (b) of section 204 of the Eevenue Act of 1921 (42 Stat. chap. 136, pp. 227, 231, now repealed), the applicable provisions of which are: “Sec. 204. (a) That as used in this section the term ‘net loss’ means only net losses resulting from the operation of any trade ■or business regularly carried on by the taxpayer (including losses sustained from the sale or othej.’ disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business); and when so resulting means the excess of, the deductions allowed by section 214 or 234, as the ease may be, over the sum of the following : * * * “(b) If for any taxable year beginning after December 31, 1920, it appears upon the production of evidence satisfactory to the Commissioner that any taxpayer has" }, { "docid": "11815727", "title": "", "text": "corporations, or farms or other enterprises as a business. But that is not this case. The taxpayer here sustained the losses in question from loans made to a corporation in whose business his sole interest was to protect a loan made to Charles Rosso. Such loans were not made to the corporation as his agent but to a corporation managed at the time the loans were made by his original debtor Rosso. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 78 L.Ed. 1348. The Washburn case, supra, is an illustration of the cases relied upon by the taxpayer. There the taxpayer claimed a deduction on his income tax from 1923 for a loss sustained in 1922 from the operation of his trade or business. The issue arose under § 204(a) and (b) of the Revenue Act of 1921, 42 Stat. c. 136, pp. 227, 231, which provided that the term “net loss” means only net losses resulting “from the operation of any trade or business regularly carried on by the taxpayer. * * *” The taxpayer, a lawyer, organized a number of corporations and enterprises. In 1911 he retired from the practice of law to give his entire time to the enterprises in which he was heavily interested. This court held that since he gave his entire time to the management of the particular business so organized by him he was entitled to the deductions claimed. In Snyder v. Commissioner, 295 U.S. 134, 55 S.Ct. 737, 79 L.Ed. 1351, the Supreme Court approved the rule that one who devotes the major portion of his time to speculating on the stock exchange may treat losses thus incurred as having been sustained in the course of a trade or business. In the present case the taxpayer neither alleged nor proved that he devoted a major portion of his time to the management of Charles Rosso, Inc. He did not retire from the practice of law until 1945. Neither is it shown that he devoted any particular share of his time to the management of the corporations in" }, { "docid": "10455670", "title": "", "text": "OPINION. Tuener : Our first question is whether or not the respondent erred in disallowing the net loss deduction claimed by the decedent on his returns for 1930 and 1931 as the result of the loss sustained by him in 1929 from the sale of real estate to Sears, Roebuck & Co. The deduction was disallowed by the respondent, first, on the ground that the loss was not sustained in a trade or business regularly carried on by the decedent and, second, on the ground that it represented a capital loss; which, under the terms of the statute, is deductible in computing a net loss only to the extent of capital gains. It is the contention of the petitioners that the decedent, during the year 1929, was regularly engaged in the business of buying, selling, and leasing real estate, and the loss, having been sustained in the sale of real estate, was attributable to the operation of that trade or business and was a net loss within the meaning of section 117 of the Revenue Act of 1928. A capital loss, by the terms of the statute, is a loss resulting from the sale or exchange of capital assets, and a capital asset is defined by section 101 (c) (8) of the Revenue Act of 1928 as “property held by the taxpayer for more than two years (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale in the course of his trade or business.” In our opinion the record definitely and clearly shows that the property sold to Sears, Roebuck & Co. was a capital asset within the meaning of section 101 (c) (8) mentioned above. There is no •question that the property had been held for more than two years. It was not stock in trade; neither was it property held by the" }, { "docid": "1599067", "title": "", "text": "of an estate. It is admitted by both parties that the determination of the Board was correct, unless the executor, or, as stated in the briefs of counsel, the “taxpayer estates,” was engaged in a trade or business within the meaning of that term as used in section 204(a) of the Revenue Act o-f 1921. The gross income for the petitioner during the year 1921 was $41,358.85, while his expenditures for that year were $64,943.25, leaving a net loss for the year 1921 of $23,-584.40. For the year 1922 the gross income received from the estate amounted to $21,-656.53, and the gross expenditures wore $7,-212.17, leaving a net income for 1922 of $14,-443.81. If the net loss sustained by the petitioner for the year 1921 is allowable as a deduction for the year 1922, then no deficiency tax was due for 1922. As above suggested, the solution of this question is dependent upon whether or not the executor was, during the years in question, engaged in a “trade or business,” within the meaning of section 204 of the Revenue Act of 1921 (42 Stat. 231). Section 204(a) of that act, among other things, provides as follows: “That as used in this section the term ‘net loss’ means only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer (including losses sustained from the sale or other disposition of real estate, machinery, and other capital assets, used in the conduct of such trade or business)” etc. Subdivision (b) of this section provides as follows: “If for any taxable year beginning after December 31, 1920, it appears upon the production of evidence satisfactory to the Commissioner that any taxpayer has sustained a net loss, the amount thereof shall be deducted from the net ineome of the taxpayer for the succeeding taxable year,” etc. Subdivision (e) of the section provides that: “The benefit of this section shall be allowed to the members of a partnership and the beneficiaries of an estate or trust, and to insurance companies subject to the tax imposed by section 243 or" }, { "docid": "1218784", "title": "", "text": "meaning “only net losses resulting from the operation of any trade or business regularly carried on by the taxpayer.” It appears that the purchase and sale of the house and lot in New Jersey was the only individual real estate transaction which appellant had conducted since the organization of the New York corporation. His regular business of buying and selling real estate was carried on through the corporation and not in his individual capacity. The question at once arises, therefore, whether he may deduct this loss, sustained in an individual transaction, from profits resulting in income from the operation of the corporation. While it is true that this was a one-man corporation, of which appellant owned the entire stock, it nevertheless was a separate and distinct corporate entity, and the business transacted in the name of the corpora^ tion was not the business of appellant but the business of the corporation, and as such entirely separate and distinct from the private affairs of appellant. The New Jersey ¡house and lot purchase and sale was a private individual transaction in no way connected with the corporation. It did not even represent a method adopted by appellant in transacting the business of the corporation. While real estate was in some instances purchased in the name of the appellant individually, it was in each instance, excepting in this one, conveyed to the corporation, and ultimately became a corporate transaction. It thus appears that the real estate business regularly carried on by the appellant was conducted through the corporation and not individually. It follows that the loss sustained in this individual transaction was not a loss occurring in appellant’s regular trade or business, but a loss sustained in a private transaction. J We are of opinion that appellant is not entitled to this deduction in view of the proper interpretation to be placed on section 204(a). The decision of the Board of Tax Appeals is affirmed, with costs." }, { "docid": "11815726", "title": "", "text": "Remand to the Tax Court “for the purpose of permitting introduction of further evidence to establish whether the Petitioner was engaged in the business of organizing, managing, and financing more than one corporation.” Attached to the motion is a Statement of Additional Facts which it is desired to put in evidence. These facts are that the taxpayer was at various times an officer and stockholder in three different corporations other than Charles Rosso, Inc., and to one of which he loaned money. The contention is that with this additional evidence in the record this case is controlled by the decisions in Washburn v. Commissioner, 8 Cir., 51 F.2d 949; Maloney v. Spencer, 9 Cir., 172 F.2d 638; Foss v. Commissioner, 1 Cir., 75 F.2d 326; and Vincent C. Campbell v. Commissioner, 11 T.C. 510. These cases do not support that contention. All are distinguishable on their facts. It is true that one may engage in more than one business at a time; ■ that he may engage in promoting and financing corporations, or in managing corporations, or farms or other enterprises as a business. But that is not this case. The taxpayer here sustained the losses in question from loans made to a corporation in whose business his sole interest was to protect a loan made to Charles Rosso. Such loans were not made to the corporation as his agent but to a corporation managed at the time the loans were made by his original debtor Rosso. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 78 L.Ed. 1348. The Washburn case, supra, is an illustration of the cases relied upon by the taxpayer. There the taxpayer claimed a deduction on his income tax from 1923 for a loss sustained in 1922 from the operation of his trade or business. The issue arose under § 204(a) and (b) of the Revenue Act of 1921, 42 Stat. c. 136, pp. 227, 231, which provided that the term “net loss” means only net losses resulting “from the operation of any trade or business regularly carried on by the" }, { "docid": "23654769", "title": "", "text": "business and still be entitled to the benefit of the statute. Oscar K. Eysenbach v. Commissioner of Internal Revenue, 10 B. T. A. 716; E. M. Elliott v. Commissioner of Internal-Revenue, 15 B. T. A. 494; Crane v. Commissioner of Internal Revenue, 17 B. T. A. 720. Under the Hughes Case, supra, one-fifth of' petitioner’s time was devoted to looking after his investments, and the court referred to that as his business of investment banking. Am isolated transaction in itself would not be a business regularly carried on, but it could well be a part of a general business. In Goldberg v. Commissioner of Internal Revenue, 59 App. D. C. 147, 36 F.(2d) 551 (the Court of Appeals of District of Columbia), the question discussed is whether Goldberg was entitled to a deduction within the meaning of section 204 (a) of the Revenue Act of 1921 resulting from loss sustained by the sale of a house and lot. The court found that this was a single, isolated business venture. His regular business of buying and selling real estate was carried on through a corporation. He owned the entire stock of the corporation, but it was a distinct entity, and the business of appellant was not the business of the corporation. The loss sustained in the individual transaction was held to have resulted from a private transaction andi not sustained in appellant’s regular trade or business. In Mente v. Eisner (C. C. A.) 266 F. 161, 11 A. L. R. 496, it was held that deductions incurred in trade -are limited to losses incurred in the actual business of the taxpayer as distinguished from isolated transactions, and do not include losses sustained through dealings on an exchange by one engaged in another business. In Pabst v. Lucas, Commissioner of Internal Revenue, 6 B. T. A. 843 (affirmed in 59 App. D. C. 154, 36 F.(2d) 614) petitioner’s business was that of pharmaceutical preparations, and an operating owner of and investor in mines. He claimed a loss under section 204 (a) by reason of an investment in a corporation to manufacture porch" } ]

[ { "docid": "19929166", "title": "", "text": "April 12, 2005, the District Court for the Middle District of Pennsylvania (Kane, J.) held a sentencing hearing. Defendant’s counsel continued to argue that the offense level calculation was erroneous for the reasons cited in his earlier motion, but made no argument concerning his various theories of downward departure, other than indirectly by reference to his prior brief. He alluded to Booker, although not by name, and argued for a lower sentence than that called for by the Guidelines. (App. at pp. 38-40). The District Court implicitly denied the motion to downwardly depart and stated that “I don’t think there’s any question in my mind that the proper offense level is that of 24, with a criminal history category 3. That would be a guideline range of 63 to 78 months.” (App. at p. 60). At sentencing the District Court made no specific reference to Booker or § 3553(a) factors, although the District Judge did state that “I’m not bound by the guidelines.” (App. at p. 63). Moreover, the District Judge did briefly discuss the character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a pro se brief in which he argued that: (1) the sentencing guideline enhancements were unconstitutional because they were not proven beyond a reasonable doubt; and (2) his counsel was ineffective. II. Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the District Court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting [.Anders ] brief.” Third Circuit L.A.R. 109.2(a). In considering counsel’s submission, we must examine: (1) “whether counsel adequately fulfilled the rule’s requirements;” and (2) “whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). To satisfy the Anders requirements counsel" } ]

[ { "docid": "22655601", "title": "", "text": "v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir.2008) (holding that the fact of removal must be admitted or proven beyond a reasonable doubt). The PSR calculated Flores’ total offense level at 21. This included a 16-level increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because she had previously been deported following a felony conviction for a crime of violence, specifically, a December 2000 Florida conviction for aggravated assault with a deadly weapon. It determined Flores’ criminal history score to be III, subjecting her to a guidelines range of 46 to 57 months of imprisonment. Flores did not object to the PSR’s calculations. The district court sentenced her at the low end of the guidelines range, 46 months, followed by a three-year period of supervised release. Flores timely appealed. II. The Federal Public Defender appointed to represent Flores has filed a motion for leave to withdraw and an Anders brief. Anders established standards for a court-appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an issue of arguable merit. After a “conscientious examination” of the case, the attorney must “request permission to withdraw” and submit a “brief referring to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. Flores was informed of counsel’s motion to withdraw but has not filed a response. At this point our current practice is to examine the brief submitted by counsel raising anything in the record that might arguably support an appeal, examine any points raised by the appellant himself, and independently examine the record, to determine whether counsel has adequately identified all nonfrivolous issues. We write in this case to signal a change in this court’s approach to Anders cases. Our analysis must start with the Supreme Court’s seminal decision in Anders v. California. In Anders, after the California District Court of Appeal had appointed counsel to conduct a first appeal to that court from an indigent’s conviction, counsel informed the court by letter that after a study of the record and consultation with the accused, he had concluded" }, { "docid": "22210228", "title": "", "text": "convicted. Sentencing guideline § 3B1.1 allows for a sentence enhancement based on the defendant’s role in the criminal activity. Contrary to the appellant’s argument, post-conviction conduct may be considered in determining a defendant’s role in the offense, if that post-conviction conduct is determined to be relevant conduct under the sentencing guidelines. The introductory commentary for section 3B1.1 instructs that “the determination of a defendant’s role in the offense is to be made on the basis of all conduct within the scope of 1B1.3 (Relevant Conduct) ... and not solely on the basis of elements and acts cited in the count of conviction.” U.S.S.G. § 3B1.1 introductory commentary. Also, this court has held that conduct which is the basis for an upward adjustment made pursuant to section 3B1.1 must be “anchored to the transaction, however we will take a common-sense view of just what the outline of that transaction is. It is not the contours of the offense charged that defines the outer limit of the transaction; rather it is the contours of the underlying scheme itself. All participation firmly based in that underlying transaction is ripe for consideration in adjudging leadership role.” United States v. Mir, 919 F.2d 940, 944 (5th Cir.1990). Mir points out that the introductory commentary of section 3B1.1 shows that section 3B1.1 is “intended to comport with other guideline sections allowing a sentencing judge to look beyond the narrow confines of the offense to consider all relevant conduct.” Id. at 945; see also, United States v. Montoya-Ortiz, 7 F.3d 1171, 1181 (5th Cir.1993). Therefore, in determining Ocana’s role in the offense the district court properly considered all transactions that it determined to be relevant conduct under the sentencing guidelines. The district court made a determination that the relevant conduct in the present case included the offenses involving Cervantes and Flores. In Part B, we affirmed the district court’s ruling regarding relevant conduct. Thus, as a matter of law the district court properly considered the post-conviction conduct when determining Ocana’s role in the offense. We review the district court’s fact-finding regarding role in the offense for clear" }, { "docid": "1917743", "title": "", "text": "or language. Where such qualifications are necessary and can be obtained only at rates in excess of the $75.00 cap, reimbursement above that limit is allowed. Pierce v. Underwood, 108 S.Ct. at 2554. Counsel for the Montoyas has pointed to two reasons for an upward departure: 1) that his knowledge of Spanish was necessary to the case, and 2) that after the Supreme Court’s decision in Caplin v. Drysdale, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989), civil and criminal forfeiture actions present unique problems for claimants’ counsel. See United States v. Certain Real Property Located at 2323 Charms Road, Milford Township, 728 F.Supp. 1326, 1329-30 (E.D.Mich.1990). The Montoyas have submitted the Declaration of Alan S. Fine, Esq. and Roberto Martinez, Esq. to support their request for an upward departure. The Government argues that with respect to the Montoyas, this litigation never reached the stage where counsel for the Montoyas had to demonstrate any particular expertise which would make an upward departure appropriate. The Government cites United States v. Willens, 731 F.Supp. 1579 (S.D.Fla.1990), to support its position. In that ease, Judge Spellman found that although counsel demonstrated that he had special expertise in a complex area of law, counsel had failed to show that the skill was necessary in that case in light of the legal questions presented and the brief length of the trial. Id. at 1581. In view of the prompt release of the Montoyas’ funds pursuant to the Government’s voluntary application of the lowest intermediate balance test set forth in Banco Cafetero, the Court finds that the expertise of counsel for the Montoyas was not a critical aspect of the litigation. In Plaintiffs Reply Memorandum of June 6, 1990, the Government agreed to apply the analysis of Banco Cafetero, which led to the release of all but $1,574.33 of the monies in the account. Given these circumstances, the Court finds that no upward departure is justified. Thus, it is ORDERED and ADJUDGED that the Montoyas’ application for attorney’s fees, expenses, and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 is" }, { "docid": "8665028", "title": "", "text": "constructive denial of counsel to appellants,” Zuluaga, 981 F.2d at 75, who are entitled to “a diligent and thorough review of the record and an identification of any arguable issues revealed by that review,” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). An inadequate Anders brief also harms defendants by failing to provide them with complete information about the basis for counsel’s motion to withdraw. Cf. United States v. Leyba, 379 F.3d 53, 54 (2d Cir.2004) (Defense counsel must also provide the client with a copy of the An-ders brief and “a letter informing the client that he or she has the right to file a pro se brief.” (internal quotation marks omitted)). Without such information, defendants cannot effectively respond to counsel’s claims and inform us of their objections to Anders motions. Cf. Campusano v. United States, 442 F.3d 770, 776 (2d Cir.2006) (“An Anders brief at least makes available to the defendant the best possible arguments supporting his appeal or the reasons why counsel believes no such arguments exist. Thus, if the defendant chooses to proceed pro se, he or she will do so with as much advice and assistance as his or her attorney can ethically provide.”); Leyba, 379 F.3d at 55-56 (noting that a defendant who cannot speak English is entitled to an explanation of the substance of counsel’s Anders brief). Accordingly, we hold that an An-ders brief should include a discussion of the reasonableness of a defendant’s sentence. Counsel should typically address both the substantive and procedural reasonableness of the sentence. “In the substantive dimension ... [counsel should explain] whether the length of the sentence is reasonable, focusing our attention on the district court’s explanation of its sentence in light of the factors detailed in 18 U.S.C. § 3553(a).” Sindima, 488 F.3d at 84 (internal quotation marks and citations omitted). With respect to procedural reasonableness, counsel should discuss “such factors as whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and" }, { "docid": "22655606", "title": "", "text": "requirement placed on counsel to “support his client’s appeal to the best of his ability”, Anders, 386 U.S. at 744, 87 S.Ct. 1396, and “to act with candor [to the court] in presenting claims for judicial resolution,” McCoy v. Court of Appeals [of Wisconsin], Dist. 1, 486 U.S. 429, 440, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Id. In addition to fully complying with Anders, counsel must provide a copy of his brief to the defendant and the brief should include in the Certificate of Service a statement that this requirement has been complied with. Anders, 386 U.S. at 744, 87 S.Ct. 1396. The brief in this case satisfies these standards. Flores’ brief covers every applicable item on the Checklist and Outline for Anders briefs for guilty pleas, applying each item to the facts of Flores’ proceedings and providing references to the record and citations to appropriate legal authority. The brief also addresses the propriety of a 16 level enhancement applied to Flores’ sentence for a prior crime of violence and whether the sentence was reasonable. Flores did not submit a brief after being informed of her counsel’s motion to withdraw. The Seventh Circuit has concluded that the appellate court reviewing a brief filed under Anders need not have its “law clerk or staff attorney ... scour the record for issues that the lawyer may have overlooked.” United States v. Wagner, 103 F.3d 551, 552 (7th Cir.1996). That practice “gives the indigent defendant more than he could expect had counsel (whether retained or appointed) decided to press the appeal, since counsel’s decision on which issues to raise on appeal would normally be conclusive.” Id. (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir.1996); and Sharp v. Puckett, 930 F.2d 450 (5th Cir.1991)). The Seventh Circuit first rejected an approach that attaches conclusive weight to the defendant’s failure to respond to an Anders motion, because “the defendant will ordinarily not be learned in the law” and “his failure to respond may reflect an inability to spot possible" }, { "docid": "2273910", "title": "", "text": "on the ground that the appeal lacks an arguable issue. After a “conscientious examination” of the case, the attorney must request permission to withdraw and must submit a “brief referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. at 1399. The attorney must isolate “possibly important issues” and must “furnish the court with references to the record and legal authorities to aid it in its appellate function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether the case is frivolous. Anders, 386 U.S. at 744, 87 S.Ct. at 1399-1400. Cordero’s lawyer has satisfied Anders sufficiently to trigger our obligation to examine the record. The attorney has briefed the question of whether Cordero’s convictions were based upon sufficient evidence; Corde-ro has not filed a response. The district court sustained two of Corde-ro’s objections to the presentence report (“PSR”). It reduced Cordero’s offense level to 26 because the quantity of marihuana attributed to Cordero by the probation officer was too large. The district court also determined that Cordero should not be assessed a two-level upward adjustment for his rule as a leader of the conspiracy. Cordero also argued that his offense level should be reduced because of his minor role in the conspiracy. Although the record does not contain a copy of the sentencing transcript, the district court apparently overruled this objection. As is discussed more fully above, Cordero negotiated for the delivery of several hundred pounds of marihuana and stood to profit substantially. “Review of sentences imposed under the guidelines is limited to a determination whether the sentence was imposed in violation of law, as a result of an incorrect application of the sentencing guidelines, or was outside of the applicable guideline range and was unreasonable.” United States v. Matovsky, 935 F.2d 719, 721 (5th Cir.1991) (citing 18 U.S.C. § 3742(e)). Findings of fact are reviewed for clear error. Id. The district court did not err by refusing to characterize Cordero’s" }, { "docid": "8640081", "title": "", "text": "part on United States v. Torres, 926 F.2d 321, 325 (3d Cir.1991), which held that evidence suppressed at trial for violation of the Fourth Amendment may later be considered in determining a defendant’s base offense level under the Guidelines. Robins, 978 F.2d at 891-92. We agree. Along this line, the Sentencing Guidelines provide that “the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). Montoya-Ortiz does not contend that there are insufficient indicia of reliability to support the probable accuracy of the evidence regarding the seized weapon. Accordingly, the district court did not err in considering the weapon for purposes of calculating Montoya-Ortiz’s offense level. 4. Montoya-Ortiz asserts that his base offense level should have been 38, based only on the 220 kilograms of cocaine seized on October 17, 1990. In the PSR, however, the probation officer found the level to be 40, based on 500-1,500 kilograms of cocaine. The district court overruled Montoya-Ortiz’s objections to being held accountable for more than the 220 kilograms. Montoya-Ortiz contends again that the district court erred in finding that he had participated in other extraneous cocaine-related offenses, and in using quantities of cocaine involved in those offenses to determine his base offense level. Finally, he contends, albeit for the first time on appeal, that the district court erred by failing to make a specific finding that quantities of cocaine other than the 220 kilograms for which he was convicted were reasonably foreseeable to him. We need not decide this issue, because even if the district court had considered only the 220 kilograms seized on October 17, We conclude that the same sentence would have been imposed. Accordingly, error, if any, in considering additional quantities of cocaine, and the lack of a finding on those additional quantities, was harmless. See United States v. Johnson, 961 F.2d 1188, 1189 (5th Cir.1992) (citing Williams v. United States, — U.S. -, -, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992)) (remand" }, { "docid": "22655604", "title": "", "text": "requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. Anders’s focus therefore is on defense counsel’s duty when he finds no arguable issue to present on appeal. More than thirty years ago, we directed counsel filing Anders briefs that “Anders requires counsel to isolate possibly important issues and to furnish the court with references to the record and legal authorities to aid it in its appellate function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir. 1976). As we recognized in another Anders case issued this same day, United States v. Garland, No. 09-50317, 632 F.3d 877, 2011 WL 311024 (5th Cir.2011), The Fifth Circuit’s website provides a detailed checklist and outline for Anders briefs for guilty pleas and for bench or jury trials. See http://www.ca5.uscourts. gov. The guidelines and checklist are under the “Attorney Information Section.” This checklist is designed to assist counsel in preparing a brief that will satisfy the standards of Anders in this circuit. Counsel obviously has broad discretion in the preparation of his brief. For example, he can cover the material set forth in the checklist in narrative form, or cut and paste the outline from the checklist and answer the questions called for in it. No particular form of brief is required. The point is that counsel should demonstrate that he has considered the issues set forth in the checklist to the extent they apply to her case. This will assist our review of the brief to determine whether it is adequate. Barring unusual circumstances in the proceedings, a brief submitted by an attorney considering the issues set forth in the checklist and addressing the areas of inquiry appropriate to his case will be facially adequate, meaning that it meets both the" }, { "docid": "950617", "title": "", "text": "emphasizing Dobson’s hope that, because he testified against Montoya, the government would move at Dobson’s sentencing for a downward departure and he would receive a lenient sentence. Thus, the evidence that he received these payments would have provided only cumulative impeachment, and the district court correctly denied Montoya’s motion for a new trial. See United States v. Gilbert, 668 F.2d 94, 96-97 (2d Cir.1981). II. Montoya also attacks his sentence. He argues that the district court improperly considered an attempted Florida marijuana buy in determining his offense level under the Guidelines. Because Montoya took the stand and broadly asserted that he had never engaged in drug dealing, the prosecution’s case included evidence of three additional drug transactions — a kilo of cocaine that Montoya provided to Garcia-Es-cobar for delivery in Michigan in February 1989, a kilo of cocaine found in Montoya’s car at the time of his arrest in Miami in January 1990, and 4,900 pounds of marijuana that Montoya negotiated to puchase in Lakeland, Florida in September 1989. Adopting the position taken in Montoya’s presentence report, the district court found that all of these transactions were part of the offense of conviction under U.S.S.G. § lB1.3(a)(2). The court then determined Montoya’s offense level to be 37 and sen tenced him to 215 months in prison followed by four years of supervised release. On appeal, Montoya contends that the marijuana negotiations were completely unrelated to the Omaha cocaine conspiracy and therefore should not have affected his sentence. Excluding this marijuana, Montoya’s offense level would be 33, producing a guideline imprisonment range of 135-168 months. Section lB1.3(a)(2) defines “Relevant Conduct,” that is, conduct to be considered in determining the guideline range. It specifically includes “all [of the defendant’s] acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” The commentary explains that, “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or" }, { "docid": "22660611", "title": "", "text": "the record in search of appealable issues, and (2) to explain why the issues are frivolous. Marvin, 211 F.3d at 780 (citing Tabb, 125 F.3d at 585, 586). Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the “conscientious examination” standard set forth in Anders. Id. In his Anders brief before this Court, counsel’s analysis of the merits of the potential appealable issues constituted two pages. With regard to sentencing, counsel’s examination cites no case law, and is limited to the following: The sentence imposed upon the appellant also appears to have been without legal error. Based upon the calculation that the applicable base offense level was 18, with a criminal history category I, the imposition of a sentence of imprisonment of 33 months fell within the applicable guideline range. Thus, there is simply no basis for concluding that the District Court’s sentencing decision constituted an abuse of discretion. Appellant’s Br. Pursuant to Anders v. California at 4. Counsel fails to mention that the Presentence Investigation Report (“PIR”) recommended an adjusted offense level of sixteen, nor does he explain the discrepancy between the District Court’s calculation and the PIR. Moreover, counsel does not examine the factual or legal bases for the three upward adjustments of fifteen levels that the District Court made in determining Youla’s sentence. The result was an increase in the guideline range of twenty-one to twenty-seven months recommended in the PIR to a range of twenty-seven to thirty-three months, and a sentence at the top of the latter range. In sharp contrast, Youla’s twenty-six page pro se brief presents three issues for appeal, two alleging errors in the District Court’s application of the Sentencing Guidelines. While the length of a brief does not necessarily determine the merit of its arguments, we do not believe that Youla’s counsel “mention[s] all the issues raised by his client and assure[s] us that he has considered them and found them patently without merit.” Marvin, 211 F.3d at 781. Moreover, Youla’s counsel has not specifically set forth why he abandoned any sentencing objections," }, { "docid": "23625431", "title": "", "text": "argues that the district court committed further procedural error on his § 841 convictions when it refused to deviate from the Sentencing Guidelines’ treatment of cocaine base relative to cocaine powder. The district court ruled that under then-operative Tenth Circuit law, it was “restricted to the calculation in the guidelines and [was] not free to impose its own view of what proportionality should be applied to correlations between cocaine powder and cocaine base.” Id. at 21. After the district court’s ruling, however, the Supreme Court held in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), that a district court is not bound by the Guidelines’ crack/powder distinctions when they produce a sentence that is “greater than necessary” to achieve the purposes set out in 18 U.S.C. § 3553(a), id. at 564. So while the district court was correct to say that it could not consider Mr. Montoya’s argument under our then-governing precedents, Kimbrough has since freed it to do so. Of course, the district court is under no obligation to adopt Mr. Montoya’s argument, but it must entertain it if his sentence is to qualify as procedurally reasonable today. We also note that, in calculating the advisory Guidelines sentence for Mr. Montoya’s § 841 convictions, the district court should use the now-operative version of § 2D1.1 of the Sentencing Guidelines. See United States v. Regalado, 518 F.3d 143, 150-51 (2d Cir.2008) (directing district court to consider amended Sentencing Guidelines when re-sentencing defendant on remand). Third and finally, Mr. Montoya claims he was entitled to a two-level aceeptance-of-responsibility reduction in the calculation of his advisory Guidelines sentence on the two § 841 counts. See U.S.S.G. § 3El.l(a). Mr. Montoya claims his acceptance of responsibility was established when his lawyer, in his opening statement at Mr. Montoya’s first trial, admitted his client’s guilt with respect to the possession counts with which he was charged and ultimately convicted. The district judge refused to award the two-level sentencing reduction, explaining that this was not an actual acceptance of responsibility but rather a “strategic decision by the defense” aimed" }, { "docid": "23625432", "title": "", "text": "to adopt Mr. Montoya’s argument, but it must entertain it if his sentence is to qualify as procedurally reasonable today. We also note that, in calculating the advisory Guidelines sentence for Mr. Montoya’s § 841 convictions, the district court should use the now-operative version of § 2D1.1 of the Sentencing Guidelines. See United States v. Regalado, 518 F.3d 143, 150-51 (2d Cir.2008) (directing district court to consider amended Sentencing Guidelines when re-sentencing defendant on remand). Third and finally, Mr. Montoya claims he was entitled to a two-level aceeptance-of-responsibility reduction in the calculation of his advisory Guidelines sentence on the two § 841 counts. See U.S.S.G. § 3El.l(a). Mr. Montoya claims his acceptance of responsibility was established when his lawyer, in his opening statement at Mr. Montoya’s first trial, admitted his client’s guilt with respect to the possession counts with which he was charged and ultimately convicted. The district judge refused to award the two-level sentencing reduction, explaining that this was not an actual acceptance of responsibility but rather a “strategic decision by the defense” aimed to preserve a chance of acquittal. M. Vol. XXXIV at 21. We review a district court’s determination not to allow a reduction for acceptance of responsibility for clear error, United States v. McAlpine, 32 F.3d 484, 489 (10th Cir.1994), and discern none here. We have held that “[w]hen a defendant is convicted at trial, a sentencing court’s determination that he has accepted responsibility is based primarily on pretrial statements and conduct.” United States v. Eaton, 260 F.3d 1232, 1237 (10th Cir.2001) (emphasis added); see also U.S.S.G. § 3E1.1 cmt. 2 (“This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial.... ”). In Eaton, the district court refused to award the defendant an acceptance-of-responsibility reduction even though the defendant had testified to his factual guilt at trial. We affirmed, explaining that the defendant’s mid-trial mea culpa was insufficient to establish the reduction and that there were no pretrial statements or conduct by the defendant to support the acceptance of responsibility determination. Eaton, 260 F.3d at" }, { "docid": "21389885", "title": "", "text": "whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citations omitted). Counsel indicated he could detect no “non-frivolous arguments that the district court erred in denying Mr. Kurtz’s Motion.” Aplt. Br. at 1. He therefore sought permission to withdraw. Counsel mailed a copy of his Anders brief to Mr. Kurtz, who filed a two-page response on January 19, 2016. II. DISCUSSION A. Standard of Review “The scope of a district court’s authority in a sentencing modification proceeding under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a § 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir.2013) (quotation, citation, and brackets omitted). When counsel submits an Anders brief,’ our review of the record is de novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir.2007) (per curiam) (“Under Anders, we have conducted an independent review and examination.”). B. Legal Background 1. 18 U.S.C. § 3582 and Amendment 759 “Generally, federal courts are prohibited from ‘modifying] a term of imprisonment once it has been imposed.’ ” Lucero, 713 F.3d at 1026 (quoting 18 U.S.C. § 3582(c)). But “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” district courts “may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they' are applicable.” § 3582(c)(2). Any reduction the court orders must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The policy statement that governs § 3582(c)(2) motions is § 1B1.10. Under that provision, a court considering a sentence-reduction motion “determined the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.”" }, { "docid": "18828263", "title": "", "text": "PER CURIAM: Alba Denis Zuluaga helped her boyfriend, Herson Hoyos, distribute cocaine. She pled guilty to one count of conspiracy to distribute and possess with intent to distribute between 400 and 500 grams of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C) (1988). Chief Judge Brieant sentenced her to fifty-one months imprisonment, three years of supervised release, a drug testing and treatment program, and a mandatory special assessment of fifty dollars. She appealed from this sentence. Her appeal was first dismissed as untimely but was subsequently reinstated. Thereafter, her counsel, appointed pursuant to the Criminal Justice Act, filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there were no non-frivolous grounds for reversal. Based on his brief, counsel has moved to be relieved, and the government has moved for summary affir-mance. We grant the motion to be relieved, deny the motion for summary affir-mance, and order the appointment of new counsel. The entire argument section of the An-ders brief reads as follows: An examination of the record herein reveals no rulings by the Court regarding evidentiary or other matters which might be pursued on appeal. The sentence received by the defendant was within the applicable guideline level and the level fixed was the one most favorable to the defendant. Such a sentence is unappealable. This brief conclusory statement does not fulfill counsel’s obligations under Anders, which requires that counsel conduct a “conscientious examination” of possible grounds for appeal and submit a “brief referring to anything in the record that might arguably support the appeal,” including references both to the record and to potentially applicable legal authorities. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. Counsel’s conclusory statement is inadequate under this standard. Nell v. James, 811 F.2d 100, 104 (2d Cir.1987) (requiring Anders briefs to evidence an independent and conscientious examination of the record). Counsel’s failure to submit a proper An-ders brief works two harms. First, it fails “to assist an appellate court ... in its review of a motion to affirm summarily a district" }, { "docid": "8640073", "title": "", "text": "an's failure to testify; nor does Montoya-Lujan expressly charge such intent. The comment complained of occurred during presentation of the Government's case-in-chief, prior to when Montoya-Lujan would have testified, had he elected to do so. Considering the context and timing of the question, we conclude that the jury would not naturally and necessarily have interpreted the question as a comment on Montoya-Lujan's failure to testi~r. Moreover, the district court instructed the jury, both in response to Montoya-Lujan's objection and in its charge, that Montoya-Lujan was not required to prove his innocence, that he had a right not to testify, and that the jury could not consider his failure to testify. Even assuming the prosecutor's remark could be interpreted as a comment on Montoya-Lujan's failure to testi~r, any harm resulting from the remark was cured by the court's instructions. See United States v. Dula,, 989 F.2d at 777. C. Both of the Appellants raise several issues regarding sentencing. We \"will uphold a sentence unless it was imposed in violation of law; imposed as a result of an incorrect application of the sentencing guidelines; or outside the range of the applicable sentencing guideline and is unreasonable.\" United States v. Haymer, 995 F.2d 550, 552 (5th Cir.1993) (quoting United States v. Howard, 991 F.2d 195, 199 (5th Cir.1993)). \"Errors of law in applying the Sentencing Guidelines are fully reviewable on appeal.\" United States v. Rocha, 916 F.2d at 242. But, \"findings of fact are entitled to considerable deference under the clearly erroneous standard of review.\" Id. See United States v. Robins, 978 F.2d 881, 889 (5th Cir.1992) (\"The clearly erroneous standard applies to the factual determination of what quantity of drugs is implicated by the crime under consideration by the sentencing court\"); United States v. Watson, 988 F.2d 544, 550 (5th Cir.1993) (\"We review a district court's finding that a defendant was an organizer or leader under the clearly erroneous standard\"). \"[T]he district court need only determine its factual findings at sentencing by a preponderance of the relevant and sufficiently reliable evidence\". United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991) (internal" }, { "docid": "17149775", "title": "", "text": "(10th Cir.1997). While “[a] defendant is entitled to an instruction on his theory of the case if the instruction is a correct statement of the law and if he has offered sufficient evidence for the jury to find in his favor,” McIntosh, 124 F.3d at 1337, Mr. Gonzalez-Montoya did not request a deliberate ignorance instruction. In fact, before closing arguments, defense counsel argued that such an instruction should not be given. See 3 R. at 229. In omitting the deliberate ignorance instruction, the trial court essentially complied with defense counsel’s wishes and punished the government for its inappropriate remarks. Mr. Gonzalez-Montoya also maintains that, in a broader sense, the jury was improperly instructed on the controlling principles of law. We consider jury instructions de novo to determine whether, as a whole, they correctly stated the governing law and provided the jury with a sufficient understanding of the relevant standards and issues. See Pacheco, 154 F.3d at 1238. Viewed in their entirety, the instructions informed the jury in the instant case that the government must prove knowledge and intent. We decline to order a new trial because of either the prosecutor’s misstatement of the deliberate ignorance standard or the court’s refusal to give a curative instruction. D. Safety Valve Provision Finally, Mr. Gonzalez-Montoya contends that he was improperly denied a two-level downward adjustment under the safety valve provision of the sentencing guidelines, 18 U.S.C. § 3553(f). We review the district court’s determination of a particular defendant’s eligibility for relief under § 3553(f) for clear error. See United States v. Roman-Zarate, 115 F.3d 778, 784 (10th Cir.1997); United States v. Acosta-Olivas, 71 F.3d 375, 377 n. 3 (10th Cir.1995). To the extent that district court interpreted the “scope and meaning” of 3553(f)(5), we review its legal interpretation de novo. See Acosta-Olivas, 71 F.3d at 377 n. 3. To override a mandatory minimum sentence, a defendant must prove that he meets all five requirements of the safety valve provision: (1) that he does not have more than one criminal history point under the sentencing guidelines; (2) that he did not use violence or" }, { "docid": "8640080", "title": "", "text": "DEA investigation were inaccurate or otherwise unreliable. Based on both the PSR and the evidence introduced at trial, we conclude that the district court did not clearly err in finding that Montoya-Ortiz occupied a leadership role in the offense. 3. Montoya-Ortiz contends that the district court erred by increasing his offense level by two levels, pursuant to U.S.S.G. § 2Dl.l(b)(l), for possession of a dangerous weapon. He does not dispute that, during a search following the stop near Balmorhea on October 17, a Ruger .357 Magnum pistol was found in the cab of the truck he was driving. Instead, he asserts that the district court was precluded from considering evidence of the weapon at sentencing, because it had suppressed evidence of the weapon at trial. Our court recently held that “[t]he exclusionary rule applicable to Fourth Amendment violations is generally inapplicable to the district court’s consideration of evidence for purposes of sentencing.” United States v. Robins, 978 F.2d at 891. Although the evidence about which Robins complained was not suppressed at trial, Robins relied in part on United States v. Torres, 926 F.2d 321, 325 (3d Cir.1991), which held that evidence suppressed at trial for violation of the Fourth Amendment may later be considered in determining a defendant’s base offense level under the Guidelines. Robins, 978 F.2d at 891-92. We agree. Along this line, the Sentencing Guidelines provide that “the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a). Montoya-Ortiz does not contend that there are insufficient indicia of reliability to support the probable accuracy of the evidence regarding the seized weapon. Accordingly, the district court did not err in considering the weapon for purposes of calculating Montoya-Ortiz’s offense level. 4. Montoya-Ortiz asserts that his base offense level should have been 38, based only on the 220 kilograms of cocaine seized on October 17, 1990. In the PSR, however, the probation officer found the level to be 40, based on 500-1,500 kilograms of cocaine." }, { "docid": "20165266", "title": "", "text": "local rules establish that ”[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically converted.” D.N.M.LRCiv. 56.1(b). Because D. Mitchell does not dispute the asserted facts, the Court will deem those facts admitted. Whether a fact is relevant is legal argument, which the Court will consider in its analysis section. See Wilson v. Jara, 866 F.Supp.2d at 1279, 2011 WL 5822729, at i:2(\"Whether this fact is relevant is a legal argument, and the Court will not address United States v. Abdendi [Abdenbi ] at this time, but will consider it in its legal analysis.”); Ruiz v. City of Brush, 2006 WL 1816454, at *4 (”[T]he 'sole purpose’ of the required statements of and responses to undisputed material facts is ‘to establish facts and determine which of them are in disputeQ] [l]egal argument should be reserved for separate portions of the brief.’ ”). . D. Mitchell disputes this fact and asserts that “Paralegal Brandon Cummings scanned some materials from attorney Mark Donatelli's file” and that “Dennis W. Montoya did not accompany him.” Response at 13 (citing Affidavit of Brandon Cummings (executed May 2, 2012), filed May 3, 2012 (Doc. 32-1)). Local rule 56.1(b) requires that any facts set forth in a motion for summary judgment must be “specifically controverted” or they will be deemed waived. D.N.M.LR-Civ. 56.1(b). The facts that D. Mitchell provides in his Response and the citations to Cummings’ affidavit do not specifically controvert the asserted fact that Mr. Montoya contacted Mr. Donatelli’s office and made arrangements to examine the state criminal file. Rather, D. Mitchell asserts that Cummings was the person who actually examined that file and says nothing about who contacted Mr. Donatelli. Because the Response does not specifically controvert the asserted fact that Mr. Montoya contacted Mr. Donatelli, the Court will deems this fact admitted. See D.N.M.LR-Civ. 56.1(b). . The Plaintiffs assert that: While at the office, Mr. Donatelli spoke to Mr. Montoya about the criminal case. Mr. Montoya indicated that he was planning to sue Officer Dennis O'Brien on Mitchell’s behalf for damages based on the incident that was the basis" }, { "docid": "16249023", "title": "", "text": "agreement to conspiracy to possess with intent to distribute 500 grams of cocaine, in violation of 21 U.S.C. § 846. Pineda-Lopez’s PSR determined that he had a base offense level under the sentencing guidelines of 21, after a 3-level downward adjustment based on acceptance of responsibility and a 2-level downward adjustment because he met the “safety valve” provision, 18 U.S.C. § 3553(f). Coupled with a criminal history category of I, Pineda-Lopez’s advisory guideline range was 37-46 months. At sentencing, the district court gave him the bottom of the range: 37 months. PinedaLopez’s trial counsel has filed an Anders brief seeking permission to withdraw on the basis that there are no non-frivolous arguments to be made on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pineda-Lopez did not respond to his counsel’s submission, and so we review the potential issues counsel has identified in his brief. See United States v. Garcia, 580 F.3d 528, 543 (7th Cir.2009). Counsel represents that Pineda-Lopez would challenge the reasonableness of his sentence by arguing that his 37-month term is unduly harsh in light of his limited involvement in the conspiracy and his lack of criminal history. Counsel claims that while Pineda-Lopez may view the sentence as harsh, it was well within the district court’s discretion to impose it, and points out that the sentence is at the bottom of the advisory guideline range. Therefore, counsel argues, Pineda-Lopez’s argument would be frivolous if raised on appeal. Having reviewed the record and counsel’s Anders brief, we agree. The court reviews the reasonableness of a sentence under an abuse of discretion standard. United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009). We apply a presumption of reasonableness to a sentence that reflects proper application of the guidelines. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Here, the sentence was reasonable. The district court properly calculated and considered the applicable Sentencing Guidelines range, did not clearly err in its factual findings, and imposed a sentence at the bottom of the range after considering the" }, { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" } ]

[ { "docid": "8630333", "title": "", "text": "can take temporary custody of children about whom they have received reports of abuse in order to guarantee their safety. See Hodorowski, 844 F.2d at 1217. Dearborne’s argument misconstrues the significance of our finding of nebulousness in Hodorowski-type cases. Cases claiming governmental interference with the right of family integrity are properly analyzed by placing them, on a case by case basis, along a continuum between the state’s clear interest in protecting children and a family’s clear interest in privacy. When the facts of a case place it in the center of the continuum where the two interests overlap and create a tension, the right to family integrity may properly be characterized as nebulous, and thus a defendant may claim the protection of qualified immunity.- However, when the facts of a case place it squarely on the end of the continuum where the state’s interest is negligible and where the family privacy right is well developed in jurisprudence from this circuit and the Supreme Court, a defendant’s defense of qualified immunity, based on a claim that the right to family integrity was not clearly established, will fail. Here, by contrast, we have neither child welfare investigators nor a temporary removal. Dearborne’s primary duty is to teach, not ferret out possible instances of abuse (even though she is, of course, required to report evidence of apparent abuse). Moreover, Plaintiffs allege that Dearborne fabricated the evidence of abuse in the first instance with no prior indication from any other source that abuse had occurred. Thus, although child welfare. agents who (over)zealously follow up independent reports of child abuse may not have been on notice in 1992 that their actions violate the constitutional right of the families involved, it can certainly come as no surprise to Dearborne, a teacher, that she was not free to manufacture from whole cloth evidence of sexual abuse. We therefore hold that Plaintiffs’ claims fall squarely within the well established constitutional right to family integrity and to be free of arbitrary, oppressive governmental action. Hilary’s three year stay in foster care, cut off from all contact with her father" } ]

[ { "docid": "5249785", "title": "", "text": "to penetrate the qualified immunity defense. See Frazier, 957 F.2d at 930. This challenge arises from two concerns: first, “the difficulty of alleging a right with sufficient particularity,” and second, “the qualified nature of all rights in this area.” Id. Indeed, it would not be enough “for a plaintiff to allege an abstract due process liberty interest in family relationships.” Id. Instead, “[t]he qualified immunity defense requires that the constitutional right be stated with particularity.” Id. The First Circuit has recognized a further problem with a right such as familial integrity. Under certain factual circumstances, determining whether the right to familial integrity has been violated requires a balancing test. In Frazier, the plaintiff alleged that the defendants had interfered with his parental relationship with his children by conducting improper investigations into the family sphere. See id. at 929. In particular, the plaintiff claimed that those involved with the investigation manipulated his children in order to produce false reports of sexual abuse. See id. In addressing his claim, the First Circuit acknowledged that “ ‘if the existence of a right or the degree of protection it warrants in a particular context is subject to a balancing test, the right can rarely be considered “clearly established,” at least in the absence of closely corresponding factual and legal precedent.’ ” Id. at 931 (quoting Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.1987)). The Court determined that the dimensions of the right to familial integrity had not yet been clearly defined; and that to the extent the right was well-defined, it was “not absolute but rather balanced against the governmental interest.” Id. at 929. With this in mind, the Court in Frazier decided that the plaintiff had failed to show that the investigations undertaken by defendants in response to allegations of abuse amounted to violations of his constitutional rights. Ultimately, the Court determined, that the “right to family integrity has not been so particularized as to put defendants on notice that their conduct was unlawful.” Id. The facts of this case are unlike those in Frazier. This Court is not faced with a" }, { "docid": "22253215", "title": "", "text": "396 (1982). Absent such notice, the official is excused from liability for money damages under the doctrine of qualified immunity. Anderson, 483 U.S. at 646, 107 S.Ct. 3034. If such notice exists, however, the inquiry proceeds. To determine the contours of a particular right at a given point in time, an inquiring court must look not only to Supreme Court precedent but to all available case law. See United States v. Lanier, 520 U.S. 259, 268-69, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir.1998). The Court has not yet spoken to the propriety vel non of the reasonable suspicion standard. Our own precedents are likewise inconclusive both as to the correctness of the standard and as to when (or under what circumstances) an officer’s belief that a child has been abused justifies him in taking temporary custody without a hearing. The closest of our cases is DeCosta v. Chabot, 59 F.3d 279 (1st Cir.1995) (per curiam). There, parents brought suit against a social worker charging a violation of their right to familial integrity during her investigation of possible child abuse. Id. at 280. We held that the social worker enjoyed qualified immunity, noting that she had acted on the grandmother’s statements about ongoing abuse' — statements later corroborated by the children themselves. Id. at 280-81. This is consistent with the “reasonable suspicion” standard, but the DeCosta court neither articulated a general legal rule governing such cases nor discussed the circumstances under which a state actor might take temporary custody of a child while probing charges of abuse. In Frazier, we upheld a grant of qualified immunity to social workers who had played a role in a family dispute. In so doing, we stated that a father’s right to the care, custody, and control of his children “can rarely be considered ‘clearly established’ ... in the absence of closely corresponding factual and legal precedent.” Frazier, 957 F.2d at 931 (citation omitted). But Frazier did not involve a situation in which a child was taken into temporary custody prior to a hearing, and we" }, { "docid": "19718891", "title": "", "text": "that the parent’s claimed right to a liberty interest in family integrity was not clearly established. 