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[ "185 F. App'x 448" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\06/06-10568.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT September 27, 2006\n\n Charles R. Fulbruge III\n Clerk\n No. 06-10568\n Summary Calendar\n\n\nJAMES H. WILSON, SR.,\n\n Plaintiff-Appellant,\n\nversus\n\nJOHN E. POTTER, Postmaster General, United States Postal Service,\n\n Defendant-Appellee.\n\n --------------------\n Appeal from the United States District Court\n for the Northern District of Texas\n USDC No. 4:05-CV-00716-A\n --------------------\n\nBefore KING, HIGGINBOTHAM, and GARZA, Circuit Judges.\n\nPER CURIAM:*\n\n The district court did not abuse its discretion in\n\ndismissing Wilson’s case without prej.udice for Wilson’s failure\n\nto follow the court’s order. See Callip v. Harris County Child\n\nWelfare Dept., 757 F.2d 1513, 1518-19 (5th Cir. 1985); Rogers v.\n\nKroger Co., 669 F.2d 317, 320 (5th Cir. 1982).\n\n AFFIRMED.\n\n\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined that\nthis opinion should not be published and is not precedent except\nunder the limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\f", "ocr": false, "opinion_id": 46130 } ]

[ "967 F. Supp. 2d 107" ]

[ { "author_str": "Kollar-Kotelly", "per_curiam": false, "type": "010combined", "page_count": 11, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1439-173", "author_id": null, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n JEFFREY NORTH,\n\n Plaintiff,\n\n v. Civil Action No. 08-1439 (CKK)\n UNITED STATES DEPARTMENT OF\n JUSTICE, et al.,\n\n Defendants.\n\n\n MEMORANDUM OPINION\n (September 9, 2013)\n\n Plaintiff Jeffrey North, proceeding pro se, filed suit against the Drug Enforcement\n\nAdministration (“DEA”) and several other federal agencies alleging violations of the Freedom of\n\nInformation Act (“FOIA”), 5 U.S.C. § 552. The only remaining claim at issue is Count 1 of the\n\nAmended Complaint, which challenges the DEA’s Glomar response to the Plaintiff’s FOIA\n\nrequest seeking information regarding a purported DEA informant—Gianpaolo Starita—who\n\ntestified against the Plaintiff during his criminal trial. The Court previously granted summary\n\njudgment in favor of the DEA on this count, but vacated that judgment upon the Plaintiff’s\n\nmotion to reconsider, and ordered the DEA to conduct a search for responsive records. Presently\n\nbefore the Court are the parties’ renewed cross-motions for summary judgment and the\n\nPlaintiff’s motion for a Vaughn index. Upon consideration of the parties’ pleadings,1 the\n\n\n\n 1\n The Court’s decision is based on the record as a whole, but the Court’s analysis focused\nthe following documents, in chronological order of filing: DEA’s Second Renewed Mot. for\nSumm. J. (“DEA’s Mot.”), ECF No. [149]; Pl.’s Opp’n & Second Renewed Cross-Mot. for\nSumm. J. (“Pl.’s Cross-Mot.”), ECF No. [153]; DEA’s Reply & Opp’n to Pl.’s Second Renewed\nCross-Mot. (“DEA’s Reply”), ECF No. [155]; Pl.’s Mot. for Vaughn Index, ECF No. [164]; Pl.’s\nReply, ECF No. [167]; Pl.’s Errata, ECF Nos. [168-170]; Def.’s Notice, ECF No. [171].\n\frelevant legal authorities, and the summary judgment record, the Court finds the DEA conducted\n\nan adequate search for responsive records, which revealed no records responsive to the Plaintiff’s\n\nrequest. Accordingly, the DEA’s [149] Second Renewed Motion for Summary Judgment is\n\nGRANTED and the Plaintiff’s [153] Second Renewed Cross-Motion for Summary Judgment and\n\n[164] Motion for Vaughn Index are DENIED.\n\n I. BACKGROUND\n\n A. Plaintiff’s FOIA Requests\n\n Following a jury trial in March 2000, the Plaintiff was convicted of conspiracy to possess\n\nwith intent to distribute marijuana and various firearm-related offenses. See United States v.\n\nNorth, No. 98-10176, Jury Verdict (D. Mass. Mar. 15, 2000). The Plaintiff is currently serving a\n\ncombined term of imprisonment of 540 months. United States v. North, No. 98-10176,\n\nJudgment (D. Mass. Dec. 26, 2000). Between 2004 and 2008, the Plaintiff submitted six\n\nseparate Freedom of Information Act requests to the DEA seeking information regarding\n\nGianpaolo Starita, who testified against the Plaintiff during the Plaintiff’s criminal trial. See\n\nFirst Little Decl., ECF No. [19-1], ¶¶ 14-35. The Plaintiff’s Amended Complaint challenges the\n\nDEA’s response to the request submitted on July 13, 2007, seeking any and all documents\n\n“which contain any debriefing/proffer statements made/given by Gianpaolo Starita in regard to\n\n[Plaintiff].” First Little Decl., ECF No. [19-1] Ex. M at 1. The Plaintiff explained that during\n\nthe Plaintiff’s criminal trial, Starita testified that\n\n [Starita] was a drug dealer in the illegal purchase and sales of marijuana and that\n his partners in this illegal drug business were Gele Kostovski and Roger Leach,\n with Robert Ortel-Wortel, Josh Goodman, Michael Papone, Jay Grassis being\n other persons who assisted [Starita] in his illegal drug business. Additionally,\n Starita testified in relation to telephone conversations that he had with Regina\n Monaghan and that he met her at Boston Billiards. Starita also testified that he\n had met Carla North at the apartment of Roger Leach. Starita testified that he had\n\n 2\n\f a relationship with DEA Agent Damian Farley and ATF Agent John Mercer\n testified at my trial that he debriefed Starita.\n\nId. The request included an affidavit from the Plaintiff averring that Starita testified to the above\n\ninformation, and further testified that he (Starita) “sold large quantities of marijuana to\n\n[Plaintiff].” Id. at 3.\n\n The DEA responded to the Plaintiff’s 2007 request on September 20, 2007, by indicating\n\nthat the agency would “neither confirm[] nor den[y] the existence of any requested records\n\nregarding Gianpaolo Starita.” First Little Decl., Ex. O (9/20/2007 Ltr.) The agency explained\n\nthat\n\n Without proof of death or an original notarized authorization, to confirm the\n existence of law enforcement records or information about another person is\n considered an unwarranted invasion of personal privacy. Such record would be\n exempt from disclosure pursuant to Exemptions (b)(6) and/or (b)(7)(C) of the\n Freedom of Information Act (FOIA), Title 5 U.S.C. Section 552. Before DEA\n can begin processing information related to any alleged criminal background, it\n will be necessary for you to provide either proof of death or an original notarized\n authorization (privacy waiver) from that person.\n\nId. The Plaintiff appealed the DEA’s response to the Office of Information Policy (“OIP”), but\n\nthe OIP affirmed the DEA’s action. First Little Decl., Exs. P (11/3/2007 Appeal from denial of\n\nFOIA request) & R (12/31/2007 Ltr. affirming DEA response).\n\n On May 1, 2008, the Plaintiff submitted a FOIA request to the Drug Enforcement\n\nAdministration seeking “all documents . . . that contain any debriefing/proffer statements\n\nmade/given by Gianpaolo Starita,” and repeating the same summary of Starita’s testimony as set\n\nforth in the Plaintiff’s 2007 request. Pl.’s Reply, Ex. A (5/1/2008 FOIA Request). The\n\nPlaintiff’s request included an excerpt of the trial transcript of Mr. Starita’s testimony, and an\n\naffidavit from the Plaintiff averring that the transcript excerpts “are true and correct copies from\n\nthe trial transcripts as [the Plaintiff] received them from the court reporter.” Id. at 3. The DEA\n\n 3\n\fonce again refused to confirm or deny whether any of the requested records exist. Pl.’s Reply,\n\nEx. B (9/18/2008 Ltr.).