2 F.3d at 1417-18. There, state social workers conducted a four-month investigation after a physician reported suspected sexual abuse of a four-year-old girl. Id. at 1414. The father complied with the social worker’s demand that he have no contact with either his daughter or his son during the investigation. Id. The state court dismissed a civil “child-in-need-of-eare” proceeding following a hearing at which no evidence of physical abuse was presented, and at which there was evidence that the social workers had suppressed the results of reports indicating that no sexual abuse had occurred, misrepresented the findings in those reports, and given false information to the district attorney’s office in an effort to have the children taken from the temporary custody of their paternal grandparents. Id. at 1414-15. Suit was filed against the social workers, claiming that they interfered with the father’s fundamental liberty interest in the care and custody of his children, violated his constitutional right to be free from malicious prosecution, and violated the children’s privacy. Id. at 1415. Our court reversed the denial of the motion to dismiss, holding that the social workers were entitled to qualified immunity because preexisting law did not establish that they “should have known that their conduct violated the nebulous right of family integrity”. Id. at 1418. Doe cited with approval Frazier v. Bailey, 957 F.2d 920 (1st Cir.1992), which involved similar facts and allegations. There, the plaintiff alleged that a social worker interfered with his liberty interest in the care, custody, and management of his children by ignoring exculpatory evidence and by programming his children to falsely accuse him of sexual abuse. Id. at 925, 929. The First Circuit noted that, “[b]ecause th[e] [liberty] interest [in familial relationships] must always be balanced against the governmental interest involved, it is difficult, if not impossible, for officials to know when they have violated ‘clearly established’ law”. Id. at 931. It held that the defendants were entitled to qualified immunity, “[b]ecause the right to family integrity has not been" }, { "docid": "4140077", "title": "", "text": "removing children who may be abused. See Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.1987). Likewise, “[t]he right to family integrity clearly does not include a constitutional right to be free from child abuse investigations.” Watterson v. Page, 987 F.2d 1, 8 (1st Cir.1993). Violations of the right to family association are determined by a balancing of competing interests. Manzano v. South Dakota Dep’t of Social Servs., 60 F.3d 505 (8th Cir.1995). So, state officials who act to investigate or to protect children where there are allegations of abuse almost never act within the contours of “clearly established law.” See Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir.1992). Thus, it is no surprise that state officials who investigate allegations of child abuse and in so doing disrupt a family have been entitled to qualified immunity. See, e.g., Thomason v. SCAN Volunteer Services, 85 F.3d 1365 (8th Cir.1996); Manzano, 60 F.3d at 511; Watterson, 987 F.2d at 8; Frazier, 957 F.2d at 931; Myers, 810 F.2d at 1462; Backlund v. Barnhart, 778 F.2d 1386 (9th Cir.1985) (foster parents claim free exercise right to use corporal punishment). Here, the record is undisputed that Teresa (1) alleged abuse by her parents, (2) had bruises on her arm, (3) said she did not wish to return to her parents, and (4) threatened suicide. Monica also alleged abuse which was supported by the doctor’s exam. And, each girl alleged that they were not the only children abused by Holyland adults. (We do not conclude the record proves child abuse, in fact.) Under the circumstances, no clearly established right to family privacy has been shown to have been violated by the conduct of Defendants. This conclusion is so even if the investigation and custody determination procedures were not “textbook perfect.” See Manzano, 60 F.3d at 513 (citing Watterson, 987 F.2d at 8). As such, the district court should have granted the Defendant’s motion for summary judgment on these claims (as well as all others). In sum, we reverse the order denying Defendants summary judgment based on qualified immunity. We remand and instruct that the" }, { "docid": "8755421", "title": "", "text": "in familial integrity is limited by the compelling governmental interest in the protection of children — particularly where the children need to be ’protected from their own parents. See Myers, 810 F.2d at 1462. The right to familial integrity, in other words, does not include a right to remain free from child abuse investigations. Walterson v. Page, 987 F.2d 1, 8 (1st Cir.1993). The Due Process Clause of the Fourteenth Amendment prohibits the government from interfering in familial relationships unless the government adheres to the requirements of procedural and substantive due process. In determining whether the Crofts’ constitutionally protected interests were violated, we must balance the fundamental liberty interests of the family unit with the compelling interests of the state in protecting children from abuse. Whatever disruption or disintegration of family life the Croft’s may have suffered as a result of the county’s child abuse investigation does not, in and of itself, constitute a constitutional deprivation. Watterson, 987 F.2d at 8; see also Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir.1992). We realize there may be cases in which a child services bureau may be justified in removing either a child or parent from the home, even where later investigation proves no abuse occurred. However, a state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse. See Lehr, 463 U.S. at 254-56, 103 S.Ct. at 2990 (declaring liberty interests in preserving the family unit “are sufficiently vital to merit constitutional protection in appropriate cases ”) (emphasis added); accord Myers, 810 F.2d at 1462-63 (noting parental liberty interest in maintaining integrity of family unit is not a clearly established right where there is a “reasonable suspicion” abuse may have occurred). Our focus here is whether the information available to the defendants at the time would have created an objectively reasonable suspicion of abuse justifying the degree of interference with the Crofts’ rights as Chynna’s parents. Absent such reasonable grounds, governmental intrusions of this" }, { "docid": "5249784", "title": "", "text": "have believed his actions were lawful in light of clearly established law and the information the official possessed at the time of his allegedly unlawful conduct.’ ” Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir.1994) (quoting McBride v. Taylor, 924 F.2d 386, 389 (1st Cir.1991)). Therefore, in order to apply qualified immunity principles, two steps must be taken. First, the Court must determine “whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). “[A]s a predicate to the objective reasonableness inquiry, ‘a plaintiff must establish that a particular defendant violated the plaintiffs federally protected rights.’ ” Singer, 49 F.3d at 844 (quoting Febus-Rodriguez, 14 F.3d at 91). Second, plaintiffs must demonstrate that the right was clearly established at the time of the violation using the objective reasonableness test. See id. Within the context of family law, courts have found some difficulty in determining whether a constitutional right is clearly established to the degree necessary for a plaintiff to penetrate the qualified immunity defense. See Frazier, 957 F.2d at 930. This challenge arises from two concerns: first, “the difficulty of alleging a right with sufficient particularity,” and second, “the qualified nature of all rights in this area.” Id. Indeed, it would not be enough “for a plaintiff to allege an abstract due process liberty interest in family relationships.” Id. Instead, “[t]he qualified immunity defense requires that the constitutional right be stated with particularity.” Id. The First Circuit has recognized a further problem with a right such as familial integrity. Under certain factual circumstances, determining whether the right to familial integrity has been violated requires a balancing test. In Frazier, the plaintiff alleged that the defendants had interfered with his parental relationship with his children by conducting improper investigations into the family sphere. See id. at 929. In particular, the plaintiff claimed that those involved with the investigation manipulated his children in order to produce false reports of sexual abuse. See id. In addressing his claim, the First Circuit acknowledged that “ ‘if the" }, { "docid": "5249774", "title": "", "text": "raise one’s children have been deemed ‘essential.’ ” Id. (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). A First Circuit panel has explained that the Supreme Court recognizes a liberty interest in “familial integrity” that is fundamental; yet it remains abstract. Frazier, 957 F.2d at 929 (discussing Stanley, 405 U.S. at 651, 92 S.Ct. 1208, Prince v. Massachusetts, 321 U.S. 158, 165-66, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and Meyer, 262 U.S. at 399, 43 S.Ct. 625). Although the right to familial integrity is abstract and fundamental in terms of its broad application, this Court has established that, within the general right to familial integrity, there is a more specific liberty interest in a parent’s control, custody and care of his or her children. See Wojcik v. Town of North Smithfield, 874 F.Supp. 508, 520 (D.R.I.1995). This Court has warned that the Constitution will not tolerate abusive removals of children from their parents: “it would ... assuredly [offend the constitution] if children were taken away from their parents without due process.” Id. However, both this Court and the First Circuit have “never recognized the right to familial integrity as absolute or unqualified.” Frazier, 957 F.2d at 929 (citing Lehr, 463 U.S. at 256, 103 S.Ct. 2985); see Wojcik, 874 F.Supp. at 520. The next appropriate step for this Court, then, is to find where the constitutional line has been drawn. One’s interest in maintaining the integrity of one’s own family may be limited by a compelling governmental interest in the protection of the children. See Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir.1997); Charron v. Picano, 811 F.Supp. 768, 774 (D.R.I.1993). Several Circuit Courts have identified the point at which the state’s interest in protecting a child becomes so great as to warrant removal prior to a court order. Where an objectively reasonable basis exists for believing that parental custody constitutes a threat to a child’s health or safety, the Second Circuit has held that “government officials may remove a child from his or her parents’" }, { "docid": "22253217", "title": "", "text": "were careful to refrain from pronouncing any rule applicable to that specific circumstance. So too Watterson, 987 F.2d at 8, in which we held simply that a case worker is not liable for violating the right to familial integrity merely because he conducts a child abuse investigation. Several years elapsed between the dates on which Frazier and Watterson were decided and the date on which Brown took temporary custody of the appellant’s son. During that interval, an emerging body of decisional law outside our own circuit has shed a brighter light on the contours of the constitutional right asserted by the appellant. Although our sister circuits have reached different conclusions on the constitutional standard to be applied when a state actor takes a child into temporary custody, those decisions share a common denominator: at an irreducible minimum, a case worker must have no less than a reasonable suspicion of child abuse (or imminent danger of abuse) before taking a child into custody prior to a hearing. See Brokaw, 235 F.3d at 1019; Croft, 103 F.3d at 1126; Thomason, 85 F.3d at 1373; Manzano, 60 F.3d at 511; see also Mabe v. San Bernardino County, 237 F.3d 1101, 1106-09 (9th Cir.2001) (elevating the suspicion needed to a level akin to probable cause); Wallis, 202 F.3d at 1138 (adding the requirement that case workers pursue reasonable avenues of investigation before depriving parents of custody). Recent district court decisions have hewed to the same line. E.g., Strail v. DCYF, 62 F.Supp.2d 519, 530 (D.R.I.1999); Hebein ex. rel. Berman v. Young, 37 F.Supp.2d 1035, 1044 (N.D.Ill.1998). Given the widespread agreement that has developed as to the applicable legal regime, we conclude that, in the spring of 2000, an objectively reasonable case worker surely would have believed that taking temporary custody of a child prior to a hearing would violate the parents’ interest in the child’s care, custody, and control if he acted without a reasonable suspicion of child abuse (actual or imminent). That conclusion has important implications for this case: since clearly established law gave reasonable warning to Brown that he risked liability for" }, { "docid": "4140076", "title": "", "text": "64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). To prevail on a claim about family privacy, parents need to prove that a state actor interfered with a protected liberty interest without sufficient justification. This constitutional tort requires no element of intent. For example, no showing need be made that the state official acted out of a hostility toward the family unit or toward protected religious behavior engaged in by the family. Cf. Canas-Segovia v. INS, 902 F.2d 717, 723 n. 12 (9th Cir.1990), vacated on other grounds, 502 U.S. 1086, 112 S.Ct. 1152, 117 L.Ed.2d 401 (1992) (observing that equal protection cases are different from freedom of religion cases because equal protection cases “require[] proof of discriminatory intent”). So, as we have discussed in note 5, the qualified immunity question on this claim is whether any reasonable officer (that is, one without hostility toward Plaintiffs’ religion or family) could have acted as these Defendants acted without violating federal law. Family relationships are an area of state concern, and the state has a compelling interest in removing children who may be abused. See Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.1987). Likewise, “[t]he right to family integrity clearly does not include a constitutional right to be free from child abuse investigations.” Watterson v. Page, 987 F.2d 1, 8 (1st Cir.1993). Violations of the right to family association are determined by a balancing of competing interests. Manzano v. South Dakota Dep’t of Social Servs., 60 F.3d 505 (8th Cir.1995). So, state officials who act to investigate or to protect children where there are allegations of abuse almost never act within the contours of “clearly established law.” See Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir.1992). Thus, it is no surprise that state officials who investigate allegations of child abuse and in so doing disrupt a family have been entitled to qualified immunity. See, e.g., Thomason v. SCAN Volunteer Services, 85 F.3d 1365 (8th Cir.1996); Manzano, 60 F.3d at 511; Watterson, 987 F.2d at 8; Frazier, 957 F.2d at 931; Myers, 810 F.2d at 1462; Backlund v. Barnhart, 778 F.2d 1386" }, { "docid": "22253216", "title": "", "text": "of their right to familial integrity during her investigation of possible child abuse. Id. at 280. We held that the social worker enjoyed qualified immunity, noting that she had acted on the grandmother’s statements about ongoing abuse' — statements later corroborated by the children themselves. Id. at 280-81. This is consistent with the “reasonable suspicion” standard, but the DeCosta court neither articulated a general legal rule governing such cases nor discussed the circumstances under which a state actor might take temporary custody of a child while probing charges of abuse. In Frazier, we upheld a grant of qualified immunity to social workers who had played a role in a family dispute. In so doing, we stated that a father’s right to the care, custody, and control of his children “can rarely be considered ‘clearly established’ ... in the absence of closely corresponding factual and legal precedent.” Frazier, 957 F.2d at 931 (citation omitted). But Frazier did not involve a situation in which a child was taken into temporary custody prior to a hearing, and we were careful to refrain from pronouncing any rule applicable to that specific circumstance. So too Watterson, 987 F.2d at 8, in which we held simply that a case worker is not liable for violating the right to familial integrity merely because he conducts a child abuse investigation. Several years elapsed between the dates on which Frazier and Watterson were decided and the date on which Brown took temporary custody of the appellant’s son. During that interval, an emerging body of decisional law outside our own circuit has shed a brighter light on the contours of the constitutional right asserted by the appellant. Although our sister circuits have reached different conclusions on the constitutional standard to be applied when a state actor takes a child into temporary custody, those decisions share a common denominator: at an irreducible minimum, a case worker must have no less than a reasonable suspicion of child abuse (or imminent danger of abuse) before taking a child into custody prior to a hearing. See Brokaw, 235 F.3d at 1019; Croft, 103 F.3d" }, { "docid": "22240690", "title": "", "text": "reasonable law enforcement official would recognize that C.A.’s pre-hearing, pre-in-vestigation seizure violated the Fourth Amendment. See, e.g., Good, 891 F.2d at 1094-95 (denying defendants’ claim of qualified immunity because a reasonable person should have known that warrant-less search was unconstitutional given that allegations of neglect would not cause a reasonable person to believe the child was in imminent danger of serious bodily injury); Franz v. Lytle, 997 F.2d 784, 791-92 (10th Cir.1993) (no reasonable officer would believe that he could visually and physically inspect two-year old child’s vagina based on one complaint that the child had a severe diaper rash). Therefore, while the facts ultimately may not support these claims, at this stage we must reject the defendants’ qualified immunity defense. In closing our discussion of qualified immunity, we note that several circuit courts have concluded that because the balance between a child’s liberty interest in familial relations and a state’s interest in protecting the child is nebulous at best, social workers and other state actors who cause a child’s removal are entitled to qualified immunity because the alleged constitutional violation will rarely — if ever — be clearly established. See, e.g., Kiser v. Garrett, 67 F.3d 1166, 1169-74 (5th Cir.1995); Hodorowski v. Ray, 844 F.2d 1210, 1216-17 (5th Cir.1988); Tenenbaum v. Williams, 193 F.3d 581, 595-96 (2d Cir.1999); Doe v. State of Louisiana, 2 F.3d 1412, 1416-21 (5th Cir.1993); Frazier v. Bailey, 957 F.2d 920, 929-31 (1st Cir.1992). While we agree that that is generally the case, see e.g., Landstrom v. Illinois Dept. of Children and Family Serv., 892 F.2d 670, 674-78 (7th Cir.1990); Darryl H. v. Coler, 801 F.2d 893, 907-08 (7th Cir.1986), as noted above, some governmental actions are so clearly beyond the pale that a reasonable person should have known of their unconstitutionality even without a closely analogous case. Thus, [cjases claiming governmental interference with the right of family integrity are properly analyzed by placing them, on a case by case basis, along a continuum between the state’s clear interest in protecting children and a family’s clear interest in privacy. When the facts of a case" }, { "docid": "23539385", "title": "", "text": "may be a due process right of “familial integrity” of some dimensions, the dimensions of this right have yet to be clearly established. Moreover, to the extent it is well-defined, the liberty interest is not absolute but rather balanced against the governmental interest, in such circumstances we find that Frazier has failed to show that the steps taken by Stevens and Flinker in responding to the allegations of sexual abuse “violated the nebulous right of family integrity.” Hodorowski, 844 F.2d at 1217. Because the right to family integrity has not been so particularized as to put defendants on notice that their conduct was unlawful, Stevens and Flinker are entitled to qualified immunity as a matter of law. We also affirm the grant of summary judgment in favor of CAFS and MSPCC. Though plaintiff never adequately alleges a cause of action against CAFS and MSPCC, it can be assumed that the only possible liability of the two agencies would derive from the culpability of their respective employees. Because we find that Stevens and Flinker were entitled to a defense of qualified immunity as a matter of law, we find no basis for recovery against the agencies. II. STATE LAW CLAIMS Frazier appeals the grant of summary judgment in favor of Dr. Bailey and Dr. Gelinas on the state law claims of negligence, gross negligence, and defamation. He also appeals the grant of summary judgment in favor of Dr. Bailey on the Massachusetts Civil Rights claim. He argues that the district court improperly held that Dr. Bailey and Dr. Gelinas were entitled to absolute immunity as a matter of state law. A. Dr. Gelinas Though it is unclear from his brief, Frazier apparently alleges that Dr. Gelinas acted improperly in counselling his children, in communicating to the DSS and various law enforcement officials, and in testifying before a grand jury. Frazier alleges various torts including: negligence, gross negligence, defamation, and intentional infliction of emotional distress. He also alleges a violation of the MCRA. Under state law, communications made in the “ 'institution or conduct of litigation or in conferences and other communications" }, { "docid": "19718892", "title": "", "text": "from malicious prosecution, and violated the children’s privacy. Id. at 1415. Our court reversed the denial of the motion to dismiss, holding that the social workers were entitled to qualified immunity because preexisting law did not establish that they “should have known that their conduct violated the nebulous right of family integrity”. Id. at 1418. Doe cited with approval Frazier v. Bailey, 957 F.2d 920 (1st Cir.1992), which involved similar facts and allegations. There, the plaintiff alleged that a social worker interfered with his liberty interest in the care, custody, and management of his children by ignoring exculpatory evidence and by programming his children to falsely accuse him of sexual abuse. Id. at 925, 929. The First Circuit noted that, “[b]ecause th[e] [liberty] interest [in familial relationships] must always be balanced against the governmental interest involved, it is difficult, if not impossible, for officials to know when they have violated ‘clearly established’ law”. Id. at 931. It held that the defendants were entitled to qualified immunity, “[b]ecause the right to family integrity has not been so particularized as to put defendants on notice that then-conduct was unlawful”. Id. As stated, Kiser asserts that because Doe was a qualified immunity case, it should be distinguished in its application to the present controversy, pursuant to his erroneous claim that immunity was waived. But, as also stated, we have rejected that waiver contention; we cannot distinguish Doe on that basis. Indeed, Doe is indistinguishable; the amorphous right to family integrity was no more clearly defined in late 1991 and the first half of 1992, when DHS investigated Cody’s injuries, than it was when the conduct at issue in Doe took place in the latter part of 1990. Kiser also urges us to re-examine our holding in Doe, in light of Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir.) (en banc), cert. denied, — U.S. -, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). Kiser maintains that Doe v. Louisiana’s “stern approach” to the substantive due process right asserted in that case is contradicted by Taylor, because both cases involve equally appalling" }, { "docid": "5249786", "title": "", "text": "existence of a right or the degree of protection it warrants in a particular context is subject to a balancing test, the right can rarely be considered “clearly established,” at least in the absence of closely corresponding factual and legal precedent.’ ” Id. at 931 (quoting Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.1987)). The Court determined that the dimensions of the right to familial integrity had not yet been clearly defined; and that to the extent the right was well-defined, it was “not absolute but rather balanced against the governmental interest.” Id. at 929. With this in mind, the Court in Frazier decided that the plaintiff had failed to show that the investigations undertaken by defendants in response to allegations of abuse amounted to violations of his constitutional rights. Ultimately, the Court determined, that the “right to family integrity has not been so particularized as to put defendants on notice that their conduct was unlawful.” Id. The facts of this case are unlike those in Frazier. This Court is not faced with a challenge to the methods used by the state actors to investigate allegations of abuse. Rather, plaintiffs’ challenge strikes at the substantive weight of the evidence known to the state officials when Natalia and Sarah were separated from their parents. Plaintiffs’ frontal attack is a basic one: did the evidence known to DCYF justify the removals? This Court explained in Wojcik that the Constitution would be offended if “children were taken away from their parents without due process.” Wojcik, 874 F.Supp. at 520. It is within this narrow band that the right to familial integrity is clearly established. As far as a parent’s right to the care, custody, and management of a child is concerned, a parent has the right not to have his or her child removed without sufficient investigation and credible information supporting a reasonable suspicion that abuse has occurred or will occur imminently. III. Application of the Facts to the Legal Standards A. Natalia’s claim The first question this Court must address regarding Natalia’s removal is whether the conduct about which plaintiffs complain" }, { "docid": "22240692", "title": "", "text": "place it in the center of the continuum where the two interests overlap and create a tension, the right to family integrity may properly be characterized as nebulous, and thus a defendant may claim the protection of qualified immunity. However, when the facts of a case place it squarely on the end of the continuum where the state’s interest is negligible and where the family privacy right is well developed in jurisprudence from this circuit and the Supreme Court, a defendant’s defense of qualified immunity, based on a claim that the right to family integrity was not clearly established, will fail. Morris, 181 F.3d at 671. Here we do not know enough facts to determine where along the continuum this case falls. And given the role of specific facts, “[i]t is impossible to know which clearly established rules of law to consult unless you know what is going on.” Elliott v. Thomas, 937 F.2d 338, 342 (7th Cir.1991). Accordingly, at this time, we cannot conclude that the individual defendants are entitled to qualified immunity because the facts once uncovered may turn out to be so severe and obviously wrong that the defendants should have known they were violating C.A.’s constitutional rights. See, e.g., Good, 891 F.2d 1087. C. Section 1985(3) C.A. also seeks recovery under Section 1985(3). Section 1985(3) provides in relevant part: “If two or more persons in any state or Territory conspire ... for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.” 42 U.S.C. § 1985(3). “A plaintiff raising a claim under § 1985(3) must allege (1) the existence of a conspiracy, (2) a purpose of depriving a person or class of persons of equal protection of the laws, (3) an act in furtherance of the alleged conspiracy, and (4) an injury to person or property or a deprivation of a right or privilege granted" }, { "docid": "14628358", "title": "", "text": "Their Families, 274 F.3d 12, 19 (1st Cir.2001). Qualified immunity is “ ‘an entitlement not to stand trial or face the other burdens of litigation,’ ” and, as such, it must be considered early in the litigation. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). A three-part test is used to determine if an official is entitled to qualified immunity. First, a court considers whether “the plaintiffs allegations, if true, establish a constitutional violation.” Suboh v. Dist. Atty’s Office, 298 F.3d 81, 90 (1st Cir.2002). Second, we determine whether the right was clearly established at the time of the alleged violation. Id. Finally, we determine “whether a reasonable officer, similarly situated, would understand that the challenged conduct violated that established right.” Id. The answer to each inquiry must be positive to overcome a defense of qualified immunity. Hatch, 274 F.3d at 20. The first inquiry, whether or not the alleged facts establish a constitutional violation, is a question of law. Id. In seeking to overcome a qualified immunity, defense, it is insufficient for a plaintiff to merely allege a violation of “familial integrity”; rather, he must specify the rights that have been interfered with. Frazier, 957 F.2d at 930. Here, Kauch claims that Benjamin violated his substantive due process rights in the care, custody, companionship, and management of his children. This right, “among the most venerable of the liberty interests embedded in the Constitution,” is protected by the Due Process Clause. Hatch, 274 F.3d at 20. The question, therefore, is whether Benjamin’s actions establish a constitutional violation. There is no constitutional right to be free from child abuse investigations. Hatch, 274 F.3d at 20. Case workers must walk a fine line between respecting the rights of parents and protecting children, and often are required to make decisions on the basis of limited and conflicting information. See id. at 22. We have held that a case worker may take temporary custody of a child without a hearing, “when the case" }, { "docid": "22253208", "title": "", "text": "qualified immunity inquiry. See Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In this vein, the law recognizes that the protection afforded to the parents’ interest must be balanced against other valid interests, particularly the best interests of the child and the interest of society in the maturation of children as future citizens. See Frazier v. Bailey, 957 F.2d 920, 929-30 (1st Cir.1992). Thus, the state may freely investigate allegations of child abuse, Watterson v. Page, 987 F.2d 1, 8 (1st Cir.1993), and if, as a result, it develops clear and convincing evidence of parental unfitness, it may move to terminate the relationship between parent and child. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). As an interim measure, the state may separate the child from the parent, prior to a hearing, for cause shown. See Cecere v. City of New York, 967 F.2d 826, 829 (2d Cir.1992). The appellant’s proposed amended complaint focuses on such a temporary custodial interruption: Brown’s decision to take John into state custody prior to obtaining a Family Court order. The Court has not had occasion to formulate the contours of the constitutional rule under which a state official lawfully may take temporary custody of a child during an investigation of abuse or neglect, nor has this court dealt definitively with the issue. Other courts have grappled with it, however, and most of them have concluded that a case worker — we use that term generically — may place a child in temporary custody when he has evidence giving rise to a reasonable and articulable suspicion that the child has been abused or is in imminent peril of abuse. See, e.g., Brokaw v. Mercer County, 235 F.3d 1000, 1019 (7th Cir.2000); Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir.1997); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996); Manzano v. S.D. Dep’t of Soc. Servs., 60 F.3d 505, 511 (8th Cir.1995). The justification for such a rule is easily grasped: where a state official has" }, { "docid": "15372800", "title": "", "text": "49 (2000). These cases cover a range of issues, from constraints on a state's power to mandate compulsory public education, Meyer, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, to constraints on a state's ability to mandate grandparent visitation rights, Troxel, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49. There is a danger in the use of broad abstract terms such as \"familial integrity\". The Supreme Court has warned against using generalized definitions of constitutional rights in the qualified immunity setting. Anderson, 483 U.S. at 639, 107 S.Ct. 3034. This court, in Frazier v. Bailey, 957 F.2d 920, 929-30 (1st Cir.1992), held that it is not sufficient for a plaintiff to allege an abstract due process liberty interest in family relationships. The qualified immunity defense requires that the \"familial integrity\" right asserted be stated with particularity. Id.; see also Hatch, 274 F.3d at 20. Putting aside notions of generalized \"familial integrity,\" there are, more pertinently, much more narrow interests that are at stake here. To begin, \"[t]he interest of parents in the care, custody, and control of their children is among the most venerable of the liberty interests embedded in the Constitution.\" Hatch, 274 F.3d at 20; see also Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir.1997) (recognizing \"the constitutionally protected liberty interests that parents have in the custody, care and management of their children\"); Jordan v. Jackson, 15 F.3d 333, 342 (4th Cir.1994) (\"The state's removal of a child from his parents indisputably constitutes an interference with a liberty interest of the parents and thus triggers the procedural protections of the Fourteenth Amendthent.\"); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.1990) (\"[The plaintiff] clearly does have a protectible liberty interest in the care and custody of his children.\"); Hooks v. Hooks, 771 F.2d 935, 941 (6th Cir.1985) (\"It is well-settled that parents have a liberty interest in the custody of their children.\") The child has a similar liberty interest in being in the care and custody of her parents. See Brokaw v. Mercer County, 235 F.3d 1000," }, { "docid": "22240691", "title": "", "text": "immunity because the alleged constitutional violation will rarely — if ever — be clearly established. See, e.g., Kiser v. Garrett, 67 F.3d 1166, 1169-74 (5th Cir.1995); Hodorowski v. Ray, 844 F.2d 1210, 1216-17 (5th Cir.1988); Tenenbaum v. Williams, 193 F.3d 581, 595-96 (2d Cir.1999); Doe v. State of Louisiana, 2 F.3d 1412, 1416-21 (5th Cir.1993); Frazier v. Bailey, 957 F.2d 920, 929-31 (1st Cir.1992). While we agree that that is generally the case, see e.g., Landstrom v. Illinois Dept. of Children and Family Serv., 892 F.2d 670, 674-78 (7th Cir.1990); Darryl H. v. Coler, 801 F.2d 893, 907-08 (7th Cir.1986), as noted above, some governmental actions are so clearly beyond the pale that a reasonable person should have known of their unconstitutionality even without a closely analogous case. Thus, [cjases claiming governmental interference with the right of family integrity are properly analyzed by placing them, on a case by case basis, along a continuum between the state’s clear interest in protecting children and a family’s clear interest in privacy. When the facts of a case place it in the center of the continuum where the two interests overlap and create a tension, the right to family integrity may properly be characterized as nebulous, and thus a defendant may claim the protection of qualified immunity. However, when the facts of a case place it squarely on the end of the continuum where the state’s interest is negligible and where the family privacy right is well developed in jurisprudence from this circuit and the Supreme Court, a defendant’s defense of qualified immunity, based on a claim that the right to family integrity was not clearly established, will fail. Morris, 181 F.3d at 671. Here we do not know enough facts to determine where along the continuum this case falls. And given the role of specific facts, “[i]t is impossible to know which clearly established rules of law to consult unless you know what is going on.” Elliott v. Thomas, 937 F.2d 338, 342 (7th Cir.1991). Accordingly, at this time, we cannot conclude that the individual defendants are entitled to qualified immunity because" }, { "docid": "5249773", "title": "", "text": "Pittsley v. Warish, 927 F.2d 3, 8 (1st Cir.1991) (discussing many cases). The First Circuit, like most courts which have recognized a protected right to familial association, has resisted doing so except “where the plaintiffs have alleged a permanent, physical loss of association of an immediate family member as a result of unlawful state action.” Id. at 7. In the case sub judice, although plaintiffs allege two physical removals of immediate family members, these separations cannot, by any stretch of the legal imagination, be viewed as permanent. Therefore, neither loss amounts to a violation of plaintiffs’ rights to familial association. Although the right to familial association only finds protection when the loss is a permanent one, the Supreme Court has afforded protection against temporary deprivations in the parent-child relationship as part of the right to familial integrity. The Supreme Court has long recognized the importance of maintaining the integrity of the family. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In particular, “[t]he rights to conceive and to raise one’s children have been deemed ‘essential.’ ” Id. (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). A First Circuit panel has explained that the Supreme Court recognizes a liberty interest in “familial integrity” that is fundamental; yet it remains abstract. Frazier, 957 F.2d at 929 (discussing Stanley, 405 U.S. at 651, 92 S.Ct. 1208, Prince v. Massachusetts, 321 U.S. 158, 165-66, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and Meyer, 262 U.S. at 399, 43 S.Ct. 625). Although the right to familial integrity is abstract and fundamental in terms of its broad application, this Court has established that, within the general right to familial integrity, there is a more specific liberty interest in a parent’s control, custody and care of his or her children. See Wojcik v. Town of North Smithfield, 874 F.Supp. 508, 520 (D.R.I.1995). This Court has warned that the Constitution will not tolerate abusive removals of children from their parents: “it would ... assuredly [offend the constitution] if children were taken away from their" } ]