\n\n B. Litigation History\n\n The Plaintiff filed suit on August 15, 2008, and amended his complaint on September 12.\n\nSee Compl., ECF No. [1]; Am. Compl., ECF No. [3]. Count I of the Amended Complaint\n\nchallenges the DEA’s response to the Plaintiff’s 2007 Request. Am. Compl. at 2-3. The\n\nPlaintiff has never amended his complaint to include the DEA’s response to his 2008 request.\n\nCount II contests the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ response to a FOIA\n\nrequest submitted by the Plaintiff in July 2007 which also sought records relating to Mr. Starita.\n\nId. at 3-4. Counts III and IV challenge responses from the Executive Officer for United States\n\nAttorneys to FOIA requests seeking documents concerning Grand Jury proceedings relating to\n\nthe Plaintiff. The Court granted summary judgment to the Defendants on Count I-II and IV on\n\nSeptember 30, 2009. North v. U.S. Dep’t of Justice, 658 F. Supp. 2d 163 (D.D.C. 2009). The\n\nCourt subsequently granted summary judgment on Count III in favor of the Executive Office for\n\nthe United States Attorneys. North v. U.S. Dep’t of Justice, 774 F. Supp. 2d 217 (D.D.C. 2011).\n\n Upon reconsideration, the Court determined that its ruling with respect to Count I was too\n\nbroad, and thus vacated the grant of summary judgment and ordered the DEA to “search for and\n\nproduce any responsive records that contain information identical [to] that which has been\n\npublicly disclosed” in trial transcripts submitted by the Plaintiff. North v. U.S. Dep’t of Justice,\n\n810 F. Supp. 2d 205, 208 (D.D.C. 2011). The DEA sought reconsideration of the Court’s\n\nSeptember 2011 order, which the Court denied, setting the stage for the cross-motions for\n\nsummary judgment now before the Court. North v. U.S. Dep’t of Justice, 892 F. Supp. 2d 297\n\n(D.D.C. 2012).\n\n 4\n\f II. LEGAL STANDARD\n\n Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency\n\naction to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)\n\n(citation omitted). Congress remained sensitive to the need to achieve balance between these\n\nobjectives and the potential that “legitimate governmental and private interests could be harmed\n\nby release of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory\n\nComm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (citation omitted), cert. denied, 507 U.S.\n\n984 (1993). To that end, FOIA “requires federal agencies to make Government records available\n\nto the public, subject to nine exemptions for categories of material.” Milner v. Dep’t of Navy,\n\n131 S.Ct. 1259, 1261-62 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective\n\nof the act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are explicitly made\n\nexclusive, and must be narrowly construed.” Milner, 131 S.Ct. at 1262 (citations omitted).\n\n When presented with a motion for summary judgment in this context, the district court\n\nmust conduct a “de novo” review of the record, which requires the court to “ascertain whether\n\nthe agency has sustained its burden of demonstrating that the documents requested . . . are\n\nexempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515\n\nF.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its\n\nresponse to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden\n\nby means of affidavits, but only if they contain reasonable specificity of detail rather than merely\n\nconclusory statements, and if they are not called into question by contradictory evidence in the\n\nrecord or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted).\n\n“If an agency's affidavit describes the justifications for withholding the information with specific\n\ndetail, demonstrates that the information withheld logically falls within the claimed exemption,\n\n 5\n\fand is not contradicted by contrary evidence in the record or by evidence of the agency's bad\n\nfaith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil\n\nLiberties Union v. U.S. Dept of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).\n\n“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the\n\nexemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d\n\n504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings,\n\nthe discovery materials on file, and any affidavits or declarations “show[] that there is no genuine\n\ndispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.\n\nR. Civ. P. 56(a). With these principles in mind, the Court turns to the merits of the parties' cross-\n\nmotions for summary judgment.\n\n III. DISCUSSION\n\n The crux of the DEA’s renewed motion for summary judgment is that a reasonable search\n\nfor responsive documents did not locate any documents responsive to the Plaintiff’s request.2\n\n“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that\n\nits search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v.\n\nU.S. Coast Guard, 180 F.3d 321, 390 (D.C. Cir. 1999) (citation omitted). “At summary\n\njudgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search terms and\n\nthe type of search performed, and averring that all files likely to contain responsive materials (if\n\nsuch records exist) were searched.” Ancient Coin Collectors Guild, 641 F.3d at 514 (citation\n\nomitted). “The agency cannot limit its search to only one or more places if there are additional\n\n\n\n 2\n Although the DEA’s motion discusses various FOIA exemptions, the Court\nunderstands from the DEA’ s [171] Notice that it is seeking summary judgment on the grounds\nthat the search conducted by the agency was reasonable and did not locate any responsive\ndocuments.\n 6\n\fsources that are likely to turn up the information requested.” Valencia-Lucena, 180 F.3d at 391\n\n(citation omitted). Ultimately, the adequacy of a search is “determined not by the fruits of the\n\nsearch, but by the appropriateness of [its] methods.” Iturralde v. Comptroller of the Currency,\n\n315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted).\n\n To establish the adequacy of its search for records responsive to the Plaintiff’s request,\n\nthe DEA submitted a declaration from William C. Little, Jr. Third Little Decl., ECF No. [149-1].\n\nMr. Little is an attorney with the Office of Chief Counsel for the DEA. First Little Decl., ECF\n\nNo. [19], ¶¶ 3-4. Mr. Little explained that “[i]f any records exist that summarized information\n\nprovided DEA by an individual or entity during the course of a criminal investigation, the\n\ninformation would be summarized in a DEA Report of Investigation (ROI). The DEA Form 6,\n\nand DEA Form 6a, are multi-block forms that comprise the DEA ROI.” Third Little Decl. ¶ 4.\n\nDEA investigative case files are maintained in the DEA Investigative Reporting and Filing\n\nSystem, or “IRFS.” Id. ¶¶ 4-5. The IRFS contains “all administrative, general, and criminal\n\ninvestigative files” compiled by the DEA for law enforcement purposes. Id. ¶ 6 (emphasis\n\nadded). Accordingly, Mr. Little explained that “[a]ny DEA ROI responsive to plaintiff’s request\n\nis reasonably likely to be found in the DEA [IRFS].” Id. ¶ 4. The “Narcotics and Dangerous\n\nDrugs Information System,” or “NADDIS” is the index to IRFS. Id. ¶ 7. Individuals are\n\nidentified in NADDIS by their name, social security number, and/or date of birth. Id.