[ { "docid": "22220526", "title": "", "text": "than bias. This is different, of course, from a case where a party has filed a series of fraudulent lawsuits and there is substantial evidence that the prior lawsuits amounted to a fraudulent pattern, evidence lacking here. So saying, we recognize that there are a few cases permitting cross-examination concerning “[prejudice toward a group,” even without reference to the witness’s specific prejudice against a particular witness or party. See United States v. Kartman, 417 F.2d 893, 897 (9th Cir.1969) (reversing conviction of anti-draft demonstrator for, inter alia, denial of opportunity to cross-examine arresting officer, an ex-Marine, as to bias to anti-draft demonstrators as a group) (citing Jacek v. Bacote, 135 Conn. 702, 68 A.2d 144, 146 (1949) (plaintiff’s witness cross-examined as to prejudice against Negroes, defendant being a Negro); Magness v. State, 67 Ark. 594, 50 S.W. 554, 59 S.W. 529 (1899) (prosecution witness cross-examined as to expression of hatred against Africans); see also People v. Christie, 2 Abb.Pr. 256, 259, 2 Park.Cr. R. 579, 583 (N.Y.S.Ct. 1st D.1855) (witness cross-examined on membership in secret society); United States v. Lee Huen, 118 F. 442, 463 (N.D.N.Y.1902) (no presumption of witness bias in favor of defendant of same nationality) (dictum)). These cases fall within the general rubric that “a partiality of mind is ... always relevant as discrediting the witness and affecting the weight of his testimony.” See 3A Wig-more on Evidence § 940, at 775 (Chad-bourn rev. 1970). But, while it may have some relevance, there are still limitations on this type of cross-examination. As Wigmore himself put it, The range of external circumstances from which probable bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place. Accurate concrete rules are almost impossible to formulate, and where possible are usually undesirable. In general, these circumstances should have some clearly apparent force, as tested by experience of human nature, or, as it is usually put, they should not be too remote. Id. § 950, at 795 (quoting 2 J. Wigmore, Evidence, § 949, at 1084). To infer bias against these white police officer" } ]

[ { "docid": "3965611", "title": "", "text": "its intention to impeach the witness by demonstrating her bias, to cross-examine Shinnamon about Mr. Thompson’s past acts of physical violence or threats. He relies on our decision in United States v. Thomas, 86 F.3d 647 (7th Cir.1996). We review the district court’s evidentiary rulings under an abuse of discretion standard. See United States v. Bonner, 302 F.3d 776, 780 (7th Cir.2002). [3] The Supreme Court has noted that [b]ias is a term used in the “common law of evidence” to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony. United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). “The admissibility of evidence regarding a witness’s bias ... in his testimony is not specifically addressed by the Rules and thus admissibility is limited only by the relevance standard of Rule 402.” United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir.1996) (citing 27 Charles Allen Wright & Victor James Gold, Federal Practice and Procedure § 6092 (1990)). Relevant evidence is, of course, generally admissible, see Fed.R.Evid. 402, but even relevant evidence will be “excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,” Fed.R.Evid. 403. With respect to the admission of the evidence in question here, Mr. Thompson takes the view that, under Rule 403, the danger of unfair prejudice outweighs any probative value that the evidence might have. He submits that our decision in Thomas requires “evidence of threats to be directly and specifically linked to, and made because of, the witness’ testimony and not” because of a “general fear of the defendant.” Appellant’s Br." }, { "docid": "118462", "title": "", "text": "557 (7th Cir.1972). Greenwood now argues that Carrico’s erroneous grand jury testimony is evidence of bias against him. Bias, defined as “emotional partiality,” United States v. Robinson, 530 F.2d 1076, 1079 (D.C.Cir.1976), is not a collateral issue. United States v. Harvey, 547 F.2d 720, 772 (2d Cir.1976). The point of a bias inquiry is to expose to the jury the witness’s “special motive to lie,” Harvey, 547 F.2d at 722, by revealing facts such as pecuniary interest in the trial, see United States v. Gambler, 662 F.2d 834, 837 (D.C.Cir.1981), personal animosity or favoritism toward the defendant, see United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); Gambler, 662 F.2d at 837, or the witness’s plea agreement with the government. Delaware v. Van Arsdall, — U.S. —, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Once some inquiry into bias has been permitted, a trial court has discretion to limit the cross-examination on the grounds of, inter alia, confusion of the issues or marginal relevance. Id. at 1435. Despite Greenwood’s argument, exclusion of Carrico’s grand jury testimony on the dates of the hotel stay was not reversible error. In order to be admissible, the proffered evidence must in fact be probative of bias. See 3 J. Weinstein & M. Berger, Weinstein’s Evidence If 607[03], at 607-25 (1985). The mere fact that Carrico testified erroneously before the grand jury on a collateral matter is not necessary proof of animosity or favoritism toward one side of the case. Her recollections were consistent and accurate on the issues material to this case. Greenwood offered no evidence tending to attribute the erroneous grand jury testimony to personal ill-will, as opposed to mere forgetfulness on a minor detail. We refuse to adopt a rule which would automatically make an otherwise irrelevant misstatement by a witness admissible as probative of bias, and we uphold the district court’s exclusion of the evidence in these circumstances. The district court also excluded evidence that after Carrico testified, she smiled and gave a “thumbs up” sign to another prosecution witness. The meaning of this gesture is" }, { "docid": "6689300", "title": "", "text": "always relevant.” United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984). It is common for the defense to cross examine prosecution witnesses about charges pending against them; that they might be influenced by “self-interest”, by their desire to please the government, is fairly apparent. See John W. Strong et al, McCormicx on Evidenoe § 39, at 133 n. 22 (4th ed. 1992). This court also permitted, before and after adoption of the Rules, the prosecution to impeach defense witnesses for bias by showing charges against them, subject always to the requirement, now embodied in Rule 403, that the probative value of this evidence is not substantially outweighed by danger of unfair prejudice. See United States v. Maynard, 476 F.2d 1170, 1174 (D.C.Cir.1973); United States v. Robinson, 530 F.2d 1076, 1080 (D.C.Cir.1976); cf. United States v. Anderson, 881 F.2d 1128, 1138 (D.C.Cir.1989); see also United States v. Senak, 527 F.2d 129, 147 (7th Cir.1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758 (1976). Here the district court concluded that Tucker’s bias was a “legitimate” subject of inquiry. We see no basis for disturbing the ruling. The court carefully reviewed our decisions in Maynard and Robinson and analyzed the government’s proffer in light of Tucker’s history of harassing the police. It may be that, in general, a pending criminal charge against a defense witness would be as likely to move the witness to color his testimony for the prosecution as against it. Cf. Davis v. Alaska, 415 U.S. at 311, 94 S.Ct. at 1107. In this case, however, other evidence showed Tucker’s antipathy toward law enforcement and the court properly determined that the jury could hear about a possible source of her hostility. There is nothing to Spencer’s additional claims that the court improperly questioned Tucker and gave an erroneous jury instruction. Spencer raised neither objection at trial and he cannot satisfy the “plain error” standard. Fed.R.Crim.P. 52(b). Trial judges may question witnesses. Fed.R.Evid. 614(b). While it is often said the judge may not assume the role of an advocate, e.g., United" }, { "docid": "8526343", "title": "", "text": "them. [Tr. 594-595]. Immediately following this testimony, the court instructed the jury as follows: This testimony may be considered by you solely for the purpose of understanding the scope of Tom Burns’ cooperation with the government. The fact that other subjects in the investigation may have pled guilty must not be considered by you to infer that the defendants are, therefore, guilty of the crimes with which they are charged. [Tr. 596]. We review the district court’s decision to admit this testimony under an abuse of discretion standard. United States v. Gill, 58 F.3d 334, 337 (7th Cir.1995). Lindemann argues that Bums’ testimony was inadmissible because it was essentially “bolstering.” “Bolstering” is the practice of offering evidence solely for the purpose of enhancing a witness’s credibility before that credibility is attacked. Such evidence is inadmissible because it “has the potential for extending the length of trials enormously, ... asks the jury to take the witness’s testimony on faith, ... and may ... reduce the care with which jurors listen for inconsistencies and other signs of falsehood or inaccuracy.” United States v. LeFevour, 798 F.2d 977, 983 (7th Cir.1986). Once a witness’s credibility has been attacked, however, the non-attacking party is permitted to admit evidence to “rehabilitate” the witness. United States v. McKinney, 954 F.2d 471, 478 (7th Cir.1992), certiorari denied, 506 U.S. 1023, 113 S.Ct. 662, 121 L.Ed.2d 587 (1992). Lindemann’s suggestion that Bums falsely implicated him to obtain a plea deal was certainly an attack on the credibility of Burns’ testimony. More specifically, it was an attempt to show that Bums had a bias: Bias is the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. United States v. Abel, 469 U.S. 45, 53, 105 S.Ct. 465, 469-470, 83 L.Ed.2d 450 (1984) (emphasis added). Bias is one of the five acceptable methods of attacking the credibility of a witness’s testimony: (1) attacking the" }, { "docid": "3531034", "title": "", "text": "violated. Bracy v. Gramley, 520 U.S. 899, 905, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986); Ward v. Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927); Johnson v. Mississippi, 403 U.S. 212, 215-16, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971); In re Murchison, 349 U.S. at 137-39, 75 S.Ct. 623. The general presumption is that judges are honest, upright individuals and thus that they rise above biasing influences. Tumey, 273 U.S. at 532, 47 S.Ct. 437; Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); see Tezak v. United States, 256 F.3d 702, 718 (7th Cir.2001); Del Vecchio v. Illinois Dep’t of Corr., 31 F.3d 1363, 1375 (7th Cir.1994) (en banc); Jones v. Luebbers, 359 F.3d 1005, 1013-14 (8th Cir.2004). “A person could find something in the background of most judges which in many cases would lead that person to conclude that the judge has a possible temptation to be biased. But not all temptations are created equal.” Del Vecchio, 31 F.3d at 1372 (internal quote omitted). Nevertheless, the presumption is rebuttable. Sometimes, “the influence is so strong that we may presume actual bias,” Del Vecchio, 31 F.3d at 1375; see Withrow, 421 U.S. at 47, 95 S.Ct. 1456. In rare cases, there may even be evidence of actual bias. See Bracy, 520 U.S. at 905, 117 S.Ct. 1793; Bracy v. Schomig, 286 F.3d 406, 411 (7th Cir.2002) (en banc). To prove disqualifying bias, a petitioner must offer either direct evidence or “a possible temptation so severe that we might presume an actual, substantial incentive to be biased.” Del Vecchio, 31 F.3d at 1380. Absent a “smoking gun,” a petitioner may rely on circumstantial evidence to prove the necessary bias. Bracy, 286 F.3d at 411-412; id. at 422 (Posner, J., concurring in part; dissenting in part); id." }, { "docid": "10904954", "title": "", "text": "establishes that the error was harmless beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; United States v. Nelson, 39 F.3d 705, 710 (7th Cir.1994). The exposure of a witness’s bias directly implicates the Sixth Amendment. See Abel, 469 U.S. at 52, 105 S.Ct. 465 (“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.”). As we noted in United States v. Recendiz, 557 F.3d 511, 530 (7th Cir.2009), “[a] core value [of the Sixth Amendment] is the ability to expose a witness’s motivation for testifying, his bias, or his possible incentives to lie.” Proof of bias “is the ‘quintessentially appropriate topic for cross-examination.’ ” United States v. Manske, 186 F.3d 770, 777 (7th Cir.1999) (quoting Bachenski v. Malnati, 11 F.3d 1371, 1375 (7th Cir.1993)). We believe that the situation before us today clearly implicates the defendants’ rights to meaningful cross-examination with respect to witness bias. The Government had made Rudy available to state prosecutors for questioning about the Maywood murder. Rudy conceded that he had given a statement to those prosecutors with respect to that murder and that he never was charged with that murder. He denied the existence of a quid pro quo with the state or federal prosecutors. The district court took the view that the Maywood murder was “unrelated” to the issues on trial. See Trial Tr. at 1622, Sept. 18, 2006 (“I’m not — I don’t think it’s appropriate to ask about this, as I understand it, unrelated murder.”). We respectfully take a different view from the one taken by our colleague in the district court. Upon examination, the record makes clear that defense counsel sufficiently articulated a link between Rudy’s involvement in the pending state murder investigation and his testimony in the federal action. The conceded facts that Rudy was interrogated by state investigators soon after he was arrested, that he gave a statement about the murder of Curtis Rios and" }, { "docid": "22059117", "title": "", "text": "Court noted: Bias is a term used in the “common law of evidence” to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy, and truth of a witness’ testimony. See also United States v. Greenwood, 796 F.2d 49, 54 (4th Cir.1986) (“Bias, defined as ‘emotional partiality,’ United States v. Robinson, 530 F.2d 1076, 1079 (D.C.Cir.1976), is not a collateral issue”); United States v. Harvey, 547 F.2d 720, 722 (2d Cir.1976). The point of a bias inquiry is to expose to the jury the witness’ special motive to lie, Harvey, 547 F.2d at 722, by revealing facts such as interest in the outcome of the trial, see United States v. Gambler, 662 F.2d 834, 837 (D.C.Cir.1981), or personal animosity or favoritism toward the defendant. See Abel, 469 U.S. at 50, 105 S.Ct. 465; Gambler, 662 F.2d at 837. Further, the Supreme Court in Abel approved the admission of evidence of gang membership where it had probative value: “membership in the prison gang was sufficiently probative of ... possible bias towards respondent to warrant its admission into evidence.” 469 U.S. at 49, 105 S.Ct. 465. Applying that rule in Abel, the court held clearly admissible the membership of a party and a witness in the same secret prison organization which had a creed requiring members to lie for each other, inferring a form of bias by coercion. Defendant Hankey claims on appeal that the trial court abused its discretion when it permitted gang related evidence “over the Rule 403 objection,” claiming the evidence was highly prejudicial. FRE 403 articulates the judicial power to exclude relevant evidence because of prejudicial dangers or considerations. Relevant evidence may be excluded under FRE 403 only if" }, { "docid": "4045460", "title": "", "text": "Mrs. Perez’s trial testimony were honest, she necessarily would have believed that as long as she testified truthfully, the jury would unerringly find Vasquez not guilty. Because she was very worried that Vasquez would be convicted, goes the theory, the jury should conclude that she lied in her trial testimony. That theory of the supposed inconsistency makes sense only if we assume that, if Mrs. Perez was telling the truth, she also must have had an extraordinary and even naive confidence in the infallibility of juries in telling the difference between true and false testimony. Any citizen who has followed recent news of exonerations of innocent but convicted defendants would be entitled to worry. One can be a great believer in the wisdom of juries, as I am, without assuming they are infallible. Let’s assume for purposes of argument that Mrs. Perez’s testimony about asking Vasquez to drive the Perez’s car to pick up her husband was true. Even so, anyone as familiar as she was with the evidence against both her husband and Vasquez— who were then both in the federal lock-up under federal indictment — could reasonably worry that she might not be believed. If a witness’s expression of the view that a trial might come out the wrong way can be treated as inconsistent with the witness’s testimony for the “right” result, we will see more cases with attempted impeachment like this. I recognize that a prior statement need not be “diametrically opposed” to a witness’s testimony to be inconsistent, but genuine inconsistency is still necessary. See United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); United States v. Jones, 808 F.2d 561, 568 (7th Cir.1986); accord, United States v. Cody, 114 F.3d 772, 776-77 (8th Cir.1997). The supposed inconsistency here was nonexistent. It was an abuse of discretion to admit the evidence on that theory. The government’s bias theory also does not justify admission of the MCC tapes. Evidence of a witness’s bias is always relevant, of course. See, e.g., United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir.1996)." }, { "docid": "23223285", "title": "", "text": "we think that allowing the question was well within the lower court’s discretion. To be sure, it is not the place of one witness to draw conclusions about, or cast aspersions upon, another witness’ veracity. See United States v. Victoria, 837 F.2d 50, 55 (2d Cir.1988); United States v. Richter, 826 F.2d 206, 208 (2d Cir.1987); Gross v. Greer, 773 F.2d 116, 118 (7th Cir.1985). The “was-the-witness-lying” question framed by the prosecutor in this case was of that stripe. It should never have been posed and defendant’s objection to it was justifiably sustained. The follow-on question, however, did not solicit an opinion on credibility; rather, it inquired into the existence of any known basis for bias on the part of a key witness. It seems to us that the latter type of question is considerably more palatable than the former. Cf. D’Aquino v. United States, 192 F.2d 338, 369 (9th Cir.1951) (in context of particular case, asking “was-the-witness-lying” questions on cross-examination held appropriate because doing so constituted “not an attempt to procure the opinion of one witness as to the veracity of another witness,” but merely a means of “point[ing] up the contradiction in the [defendant’s] own testimony”), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). Analytically, we forge the distinction along the following lines. Bias on the part of a witness is an allowable and established ground for inquiry on cross-examination under the Federal Rules of Evidence. See United States v. Abel, 469 U.S. 45, 49-52, 105 S.Ct. 465, 467-469, 83 L.Ed.2d 450 (1984); United States v. Boylan, 898 F.2d 230, 254 (1st Cir.), cert. denied, — U.S. -, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990); see also United States v. Aleman, 609 F.2d 298, 307 (7th Cir.1979) (“That the possible bias of a witness which may affect credibility is a proper and critical area of exploration by cross-examination is beyond question.”), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). The reasons undergirding the concept of impeachment for bias rest[] on two assumptions: (1) that certain relationships and circumstances impair the" }, { "docid": "12846374", "title": "", "text": "the greenback cases, I do not think that either violated the Constitution. See Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (Rehnquist, J., in chambers) (collecting other examples); United States v. Bonds, 18 F.3d 1327 (6th Cir.1994) (Boggs, J., in chambers); Schurz Communications, Inc. v. FCC, 982 F.2d 1057 (7th Cir.1992) (Posner, J., in chambers). These incidents also show the dangers of inferring prejudgment from prior activities: Chief Justice Chase confounded President Lincoln’s expectations by voting to hold the legislation unconstitutional, and Chief'Justice Marshall withheld the commission from fellow-Federalist Marbury. My conclusion that disqualification for “appearance of impropriety” is a subject for statutes, codes of ethics, and common law, rather than a constitutional command, would be of but academic interest if the Supreme Court had authoritatively decided to the contrary. None of that Court’s constitutional decisions, however, establishes that an “appearance” problem — as opposed to actual bias — invalidates a judgment. To the contrary, the theme of the cases is exactly the common law rule: a judge with a financial interest in the outcome of the case may not sit. E.g., Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986); Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). At the same time, the Court tolerates evidence of bias that creates undeniable “appearance” problems: Appellant contends Justice Embry’s general hostility towards insurance companies that were dilatory in paying claims, as expressed in his deposition, requires a conclusion that the Due Process Clause was violated by his participation in the disposition of this case. The Court has recognized that not “[a]ll quéstions of-judicial qualification ... involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.” Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927); see also FTC v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 804, 92 L.Ed. 1010" }, { "docid": "17137455", "title": "", "text": "Its main purpose is to provide defendants with the opportunity for effective cross-examination. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974), quoting 5 J. Wigmore, Evidence § 1395 p. 123 (3d ed. 1940). One of the most important aspects of the right of cross-examination is attacking the witness’ credibility and the truth of the testimony. Id. at 316, 94 S.Ct. at 1110. Credibility may be tested by interrogation that attempts to reveal possible biases, prejudices, or ulterior motives. Id. Defense counsel should ordinarily be given wide latitude when cross-examining a witness about credibility or bias. United States v. Haro, 573 F.2d 661, 667 (10th Cir.), cert. denied, 439 U.S. 851, 99 S.Ct. 156, 58 L.Ed.2d 155 (1978). Counsel should be allowed “to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis, 415 U.S. at 318, 94 S.Ct. at 1111; see also Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 295-96, 88 L.Ed.2d 15 (1985) (“the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to prove and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony”). The trial court, however, retains discretion to reasonably limit cross-examination to prevent, among other things, questioning that is repetitive or of marginal relevance. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). In this case, the district court ruled that the cross-examination was irrelevant. Questions properly directed at revealing bias are, however, a permissible basis of impeachment, and are relevant and admissible. United States v. Abel, 469 U.S. 45, 50-51, 105 S.Ct. 465, 468-69, 83 L.Ed.2d 450 (1984). The issue before us, therefore, is whether the questions asked during cross-examination were relevant in terms of showing Ms. Lucero’s possible bias against defendant. We conclude that they were. Contrary to the remarks of the district court, defense counsel’s questions" }, { "docid": "5522292", "title": "", "text": "496 U.S. 908, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990). Likewise, evidence showing a witness’s bias is almost always admissible. United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984). The prosecutor’s questions went directly to the credibility and bias of Harris’s witnesses. Moreover, no error occurred in permitting inquiry into the witnesses’ underlying reasons for making false statements or tampering with evidence, because this helped the jury to evaluate the witnesses’ current testimony. Even if the prosecutor’s questions indirectly revealed prior bad acts of Harris’s, evidence may be inadmissible for one purpose yet still be admissible for another. See, e.g., United States v. Helmel, 769 F.2d 1306, 1319 (8th Cir.1985). Finally, we do not agree with Harris that the prejudicial effect of the questions so outweighed their probative value that the trial court abused its discretion in permitting the prosecutor to ask them. Harris also argues that the district court committed prejudicial error in overruling his objection and motion for mistrial after the prosecutor allegedly made an improper reference in closing arguments to Harris’s silence during questioning. During his closing argument, the prosecutor reviewed the circumstances of Harris’s confession and finished by noting that after making the incriminating statement, “[Harris] conclude[d] the interview.” Trial Transcript at 240-41. Reference to the silence of an accused usually is impermissible, because it is fundamentally unfair for the government to induce silence through Miranda warnings and then later use this silence against the accused. See Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S.Ct. 2240, 2244-45, 49 L.Ed.2d 91 (1976). Where the accused initially waives his right to remain silent and agrees to questioning, however, no such inducement has occurred. If the accused subsequently refuses to answer further questions, the prosecution may note the refusal because it now constitutes part of an otherwise admissible conversation between the police and the accused. See United States v. Collins, 652 F.2d 735, 740 (8th Cir.1981), cert. denied, 455 U.S. 906, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982). The prosecutor’s commentary, therefore, was permissible. III. CONCLUSION We have considered Harris’s other" }, { "docid": "10904953", "title": "", "text": "of cross-examination under the more deferential abuse of discretion standard. See Smith, 454 F.3d at 714. At issue here is the district court’s limitation of the defendants’ cross-examination of Rudy about his alleged pro-Government bias because of a desire to curry favorable treatment in connection with the Maywood murder investigation. “Bias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.” United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Cross-examination designed to elicit witness bias directly implicates the Sixth Amendment. See Abel, 469 U.S. at 49-52, 105 S.Ct. 465; Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Alford v. United States, 282 U.S. 687, 691-92, 51 S.Ct. 218, 75 L.Ed. 624 (1931). Consequently, our review is de novo. If a Sixth Amendment violation occurred, we shall set aside the verdict unless the Government establishes that the error was harmless beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; United States v. Nelson, 39 F.3d 705, 710 (7th Cir.1994). The exposure of a witness’s bias directly implicates the Sixth Amendment. See Abel, 469 U.S. at 52, 105 S.Ct. 465 (“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.”). As we noted in United States v. Recendiz, 557 F.3d 511, 530 (7th Cir.2009), “[a] core value [of the Sixth Amendment] is the ability to expose a witness’s motivation for testifying, his bias, or his possible incentives to lie.” Proof of bias “is the ‘quintessentially appropriate topic for cross-examination.’ ” United States v. Manske, 186 F.3d 770, 777 (7th Cir.1999) (quoting Bachenski v. Malnati, 11 F.3d 1371, 1375 (7th Cir.1993)). We believe that the situation before us today clearly implicates the defendants’ rights to meaningful cross-examination with" }, { "docid": "6689299", "title": "", "text": "charged. An indictment or an arrest is not, in itself, proof of the underlying criminal act. “Only a conviction,” the Supreme Court wrote in Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948), “therefore, may be inquired about to undermine the trustworthiness of a witness.” Rule 609, Fed.R.Evid., as amended in response to Green v. Bock Laundry Machine Co., 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989), now governs the impeachment of defense and prosecution witnesses with prior convictions. This “general attack on the credibility of the witness,” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974), however, is not the only permissible method. A “more particular” attack occurs when the witness is impeached for bias. Id. Although not specifically mentioned in the Rules, proof of bias — that is, “the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party” — is “almost always relevant.” United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984). It is common for the defense to cross examine prosecution witnesses about charges pending against them; that they might be influenced by “self-interest”, by their desire to please the government, is fairly apparent. See John W. Strong et al, McCormicx on Evidenoe § 39, at 133 n. 22 (4th ed. 1992). This court also permitted, before and after adoption of the Rules, the prosecution to impeach defense witnesses for bias by showing charges against them, subject always to the requirement, now embodied in Rule 403, that the probative value of this evidence is not substantially outweighed by danger of unfair prejudice. See United States v. Maynard, 476 F.2d 1170, 1174 (D.C.Cir.1973); United States v. Robinson, 530 F.2d 1076, 1080 (D.C.Cir.1976); cf. United States v. Anderson, 881 F.2d 1128, 1138 (D.C.Cir.1989); see also United States v. Senak, 527 F.2d 129, 147 (7th Cir.1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758 (1976). Here the district" }, { "docid": "22059116", "title": "", "text": "it has “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.” Evidence helpful in evaluating the credibility of a witness is of consequence to the determination of the action. Evidence is relevant to a matter of consequence to the determination of the case if it has a mere tendency to impeach a witness’ credibility by a showing of bias or coercion. The logical syllogism might be set forth as follows: Witness elects to testify for friend/gang member. If witness says anything adverse to friend-gang member code or tenet-would require retaliation. Ergo: Witness will not only be biased in favor of friend, but coerced to not say anything adverse to friend-e.g., will lie to protect friend and himself. Bias, of course, covers all varieties of favor. See 3A Wigmore, Evidence, § 945 at 782 (Chadbourn rev.1970). In United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984), the Supreme Court noted: Bias is a term used in the “common law of evidence” to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy, and truth of a witness’ testimony. See also United States v. Greenwood, 796 F.2d 49, 54 (4th Cir.1986) (“Bias, defined as ‘emotional partiality,’ United States v. Robinson, 530 F.2d 1076, 1079 (D.C.Cir.1976), is not a collateral issue”); United States v. Harvey, 547 F.2d 720, 722 (2d Cir.1976). The point of a bias inquiry is to expose to the jury the witness’ special motive to lie, Harvey, 547 F.2d at 722, by revealing facts such as interest in the outcome of the trial," }, { "docid": "118461", "title": "", "text": "court will defer to a trial court’s Rule 404(b) balancing unless it is an arbitrary or irrational exercise of discretion. Id. at 88. We find no abuse of discretion in the circumstances of this case. IV. Greenwood also contends that the district court improperly prohibited two avenues of cross-examination of prosecution witness J.S. Carrico that were intended to prove bias. We question whether these inquiries were in fact probative of bias. Even if they were, their exclusion was at most harmless error. The first line of questioning involved Carrico’s misstatement to a grand jury of the date on which Greenwood moved out of the hotel for which he received the overstated reimbursement. Greenwood was charged with falsifying only the rate, not the dates, of his hotel stay. Carrico’s recollection of the dates of Greenwood’s stay was, therefore, not relevant to any disputed facts. The trial court decided that this evidence could confuse the jury and excluded it as collateral. We find no reversible error in this ruling. See United States v. Lambert, 463 F.2d 552, 557 (7th Cir.1972). Greenwood now argues that Carrico’s erroneous grand jury testimony is evidence of bias against him. Bias, defined as “emotional partiality,” United States v. Robinson, 530 F.2d 1076, 1079 (D.C.Cir.1976), is not a collateral issue. United States v. Harvey, 547 F.2d 720, 772 (2d Cir.1976). The point of a bias inquiry is to expose to the jury the witness’s “special motive to lie,” Harvey, 547 F.2d at 722, by revealing facts such as pecuniary interest in the trial, see United States v. Gambler, 662 F.2d 834, 837 (D.C.Cir.1981), personal animosity or favoritism toward the defendant, see United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); Gambler, 662 F.2d at 837, or the witness’s plea agreement with the government. Delaware v. Van Arsdall, — U.S. —, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Once some inquiry into bias has been permitted, a trial court has discretion to limit the cross-examination on the grounds of, inter alia, confusion of the issues or marginal relevance. Id. at 1435. Despite Greenwood’s argument," }, { "docid": "2802338", "title": "", "text": "sought to introduce. Turning to the language of Rule 608(a), the existence of John and Don Tyson’s immunity agreements constitutes neither opinion nor reputation evidence, the only two subjects mentioned therein. Moreover, as the rule speaks in general terms of a witness’s character for truthfulness. or untruthfulness, it does not touch upon the separate question of whether a generally truthful witness may have a motive to lie in one specific instance. See United States v. Lindemann, 85 F.3d 1232 (7th Cir.1996) (distinguishing five acceptable methods for attacking a witness’s credibility, two of which are attacking the witness’s character for truthfulness and demonstrating bias); 27 Wright and Gold, Federal Practice and Procedure § 6094 (1990) (same). As the Advisory Committee Notes to Rule 608 explains, while evidence of a witness’s general character for honesty or integrity can provide de min-imis support for a conclusion as to whether he is testifying accurately on a particular occasion, the probative value of such testimony will generally be outweighed by the needless consumption of time involved in putting “good character” witnesses on the stand. See Fed.R.Evid. 608(a) advisory committee’s note. Accordingly, the Federal Rules allow the introduction of opinion or reputation testimony to attack a witness’s credibility, but limit such good character testimony to situations where the witness’s veracity has already been specifically impugned. In contrast to a witness’s general character for truthful ness or untruthfulness, which is largely peripheral to the facts at issue in a given case, the question of a witness’s potential bias is both particularized and case-specific. The presence or absence of bias has relevance because it speaks to whether a witness has an interest in this case, or a particular affinity or dislike for this party. See United States v. Abel, 469 U.S. 45, 51, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (“A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.”); United States v. Akitoye, 923 F.2d 221, 225 (1st Cir.1991)" }, { "docid": "16341622", "title": "", "text": "the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” . Mr. Marsh does not merely discuss the medical evidence, but employs it in his evaluation of witness testimony and uses it as a basis to conclude that that testimony is not credible. For example, he concludes that certain witness statements suggesting the Mr. Richman was non-resistive are belied by the autopsy reports of Drs. Fusaro and Bryant. (Motion to Strike, Ex. 4, at 8). . It is proper and desirable for the jury to be instructed that it is free to reject the testimony of any expert not supported by the evidence. See 3 Weinstein and Berger, Weinstein’s Federal Evidence, ¶ 704[01J at 704-8 n. 23, and ¶ 704[02], n. 14. . Bias is never collateral, and the range of circumstances from which the law allows the jury to infer bias is as broad as human nature is diverse. See United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); United States v. Frankenthal, 582 F.2d 1102, 1106 (7th Cir.1978). Thus, nothing will prevent Ms. Richman from cross-examining the experts about the “biased” nature of the sources on which they purported to rely and the unsupportability of their opinions if the jury disbelieves the defendants version of events. Moreover she will be free to propound questions based on a contrary version of events. Cf. Barefoot v. Estelle, 463 U.S. 880, 905 n. 10, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). . Rule 704(a) does not make an opinion on an ultimate issue admissible. It simply provides that if it is ''otherwise admissible,” the fact that the opinion embraces an ultimate issue does not make it objectionable. Opinion testimony embracing an ultimate issue can be excluded if it is objectionable on grounds recognized by other provisions in the Federal Rules of Evidence. Rule 702, for example, requires that the opinion \"assist the trier of fact,” United States v. Welch, 368 F.3d 970, 974 (7th Cir.2004)," }, { "docid": "23223286", "title": "", "text": "one witness as to the veracity of another witness,” but merely a means of “point[ing] up the contradiction in the [defendant’s] own testimony”), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). Analytically, we forge the distinction along the following lines. Bias on the part of a witness is an allowable and established ground for inquiry on cross-examination under the Federal Rules of Evidence. See United States v. Abel, 469 U.S. 45, 49-52, 105 S.Ct. 465, 467-469, 83 L.Ed.2d 450 (1984); United States v. Boylan, 898 F.2d 230, 254 (1st Cir.), cert. denied, — U.S. -, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990); see also United States v. Aleman, 609 F.2d 298, 307 (7th Cir.1979) (“That the possible bias of a witness which may affect credibility is a proper and critical area of exploration by cross-examination is beyond question.”), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). The reasons undergirding the concept of impeachment for bias rest[] on two assumptions: (1) that certain relationships and circumstances impair the impartiality of a witness and (2) that a witness who is not impartial may — sometimes consciously but perhaps unwittingly — shade his testimony in favor of or against one of the parties. 3 J. Weinstein & M. Berger, Weinstein’s Evidence IT 607[03] at 607-27 (1990). Because objectivity is always material to the assessment of credibility, we, and other federal courts, have been hospitable to the point of liberality in admitting evidence relevant to a witness’ bias. See, e.g., United States v. Rios Ruiz, 579 F.2d 670, 673 (1st Cir.1978); United States v. Houghton, 554 F.2d 1219, 1225-26 (1st Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977); United States v. Robinson, 530 F.2d 1076, 1079 (D.C.Cir.1976). Once it is accepted that a cross-examiner may bring out facts and circumstances tending to show bias, thereby weakening the credibility of a hurtful witness, we believe it follows that the cross-examiner can be allowed some latitude, in an appropriate case, to bring out the absence of bias-producing facts and circumstances, thereby strengthening the" }, { "docid": "22820469", "title": "", "text": "crimes evidence may be admissible “to explain the conduct of the police, ... the victim, an informer, a government witness, or the defendant”). In this case, the fact that evidence of Green’s threat helped to explain Stahl’s motives for acting as an informant was sufficient to satisfy Rule 404(b). Second, evidence that Green threatened to kill A.G. was relevant. Evidence is relevant if it has “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.” Fed.R.Evid. 401. This definition is “very broad.” Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 232 (3d Cir.2004). “Proof of bias is almost always relevant,” United States v. Werme, 939 F.2d 108, 114 (3d Cir.1991), because a “showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.” United States v. Abel, 469 U.S. 45, 49, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). See also Schledwitz v. United States, 169 F.3d 1003, 1015 (6th Cir.1999) (“[b]ias is always relevant in assessing” credibility). If proof of bias is almost always relevant, so too is evidence of a lack of bias. United States v. Fusco, 748 F.2d 996, 998 (5th Cir.1984) (“Because evidence of bias or lack of bias is substantive, rather than collateral, it may be developed on direct ... [or] cross-examination, just like any other substantive evidence”) (emphasis added). Recognition of the value of such evidence settles the relevance issue here. Green attacked Stahl as less than credible because she was biased in favor of the Government. See United States v. Sumlin, 271 F.3d 274, 282 (D.C.Cir.2001) (explaining that an accusation of bias “is an acceptable method of attacking a witnesses] credibility”). Therefore, evidence that Stahl cooperated not for the purpose of obtaining favors from the Government, but because A.G.’s life was in danger, was relevant. It provided an explanation for her cooperation that, if believed, increased" } ]

[ { "docid": "23104353", "title": "", "text": "make a sufficient showing of prejudice to justify an evidentiary hearing. II. DISCUSSION A prisoner is entitled to an evidentiary hearing on a section 2255 motion unless the motion, files and records of the case conclusively show that the prisoner is not entitled to relief. 28 U.S.C. § 2255; Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir.1985). Accordingly, a petition can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. United States v. Rodriguez Rodriguez, 929 F.2d 747, 749-50 (1st Cir.1991); see also Holloway v. United States, 960 F.2d 1348, 1358 (8th Cir.1992) (a single, self-serving, self-contradicting statement is insufficient to render the motion, files and records of a ease inconclusive); Larson v. United States, 905 F.2d 218, 220-21 (8th Cir.1990) (evidentiary hearing not required if the facts alleged, taken as true, would not justify relief); Smith v. United States, 618 F.2d 507, 510 (8th Cir.1980) (mere statement of unsupported conclusions will not suffice to command a hearing); cf. Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (explaining United States v. Unger, 665 F.2d 251 (8th Cir.1981) (evidentiary hearing required where allegations are sufficiently specific and neither conelusory nor incredible in face of the record)). We review the district court’s decision as to whether an evidentiary hearing is necessary to determine factual contentions for an abuse of discretion. Widgery v. United States, 796 F.2d 223, 224 (8th Cir.1986). Strickland’s two-part test applies to ineffective assistance claims arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). First, the movant must show that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. at 2064. Second, the mov-ant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694," } ]

[ { "docid": "20648252", "title": "", "text": "623, 118 S.Ct. 1604. The Supreme Court has emphasized that “ ‘actual innocence’ means factual innocence, not mere legal insufficiency.” Id. To establish actual innocence, petitioner must demonstrate that, “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quotations and citation omitted). B. Ineffective Assistance of Counsel Standard The U.S. Supreme Court has articulated a two-pronged test to evaluate claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the Petitioner must show (1) “that counsel’s representation fell below an objective standard of reasonableness ... under prevailing professional norms” and (2) that there is a reasonable probability that but for counsel’s unprofessional performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Under the first prong of the Strickland test, Petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This prong is not satisfied unless the Court is persuaded that an attorney’s actions were objectively unreasonable. To evaluate counsel’s effectiveness, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The Court is bound to apply this standard “in light of all circumstances [in the case].” Id., at 690, 104 S.Ct. 2052. If Petitioners meets the first prong of the Strickland test, he then must establish “that the deficient performance [of counsel] prejudiced the defense.” Id. The second prong of the Strickland test demands that Petitioner affirmatively “show that there is a reasonable possibility that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In other words, where a Petitioner establishes counsel’s incompetence, the Petitioner must still meet the second prong of the test, Strickland, 466" }, { "docid": "7451955", "title": "", "text": "Mr. Shulze and Ms. Dokken to Colorado, and never mentioned the names of potential alibi witnesses. The District Court concluded, without an evidentiary hearing, that the affidavits lacked credibility in the face of the government’s pleadings and affidavits, and in any event did not undermine the Court’s confidence in the trial outcome. A Section 2255 movant is entitled to an evi-dentiary hearing, however, unless the motion, files, and record conclusively show that he is not entitled to relief. Because the record before the District Court contained sharply conflicting evidence, the Court abused its discretion in finding a hearing unnecessary. See Engelen v. United States, 68 F.3d 238, 240-41 (8th Cir.1995) (standard of review; § 2255 motion may be dismissed without hearing if (1) movant’s allegations, accepted as true, would not entitle him to relief, or (2) allegations cannot be accepted as true because they are contradicted by the record, are inherently incredible, or are conclusions rather than statements of fact). Mr. Koskela’s remaining claims of ineffective assistance on which we granted a certificate of appealability are unavailing, for want of a showing of deficient performance or prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (to obtain relief on claim of ineffective assistance, one must show counsel’s performance fell below objective standard of reasonableness, and deficient performance prejudiced defense). In particular, the record shows that (1) contrary to Mr. Koskela’s suggestion, Mr. Morrow explored, during cross-examination; whether law-enforcement officials had coerced the witness Sheldon Mount into making a statement impheating Mr. Koskela in the criminal activity; (2) witness Michelle Rip-plinger, who Mr. Koskela says also should have been cross-examined more vigorously, admitted that she could not identify an anonymous 911 caller who reported a nonexistent accident on February 24 purportedly to lure police away from the crime scene; (3) Mr. Morrow questioned witness Peter Graber—who had testified that the 911 caller sounded like Mr. Koskela—con-cerning Mr. Graber’s bias against Mr. Koskela, and his uncertainty over whose voice was on the 911 recording; (4) the testimony of Mr. Koskela’s mother and brother as to" }, { "docid": "13808410", "title": "", "text": "F.3d 470, 474 (1st Cir.1998) (internal citations and quotation marks omitted). Once a prisoner requests relief under section 2255, a district court must grant an evidentiary hearing unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief ... ”. Title 28 U.S.C. § 2255(b); see also Owens v. United States, 483 F.3d 48, 57 (1st Cir.2007). If a district court dismisses a section 2255 claim without holding an eviden-tiary hearing, the allegations set forth in the petition are taken as true unless “ ‘those allegations are merely conclusory, contradicted by the record, or inherently incredible.’ ” Owens, 483 F.3d at 57 (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir.2002)). Under a 2255 motion to vacate, summary dismissal is warranted if the allegations made are “palpably incredible” or “patently frivolous or false.” Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (internal citation and quotation marks omitted); see also Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir.1992) (summary dismissal is appropriate when petition is inadequate on its face or is conclusively refuted by the files and records of the case); Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.1990) (allegations cannot be accepted if “they are contradicted by the record, inherently incredible or conclusions rather than statements of facts”). As established below, Smoak’s claims are such that a hearing on his petition is not necessary. 1. Ground One: Ineffective Assistance of Counsel Prior to Plea Hearing The Supreme Court has provided a two-pronged test for analyzing ineffective assistance of counsel claims. A petitioner must first demonstrate that his counsel’s performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, a petitioner must show that he was prejudiced by his counsel’s deficient performance. Id. at 687, 104 S.Ct. 2052. Strickland creates a strong presumption of reasonable professional assistance. Gould v. United States, 657 F.Supp.2d 321, 323 (D.Mass.2009) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Under the" }, { "docid": "21417218", "title": "", "text": "files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255; see also Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir.2000). In addition, a hearing is not necessary if the petitioner makes allegations that are “vague, conclusory, or palpably incredible,” rather than “detailed and specific.” Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir.2006). A district court, however, must grant an evidentiary hearing if the petitioner “alleges facts that, if proven, would entitle him to relief.” Id. (citation and internal quotation marks omitted); Stoia v. United States, 22 F.3d 766, 768 (7th Cir.1994). Martin alleges that trial counsel’s failure to investigate the facts and law relevant to his case caused counsel to give him “extremely bad and prejudicial advice” regarding a 30-year plea offer by the government. But for counsel’s “flawed advice,” Martin alleges that he would have accepted the government’s offer. On appeal, Martin contends that these allegations are sufficient, as a matter of law, to require the district court to hold an evi-dentiary hearing. The Sixth Amendment right to effective assistance of counsel extends to the plea bargaining process. Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). To prevail on an ineffective assistance of counsel claim, Martin must satisfy the familiar two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Martin “must show that counsel’s representation fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, 104 S.Ct. 2052, and second, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. As we shall see, we need not reach Strickland’s two-part test because Martin’s petition suffers from a preliminary infirmity that is fatal to his appeal. As the district court noted, Martin’s case presents circumstances nearly identical to those that we considered in Gallo-Vasquez v. United States, 402 F.3d 793 (7th Cir.2005). In Gallo-Vasquez, we held that the district court did not" }, { "docid": "1697269", "title": "", "text": "raised precisely the same claim as he had on state habeas. See Lenz v. True, 370 F.Supp.2d at 456. The district court declined to grant relief, finding that petitioner’s claim had been barred under an adequate and independent state procedural rule, and that petitioner had not even attempted a showing of cause and prejudice to excuse the procedural default. See id. at 457-58; Lenz v. True, 373 F.Supp.2d at 607-08 (denial of motion for reconsideration). C. The question of procedural default is a close one, and is complicated by the fact that an ineffective assistance of counsel claim and a denial of counsel claim are related. See United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (“[I]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.”) (internal quotation marks omitted). In order not to allow any semantic confusion to bar all federal review of petitioner’s constitutional claims, we shall honor his request to treat his current claim as alleging that the limitations on attorney access denied him effective assistance of counsel. Because there is no state court judgment on the merits, we review de novo. See, e.g., Hudson v. Hunt, 235 F.3d 892, 895 (4th Cir.2000). Even so, petitioner’s claim fails to allege circumstances that would constitute ineffective assistance of counsel under the standard test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail under Strickland, a claimant must show both that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense” by “deprivfing] the [claimant] of ... a trial whose result is reliable.” Id. Establishing the “prejudice” prong of the Strickland test requires a claimant to “ ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quot ing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). This burden remains the same regardless of whether" }, { "docid": "13995589", "title": "", "text": "and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.” Rule 4(b) of the Rules Governing Section 2255 Proceedings (2003). “[A] hearing is not necessary if the petitioner makes conclusory or speculative allegations. rather than specific factual allegations.” Daniels v. United States, 54 F.3d 290, 293 (7th Cir.1995). “[T]he district court is entitled to consider all the circumstances in the record in determining whether a hearing should be afforded'.” Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir.1989) (quoting Day v. United States, 357 F.2d 907, 910 (7th Cir.1966)). A. Plea Negotiations Gallo-Vasquez asserts that the government offered him a plea bargain that contemplated a 48-month sentence, and that his trial counsel provided him with ineffective assistance by advising him to reject the offer. He contends that counsel persuaded him to go to trial, despite the near certainty that he would be convicted. Had he been competently advised, Gallo-Vasquez alleges, he would have accepted the government’s offer. To prevail on a claim of ineffective assistance of counsel, petitioner must satisfy the two-part test first articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Second, petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. We have recognized that counsel’s performance may fall below the minimum threshold if he advises his client to reject a plea bargain in the face of overwhelming evidence of guilt and an absence of viable defenses. See Toro v. Fairman," }, { "docid": "14039007", "title": "", "text": "whether Petitioner’s appellate counsel was ineffective for failing to raise a challenge to those identi fications on appeal; and (c) whether Petitioner’s appellate counsel was ineffective for failing to raise an ineffective-assistance-of-counsel claim. The right to the effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution. Roe v. Flores-Ortega, 528 U.S. 470, 476, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In order to prevail on an ineffective-assistance-of-counsel claim, a petitioner must satisfy a two-prong test. First, the petitioner must show that the performance of counsel fell “below the objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so doing, the petitioner must rebut the presumption that counsel’s “challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted). The objective standard of rear sonableness is defined in terms of prevailing professional norms. Id. at 688, 104 S.Ct. 2052. The second prong requires that the defendant “show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In this case, the district court held an evidentiary hearing for the express purpose of assessing trial counsel’s shortcomings. In analyzing Howard’s ineffective assistance claims, we consider “the totality of the evidence — ” “both that adduced at trial, and the evidence adduced in the ha-beas proceeding[s].” Wiggins v. Smith, 539 U.S. 510, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (emphasis omitted); Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004). We will defer to the findings adduced by the district court’s hearing, yet make an independent judgment about the application of the facts to the law. We first examine the performance of trial counsel, then examine the performance of appellate counsel. ' a. Ineffective Assistance of Trial Counsel Petitioner Howard argues that his trial" }, { "docid": "20425371", "title": "", "text": "689, 104 S.Ct. 2052; see United States v. Valerio, 676 F.3d 237, 246 (1st Cir.2012). The test includes a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Smullen v. United States, 94 F.3d at 23 (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052). The second element of the Strickland test “also presents a high hurdle. ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’ ” Argencourt v. United States, 78 F.3d at 16 (quoting Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. 2052). There must exist a reasonable probability that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Dugas v. Coplan, 428 F.3d 317, 334 (1st Cir.2005) (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052). “[A] reasonable probability is one ‘sufficient to undermine confidence in the outcome.’ ” González-Soberal v. United States, 244 F.3d 273, 278 (1st Cir.2001) (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. 2052). Assuming that counsels’ representation fell below an objective standard of reasonableness, petitioner would still have to prove that they resulted in prejudice to his case. See Owens v. United States, 483 F.3d 48, 63 (1st Cir.2007) (quoting Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. 2052). For our purposes, it makes no difference in which order the Strickland test is applied. See Turner v. United States, 699 F.3d 578, 584 (1st Cir.2012). Within a habeas corpus case the decision to order an evidentiary hearing is left up to the discretion of the court. A court may deny an evidentiary hearing when “(1) the motion is inadequate on its face, or (2) the movant’s allegations, even if true, do not entitle him to relief, or (3) the movant’s allegations ‘need not be accepted as true because they state conclusions instead of facts, contradict the record, or are ‘inherently incredible.’ ’ ” David v. United States, 134 F.3d at 477 (quoting United States v." }, { "docid": "20683859", "title": "", "text": "that [the petitioner] is entitled to no relief.” Roundtree v. United States, 751 F.3d 923, 925 (8th Cir.2014) (citation omitted) (internal quotation marks omitted). “Although we review a district court’s decision to deny an evidentiary hearing for abuse of discretion, we are obligated to look behind that discretionary decision to the court’s rejection of the claim on its merits, which is a legal conclusion that we review de novo.” Deltoro-Aguilera v. United States, 625 F.3d 434, 436 (8th Cir.2010) (quoting Noe v. United States, 601 F.3d 784, 792 (8th Cir.2010)) (internal quotation marks omitted). A record “conclusively show[s]” a petitioner is not entitled to relief only when the petitioner’s allegations: (1) “accepted as true, would not entitle the petitioner to relief’; or (2) “cannot be accepted as true because they are • contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Engelen, 68 F.3d at 240. In this case, the record does not conclusively establish Calkins is not entitled to relief. A. Calkins’ Allegations, Accepted as True, Would Entitle Her to Relief for Ineffective Assistance of Counsel. To begin, I analyze whether Calkins would be entitled to relief if we accept, as true, her allegations that trial counsel failed to investigate the facts underlying the summary and, as such, caused Calkins to receive a longer sentence. I conclude Calkins would be entitled to relief. A claim of ineffective assistance of counsel under section 2255 is scrutinized under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail, a petitioner must show that his/her “attorney’s performance fell below a professional objective standard of reasonableness” and that s/he “was prejudiced.” Etheridge v. United States, 241 F.3d 619, 622 (8th Cir.2001) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674). Calkins alleged her trial counsel’s performance fell below a professional objective standard of reasonableness. We have held that, in many cases, it is not objectively reasonable for an attorney to fail “to avail himself of opportunities to discover the substance of [a PSR], and to" }, { "docid": "2248318", "title": "", "text": "eviden-tiary hearing on a § 2255 claim, exercise of that discretion has been constrained by our case law. See id. “The District Court is required to hold an evidentiary hearing ‘unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.’ ” Id. (quoting Gov’t of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989)). This is not a high bar for habeas petitioners to meet. See id. Moreover, “[i]n considering a motion to vacate a defendant’s sentence, ‘the court must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record.’ ” Id. (quoting Forte, 865 F.2d at 62). With this in mind, the District Court’s decision not to hold an evidentiary hearing will be an abuse of discretion unless it can be conclusively shown that Lilly cannot make out a claim for ineffective assistance of counsel. It is well-established that the standard for judging ineffective assistance of counsel comes from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): Lilly must show (1) that his counsel’s performance was deficient; and (2) that he was prejudiced by it. Id. at 687, 104 S.Ct. 2052; Booth, 432 F.3d at 546. To succeed on the first prong, Lilly must show that his counsel’s representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052; see also Weeks v. Snyder, 219 F.3d 245, 257 (3d Cir.2000). To prove prejudice, Lilly must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Lilly asserts that his counsel was ineffective in not explaining to him what waiving a jury trial meant, such that his waiver was “not ‘done with sufficient awareness of the relevant circumstances and likely consequences.’ ” Appellant’s Br. 22 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). He further asserts that he was prejudiced by" }, { "docid": "7209876", "title": "", "text": "was ordered out of the car, Anderson “attempted to push the gun under the seat with his foot” “[a]t the same time [he] was getting out.” Id. The district court sentenced Anderson to 235 months in prison, the low end of the Guidelines range. Tr. 5/6/2005, at 14. Anderson argues that certain comments the sentencing judge made betray the court’s misunderstanding of the scope of its discretion at sentencing. First, Anderson says the court impermissibly treated a sentence within the Guidelines range as presumptively correct and therefore refused to consider departing from that range without a special evidentiary justification. Second, Anderson argues the court mistakenly believed it could not consider his allocution at sentencing. II A Anderson argues his trial counsel failed to provide constitutionally adequate assistance because he miscalculated Anderson’s Sentencing Guidelines range, induced him to begin a plea colloquy that he terminated when he learned the true sentencing range, and then advised him not to testify in his own defense on the mistaken belief that any exculpatory testimony would conflict with the aborted plea colloquy and make him liable for perjury. “In order to succeed on a Sixth Amendment claim of ineffective assistance of counsel, a defendant must show two things: (1) ‘that counsel’s performance was deficient,’ and (2) ‘that the deficient performance prejudiced the defense.’ ” United States v. Shabban, 612 F.3d 693, 697 (D.C.Cir.2010) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “To establish deficiency, [he] must show his ‘counsel’s representation fell below an objective standard of reasonableness.’ To establish prejudice, he ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Porter v. McCollum, — U.S.-, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (citations omitted) (quoting Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052). “This court’s general practice is to remand the claim for an evidentiary hearing unless the trial record alone conclusively shows that the defendant either is or is not entitled to relief.” United States v. Shabban, 612 F.3d 693," }, { "docid": "7368868", "title": "", "text": "the issues and make findings of fact and conclusions of law “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. As this court has indicated, the district court need not hold an evidentiary hearing every time a section 2255 claim of ineffective assistance is raised. “A hearing is not required on patently frivolous claims or those which are based upon unsupported generalizations. Nor is a hearing required where the petitioner’s allegations are affirmatively contradicted in the record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir.1989) (quoting United States v. Guerra, 588 F.2d 519, 520-21 (5th Cir.1979)). The district court properly addressed Ocampo’s section 2255 motion under the two-part analysis of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim, Ocampo would have had to show that his trial attorney’s performance fell below an objective standard of reasonableness and that these unprofessional errors prejudiced the defense. Id. To show prejudice, the section 2255 petitioner must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. We agree with the district court that no evidentiary hearing was needed to decide that any alleged ineffectiveness of counsel was not prejudicial to Ocampo. As the district court stated in its order, “Assuming that all of the evidence described by defendant was available to defendant’s trial counsel and counsel failed to present that evidence, the Court still would not have instructed the jury regarding a duress defense. Thus, defendant cannot demonstrate that he was prejudiced by trial counsel’s performance.” In the section 2255 motion, Ocampo contends that his lawyer failed to pursue the defense of duress. Ocampo argues that Hernando Gomez, a Colombian drug supplier, stayed at Ocampo’s house occasionally during the time when Ocampo was participating in the drug conspiracy, and that Gomez forced him to commit the illegal acts for" }, { "docid": "16756353", "title": "", "text": "records of the ease conclusively show that the movant is not entitled to relief. 28 U.S.C. § 2255; Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995). “Accordingly, a petition can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Id. Thus, to determine whether Blankenship was entitled to an evidentiary hearing, we must consider the validity of his allegation of ineffective assistance of counsel in light of the record in his case. The district court’s summary dismissal does not expressly state its reasons for rejecting Blankenship’s claim of ineffective assistance, and Blankenship seeks a remand to allow the district court to articulate its reasons. While the preferred practice would most certainly be for the district court to have enumerated its reasons for the summary dismissal, our review of the district court’s rejection of the claims involved is de novo. See Payne, 78 F.3d at 347. We conclude that a remand is not necessary, and we may affirm the district court on any basis supported by the record. To prevail on an allegation of ineffective assistance of counsel at sentencing, Blankenship must show both (1) that his attorney’s performance was deficient, falling below professional standards of competence; and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Wajda v. United States, 64 F.3d 385, 387 (8th Cir.1995). In assessing counsel’s performance, courts defer to reasonable trial strategies and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998). When considering whether the defense suffered prejudice, a court must determine whether “there is a reasonable probability [sufficient to undermine confidence in" }, { "docid": "3441151", "title": "", "text": "” and that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Nguyen v. United States, 114 F.3d 699, 703-04 (8th Cir.1997) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Furthermore, an evidentiary hearing is unnecessary if the defendant makes an insufficient preliminary showing on either or both prongs. See, e.g., Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995) (affirming denial of § 2255 motion without a hearing in the face of an ineffective assistance of counsel claim). In particular, no evidentiary hearing is required in cases involving the allegation of ineffective assistance of counsel where: (1) the allegations accepted as true would not entitle the defendant to relief or (2) the allegations cannot be accepted as true because they are (a) contradicted by the record or (b) inherently incredible or (c) conclusions rather than statements of fact. United States v. Regenos, 405 F.3d 691, 694 (8th Cir.2005.) There are two reasons why this claim must be denied. First, I find and conclude that there was no malpractice, assuming (without deciding), that defense counsel was aware of and failed to raise on direct appeal the issue of Zierke Ill’s alleged lie. The Supreme Court has held that defense counsel assigned to prosecute an appeal from a criminal conviction does not have a constitutional duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Here, there were compelling reasons not to raise the “Zierke III” argument because, as demonstrated earlier, the argument is laughable and because it would have only served to punctuate Zierke’s control over Zierke III. In short, counsel was exercising sound appellate strategy in the “process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail.” Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Barnes, 463 U.S. at 751-52, 103 S.Ct. 3308). See also Anderson v. United States, 393" }, { "docid": "23266018", "title": "", "text": "not “present[ ] a sufficient proffer to establish that he was not advised of his right to testify.” Owens v. United States, 236 F.Supp.2d 122, 144 (D.Mass.2002). Further, even taking Owens’ allegations as true, the district court concluded that Owens was adequately informed at trial of his right to testify. We review a district court’s denial of an evidentiary hearing for abuse of discretion. David v. United States, 134 F.3d 470, 477 (1st Cir.1998). A district court may forego such a hearing when “the movant’s allegations, even if true, do not entitle him to relief, or ... [when] the movant’s allegations ‘need not be accepted as true because they state conclusions instead of facts, contradict the record, or are inherently incredible.’ ” Id. (quoting United States v. McGill, 11 F.3d 223, 225-26 (1st Cir.1993)). In reviewing a district court’s denial of an evidentiary hearing, we take the petitioner’s credible allegations as true. Ellis, 313 F.3d at 641. To prove ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness,” and that “the deficient performance prejudiced his defense.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, a defendant must establish that' counsel was not acting within the broad norms of professional competence. Id. at 687-91, 104 S.Ct. 2052. Furthermore, to prove prejudice, a defendant must establish that, but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different. Id. at 694, 104 S.Ct. 2052. It is clear that a defendant has a “fundamental constitutional” right to testify in his own defense, Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), and that the right must be “unfettered,” Harris v. New York, 401 U.S. 222, 230, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The right to testify may not be waived by counsel acting alone. See United States v. Mullins, 315 F.3d 449, 454 (5th Cir.2002) (“The defendant’s right to testify is secured by the Constitution and only he can waive it.”); Sexton" }, { "docid": "22477376", "title": "", "text": "was based on an unreasonable determination of the facts. For those reasons, Earp is entitled to an evidentiary hearing in federal court and we remand for that purpose. A In order to establish entitlement an evidentiary hearing, Earp is not required to conclusively establish in this appeal that counsel was prejudicially deficient. Rather, Earp must demonstrate by evidence the potential of a colorable claim that, if proven true at the hearing, would show that his former counsel’s failure to investigate amounted to ineffective assistance of counsel, and that, but for such deficient representation, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 688, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). B A defendant in a criminal proceeding is entitled to effective assistance of counsel in order “to protect the fundamental right to a fair trial.” Id. at 684, 104 S.Ct. • 2052. Strickland sets forth two prongs that the defendant must satisfy in order to establish a Sixth Amendment right to counsel violation: (1) “the defendant must show that counsel’s performance was deficient”; and (2) “the defendant must show that the deficient performance prejudiced the defense.... Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. 2052. In order to satisfy the first prong, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” under “prevailing professional norms,” id. at 688,104 S.Ct. 2052, by identifying the acts or omissions “that are alleged not to have been the result of reasonable professional judgment[,]” id. at 690, 104 S.Ct. 2052. Our review of counsel’s performance for constitutional deficiency “must be highly deferential” and should include every effort “to eliminate the distorting effects of hindsight[.]” Id. at 689,104 S.Ct. 2052. It is not enough to show that counsel was deficient; rather, reversal is only proper if the error had a prejudicial effect on the outcome of the trial. Id. at 692,104" }, { "docid": "13808411", "title": "", "text": "(1st Cir.1992) (summary dismissal is appropriate when petition is inadequate on its face or is conclusively refuted by the files and records of the case); Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.1990) (allegations cannot be accepted if “they are contradicted by the record, inherently incredible or conclusions rather than statements of facts”). As established below, Smoak’s claims are such that a hearing on his petition is not necessary. 1. Ground One: Ineffective Assistance of Counsel Prior to Plea Hearing The Supreme Court has provided a two-pronged test for analyzing ineffective assistance of counsel claims. A petitioner must first demonstrate that his counsel’s performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, a petitioner must show that he was prejudiced by his counsel’s deficient performance. Id. at 687, 104 S.Ct. 2052. Strickland creates a strong presumption of reasonable professional assistance. Gould v. United States, 657 F.Supp.2d 321, 323 (D.Mass.2009) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Under the first prong, the Court has interpreted “adequate legal assistance” to mean “the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Moreover “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. Under the second prong, the petitioner must show that “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Id. at 692, 104 S.Ct. 2052. A defendant’s failure to satisfy one prong of the Strickland analysis obviates the need for a court to consider the remaining prong. Turner, 699 F.3d at 584 (“ ‘[TJhere is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.’ ”)" }, { "docid": "6811665", "title": "", "text": "here, Glover had “fair warning,” see Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), that he would face stiffer penalties as a repeat offender if he committed another drug-related offense. Those penalties were punishments for his 1995 crimes, not for his prior crimes, and therefore do not violate the Ex Post Facto Clause even though the federal statute labeled the prior convictions differently than did the states. See Arzate-Nunez, 18 F.3d at 733. VI Finally, Glover argues that he was denied effective assistance of counsel at trial. Where, as here, the defendant has not sought to develop a factual record of ineffectiveness in the district court, our-normal practice is to remand for an evidentiary hearing. See United States v. Toms, 136 F.3d 176, 181 (D.C.Cir.1998). However, we have recognized two exceptions to this general rule: “when the trial record alone conclusively shows that the defendant is entitled to no relief and when the record conclusively shows the contrary.” Id. (quoting United States v. Gaviria, 116 F.3d 1498, 1512 (D.C.Cir.1997)); see also United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C.Cir.1995); United States v. Poston, 902 F.2d 90, 99 n. 9 (D.C.Cir.1990). Here the record conclusively shows that Glover is entitled to no relief. Under the familiar two-part test enunciated in Strickland v. Washington, a defendant seeking to establish ineffective representation must show both “that counsels performance was deficient,” and that “the deficient performance prejudiced the defense.” 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This means a defendant must show that his counsel’s performance fell below “an objective standard of reasonableness” under prevailing professional norms, id. at 687-88, 104 S.Ct. 2052, and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. Glover fails to satisfy either part of the Strickland test. Glover’s principal claim is that his trial counsel failed to cross-examine Jones, the government informant, regarding Jones’ prior arrest for making a false statement while applying to purchase a firearm. But the" }, { "docid": "3441150", "title": "", "text": "is clear that Zierke’s counsel had been given discovery material regarding Vorhees and that defense counsel used some of it to impeach Vorhees. (E.g., filing 132 at CWECF p. 29-3.0) Still further, there is nothing in the record to show that the government failed to meet its Brady or Giglio obligations. Additionally, there is no reason to think that the government failed to meet its obligations under the Jenks Act. And, most importantly, there is no reasonable probability that the government’s failure to disclose the alleged information (whatever that might have been) undermines confidence in the outcome of the trial. After all, Vorhees was only one witness in the tsunami of evidence establishing beyond any reasonable doubt that the defendant was guilty as charged. Claim S — When Prosecuting the Appeal, Defense Counsel Was Ineffective Because He Refused To Use The Information about Zierke III Lying In order to prevail on his claims that defense counsel rendered ineffective assistance of counsel, Zierke must show that “ ‘counsel’s representation fell below an objective standard of reasonableness,’ ” and that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Nguyen v. United States, 114 F.3d 699, 703-04 (8th Cir.1997) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Furthermore, an evidentiary hearing is unnecessary if the defendant makes an insufficient preliminary showing on either or both prongs. See, e.g., Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995) (affirming denial of § 2255 motion without a hearing in the face of an ineffective assistance of counsel claim). In particular, no evidentiary hearing is required in cases involving the allegation of ineffective assistance of counsel where: (1) the allegations accepted as true would not entitle the defendant to relief or (2) the allegations cannot be accepted as true because they are (a) contradicted by the record or (b) inherently incredible or (c) conclusions rather than statements of fact. United States v. Regenos, 405 F.3d 691, 694 (8th Cir.2005.) There are two reasons" }, { "docid": "3492187", "title": "", "text": "that it was his normal practice to explain his clients’ Sixth Amendment jury trial rights to them. In the end, the court granted habeas relief because there was no direct evidence to contradict Miller’s testimony that his attorney failed to explain his Sixth Amendment right to trial by jury. The court also concluded that because Miller believed that his attorney had the right to waive a jury trial, his silence could not reasonably have been presumed to have been an affirmative waiver. The government appeals, asserting that under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Miller failed to show that, but for the breach of duty, the outcome of the trial would have been different. II. Discussion We review questions of ineffective assistance of counsel based on an undisputed factual record de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McGurk v. Stenberg, 163 F.3d 470, 473 (8th Cir.1998). The Sixth Amendment guarantees the criminal defendant the right to effective assistance of counsel. Strickland, 466 U.S. at 686, 104 S.Ct. 2052. To state a claim for ineffective assistance of counsel, a habeas petitioner must demonstrate that (1) “counsel’s representation fell below an objective standard of reasonableness;” and (2) “the deficient performance prejudiced the defense.” Id. at 687-88, 104 S.Ct. 2052. “To satisfy the second part of the Strickland test, the petitioner must prove that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ Garrett v. Dormire, 237 F.3d 946, 950 (8th Cir.2001) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limits the scope of judicial review in a habeas proceeding. Habeas relief cannot be granted on any claim that was “adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or" } ]

[ { "docid": "15084177", "title": "", "text": "lawful voyage; that the vessel and cargo were seized át Saint Jose by Captain Montgomery as prize of war, without any lawful or probable cause; that the vessel and cargo were not brought to the United States, nor proceeded against as prize of war in any court having jurisdiction to adjudicate upon the lawfulness of the capture, but were unlawfully sold and disposed óf by Captain Montgomery, whb thereby, had put it out. of his power to proceed to any lawful adjudication upon the legality of the capture, and had thus made himself a trespasser ab initio, independently of any lawful or probable cause for the original seizure. They pray, therefore, that he may be compelled to bring the cargo within' the jurisdiction of the court, or of some other court of the United States, and institute proceedings against the property, and show that there was lawful or probable cause for the seizure, and have the same adjudicated upon by some court of the United States having full jurisdiction in the matter; and that restitution of the goods or the value thereof may be awarded to the libellants, with damages for the unlawful seizure. Captain' Montgomery appeared and answered, and, admitted that, as commander of the United States ship Portsmouth, he seized and took the Admittance at Saint Jose as lawful prize; and justifies the seizure upon the ground that she sailed from New Orleans with the design of trading with the enemy; that she did in fact hold illegal intercourse with them, and discharged a part of her cargo at Saint Jose. And the respondent exhibits with his answer, and as a part of it, sundry papers received from Peter Peterson,.the master of the Admittance, together with her log-book'and the deposition of her mate. The respondent further states that it was impossible for him, consistently with the public interests, to send the Admittance to any port qf the United States; and that he carried her before the prize court hereinbefore mentioned, at Monterey, where she was condemned with her cargo as lawful prize; and exhibits the proceedings of that" } ]

[ { "docid": "22928975", "title": "", "text": "American capture is immaterial. As to the passengers, Pinto had no control over the reception of them into the vessel. He had taken the hold and two births in the cabin; as to the residue it remained subject to the disposal ofthé captain or owner. With regard to the three other points, after the best consideration that I have been able to give the subject, I satisfy my mind by two considerations. 1. I will not now give an opinion upon the abstract case of an individual neutral to all the world, it is known that Pinto was liable to capture both by the French and Carthagenians. This justified h:m in placing himself under British protection ; and if, in the exercise of this unquestionable right, he has incidentally impaired the exercise of our right of seizure for adjudicátion,“we have nothing to complain of. The case occurs daily ; and nothing but candor and fairness can be exacted of a neutral under such circumstances. 2. There appears to prevail much misconception with regard to the control acquired by Pinto, in this vessel, under the charter party. His contract gave him the occupation of the hold of the vessel and two births in the cabin; but went, no farther. Over the conduct of the master and crew, in navigating or defending the vessel, it communicated to him no power. It is true that by the conduct of the master and the fate of the vessel, he might be incidentally affected as asub-freighter, and so far he had an interest in her defence; still, however, it is reducible to the general interest which he .had in the'performance of th.e voyage, and it. does not appear that he ever acted under an idea of being authorized to control the. conduct of the captain, or took any part in the conflict which preceded the capture. I am of opinion tnat the judgment should De reversed and the property restored. Stort, J. My opinion will he confined to the point last argued because it definitively disposes of the cause against the claim of Mr. Pinto." }, { "docid": "22056442", "title": "", "text": "Mr. Justice Story delivered the opinion of the Court. This is a libel, brought by the master of the French ship Apollon, against the Collector of the District of St. Mary’s, for damages occasioned by an asserted illegal seizure of the ship and cargo, by the respondent, while she was lying in Belle river, a branch of the St Mary’s, within the acknowledged territories of the King of Spain. There is no dispute as to the .national character of the ship. It appears that she sailed from France, bound to Charleston, in South Carolina; but as. apprehensions were then entertained, that the proposed tonnage duty on French vessels might be passed by Congress, an alternative destination was given to her for a Spanish port, the object of the voyage being to land her cargo in the United States, and to take a return cargo of cotton to France. The cargo Was partly owned by French subjects, and partly by a Mr. Le Maitre, a domici led mercnant at Charleston, who was also the consignee. Upon her arrival off the port of Charleston, the master ascertained, that the French tonnage duty act had passed, (act of 15th of May, 1820, ch. 125.) and, therefore, declined entering the port; He had pn board some specie belonging to the Bank of the United States, which, by the permission of the collector, was brought, on shore by the revenue cutter. Having obtained information from the collector, that Amelia Island was not deemed an American territory, he sailed for that plape, under the direction ot the consignee ; and there the ship lay for a considerable time, while the master proceeded to St. Augustine, a. distance of about eighty miles, where he entered his ship and cargo, and paid the regular duties required by the Spanish authorities. While at this port, he ascertained, that the local authorities had it in contemplation to establish a new port of entry, to be called St. Joseph’s, on Belle river, within the Spanish territory, and to appoint officers of the customs to reside there. The . unquestionable object of" }, { "docid": "23120060", "title": "", "text": "alledge they acted; and it is contended, that the capture in question being of a Dutch ship, and not an American, the United States have no right to decide a dispute between the Dutch and the French, in regard to a capture on the high seas, claimed as lawful by one party, and denied to be such by the other, since such an interposition would be equally a violation of the law of nations, and of the 17th article of the treaty with France. To this objection, the following answers appear to me to be satisfactory: 1. That it is true, both by the law of nations, and the treaty with France, if a French privateer brings an enemy’s ship into our ports,, which she has taken as prize oh the high seas, the United States, as a nation, have no right to detain her, or make any enquiry into the circumstances of the capture. But this exemption from enquiry, by our courts of :uftice, in this refpefi, only belongs to a French privateer, lawfully com-miffioned, and, therefore, if a veffel claims that exemption, but does not appear to be duly-entitled to it, it is the éxprefs duty of the court, upon application, to make enquiry, 'whether fin is the vessel fie pretends, to be, lince her title to fuch exemption, depends on that very fact. Otherwise, any vessel whatever, under a colour of that kind, might capture with impunity, and defy all enquiry, if she kept out of a French port, equally in violation of the law of nations, and insulting to the French Republic, which, from a regard to its own honour and a principle of justice, would undoubtedly disdain all piratical assistance. She might say, now, I trust, with as much truth as dignity, Non tali auxilio, nec Defensoribus if is tempus eget. 2. That such, an enquiry being thus proper to be made, if upon the enquiry it shall appear, that the vessel pretending to be a lawful privateer, is really not such, but uses a colourable commission for the purposes of plunder, she is to" }, { "docid": "19222486", "title": "", "text": "apply to the vessels of friends; and whenever such “a war should exist between the United States and France, “or any other nation, as, according to the law of nations, “or special authority, would justify the re-capture of friend-“ly vessels, it might on that event, with similar propriety, “apply to them; which furnishes, I think, the true con-“struction of the act.” “The opinion which I delivered at New-York, in “Talbot v. Seeman, was, that although an American ves-“sel could not justify the taking of a neutral vessel from “the French, because neither the fort of war that sub- “sisted, nor the special commission under which the Ame-“rican acted, authorized the proceeding; yet that the “7th section of the act of 179; applied to re-captures “from France, as an enemy, in all cases authorized by con-“gress. And on both points my opinion remains un-“shaken; or rather has been confirmed by the very able “discussion which the subject has lately undergone in “this court, on the appeal from my decree.” Similar sentiments were also expressed by Judge Chase and Judge Paterson in the same case. From these opinions it seems clearly to result that the act of March 2d 1799, can not be the rule of salvage in this case. On the part of the libellant it was stated in reply, as to the admissibility of the dispatches from the American envoys, and the French arret of 18th January, 1798, that, courts of admiralty will always take notice of such laws of foreign countries as go to modify or change the law of nations, and are not bound by the same rules of evidence, as courts of common law. 1. Dal. 364. Loft. 631. Doug. 619. 622. 649. 650. 