\n\n Investigative files are titled according to the name of the principal suspect at the time the\n\nDEA office commencing the investigation opened the file. Third Little Decl. ¶ 5. In addition to\n\ninformation regarding the suspect for which the file is named, an investigative file “may also\n\ninclude other individuals such as those who are suspected of engaging in criminal activity in\n\nassociation with the subject of the. file.” Id. The DEA does not maintain separate investigative\n\n 7\n\ffiles on each individual or entity that is of investigative interest to the agency, thus “information\n\nrelated to any individual or entity could be contained in multiple investigative case files.” Id.\n\n“Proffer statements taken from an individual that is functioning as a confidential source are filed\n\nin investigative case files and confidential source files.” Id. ¶ 11.\n\n In response to the Plaintiff’s request, the DEA conducted two NADDIS queries. First,\n\nthe DEA searched for the Plaintiff’s name, social security number, and date of birth, which\n\nidentified three criminal investigative files in which information regarding the Plaintiff was\n\nlocated. Third Little Decl. ¶ 8. There was no indication in any of the files that “a Gianpaolo\n\nStarita was a criminal associate of plaintiff.” Second, the DEA searched for any files associated\n\nwith “Gianpaolo Starita.” Id. ¶ 9. “The files identified in NADDIS associated with a Gianpaolo\n\nStarita did not correspond with any DEA file associated with plaintiff, and plaintiff was not listed\n\nas a criminal associate of any Gianpaolo Starita.”3 Id. In other words, the DEA’s searches did\n\nnot reveal any investigative files in which both the Plaintiff and Gianpaolo Starita appear. Id.\n\n¶ 11. Furthermore, Mr. Little personally reviewed the confidential source file for Gianpaolo\n\nStarita on February 23, 2012, and October 5, 2012, but did not locate any responsive records. Id.\n\n The detailed affidavit provided by Mr. Little clearly establishes the adequacy of the\n\nDEA’s search documents responsive to the Plaintiff’s 2007 request. The Plaintiff sought any\n\ndebriefing or proffer statements made by Mr. Starita concerning the Plaintiff. Mr. Little\n\nexplained these statements, if they existed, would appear in relevant investigative files and Mr.\n\nStarita’s confidential source file. All investigative files are maintained in IRFS and indexed by\n\nNADDIS. The DEA searched NADDIS for the Plaintiff’s name and Mr. Starita’s name. None\n\n 3\n Contrary to the Plaintiff’s repeated assertion, the DEA does not claim that it was unable\nto determine if the files indexed under the name “Gianpaolo Starita” refer to the same person\nidentified in the Plaintiff’s FOIA request. See Pl.’s Reply ¶ 22.\n 8\n\fof the investigative files located during these searches indicated the Plaintiff and Mr. Starita were\n\ncriminal associates. The affiant personally reviewed Mr. Starita’s confidential source file, and\n\ndid not locate any responsive documents. The DEA’s search was reasonably calculated to\n\nuncover all relevant documents, thus satisfying the agency’s obligations under the Freedom of\n\nInformation Act.\n\n The Plaintiff did not address the adequacy of the DEA’s search in his opposition to the\n\nDEA’s motion. See generally Pl.’s Cross-Mot., ECF N0. [153]. The Court shall not consider\n\narguments raised for the first time in the Plaintiff’s reply in support of his cross-motion. Am.\n\nWildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). Even if the Court were to\n\nconsider the Plaintiff’s arguments, none have merit. First, the Plaintiff argues that the fact that\n\nGianpaolo Starita and the Plaintiff were not listed as criminal associates in any investigative files\n\n“is not to say that there is no statement in the Starita file that Movant was either a criminal or\n\nnon-criminal associate of Starita.” Pl.’s Reply ¶ 19. Even if the Plaintiff’s argument were true,\n\nthe Plaintiff does not dispute the representation in the Third Little Declaration that any\n\nstatements Mr. Starita might have made about the Plaintiff would also be in Mr. Starita’s\n\nconfidential source file, and a review of that file did not locate any responsive documents.\n\n Second, the Plaintiff contends that the DEA’s search was inadequate because there is no\n\nindication “that a search was conducted for information related to Starita and his seven marijuana\n\ntrafficking associates identified in the pages of trial transcripts attached to [Plaintiff’s] May 1,\n\n2008, FOIA request.” Pl.’s Mot. for Vaughn Index ¶ 6; Pl.’s Reply ¶¶ 20-21. The Plaintiff’s\n\noriginal and amended complaints address the Plaintiff’s 2007 request to the DEA only. The\n\nDEA does not have to establish that it conducted an adequate search for documents responsive to\n\na different request in order to justify a grant of summary of judgment with respect to its search\n\n 9\n\fconcerning the Plaintiff’s 2007 request. Third, the Plaintiff suggests that the DEA was obligated\n\nto conduct a separate search “for information contained in the DEA’s records which matches the\n\ninformation in the 250+ pages of trial and grand jury transcripts containing testimony of Starita.”\n\nPl.’s Reply ¶ 13; Pl.’s Mot. for Vaughn Index ¶ 6. If the DEA had located documents responsive\n\nto the Plaintiff’s request, certain exemptions may not have applied if the information was\n\ndisclosed in the transcripts at issue. Because the DEA’s search did not locate any documents\n\nresponsive to the Plaintiff’s 2007 request, the transcript issue is moot.\n\n Finally, the Court notes there are no grounds on which to require the DEA to produce a\n\nVaughn index. “A Vaughn index indicates in some descriptive way which documents the agency\n\nis withholding and which FOIA exemptions it believes apply.” Am. Civil Liberties Union v. CIA,\n\n710 F.3d 422, 432 (D.C. Cir. 2013). The DEA did not locate any documents responsive to the\n\nPlaintiff’s 2007 request, thus the DEA has not withheld any documents pursuant to any FOIA\n\nexemptions and there are no documents to index.\n\n//\n\n//\n\n//\n\n//\n\n//\n\n//\n\n//\n\n//\n\n//\n\n//\n\n 10\n\f IV. CONCLUSION\n\n For the foregoing reasons, the Court finds the DEA is entitled to summary judgment on\n\nCount I of the Amended Complaint. As set forth in detail in the declaration submitted by\n\nWilliam Little, the agency’s search was reasonably calculated to locate all relevant documents,\n\nbut ultimately did not locate any records responsive to the Plaintiff’s 2007 request. Because the\n\nagency did not locate any responsive documents, there are no grounds for requiring the DEA to\n\nproduce a Vaughn index. Accordingly, the DEA’s [149] Second Renewed Motion for Summary\n\nJudgment is GRANTED and the Plaintiff’s [153] Second Renewed Cross-Motion for Summary\n\nJudgment and [164] Motion for Vaughn Index are DENIED. An appropriate Order accompanies\n\nthis Memorandum Opinion.\n\n\n\n /s/\n COLLEEN KOLLAR-KOTELLY\n UNITED STATES DISTRICT JUDGE\n\n\n\n\n 11\n\f", "ocr": false, "opinion_id": 2660089 } ]

[ "253 F.2d 518" ]

[ { "author_str": "Barnes", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/253/253.F2d.518.15531_1.html", "author_id": null, "opinion_text": "253 F.2d 518\n G. ABRAMSON and Howard Miller, Appellants,v.George GARDNER, Trustee in Bankruptcy of the Estate of Feldman-Selje Corporation Bankrupt, Appellee.\n No. 15531.\n United States Court of Appeals Ninth Circuit.\n March 11, 1958.\n \n William J. Tiernan, Los Angeles, Cal., for appellants.\n Samuel A. Miller, Los Angeles, Cal., for appellee.\n Before LEMMON, CHAMBERS and BARNES, Circuit Judges.\n BARNES, Circuit Judge.\n \n \n 1\n On October 1, 1956, three creditors filed an involuntary petition in bankruptcy against Feldman-Selje Corporation, alleged bankrupt. Thereafter the referee to whom the matter was referred, on October 10, 1956, entered an adjudication of bankruptcy, and appointed the appellee, George Gardner, as receiver.\n \n \n 2\n The receiver filed his petition for an order to show cause to set aside a certain execution sale hereinafter described in detail. A hearing was held, and Findings, Conclusions, and Order made and entered against appellants herein by the referee, setting aside the sale. On petition for review, the District Court affirmed the Findings, Conclusions and Order. Rule 204, Bankruptcy Rules of the District Court of Southern California, West's Ann.Code. Appeal is taken here. Fed.R. of Civ.P. 72 to 76, 28 U.S.C.A.\n \n \n 3\n The sale which was the subject of attack, was of personal property (to wit: unfinished desks) previously attached through a writ of attachment levied by one G. Abramson, a secretary in the office of her counsel, on August 27, 1956. On August 24, 1956, she had filed suit against the subsequently bankrupt corporation based on an assigned claim. After a default judgment was entered on September 7, 1956, and pursuant to a subsequent writ of execution, a sheriff's sale was had on September 12, 1956, for the sum of $500, which was credited against Abramson's judgment.\n \n \n 4\n Abramson then sold said goods to Howard Miller for $500. A bill of sale therefor was recorded. The petition filed by trustee Gardner to set aside the sale charged that these unfinished desks had never been removed from the premises of the bankrupt, and when the receiver took possession of the premises of the bankrupt, he found such personal property thereon and took possession thereof. The referee ruled that the $500 paid to Abramson by Miller be repaid to him.\n \n \n 5\n The receiver, after setting aside the sale, but sometime before the District Court hearing below, sold the personal property, to wit: the unfinished desks, at auction for $6,817.61.\n \n \n 6\n Appellee now holds this $6,817.61 subject to this Court's decision, and the appellants claim that sum, offering to restore to appellee or anyone the Court may direct, the $500 purchase price.\n \n \n 7\n The questions involved are these, according to appellant:\n \n \n 8\n (1) Did Abramson (and through her, Miller) acquire valid title to the personal property?\n \n \n 9\n (2) Can appellants' title be invalidated by the trustee?\n \n \n 10\n (3) Isn't the subsequently-appointed trustee in bankruptcy limited to the recovery of a preference under § 60 of the Bankruptcy Act [11 U.S.C.A. § 96]?\n \n \n 11\n (4) Should the judgment creditor occupy a different status than any other bidder?\n \n \n 12\n (5) Are the appellants entitled to the fund?\n \n \n 13\n Our answers to the odd-numbered questions are in the negative, and to the even-numbered, in the affirmative.\n \n \n 14\n We should first note that it is conceded that appellant Miller stands in the same position as appellant Abramson, insofar as title and the right to possession are concerned.\n \n \n 15\n We consider all points raised at one time.\n \n \n 16\n Appellee-receiver argues that no valid title could pass to appellants because of Section 67, sub. a(1) of the Bankruptcy Act (11 U.S.C.A. § 107, sub. a(1)) which reads:\n \n \n 17\n \"Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition intiating a proceeding under this Act by or against such person shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent, * * *.\" [Emphasis added.]\n \n \n 18\n Appellee urges that suit was filed, the lien attached, and the subsequent judgment obtained all well within the prescribed four months, and that the evidence discloses counsel for the attaching creditor (of whom Abramson was the assignee) was fully aware of the then insolvency of the subsequent bankrupt; and that the bankrupt and his trustee never lost possession of the personal property.\n \n \n 19\n Appellant claims that under the controlling California law the execution sale extinguishes the attachment lien and converts the purchaser's rights into right to title and right to possession. In support thereof, appellant cites several cases. Bateman v. Kellogg, 59 Cal.App. 464, 211 P. 46, is not in point, for the quotation therefrom cited in appellant's brief refers to property \"sold under execution for the full amount of the judgment,\" a condition not here existing.\n \n \n 20\n The general rule quoted by appellant from Pepin v. Stricklin, 1931, 114 Cal. App. 32, 299 P. 557, 558, is good law — but it applies to purchases upon execution sales where \"the judgment creditor * * * is a bona fide purchaser and not bound by any secret interest of which he is not put upon notice, actual or constructive.\"\n \n \n 21\n Here, appellant sought to buy for a portion of the judgment (not the full amount) from a debtor whom purchaser's counsel admittedly knew was insolvent and from whom any transfer of title within four months from the possible bankruptcy might be declared null and void as a preference.\n \n \n 22\n Appellants insist the trustee has erroneously sought relief under § 67 of the Bankruptcy Act (11 U.S.C.A. § 107) rather than § 60 (11 U.S.C.A. § 96). It is their theory that § 107, sub. a(1) refers to liens obtained by attachment, judgment or levy; that here the attachment lien was ended by the judgment and execution thereafter; that the execution lien was terminated by the sale; and, that no lien was in existence when the involuntary petition in bankruptcy was filed, and hence any relief available to the trustee must come from § 60 of the Bankruptcy Act (11 U.S.C.A. § 96) referring to avoidance of preferences, rather than avoidance of liens.\n \n \n 23\n If the judgment and the lien obtained by levy of execution out of a state court are obtained against an insolvent person within four months of the filing of a petition in bankruptcy, the subsequent adjudication of bankruptcy makes the lien voidable, and a sheriff's sale on such execution to one with notice of petition or insolvency may be set aside. Fischer v. Pauline Oil & Gas Co., 1939, 309 U.S. 294, 301, 60 S.Ct. 535, 84 L.Ed. 764, rehearing denied 309 U.S. 697, 60 S.Ct. 706, 85 L.Ed. 1037; Pauline Oil & Gas Co. v. Fischer, 191 Okl. 346, 130 P.2d 305; Taubel-Scott-Kitzmiller Co., Inc. v. Fox, 1924, 264 U.S. 426, 429, 44 S.Ct. 396, 68 L.Ed. 770; Staunton v. Wooden, 9 Cir., 1910, 179 F. 61; In re Riccobono, D.C.Cal., 1956, 140 F.Supp. 654; Peterson v. Groesbeck, 1937, 20 Cal.App.2d Supp. 753, 64 P.2d 495; 11 U.S.C.A. § 107, Notes 195, 244.\n \n \n 24\n The effect of lack of change of possession of the property executed against is controlling in this case. This is so even if real property is involved. Manders v. Wilson, 9 Cir., 1916, 235 F. 878. It permits the trustee at all events to proceed under § 67 rather than § 60 of the Bankruptcy Act. Appellant cites Collier on Bankruptcy (14th Ed.) Vol. 4, p. 147:\n \n \n 25\n \"Where the lien of a judicial proceeding is enforced by the sale of the debtor's property subject thereto and the proceeds paid over to the lien creditor prior to the debtor's bankruptcy, the lien becomes merged in the payment and accordingly cannot be affected by Section 67, notwithstanding the occurrence of bankruptcy within four months of the acquisition of the lien.