554. The opposite counsel have cited and relied on Robertson’s reports to shew what was the ancient law of France, and surely we have as good a right to cite the same book to shew what is the present law of France. In 1 Rob. 288. (The Maria,) this arret of France is cited and argued upon by the judge. The cases cited" }, { "docid": "23120048", "title": "", "text": "clear and satisfactory, that she was an American vessel, owned by citizens of the United States, and still continues to be so. The evidence in support of her being French property is extremely weak and futile; it makes no impression, it merits no attention. But if the Ami de la Liberte be the property of the French Republic, it might admit of a doubt, whether it would be available, so as to legalise her captures and prevent restoration ; because she was, after the sale (if any took place) to the republic, and before her departure from, and while she remained in, the United States, sitted out as an armed vessel of war ; from whence in such capacity, and commanded by Ballard, an American citizen, she set fail, and made capture of vessels belonging to citizens of the United Netherlands. The United States would, perhaps, be bound, both by the law of nations and an express stipulation in their treaty with the Dutch, to restore such captured vessels, when brought within their jurisdiction, especially if they had not been proceeded upon to condemnation in the Admiralty of France. On this, however, I give no opinion. The United States are neutral in the present war ; they take no part in it; they remain common friends to all the belligerent powers, not favoring the arms of one to the detriment of the others. An exact impartiality must mark their conduct towards the parties at war; for, if they favour one to the injury of the other, it would be a departure from pacific principles, and indicative of an hostile disposition. It would be a fraudulent neutrality. To this rule there is no exception, but what arises from the obligation of antecedent treaties, which ought to be religiously observed. If, therefore, the capture of the Magdalena was effected by Ballard alone, it must be pronounced to be illegal, and of course the decree of restitution is just and proper. This leads us, II. To consider the capture as having been made by Ballard and Talbot. Talbot commanded the privateer L’Ami de" }, { "docid": "19222485", "title": "", "text": "solemn, and because “those who are authorized to commit hostilities, act under “special authority, and can go no further than to the extent “of their commission.” And again he says, “It has like—“wise been said that the 7th section of the act of March, “1799, embraces cases which according to pre-existing “laws, could not then take place, because no authority “had been given to re-capture friendly vessels from the French, and this argument was strongly and forcibly “pressed. “But because every case provided for by this law was “not then exsting, it does not follow that the law should “not operate upon such as did exist, and upon the rest “whenever they should arise. It is a permanent law em-“bracing a variety of subjects; not made in relation to “the present war with France only, but in relation to “any future war with her, or with any other nation. It “might then very properly allow salvage for re-capturing “of American vessels from France, which had previously “been authorized by law, though it could not immedi-“ately apply to the vessels of friends; and whenever such “a war should exist between the United States and France, “or any other nation, as, according to the law of nations, “or special authority, would justify the re-capture of friend-“ly vessels, it might on that event, with similar propriety, “apply to them; which furnishes, I think, the true con-“struction of the act.” “The opinion which I delivered at New-York, in “Talbot v. Seeman, was, that although an American ves-“sel could not justify the taking of a neutral vessel from “the French, because neither the fort of war that sub- “sisted, nor the special commission under which the Ame-“rican acted, authorized the proceeding; yet that the “7th section of the act of 179; applied to re-captures “from France, as an enemy, in all cases authorized by con-“gress. And on both points my opinion remains un-“shaken; or rather has been confirmed by the very able “discussion which the subject has lately undergone in “this court, on the appeal from my decree.” Similar sentiments were also expressed by Judge" }, { "docid": "19222494", "title": "", "text": "eight wooden guns, with which she left Calcutta. From the ships papers, and other testimony, it appeared that she was the property of Chapeau Rouge, a citizen and merchant of Hamburgh; and it was conceded by the council below, that France and Hamburgh were not in a state of hostility with each other, and that Hamburgh was to be considered as neutral between the present belligerent powers. The district court of New-York, before whom the cause first came, decreed one-half of the gross amount of the ship and cargo as salvage to the re-captors. The circuit court of New-York reversed this decree, from which reversal, the re-captors appealed to this court. The Amelia was libelled as a French vessel, and the libellant prays that she may be condemned as prize; or, if restored to any person entitled to her as the former owner, that such restoration should be made on paying salvage. The claim and answer of Hans Frederick Seeman, discloses the neutral character of the vessel, and claims her on behalf of the owners. The questions growing out of these facts, and to be decided by the court, are— Is captain Talbot, the plaintiff in error, entitled to any, and if to any, to what salvage in the case which has been stated? Salvage is a compensation for actual service rendered to the property charged with it. It is demandable of right for vessels saved from pirates, or from the enemy. In order, however, to support the demand, two circumstances must concur. 1st. The taking must be lawful. 2d. There must be a meritorious service rendered to the re-captured. 1st. The taking must be lawful—for no claim can be maintained in a court of justice, founded on an act in itself tortious. On a re-capture, therefore, made by a neutral power, no claim for salvage can arise, because the act of re-taking is a hostile act, not justified by the situation of the nation to which the vessel making the re-capture belongs, in relation to that from the possession of which such re-captured vessel was taken. The degree of" }, { "docid": "23120049", "title": "", "text": "if they had not been proceeded upon to condemnation in the Admiralty of France. On this, however, I give no opinion. The United States are neutral in the present war ; they take no part in it; they remain common friends to all the belligerent powers, not favoring the arms of one to the detriment of the others. An exact impartiality must mark their conduct towards the parties at war; for, if they favour one to the injury of the other, it would be a departure from pacific principles, and indicative of an hostile disposition. It would be a fraudulent neutrality. To this rule there is no exception, but what arises from the obligation of antecedent treaties, which ought to be religiously observed. If, therefore, the capture of the Magdalena was effected by Ballard alone, it must be pronounced to be illegal, and of course the decree of restitution is just and proper. This leads us, II. To consider the capture as having been made by Ballard and Talbot. Talbot commanded the privateer L’Ami de la Point a Pirre. The question is,as the Magdalena struck to and was made prize of by Ballard, and as Talbot, who knew his situation, aided in his equipment, and acted in confederacy with him, afterwards had a fort of joint possession, whether Talbot can detain her as prize by virtue of his French commission ? To support the validity of Talbot’s claim it is contended, that Ballard had no commission or an inadequate one, and therefore his capture was illegal: That it was lawful for Talbot to take possession of the ship to captured, being a Dutch bottom, as the United Netherlands were at open war and enmity with the French republic, and Talbot was a naturalized French citizen, acting under a regular commission from the Governor of Guadaloupe. It has been already observed, that Ballard was a citizen of the United States; that the Ami de la Liberte, of which he had the command, was fitted out and armed as a vessel of war in the United States; that as such she failed" }, { "docid": "22438058", "title": "", "text": "Mr. Justice Johnson delivered the opinion of the Court. This vessel was stranded on Block Island, in an alleged effort to reach a port of the United States. The vessel and cargo have been seized by the Collector of Newport, for supposed violations of the trade laws of this country, and an information was accordingly filed, to subject the whole to condemnation, in the District Court, for Rhode. Island District. This claim of the United States has been opposed by three classes of competitors. The vessel and cargo, it . appears, are Spanish property, and were captured on the south western coast of Cuba, by the Puyerredon, a private armed brig, bearing the Hag of the. Buenos Ayrean Republic, and commandédby Captain James Barnes. Being armed, and well calculated for a privateer, she was manned with a complement of the privateer’s men, about thirty in number, and her original commander, and all except four of the Spanish crew, removed. Thus equipped, it appears that she cruised, as a tender to the Puyerredon, for about two months, during which time another Spaniard was added to her crew, and on the 8th May, w,hen in lat. 32 30, N. and long. 74, from London, the crew rose upon the officers, subdued them, put them on board the first vessel they met with, and steered their course for this continent. Thus circumstanced, Capt. Barnes has libelled in behalf of the captors, the Spanish Vice Consul in behalf of the original Spanish owners* and the crew of the Bello Corrünes have libelled for a compensation by way of salvage, to which they suppose themselves entitled, in the event of restitution being decreed to the original owners. To these several claims it is objected on behalf of the United States, that restitution cannot be decreed to the Spanish Vice Consul, because he is not in-that capacity a competent party in Court to assert the rights of individual subjects; nor, in favour of the captors, because the privateer was originally fitted out in the United States, and is still owned by American citizens; nor, in favour" }, { "docid": "22928965", "title": "", "text": "war while sheltered by the’olive branch of peace. She is not composed in part of the neutral character of Mr. Pinto, and in part of the hostile character of her owner. She is an open and declared belligerent; claiming all the rights, and subject to all the dangers of the belligerent character. She conveys neutral property which does not engage in her warlike equipments, or in any employment she may make of them ; which is put on board solely for the purpose of transportation, and which encounters the hazard in cident to its situation ; the hazárd of being taken into -port, and obliged to seek another conveyance should its carrier be captured. In this it is the opinion of the majority of the there is nothing unlawful. The characters of the vessel and cargo remain as distinct in this as in. any other case. The sentence? therefore, of the Circuit Court must be reversed, and the property claimed by Manuel Pinto for himself and his partners, and for those other Spaniards for whom he has claimed, be restored, and the libel as to that property, be dismissed. Johnson, J. Circumstances, known to this Court, have imposed upon me, in a great measure, the responsibility of this decision. I approach the case with all the hesitation which respéct for the opinion of others and a conviction of the novelty and importance of some of the, questions are calculated to inspire. The same respect imposes upon me an obligation briefly to state the, course of reasoning by which I am led to my conclusion. On the minor points I feel no difficulty.. There is nothing to support the charge of English domiciliation ; the charges of prevarication are satisfactorily explained}; and ón the question of national character, we must yet awhile reluctantly yield to the acknowledgement that Buenos Ayres is not free. . On the construction of the Spanish treaty, I fed as little hesitation. That a stipulation calculated, solely- to produce an extension of neutral rights, should involve in itself a.restriction of neutral rights; that a mutual and gratuitous" }, { "docid": "22042994", "title": "", "text": "; and no one has doubted the legality of the conduct. That captures may be made, within our own ports, by commissioned ships, seems a natural result of the language — of the generality of expression in relation to the authority to grant letters of marque and reprisal to private armed vessels, which the act does not confine to captures on the high seas, and is supported by the known usage of Great Britain in similar cases. It would be strange, indeed, if the executive could not authorize or ratify a capture in our own ports, unless by granting a commission to a public or private ship. ■ I am not bold enough to interpose a limitation, where congress have not chosen to made one; and I hold, that, by the act declaring war, the executive may authorize all captures which, by the modern law of nations, are permitted and approved. It will be at once perceived, that in this doctrine I do not mean to include the right to confiscate debts due to enemy subjects. This, though a strictly ^national , ~ right, is so justly deemed odious in modern times, and is so generally L discountenanced, that nothing but an express act of congress would satisfy my mind, that it ought to be included among the fair objects of warfare ; more especially, as our own government have declared it unjust and impolitic. But if congress should enact such a law, however much I might regret it, I am not aware, that foreign nations, with whom we have no treaty to the contrary, could, on the footing of the rigid law of nations, complain, though they might deem it a violation of the modern policy. “ On the whole, I am satisfied, that congress have authorized a seizure and condemnation of enemy property, found in our ports, under the circumstances of the present case. And the executive may lawfully authorize proceedings to enforce the confiscation of the same property, before the proper tribunals of the United States. The district-attorney is, for this purpose, the proper agent of the" }, { "docid": "23640325", "title": "", "text": "case will show that this is a mistaken supposition. The Court do not enter into the question of prize between the belligerents, but decree the residue to the late possessor : thus, making the fact of possession as between the belligerent parties, - the criterion of right. Those points which could be disposed of without any reference to the legal. exercise of the rights of war, the Court proceed to decide ; but those which necessarily involve the question of prize, or no prize, they remit to another tribunal. L’lnvincible, ante, vol. I. p. 259. Where the vessel which captured the prize in question, had beén built in the United States, with the express view of being employed as a privateer, in case the then existing differences between Great Britain and the United States should terminate in war ; some of her equipments were calculated for war, though frequently used by merchantships ; she was subsequently sold to a subject of one of the belligerent powers, and by him carried to a port of his own country, where she was completely armed, equipped, and furnished with a commission, and after-wards sailed on a cruize, and captured the prize : It was held, that this was not an illegal outfit in the United States, so as to invalidate the capture, and give their Courts jurisdiction to restore to the original owner the captured property. Moodie v. The Alfred, 3 Dall. 307. A mere replacement of the force of a privateer in a neutral port is not such an outfit and equipment as will invalidate the captures made by her, and give the Courts of the neutral country jurisdiction to restore the captured property to the original owner. Moodie v. The Phoebe Anne, 3 Dali. 319. A vessel and cargo belonging to citizens of the United States was captured as a prize by a cruizer belonging to one of the belligerent powers on the high seas, and run on shore within the territory of the United States, by the prize master, to avoid recapture by the other belligerent, and abandoned by the" }, { "docid": "22110208", "title": "", "text": "inj.ured party to proceed against the person ; that is, of the debtor in the one case, and against the trespasser in the other. By the maritime law, the vessel doing the injury is liable in rem for the tort; this is the right, and the remedy must be found somewhere. Chancery has no power to interfere, nor have the common law courts any power to seize the vessel and condemn hér ; and it seems to me to. be a strange dnomaly, .that where, no other court can afford the particular relief, in a case 'confessedly within the admiralty jurisdiction if occurring on the- ocean, that the power did not exut because the trespass tpok place in the body of a State and county.. I have thus briefly stated my reasons for sustaining admiralty jurisdiction in this instance, because of the divided opinions of the judges on the question; and because I do not intend to be committed to any ..views beyond those arising on the precise case before the court. I therefore concur that the jurisdiction exists. The -facts in my judgment authorize the affirmance of the decree below. WOODBURY, J., dissenting. It is important to notice in the outset some unusual features in this case. The Supreme Court is called upon to try the facts as well as the law in it, and to decide them between parties in interest who belong to the same .State, and as to a transaction \\yhich happened, not on the high seas, as is usual in torts under admiralty jurisdiction, but two hundred miles above the mouth of the Mississippi river,- within the limits of a county, and in die heart of the State of Louisiana. A question of jurisdiction, therefore, arises in this. which is very important, and must first be disposed of. It involves the trial by jury as to trespasses of every kind happening between the ocean and the head of tide-waters in all -the numerous rivers of the United States, as well as the rights of the citizens near them, in such disputes with their neighbours, to" }, { "docid": "19222493", "title": "", "text": "of the district court of that state, restoring the ship Amelia to her owner on the payment of one-half for salvage, was reversed, and a decree rendered, directing the restoration of the vessel without salvage. The facts agreed by the parties, and the pleadings in the cause, present the following case: The ship Amelia failed from Calcutta in Bengal, in April, 1799, loaded with a cargo of the product and manufactory of that country, and was bound to Hamburgh. On the 6th September she was captured by the French national corvette La Diligente, commanded by L. J. Dubois, who took out the captain, part of the crew, and most of the papers of the Amelia, and putting a prize master and French sailors on board her, ordered her to St. Domingo to be judged according to the laws of war. On the 15th of September she was re-captured by captain Talbot, commander of the Constitution, who ordered her into New-York for adjudication. At the time of the re-capture, the Amelia had eight iron cannon, and eight wooden guns, with which she left Calcutta. From the ships papers, and other testimony, it appeared that she was the property of Chapeau Rouge, a citizen and merchant of Hamburgh; and it was conceded by the council below, that France and Hamburgh were not in a state of hostility with each other, and that Hamburgh was to be considered as neutral between the present belligerent powers. The district court of New-York, before whom the cause first came, decreed one-half of the gross amount of the ship and cargo as salvage to the re-captors. The circuit court of New-York reversed this decree, from which reversal, the re-captors appealed to this court. The Amelia was libelled as a French vessel, and the libellant prays that she may be condemned as prize; or, if restored to any person entitled to her as the former owner, that such restoration should be made on paying salvage. The claim and answer of Hans Frederick Seeman, discloses the neutral character of the vessel, and claims her on behalf of the owners." }, { "docid": "4324663", "title": "", "text": "authority for that purpose,- in the then existing state óf things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication American vessels which were forfeited by being engaged in .this illicit commerce. But' when it is observed that the general clause„of this first section of the act, which declares ‘ that such vessels ¿ray be seized, and may be prosecuted in any District or Circuit Court, which shall be h'olden within or for the district where the seizure shall be made,’ obviously contemplates a seizure within the United States; and that the fifth section gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to- ha,Ve prescribed that the manner in which this law •shall be .carried into execution, was to exclude a seizure of any vessel not bound to a French port. Of consequence, however strong the circumstances might be, which induced Captain ■ Little to suspect the Flying-Fish to be an' American vessel, they could not excuse the detention \"of her, since he would not ‘ have been authorized to detain, her had she. been really American.” And he states the conclusion of the court to be: “ That - the instructions cannot change the nature of the \"transaction, nor legalize an act which, without those instructions, would have been a plain trespass.” In United States v. Rauscher, it appeared that the United States asserted the right under the law of nations to try persons extradited from Great Britain for offences other than those for which they were extradited, while Great Britain insisted that no such right existed .under the law of nations or was conceded by treaty. The question was, whether, under the treaty with Great Britain, a man extradited -from England to this country on the charge of murder could be tried here for another' offence, and it was held that he could not be. And Mr. Justice Miller, delivering the opinion of the court quoted" }, { "docid": "19222492", "title": "", "text": "“for American goods retaken from the French. But “this point has not been pursued in argument; and in-“deed I should wonder if it had, after the determinations “of this court, which have in various instances, decreed “salvage in similar cases. It is not for me to say whe-“ther America is at war with France, or not; but the “conduct of France towards America has been such de “facto, as to induce American owners to acknowledge “the services by which they have recovered their ships “and cargoes out of the hands of French cruizers by force of arms.” In the case of Bas & Tingey, the question was not argued, whether salvage could be claimed upon the re-capture of a neutral, on the ground of benefit rendered; and therefore the opinion of the court in that case does not militate with our claim. August 11th. Marshall, Chief Justice, delivered the opinion of the court. This is a writ of error to a decree of the circuit court for the district of New-York, by which the decree of the district court of that state, restoring the ship Amelia to her owner on the payment of one-half for salvage, was reversed, and a decree rendered, directing the restoration of the vessel without salvage. The facts agreed by the parties, and the pleadings in the cause, present the following case: The ship Amelia failed from Calcutta in Bengal, in April, 1799, loaded with a cargo of the product and manufactory of that country, and was bound to Hamburgh. On the 6th September she was captured by the French national corvette La Diligente, commanded by L. J. Dubois, who took out the captain, part of the crew, and most of the papers of the Amelia, and putting a prize master and French sailors on board her, ordered her to St. Domingo to be judged according to the laws of war. On the 15th of September she was re-captured by captain Talbot, commander of the Constitution, who ordered her into New-York for adjudication. At the time of the re-capture, the Amelia had eight iron cannon, and" }, { "docid": "22103222", "title": "", "text": "directed that “ all vessels which shall have cleared out from any port so far under the control of France’ or her allies as that British vessels may not freely trade thereat, and which are employed in the whale fishery, or other fishery of any description, save as hereinafter excepted, and are returning or destined to return either to the port from whence they cleared, or to any other port or place at which the British flag may not freely .trade, shall be captured, and condemned together with their stores and cargoes, as prize to’ the captors,” there were excepted “ vessels employed in catching and conveying fish fresh to market, such vessels not being fitted or provided for the- curing of fish.” Edw. Adm. appx. L. Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, wrote: “It has been usual in maritime wars to exempt from capture fishing boats and their cargoes, both from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. This custom, so honorable to the humanity of civilized nation^, has fallen into disuse;' and it is remarkable that both France and England mutually reproach each other with that breach of good faith which has finally abolished it.” \"Wheaton on Captures, c. 2, § 18. This statement clearly exhibits Wheaton’s opinion that the custom had been a general one, as well as that it ought to remain so. His assumption that it had been abolished by the differences between France and England at the close of the last century was hardly justified by the state of things when he wrote, and has not since been borne out. During the wars of the French Empire, as both French and English writers agree, the coast fisheries were left in peace. 2 Ortolan, 54; De Boeck, § 193 ; Hall, § 148. De Boeck quaintly and truly adds, “ and the incidents of 1800 and of 1801 had no morrow — nUurent jpas de Underlain.” In the war with Mexico in 1846, the United" }, { "docid": "4386675", "title": "", "text": "to the act of congress of the 2d of August, 1813, ch. 5&. prohibiting the use of British licenses. It is unnecessary to consider the two last articles which are founded upon statutable prohibitions, because, it is clear, that the two preceding articles, founded on the general law of prize, are sufficient to justify a condemnation jure belli, the proof of the facts being most clearly established. The only questions which can arise in the cage, are whether the ship was liable to seizure for the asserted forfeiture, after her arrival in port; and, if so, whether the collector had authority to make the seizure. And . we are clearly of opinion in favour of the United States on both points. It is nót necessary, to enable the government to enforce condemnation in this case, that there should, be a capture on the high seas. By the general law of war, every American ship sailing under the pass, or license of the enemy, or trading, with the enemy, is deemed to be an enemy’s ship, and forfeited as prize. If captured on the high seas, by a commissioned vessel, the property may be condemned to the captors as enemy’s property; .if captured by an uncommissioned ship, .the capture is. still valid, and the property must be condemned to the United States. But the right of the go-, vernment to the forfeiture, is not founded on the capture; it arises4 from its general, authority to seize all enemies property coming into our ports during war; and also from its authority to enforce a forfeiture against its own citizens,-whenever the property.comes within, its reach. If, indeed, the mere arrival in port Would purge away the forfeiture, it would afford the utmost impunity to persons engaged in illegal traffic during war, for in most instances, the government would have no means of ascertaining the offence until after such arrival. In respect to the other point, it is a general rule, that any person may seize any property forfeited to the use of the government, either by the municipal law, or by the law" }, { "docid": "22928973", "title": "", "text": "; and. if laden, the:,right or faculty, of resistance is in no wise increased. ' It is inherent ih her national character, and can be exercised by strict right, without any reference to the cargo that she con tains, Suppose tlie case of a vessel and cargo wholly neutral; even she possesses a natural right to resist seizure ; but her resistance must be effectual, or national law pronounces her forfeited. What injury re-, suits to the belligerent cruizer ? If the cargó be really neutral, the exercise of his right of judging becomes immaterial ; and if it be contraband, or otherwise subject to condemnation, what reason in nature can be assigned why the neutral owner should not throw himself upon the fortune of war, and rely upon the protection of your enemy ? You treat him as an enemy, if captured, and why should not he regard you.as an enemy, and provide for his defence against you ? Í can very well conceive that a case may occur in which it may become the policy, of this country to throw down the gauntlet to the world and'assert a different principle. But the policy of these States is submitted to the wisdom of the legisture, and I shall feel myself bound by other reasons until the constitutional power shall decide what modifications it will prescribe to the exercise of any acknowledged neutral right. The second ground of exception resolves itself into several points, and presents to my mind the greatest difficulties in the-case. 1. There is á stipulation contained in the charter-party that the vessel shall sail with convoy. 3. Pinto chartered the whole vessel. S. He took in sub-affreightment of hostile goods. 4. It is contended he had contributed to the arming and manning of the vessel after chartering her. 5. And that her equipment was pointedly against American capture. With regard to the two latter points I am of opinion that the evidence does not prove that Pinto contributed to tlie armament of the vessel; and if she was armed by the owners, that it was against" }, { "docid": "23640331", "title": "", "text": "of the judicial tribunals, and give an individual, whose property has been wrested from him, a right 'to claim that property in the Courts of the country where it is found, ought not to be so construed as to give them jurisdiction in a caste, in which the sovereign power has impliedly consented to waive its jurisdiction. Ib. 146. Upon these grounds it was determined, in this case, that a public vessel of war, belonging to the emperor Napoleon, which had before been the property of a citizen of the United States, and, as alleged, Wrongfully seized by the French, coming into our ports, and demeaning herself peaceably, could not be reclaimed by the former owner in the tribunals of this country. Ib. The general rule as to the prize jurisdiction is, that the trial of captures made on the high seas, jure belli, by a duly commissioned vessel of war, whether from an enemy or a neutral, belongs exclusively to the Courts of that nation to which the captor belongs. The Alerta, 9 Cranch, 359. 364. But to this rule there are exceptions as firmly established as the rule itself. If the capture be made within the territorial limits of a neutral country, into which the prize is brought, or by a privateer which has been illegally equipped in sueh neutral country, the prize Courts of such neutral country not only possess the power, but it is their duty to restore the property so illegally captured to the owner. Ib. 364. Talbot v. Janson, 8 Dall. 133. Ib. 288. note. A neutral nation may, if so disposed, without a breach of its neutral character, grant permission to both belligerents to equip their vessels of war within its .territory. But without such permission, the subjects of the belligerent powers have no right to equip vessels, or to augment their force,.either with arms, or with men, within the territory of the neutral,nation. The, Alerta. 9 Crunch, 365. All captures made by means ¿f .such equipments ,of vessels, or augmentation, of their force witbih the neutral territory, are illegal in respect to" } ]

[ { "docid": "22330259", "title": "", "text": "claims for a number of valid reasons, id., at 726-727. See also Cohill, 484 U. S., at 350 (“As articulated by Gibbs, the doctrine of pendent jurisdiction thus is a doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the maimer that most sensibly accommodates a range of concerns and values”). Accordingly, we have indicated that “district courts [should] deal with eases involving pendent claims in the manner that best serves the principles of econ omy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine.” Id., at 357. The supplemental jurisdiction statute codifies these principles. After establishing that supplemental jurisdiction encompasses “other claims” in the same case or controversy as a claim within the district courts’ original jurisdiction, § 1367(a), the statute confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise: “(e) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— “(1) the claim raises a novel or complex issue of State law, “(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, “(3) the district court has dismissed all claims over which it has original jurisdiction, or “(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c). Depending on a host of factors, then — including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims — district courts may decline to exercise jurisdiction over supplemental state law claims. The statute thereby reflects the -understanding that, when deciding whether to exercise supplemental jurisdiction, “a federal eourt should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity.” Cohill, supra, at 350. In this case, the District Court decided that those interests would be best served by exercising jurisdiction over ICS’ state law claims. App. to Pet. for Cert. 45a—46a. In" } ]

[ { "docid": "12500592", "title": "", "text": "matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733, 787 (1990). 2. District Court Discretion. The Tenth Circuit has followed the Supreme Court’s \"lead in classifying supplemental jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir.2004)(citing City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726, 86 S.Ct. 1130. Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for de- ■ dining jurisdiction. 28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity .... ” Estate of Harshman v: Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts have acknowledged that 28 U.S.C. § 1367(c) necessarily changed the district courts’ supplemental jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367(c) exists, courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir.1998)(“[S]ection 1367 has indeed altered Gibbs’ discretionary analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.1994) (“The statute plainly allows the district court to reject jurisdiction over" }, { "docid": "20907935", "title": "", "text": "725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Supplemental jurisdiction gives federal courts the flexibility to hear a cause of action after the introduction of third parties, whose insertion into the litigation does not have the support of any independent grounds for federal jurisdiction, when those parties share a common interest in the outcome of the litigation and are logical participants in it. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 375 n. 18, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). In 1988, the Honorable William H. Rehnquist, then-Chief Justice of the Supreme Court, created the Federal Courts Study Committee to analyze the federal court system and to recommend reforms. See James v. Chavez, No. CIV 09-0540 JB/CG, 2011 WL 6013547, at *5 (D.N.M. Nov. 21, 2011) (Browning, J.)(citing 16 Moore’s Federal Practice § 106.04[5] (Matthew Bender 3d ed.)). In response to the Committee’s findings regarding pendent, ancillary, and pendent-party jurisdiction, Congress codified the doctrines when it passed the Judicial Improvements Act of 1990: [I]n any civil action of which the district courts have original jurisdiction, the dis trict courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to deal economically — in single rather than multiple litigation — with matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L.Rev. 733, 787 (1990). 2. The District Courts’ Discretion to Exercise Supplemental Jurisdiction. The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of" }, { "docid": "20907937", "title": "", "text": "Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir.2004) (citing City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726, 86 S.Ct. 1130. Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity....” Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts have acknowledged that 28 U.S.C. § 1367(c) necessarily changed the district courts’ supplemental jurisdiction discretion analysis and that, unless one of the conditions-of 28 U.S.C. § 1367(c) exists, courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir.1998) (“[S]eetion 1367 has indeed altered Gibbs’ discretionary analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.1994) (“The statute plainly allows the district court to reject jurisdiction over supplemental claims only in the four instances described therein.”); Exec. Software N. Am. v. U.S. Dist. Ct., 24 F.3d 1545, 1557 (9th Cir.1994) (“By codifying preexisting applications of Gibbs in subsections (c)(1) — (3), however, it is clear that Congress intended the exercise of discretion to be triggered by the court’s identification of a factual predicate that corresponds to one of the section 1367(c)" }, { "docid": "12500593", "title": "", "text": "complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for de- ■ dining jurisdiction. 28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity .... ” Estate of Harshman v: Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts have acknowledged that 28 U.S.C. § 1367(c) necessarily changed the district courts’ supplemental jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367(c) exists, courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir.1998)(“[S]ection 1367 has indeed altered Gibbs’ discretionary analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.1994) (“The statute plainly allows the district court to reject jurisdiction over supplemental claims only in the four instances described therein.”); Executive Software N. Am. v. U.S. Dist. Court, 24 F.3d 1545, 1557 (9th Cir.1994)(“By codifying preexisting applications of Gibbs in subsections (c)(l)-(3), however, it is clear .that Congress intended the exercise .of discretion to be triggered by the court’s identification of a factual predicate that corresponds to one of the section 1367(c) categories.”), overruled on other grounds by Cal. Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008); Palmer v. Hosp. Auth., 22 F.3d 1559, 1569 (11th Cir.1994)(“[S]upplemental jurisdiction must be exercised in the absence of any of the four factors of section 1367(c) .... ”)(emphasis in original); Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT, 2009 WL 1324119, at *8 (D.N.M. April 30, 2009)(Browning, J.)(“28 U.S.C. § 1367(c) changed the district courts’ supplemental jurisdiction discretion analysis to prohibit courts from declining jurisdiction unless one of the conditions of 28 U.S.C. § 1367(c) exists.”). At least one other district court in the Tenth Circuit besides this Court has reached the same conclusion. See" }, { "docid": "22856923", "title": "", "text": "other claims.... ” The sentence that Congress used to confer jurisdiction excepts from its scope those claims over which the district court may decline to exercise jurisdiction. The statute does not say that the court shall “exercise” jurisdiction. I find the majority’s resort to footnote fourteen in Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3d Cir.1993) puzzling at best. The footnote says, “The language in § 1367 expressly ... states that federal courts shall exercise supplemental jurisdiction over pendent claims arising out of the same case or controversy and may decline to exercise jurisdiction [as provided by § 1367(c) ].” (emphasis in original). I cannot find the words “shall exercise jurisdiction” in the statute. I find only “shall have supplemental jurisdiction,” and that phrase is further clarified by the exceptions in subsection (c). Just as the doctrine of supplemental jurisdiction itself is justified by considerations of judicial economy, convenience, and fairness to litigants, Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139, so should a federal court “consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims.” Carnegie-Mellon Univ., 484 U.S. at 360, 108 S.Ct. at 619. Congress did not use the word “discretion” in section 1367, but the Federal Courts Study Committee appointed by the Chief Justice at the direction of Congress in advocating the legislation said: These supplemental forms of jurisdiction which may be exercised in the discretion of the federal courts, enable them to take full advantage of the rules on claim and party joinder to deal economically — in single rather than multiple litigation — with matters arising from the same transaction or occurrence. Pendent and ancillary jurisdiction may be used with respect either to additional claims between parties already before the courts (as with compulsory counterclaims) or to claims bringing in new parties (as with impleader of a third-party defendant). Report of the Federal Court Study Committee, at 47 (April 2, 1990)" }, { "docid": "4256764", "title": "", "text": "of the same case or controversy,” 28 U.S.C. § 1367(a) (Supp. 1993), the district court clearly had the power to decide the common law claims. Whether actually to decide them is a matter left to the sound discretion of the district court, guided by consideration of the factors enumerated in 28 U.S.C. § 1367(c), which essentially codifies the leading decision on pendent (now “supplemental”) jurisdiction, United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). We review for abuse of discretion. Diven v. Amalgamated Transit Union International & Local 689, 38 F.3d 598, 601 (D.C.Cir.1994). Here, if the district court considered the relevant factors at all, it left no written trace of the process; after dismissing the RICO claims, the court plunged into the common law ones with no apparent pause for breath. See 829 F.Supp. at 425. Section 1367(c) provides as follows: (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) The claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. §. 1367(c). Gibbs determines the framework in which these are to be considered, mentioning judicial economy, convenience, fairness and comity as relevant. 383 U.S. at 726, 86 S.Ct. at 1139. The present case implicates two of the three specific bases for declining to exercise supplemental jurisdiction under § 1367(e), each independently sufficient. The court dismissed all claims over which it-had original jurisdiction, § 1367(c)(3), and the local law claims raise “novel or complex issue[s] of State law,” § 1367(c)(1), issues that appear to have been resolved in conflicting ways by D.C. courts and federal courts attempting to apply D.C. law. One example will adequately illustrate the latter point. D.C. courts have held that a breach of contractas an essential element of the tort of" }, { "docid": "17342713", "title": "", "text": "all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to deal economically—in single rather than multiple litigation—with matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733, 787 (1990). 2. District Court Discretion. The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction, not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004)(citing City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726, 86 S.Ct. 1130. Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity.” Estate of Harshman" }, { "docid": "17342714", "title": "", "text": "Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726, 86 S.Ct. 1130. Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity.” Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts have acknowledged that 28 U.S.C. § 1367(c) necessarily changed the district courts’ supplemental jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367(c) exists, courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir. 1998)(“[S]ection 1367 has indeed altered Gibbs’ discretionary analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir. 1994)(“The statute plainly allows the district court to reject jurisdiction over supplemental claims only in the four instances described therein.”); Executive Software N. Am. v. U.S. Dist. Court, 24 F.3d 1545, 1557 (9th Cir. 1994)(“By codifying preexisting applications of Gibbs in subsections (c)(l)-(3), however, it is clear that Congress intended the exercise of discretion to be triggered by the court’s identification of a factual predicate that corresponds to one of the section 1367(c) categories.”); Palmer v. Hosp. Auth., 22 F.3d 1559, 1569 (11th Cir. 1994) (“[Supplemental jurisdiction must be exercised in the absence of any" }, { "docid": "20907936", "title": "", "text": "courts have original jurisdiction, the dis trict courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to deal economically — in single rather than multiple litigation — with matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L.Rev. 733, 787 (1990). 2. The District Courts’ Discretion to Exercise Supplemental Jurisdiction. The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir.2004) (citing City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726, 86 S.Ct. 1130. Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). In applying these factors, district courts" }, { "docid": "22856924", "title": "", "text": "and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims.” Carnegie-Mellon Univ., 484 U.S. at 360, 108 S.Ct. at 619. Congress did not use the word “discretion” in section 1367, but the Federal Courts Study Committee appointed by the Chief Justice at the direction of Congress in advocating the legislation said: These supplemental forms of jurisdiction which may be exercised in the discretion of the federal courts, enable them to take full advantage of the rules on claim and party joinder to deal economically — in single rather than multiple litigation — with matters arising from the same transaction or occurrence. Pendent and ancillary jurisdiction may be used with respect either to additional claims between parties already before the courts (as with compulsory counterclaims) or to claims bringing in new parties (as with impleader of a third-party defendant). Report of the Federal Court Study Committee, at 47 (April 2, 1990) (emphasis added). The House Report that accompanied the final version of the statute explains the goal of section 1367(e): [Section 1367(c) ] codifies the factors that the Supreme Court has recognized as providing legitimate bases upon which a district court may decline jurisdiction over a supplemental claim. Subsection (c)(1) — (3) codifies the factors recognized as relevant under current law. Subsection (e)(4) acknowledges that occasionally there may exist other compelling reasons for a district court to decline supplemental jurisdiction, which the subsection does not foreclose a court from considering in exceptional circumstances. H.R. No. 734, 101st Cong., 2d Sess. 29 (1990), reprinted in 1990 U.S.C.A.A.N. 6860, 6875. Thus, the majority puts us in conflict with other circuits. See Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.1993) (Posner, J.) (“[T]he new statute is intended to codify rather than to alter the judge-made principles of pendent and pendent party jurisdiction^]”); Growth Horizons, Inc., 983 F.2d at 1284 (“In making its determination [whether to remand pursuant to section 1367(c) ], the district court should" }, { "docid": "2824506", "title": "", "text": "that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to. deal economically — in single rather than multiple litigation — with matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L.Rev. 733, 787 (1990). 2. The District Courts’ Discretion to Exercise Supplemental Jurisdiction. The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir.2004) (citing City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726, 86 S.Ct. 1130. Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity....” Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts have acknowledged that 28 U.S.C. § 1367(c) necessarily changed the district courts’ supplemental jurisdiction discretion analysis and that, unless one" }, { "docid": "8999012", "title": "", "text": "implied and express contract. This court has original jurisdiction over plaintiffs federal CERCLA claims pursuant to 42 U.S.C. §§ 9607(a), 9613(b) and 28 U.S.C. § 1331. While defendant Bean concedes that the court has the power to exercise pendent, or supplemental, jurisdiction, see United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); 28 U.S.C. § 1367(a), Bean argues that the court should, in its discretion, decline to exercise supplemental jurisdiction over plaintiffs state law claims. II. Supplemental Jurisdiction In 1990, the doctrines of “pendent” and “ancillary” jurisdiction were codified under the name of “supplemental jurisdiction” at 28 U.S.C. § 1367. Section 1367(a) provides that if a federal district court has original jurisdiction of a claim, the court shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same ease or controversy under Article III of the United States Constitution. 28 U.S.C. § 1367(a). This broad jurisdictional mandate is subject to the provisions of subsection (c) which permits the discretionary rejection of supplemental jurisdiction under certain specified circumstances. Section 1367(c) provides that a district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). Section 1367(c) appears to codify the bases for declining jurisdiction described by the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966): It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiffs right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims," }, { "docid": "17342712", "title": "", "text": "383 U.S. at 725, 86 S.Ct. 1130. Supplemental jurisdiction gives federal courts the flexibility to hear a cause of action after the introduction of third parties whose insertion into the litigation lacks support of any independent grounds for federal jurisdiction, when those parties share a common interest in the outcome of the litigation and are logical participants in it. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 375 n.18, 98 S.Ct. 2396. In 1988, the Honorable William H. Rehnquist, Chief Justice of the United States, created the Federal Courts Study Committee to analyze the federal court system and to recommend reforms. See James v. Chavez, 2011 WL 6013547, at *5 (D.N.M. 2011)(Browning, J.)(citing 16 James Wm. Moore et al., Moore’s Federal Practice § 106.04[5]). In response to the Committee’s findings regarding “pendent” and “ancillary” jurisdiction, Congress codified the application of the two doctrines when it passed the Judicial Improvements Act of 1990: [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to deal economically—in single rather than multiple litigation—with matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733, 787 (1990). 2. District Court Discretion. The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction, not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004)(citing City of Chi. v. Int’l Coll. of" }, { "docid": "12500591", "title": "", "text": "system and to recommend reforms. See James v. Chavez, No. CIV 09-0540 JB/CG, 2011 WL 6013547, at * 5 (D.N.M. November 21, 2011)(Browning, J.)(citing 16 Moore’s Federal Practice, § 106.04[5] (Matthew Bender 3d ed.)). In response to the Committee’s findings regarding pendent and ancillary jurisdiction, Congress codified the application of the two doctrines when it passed the Judicial Improvements Act of 1990; [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a)! In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms- of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to deal economically—in single rather than multiple litigation—with matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L. Rev. 733, 787 (1990). 2. District Court Discretion. The Tenth Circuit has followed the Supreme Court’s \"lead in classifying supplemental jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir.2004)(citing City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726, 86 S.Ct. 1130. Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or" }, { "docid": "8681029", "title": "", "text": "antitrust rights under European law. Second, defendants argue that the Court may not exercise supplemental jurisdiction in this case because the European law claims are not part of the same case or controversy as the Sherman Act claims. See 28 U.S.C. § 1367(a). Third, defendants argue the Court should in its discretion decline to exercise supplemental jurisdiction over these claims. Fourth, defendants argue that these claims should be dismissed under the doctrine of forum non conveniens. The Court, in its discretion under 28 U.S.C. § 1367(c), declines to exercise supplemental jurisdiction over the European law claims. Accordingly, those claims are dismissed, and defendants’ motion to dismiss is granted to that extent. In light of that decision, the Court does not address defendants’ other arguments for dismissal of the claims under European law. Section 1367(c) provides that a district court may decline to exercise supplemental jurisdiction if “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for denying jurisdiction.” Id. Federal jurisdiction over pendent claims or parties is not mandatory; supplemental jurisdiction is a matter of judicial discretion, not of the litigants’ right. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir.2004) (citing City of Chicago v. International Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997) and United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). The Court concludes that it should decline to exercise supplemental jurisdiction over the European law claims in this case for multiple reasons listed in section 1367(c). The Court concludes that litigation of the European law claims in this case would raise novel and complex issues of European law. See Mars Inc. v. Nippon Conlux Kabushiki-Kaisha, 825 F.Supp. 73, 76 (D.Del.1993) (“the principles embodied in [28 U.S.C. § 1367(c)(1) ] are" }, { "docid": "2824505", "title": "", "text": "outcome of the litigation and are logical participants in it. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 375 n. 18, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). In 1988, the Honorable William H. Rehnquist, then-Chief Justice of the Supreme Court, created the Federal Courts Study Committee to analyze the federal court system and to recommend reforms. See James v. Chavez, No. CIV 09-0540 JB/CG, 2011 WL 6013547, at *5 (D.N.M. Nov. 21, 2011) (Browning, J.) (citing 16 Moore’s Federal Practice § 106.04[5] (Matthew Bender 3d ed.)). In response to the Committee’s findings regarding pendent, ancillary, and pendent-party jurisdiction, Congress codified the doctrines when it passed the Judicial Improvements Act of 1990: [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to. deal economically — in single rather than multiple litigation — with matters arising from the same transaction or occurrence.” Report of the Federal Courts Study Committee, Part II.2.B.2.b. (April 2, 1990), reprinted in 22 Conn. L.Rev. 733, 787 (1990). 2. The District Courts’ Discretion to Exercise Supplemental Jurisdiction. The Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction not as a litigant’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir.2004) (citing City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise" }, { "docid": "2824507", "title": "", "text": "that jurisdiction. The traditional analysis, based on the Supreme Court’s opinion in United Mine Workers v. Gibbs, compelled courts to consider “judicial economy, convenience and fairness to litigants” when deciding whether to exercise supplemental jurisdiction. 383 U.S. at 726, 86 S.Ct. 1130. Similarly, Congress’ supplemental jurisdiction statute enumerates four factors that the court should consider: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). In applying these factors, district courts should seek to exercise supplemental jurisdiction in an effort to “vindicate values of economy, convenience, fairness, and comity....” Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1164. Numerous courts have acknowledged that 28 U.S.C. § 1367(c) necessarily changed the district courts’ supplemental jurisdiction discretion analysis and that, unless one of the conditions of 28 U.S.C. § 1367(c) exists, courts are not free to decline jurisdiction. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir.1998) (“[Section 1367 has indeed altered Gibbs’ discretionary analysis.”); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir.1994) (“The statute plainly allows the district court to reject jurisdiction over supplemental claims only in the four instances described therein.”); Exec. Software N. Am. v. U.S. Dist. Ct., 24 F.3d 1545, 1557 (9th Cir.1994) (“By codifying preexisting applications of Gibbs in subsections (c)(1)-(3), however, it is clear that Congress intended the exercise of discretion to be triggered by the court’s identification of a factual predicate that corresponds to one of the section 1367(c) categories.”), overruled on other grounds by Cal. Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir.2008); Palmer v. Hosp. Auth., 22 F.3d 1559, 1569 (11th Cir.1994) (“[Supplemental jurisdiction must be exercised in the absence of any of the four factors of section 1367(c)....”) (emphasis in original); Bonadeo v. Lujan, No. CIV" }, { "docid": "21399208", "title": "", "text": "common law claims form “part of the same ease or controversy.” Whether to decide the common law claims is a matter left to the sound discretion of the court, guided by consideration of the factors enumerated in 28 U.S.C. § 1367(c). This provision gives discretion to district courts on whether to exercise supplemental jurisdiction. It essentially codifies the leading decision on pendent (now “supplemental”) jurisdiction, United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) and sets forth the circumstances under which a Federal court may decline to hear a plaintiffs common law cause of action: (e) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) The claim raises a novel or complex issue of State law, (2) The claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) The district court has dismissed all claims over which it has original jurisdiction, or (4) In exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). Gibbs provides the framework in which these factors are to be considered, mentioning judicial economy, convenience, fairness and comity as relevant. 383 U.S. at 726, 86 S.Ct. at 1139. Even if a plaintiff is unable to prevail on the Federal cause of action, the court still has jurisdiction over a properly joined common law claim if a plaintiffs cause of action meets the Gibbs test. The Court finds that an analysis of § 1367(c) calls for deciding Plaintiffs’ common law claims even if the § 1983 claims are on interlocutory appeal. This case raises no novel or complex issue of law, and the Court has not dismissed Plaintiffs’ § 1983 claims. None of the bases for declining to exercise supplemental jurisdiction is compelling. Instead, there are compelling reasons for proceeding to trial on the common law claims, at the very least, at the earliest possible time. The victims in this case are entitled to a swift resolution of their claims. This is a case where the police broke down" }, { "docid": "19890981", "title": "", "text": "Act of 1990 (JIA). This state law claim tends to predominate over plaintiffs’ federal securities claims. Consequently, under 28 U.S.C. § 1367(c)(2) and (c)(4), I decline to exercise supplemental jurisdiction over plaintiffs’ state law claim. I will grant Synergen’s motion and dismiss plaintiffs’ negligent misrepresentation claim without prejudice. The decision whether to exercise pendent jurisdiction has traditionally been a matter within the court’s discretion. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Because § 1367 codifies pendent jurisdiction, the discretionary element is necessarily retained. James v. Sun Glass Hut of California, Inc., 799 F.Supp. 1083, 1084 (D.Colo.1992). However, that discretion is limited by the requirement that supplemental jurisdiction be exercised unless one of the categories in § 1367(e) is met. Id. Specifically, § 1367(c) provides: (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— 1) the claim raises a novel or complex issue of State law, 2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, 3) the district court has dismissed all claims over which it has original jurisdiction, or 4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. The JIA expressly preserves only two of the four Gibbs discretionary factors. LaSorella v. Penrose St. Francis Healthcare System, 818 F.Supp. 1413, 1415 (D.Colo.1993). The first Gibbs factor, the absence of judicial economy, convenience and fairness to litigants, and the fourth, jury confusion caused by divergent state and federal claims and theories are absent from § 1367(c). It is unclear whether these factors are retained under the § 1367(c)(4) “exceptional circumstances” category. See Executive Software North America, Inc. v. U.S. District Court for Central District of California, 15 F.3d 1484, 1493 n. 6 (9th Cir.1994) (stating courts still take into account the values of judicial economy, fairness, convenience and comity in interpreting § 1367(c)(4)); see also Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1284 (3rd Cir.1993); But Cf. LaSorella, 818 F.Supp. at 1415 (stating that § 1367(c)" }, { "docid": "8681030", "title": "", "text": "jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for denying jurisdiction.” Id. Federal jurisdiction over pendent claims or parties is not mandatory; supplemental jurisdiction is a matter of judicial discretion, not of the litigants’ right. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1165 (10th Cir.2004) (citing City of Chicago v. International Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997) and United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). The Court concludes that it should decline to exercise supplemental jurisdiction over the European law claims in this case for multiple reasons listed in section 1367(c). The Court concludes that litigation of the European law claims in this case would raise novel and complex issues of European law. See Mars Inc. v. Nippon Conlux Kabushiki-Kaisha, 825 F.Supp. 73, 76 (D.Del.1993) (“the principles embodied in [28 U.S.C. § 1367(c)(1) ] are implicated by complex issues of foreign as well as state law”); Empagran S.A v. F. Hoffman-La Roche Ltd., 453 F.Supp.2d 1 (D.D.C.2006) (citing novel, complex, and developing European antitrust law, among other factors, in declining to exercise supplemental jurisdiction under section 1367(c)). Plaintiffs allege that defendants violated the antitrust prohibitions of the Treaty Establishing the European Community (“EC Treaty”) and the applicable antitrust laws of various member nations among the 27 nations included within the European Union. As defendants note, the law of the EU and its member nations governing private antitrust actions is sparse and varies widely among nations. For instance, the Ashurst Report, a 2004 report commissioned by the European Commission, found that there is “total underdevelopment” of actions for damages for breach of EC competition law, as well as “astonishing diversity” in the member nations’ approaches to such actions. In the case of In re Air Cargo Shipping Services Antitrust Litigation, 2008 WL 5958061 (E.D.N.Y. Sept.26, 2008) (Report and Recommendation), the court noted the concern that, if EC Treaty claims were considered," } ]