\" [Appellant's Opening Brief, p. 12.]\n \n \n 26\n Appellant fails to quote the next sentence, which relies on a United States Supreme Court case directly opposed to appellant's position (at least as far as proceeds in the hands of the sheriff, after execution sale, are concerned):\n \n \n 27\n \"Where the lien has not thus been converted into title, however, nullification, where affected, relates back to the act giving rise to the lien, and affects that and all subsequent proceedings, * * *\" Clarke v. Larremore, 1902, 188 U.S. 486, 23 S.Ct. 363, 47 L.Ed. 555.\n \n \n 28\n Was the lien here \"converted into title\"? Not unless the purchaser was a bona fide purchaser. Quoting Collier, p. 160, note 6:\n \n \n 29\n \"Knowledge of the bankrupt's insolvency * * * hardly seems compatible with good faith on the part of the purchaser of his property. * * * The sufficiency of notice or cause for enquiry is ordinarily a question of fact.\"\n \n \n 30\n and,\n \n \n 31\n \"A lien creditor who purchases property at a judicial sale to enforce his lien * * * was generally not regarded as a bona fide purchaser for value.\" (Collier, p. 163.)\n \n \n 32\n Appellant largely relies on the District Court case of In re Bailey, D.C.Or., 1906, 144 F. 214, 216.\n \n \n 33\n It should be noted that in the Bailey case,\n \n \n 34\n \"* * * everything had been done that was required by law to be done for a transfer of the debtor's property to the purchaser, through the process of the court, * * *.\"\n \n \n 35\n Everything was not here done.\n \n \n 36\n It is true that under § 67, sub. f of the Bankruptcy Act of 1898, the bankruptcy court did not have jurisdiction to determine controversies arising either in summary or plenary proceedings,1 with one important exception. But the general rule was changed by the first sentence of § 67, sub. a(4), of the 1938 Act,\n \n \n 37\n \"* * * conferring on the bankruptcy court summary jurisdiction of any proceedings under § 67, [sub.] a.\" Collier, supra, p. 164; In re Rand Mining Co., S.D.Cal., 1947, 71 F.Supp. 724.\n \n \n 38\n The one important exception mentioned above which has always given the trustee authority to seek recovery is when possession of the property in dispute came into the hands of the trustee. Under such a circumstance, the trustee can proceed summarily.2\n \n \n 39\n When there is no change of possession, the transfer is presumed fraudulent.3\n \n \n 40\n The Findings of Fact recite that the bankrupt was insolvent; that this fact was known to the purchaser; that she was not a purchaser in good faith at the judicial sale; that she obtained a preference over other creditors; that her transfer of title to Miller was not a judicial sale, nor was there fair value paid.4\n \n \n 41\n We find ample support in the evidence for these findings; they were not clearly erroneous, and the judgment of the District Court is affirmed.\n \n \n \n Notes:\n \n \n 1\n Taubel-Scott-Kitzmiller Co., Inc. v. Fox, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770\n \n \n 2\n \"Whenever the bankruptcy courthas possession, it could under the Act of 1898, as originally enacted, and can now, determine in a summary proceeding controversies involving substantial adverse claims of title under e of § 67, under b of § 60, and under subdivision e of § 70.\" Collier, supra, p. 164, note 2.\n \n \n 3\n West's Ann.California Civil Code, § 3440, provides: \"Every transfer of personal property * * * not accompanied by an immediate delivery followed by an actual and continued change of possession of the things transferred, is conclusively presumed fraudulent and void.\"\n \n \n 4\n \"[when] the Attachment * * * (was) * * * levied, and at all times thereafter,the bankrupt was wholly insolvent, and that the said Respondent G. Abramson not only had reasonable cause to believe but had actual knowledge of said fact; and that the said Respondent G. Abramson knew when she attempted to purchase the said property at said execution sale by giving a credit of $500.00 on her judgment, that she was obtaining a preference over other creditors of the same class, and knew that in the event of bankruptcy within four months of such attempted preferential purchase, she would be required to surrender the said preference; and that therefore, she was not a bona fide purchaser at said judicial sale, but was attempting to obtain a preference over other creditors of the same class.\n \"That the purported sale by the Respondent G. Abramson to the Respondent Howard Miller, was a private sale and not a judicial sale; and that the $500.00 paid by Respondent Howard Miller was not the fair equivalent value of said property; and that the title obtained by said Howard Miller is valid only to the extent of the $500.00 which he paid; and that upon the return to him of said $500.00, he has no further right, title or interest in or to any of the property in controversy.\" Findings of Fact, Tr. p. 23. [Emphasis added.]\n \n \n ", "ocr": false, "opinion_id": 244594 } ]

[ "662 F.3d 439" ]

[ { "author_str": "Williams", "per_curiam": false, "type": "010combined", "page_count": 20, "download_url": "http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=10-2117_002.pdf", "author_id": null, "opinion_text": "\n662 F.3d 439 (2011)\nWilliam SHAFFER, Plaintiff-Appellant,\nv.\nAMERICAN MEDICAL ASSOCIATION, Defendant-Appellee.\nNo. 10-2117.\nUnited States Court of Appeals, Seventh Circuit.\nArgued November 30, 2010.\nDecided October 18, 2011.\n*440 Jeffrey L. Taren (argued), Attorney, Kinoy, Taren & Geraghty, Chicago, IL, for Plaintiff-Appellant.\nJeffrey K. Ross (argued), Attorney, Seyfarth Shaw LLP, Chicago, IL, for Defendant-Appellee.\nBefore KANNE, WILLIAMS, and TINDER, Circuit Judges.\nWILLIAMS, Circuit Judge.\nThe American Medical Association was not immune to the downturn in the economy. Budget cuts mandated that some employees lose their jobs, including at least one in the department where William Shaffer worked. Fortunately for him, or so it seemed, his supervisor was leaning toward letting another person go. But soon after Shaffer requested leave in light of upcoming surgery, that changed. His supervisor decided that Shaffer would now be the employee let go in the department, and Shaffer contends that decision was prompted by his request for leave and was therefore improper under the Family and Medical Leave Act. The AMA maintains that the leave request had nothing to do with its decision, and a jury might well agree. But we agree with Shaffer that a reasonable jury could also find in his favor, and we reverse the grant of summary judgment against him.\n\nI. BACKGROUND\nAt this stage in the proceedings, we recount the narrative that follows in the light most favorable to Shaffer since he was not the party who moved for summary judgment. The AMA first hired Shaffer in 1999. He resigned a year later, but the AMA rehired him in 2004 as a contract employee, and Michael Lynch hired him as a full-time employee in 2005. By 2008, Shaffer had become AMA's Director of Leadership Communications. His duties in that role included writing speeches and *441 editorials, supervising a staff of three speech writers, and signing off on final speeches.\nIn August 2008 the economic downturn began to concretely affect the AMA. The organization asked all its departments to reduce their 2009 budgets by at least 3% below the previous year's budgets. At first, Lynch reduced his budget by eliminating an annual conference. The next month, in response to direction from the AMA board, Marietta Parenti, AMA's Chief Marketing Officer, directed department heads to consider all options to further reduce budgets, including the elimination of positions. Parenti and Lynch ultimately decided they needed to downsize by at least one position in Lynch's department.\nOn October 28, 2008, Parenti emailed Lynch to ask for his recommendation regarding the elimination of a position. Lynch responded that afternoon, beginning his email by stating, \"I know you want closure on this issue tomorrow. . . .\" It was already Lynch's plan to eliminate the position of Peter Friedman, the Communications Campaign Manager, because his responsibilities had changed drastically and the AMA had stopped work on one of his core campaigns, and Lynch had previously told Parenti that he had planned to cut Friedman's position. Parenti's October 28 request sought Lynch's recommendation about whether to terminate Shaffer as well, and Lynch wrote in his email that he did not think cutting additional positions beyond Friedman's was in the AMA's best interest and detailed why he thought downsizing the department even more would be a bad idea.\nThe AMA held its Interim Meeting in early November of 2008. On Thursday, November 20, 2008, Shaffer notified Lynch that he would be having knee replacement surgery on January 12, 2009, that he would be taking four to six weeks of leave as a result, and that he was setting up a claim for short-term disability benefits. The Thanksgiving holiday fell the following week. On the Sunday evening of the holiday weekend, November 30, Lynch sent Parenti a long email. He explained that he was now of the mind that the AMA should eliminate Shaffer's position and retain Friedman. Lynch also wrote, \"The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact.\" He also gave Parenti his \"[a]pologies for this 11th hour change of heart.\"\nLynch and AMA Human Resources Representative Harvey Daniels notified Shaffer on Thursday, December 4, 2008 that the AMA was letting him go. Shaffer's last day on the AMA payroll was January 4, 2009.\nOn February 2, 2009, after receiving a letter from counsel representing Shaffer, AMA's in-house counsel, Michael Katsuyama, met with Daniels and informed him of possible litigation. On February 3, Daniels typed up handwritten notes he had taken concerning earlier discussions with Lynch about eliminating Shaffer's position. Daniels dated the typed notes November 25, 2008 and shredded his original notes. The typed document states that the position was eliminated because Lynch could accommodate having the speech writing staff report directly to him, a layer of management would be eliminated, and there had been decreased demand on the speech writing staff. Lynch's calendar did not reflect a meeting with Daniels for November 25, though, and Lynch testified in his deposition that he recalled that he was still pondering which position to eliminate over Thanksgiving weekend and had not made a decision as of November 25.\nAlso during the first few days of February, Daniels told Lynch to prepare a memorandum *442 for Lynch's upcoming meeting with in-house counsel Katsuyama and to describe in it his rationale for selecting Shaffer as the employee to let go. Lynch typed the memorandum on February 3 or 4, 2009, but he dated it November 21, 2008 and addressed it to Daniels. Lynch gave the memorandum to Katsuyama when they met.\nShaffer filed suit in federal court, and the district court granted summary judgment in the AMA's favor. In May 2009, because of the economic environment, the AMA ended its employment of approximately 100 additional employees, including Friedman.\n\nII. ANALYSIS\nShaffer appeals the district court's grant of summary judgment against him on his claim that his termination violated the Family and Medical Leave Act. The FMLA guarantees employees twelve workweeks of leave for serious health conditions, including the knee surgery Shaffer had. See 29 U.S.C. § 2612(a)(1). The FMLA forbids an employer from interfering with an employee's right to take leave and return to his job and also from retaliating against an employee who claims benefits under the statute. 29 U.S.C. § 2615. We review the district court's grant of summary judgment in favor of the AMA de novo, viewing all facts and drawing all reasonable inferences in the light most favorable to Shaffer, the nonmoving party. See Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 992 (7th Cir.2010).\n\nA. Waiver\nIt is not surprising that one of the pieces of evidence on which Shaffer relies is Lynch's November 30 email notifying Parenti that he had decided Shaffer was the employee to be let go. The AMA, however, maintains that we cannot consider this email. In support, it points us to the district court's statement that it was not considering any facts that were not contained in the parties' Rule 56.1 statements. That is certainly within a district court's prerogative to do. See Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 809 (7th Cir.2005) (\"Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion for summary judgment file a response that contains a separate `statement. . . of any additional facts that require the denial of summary judgment.'\"); Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.2002) (\"[W]e have emphasized the importance of local rules and have consistently and repeatedly upheld a district court's discretion to require strict compliance with its local rules governing summary judgment.\") (quotation omitted). But that general statement by the district court in no way supports the AMA's argument that we cannot consider the November 30 email in this case.\nThe district court's opinion makes clear that the November 30 email was not something it had refused to consider. In fact, it spent an entire five-sentence paragraph in the \"Relevant Facts\" section of its opinion detailing that very email. The paragraph begins by stating, \"On November 30, 2008, the day before Parenti's deadline for making a final decision, Lynch sent an email to Parenti that detailed his `11th hour change of heart' that `perhaps we should eliminate Bill Shaffer's position and keep Pete's for now. . . .\", and it then spelled out much of the rest of the email.\nAnd although the AMA argues that Shaffer failed to include the email in his Rule 56.1 statement, Shaffer discussed the email in paragraph 12 of his Statement of Additional Facts and also stated in that paragraph that a true and accurate copy of the email was attached as Appendix 6, which it was. Shaffer also specifically discussed *443 the email on pages 4 and 5 of his Memorandum in Opposition to the American Medical Association's Motion for Summary Judgment, and pointed to the key passage he relied on, stating, \"The email included the justification that `The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact.'\" Shaffer further argued on page 10 of his Memorandum that the email did not mention the explanation asserted by the AMA as the reason for the termination decision during litigation, namely that Lynch could easily absorb Shaffer's responsibilities. Shaffer appropriately raised the November 30 email before the district court, the district court discussed it in its opinion, and there is no reason Shaffer cannot point to it on appeal now.\n\nB. Viable Family and Medical Leave Act Claim\nThe AMA also argues that Shaffer did not establish one of the prerequisites for FMLA protection, that he worked more than 1,250 hours for the AMA in the previous year. See 29 U.S.C. § 2611(2)(A)(ii). It is true that the parties' Rule 56.1 statements of facts are silent as to this requirement. Yet the AMA admitted in its answer to Shaffer's amended complaint that he had worked there for over 1,250 hours the previous year, so there was no need for Shaffer to raise the matter again.\nWith that hurdle cleared, we turn to the merits of Shaffer's claim. In doing so, we keep in mind that at the summary judgment stage, \"the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); see also Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 507 (7th Cir.2010) (reversing grant of summary judgment where plaintiff's claims not so implausible that a reasonable jury could not find in his favor).\nThere are two types of FMLA claims, those for interference and those for retaliation. The FMLA mandates that an employer may not \"interfere with, restrain, or deny the exercise of or the attempt to exercise\" any FMLA rights. 29 U.S.C. § 2615(a)(1). In addition, the FMLA contains an anti-retaliation provision, making it \"unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.\" 29 U.S.C. § 2615(a)(2). An employer does not, however, violate the FMLA for failing to return him to his former position after he returns from leave if the employee would have been let go even if he had not taken the leave and the termination decision was unrelated to the leave request. Goelzer, 604 F.3d at 993.\n\"The difference between a retaliation and interference theory is that the first `requires proof of discriminatory or retaliatory intent while [an interference theory] requires only proof that the employer denied the employee his or her entitlements under the Act.'\" Id. (citing Kauffman v. Federal Express Corp., 426 F.3d 880, 884 (7th Cir.2005)). The interference and retaliation claims here are closely linked, see Smith v. Hope School, 560 F.3d 694, 701 (7th Cir.2009), as Shaffer stated in his memorandum in opposition to the AMA's motion for summary judgment; we do not find the interference argument waived. Shaffer was eligible for FMLA protection, covered by the FMLA, and provided sufficient notice of his intent to take leave. See Goelzer, 604 F.3d at 993 (summarizing threshold FMLA interference claim requirements). If Shaffer can demonstrate that the AMA fired him to prevent him *444 from exercising his right to reinstatement in his position, he can succeed on an interference theory. See id. To succeed on a retaliation theory, under the direct method applicable here, a plaintiff survives summary judgment by \"`creating a triable issue of whether the adverse employment action of which she complains had a discriminatory motivation.'\" Lewis v. School Dist. # 70, 523 F.3d 730, 741 (7th Cir.2008) (quoting Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 721 (7th Cir.2005)).\nAs in Goelzer, then, the issue for us to determine in this case is whether a reasonable jury could conclude that Shaffer's exercise of his right to take FMLA leave was a motivating factor in the decision to eliminate his position. See Goelzer, 604 F.3d at 995. The AMA maintains that the decision to terminate Shaffer's employment had nothing to do with his FMLA request. Shaffer thinks otherwise, and contends that a reasonable jury could conclude the AMA terminated his employment because he requested leave protected by the FMLA. We agree with Shaffer that the evidence in the record, when interpreted in the light most favorably to him as we must at this stage, supports that a reasonable jury could find that the AMA chose him as the person in his department to let go because he exercised his right to take FMLA leave.\nAs of October 28, 2008, Lynch had decided to eliminate Friedman's position and not Shaffer's. Lynch even sent an email to his supervisor detailing why he did not think the elimination of any additional positions beyond Friedman's was in the AMA's best interest. Lynch also said in his deposition that downsizing Friedman's position would be the \"obvious choice\" to anyone looking at the situation from the outside since the AMA was no longer proceeding with one of Friedman's core campaigns.\nThree weeks later, however, Lynch changed his mind. The only events of note in the interim were Shaffer's request for leave on November 20 and the early November AMA Interim Meeting in Orlando. Shaffer sent Lynch an email on Thursday, November 20 informing him that he would be having knee replacement surgery in January and was setting up a claim for short-term disability benefits. When Lynch emailed Parenti on November 30 that he had now decided to eliminate Shaffer's position and keep Friedman's, he included the comment that \"[t]he team is already preparing for Bill [Shaffer]'s short-term leave in January, so his departure should not have any immediate negative impact.\" A jury could find that this statement, the change in the decision of whom to terminate, and the timing of the new decision soon after Shaffer's leave request support that his request for leave led to his termination.\nA jury might also give credence to Shaffer's argument that Daniels backdated a memorandum to make it appear that the decision to let him go was not influenced by the leave request. See Brunker v. Schwan's Home Serv., Inc., 583 F.3d 1004, 1008-09 (7th Cir.2009) (backdating of termination notice to a date before employee left for treatment to avoid impression that condition influenced termination decision helped create issue for trial); see also Lewis, 523 F.3d at 743. On February 3, 2009, Daniels typed up a copy of handwritten notes he said came from an earlier discussion with Lynch regarding Shaffer's termination. Daniels dated the typed notes November 25, 2008, which he said was the same date as his earlier handwritten notes. But Lynch had no recollection of a meeting that day with Daniels, nor did his calendar reflect one.\nThe AMA emphasizes that November 25 came after Shaffer requested leave. At *445 first glance, a memorandum dated after Shaffer requested leave would not seem to support a theory that evidence had been manufactured to suggest that the leave request did not influence the termination decision. However, viewed in the light most favorable to Shaffer as we must, the record supports a conclusion that when Daniels typed up the notes in February, he was acting under the impression that the leave request had not come until November 26. Daniels stated in his deposition that he had several conversations with Lynch, including one on November 25 and another the next day. Daniels said that Lynch raised Shaffer's request for medical leave for the first time during the November 26 conversation. Daniels also said that Lynch told him during that conversation that he had just learned of the leave request. The troubling fact that Daniels shredded his handwritten notes after learning of potential litigation also could weigh in favor of Shaffer. A jury might conclude from all this that Daniels had been trying to create a paper trail.\nA jury could also look to the different explanations given at different times for Shaffer's termination. See Simple v. Walgreen Co., 511 F.3d 668, 671 (7th Cir.2007) (\"The inconsistency is suggestive of pretext and thus is evidence of discrimination. . . .\"). The AMA points to the early November Interim Meeting and maintains it helped lead Lynch to change his mind about whom to terminate, as it says Lynch had to fill in for Shaffer to help a junior speech writer when Shaffer was unavailable, and also that Lynch was concerned about the absence without explanation. Yet Lynch told Shaffer that the termination decision had nothing to do with his performance and did not mention any concern about the Interim Meeting, and Daniels testified in his deposition that he was not told of any problems with Shaffer at the meeting or that Shaffer's performance played any role in the decision to terminate his employment. Daniels's typed-up notes state that the position was eliminated because Lynch could accommodate having the speech writing staff report to him, among other things. In the November 30, 2008 email to Parenti, Lynch justified his change in decision to terminate Shaffer instead of Friedman by stating that Friedman had evolved into a flexible utility man who could fill in the gaps. This email said nothing about the Interim Meeting or Lynch's ability to absorb his responsibilities. And one of the staff speech writers stated in his deposition that Lynch told him Shaffer's position had been eliminated for another reason, that he had the highest salary and largest cost.\nOf course, a jury may well agree with the AMA that Shaffer's leave request had no impact on the termination decision. One employee had to be let go in Shaffer's department, and he was certainly one of the candidates. As the AMA argues, a jury might also view the mention in Lynch's email to Parenti that the team was already preparing for Shaffer's upcoming leave not as a reason for terminating him, but as an explanation of its effect. A jury might agree that Shaffer was absent during an important time at the Interim Meeting and that the absence there helped lead the AMA to select his position for elimination. And Daniels testified that he dropped by Lynch's office on November 25, which is a reasonable explanation for why there was no appointment in Lynch's calendar for that day. He may have then typed up his handwritten notes after he learned of litigation and dated the document the date of his notes, without any intent to have that date help support the termination decision. The competing reasonable inferences that can be drawn from the record are not for us to resolve at the summary judgment stage, however. We *446 are obligated to view the record in the light most favorable to Shaffer and to refrain from weighing the evidence or deciding which inferences to draw from the facts. See Kodish, 604 F.3d at 507. Because a reasonable jury could find in Shaffer's favor, we reverse the grant of summary judgment against him.\n\nC. Attorney-Client Privilege Protects Memorandum\nWe now address one more piece of evidence Shaffer would like to use on remand, a memorandum the district court ruled was protected by the attorney-client privilege. The contents of the document did not play into our analysis of whether summary judgment was proper, but so there is no question on remand, we address the privilege question now. The scope of the attorney-client privilege is a question of law we review de novo, while we review the district court's findings of fact and application of law to fact for clear error. Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir.2007).\nThe document in question is a one-page typewritten memorandum from Lynch that on its face is dated November 21, 2008, and entitled \"Elimination of staff position.\" The memorandum is addressed to Harvey Daniels, but Lynch testified in his deposition that he typed up the memorandum in early February of 2009 for the sole intention of meeting with in-house attorney Katsuyama and that he gave it only to Katsuyama. The document was inadvertently turned over during discovery, and the district court agreed with the AMA's subsequent assertion that the attorney-client privilege protected it.\nThe attorney-client privilege \"`is the oldest of the privileges for confidential communications known to the common law.'\" United States v. Jicarilla Apache Nation, ___ U.S. ___, 131 S. Ct. 2313, 2320, 180 L. Ed. 2d 187 (2011) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). Its purpose is \"to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.\" Upjohn, 449 U.S. at 389, 101 S. Ct. 677. For the attorney-client privilege to attach to the memorandum, we have summarized the requirements to be that the communication contained therein must have been made in confidence, in the connection with the provision of legal services, to an attorney, and in the context of an attorney-client relationship. United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir.2007). The privilege is construed narrowly, and the burden is on the party seeking to invoke the privilege—here, the AMA—to establish that it applies. United States v. White, 950 F.2d 426, 430 (7th Cir.1991).\nThe communication was made in confidence and to an attorney. Lynch created the memorandum for the sole purpose of meeting with in-house counsel Katsuyama. Lynch created the document alone, did not discuss it with anyone else, and gave the memorandum only to Katsuyama in a meeting where only the two were present. Lynch therefore produced the memorandum in confidence to an attorney.\nThe next question is whether the communication was made in connection with the provision of legal services. Shaffer argues that Lynch prepared the memorandum only as a matter of standard procedure unrelated to threatened litigation and that it was not in connection with the provision of legal services. However, the evidence in the record shows otherwise. Shaffer's counsel sent a letter to the AMA on January 21, 2009 stating that he intended to file suit for wrongful termination of employment. Katsuyama received it on *447 February 2. Katsuyama then spoke with Daniels, and, as a result, Daniels informed Lynch that Lynch would be meeting with Katsuyama to discuss Shaffer's termination and that he should prepare the document for that meeting. Shaffer points out that Daniels denied telling Lynch that Shaffer was taking legal action. But although Daniels denied making that specific statement, Daniels also testified he was aware that Lynch assumed a lawsuit was pending or threatened. Lynch, the more important person in this inquiry, believed he was providing the memorandum in connection with the provision of legal services. When asked why he drafted the memorandum, he testified that Daniels told him it appeared there would be some litigation regarding the elimination of Shaffer's position, and that in preparation for the meeting with in-house counsel, he should put in writing his recollection of his decision-making. We agree with the district court that Lynch wrote the memorandum and gave it to Katsuyama in connection with the provision of legal services.\nShaffer also contends that the memorandum was not produced in the context of an attorney-client relationship. Although Human Resources Representative Daniels asked Lynch to create the memorandum and it was addressed to Daniels, Lynch explained that the context of Daniels's request was that \"there was going to be some legal action regarding the elimination of Shaffer's position\" and that Lynch needed to meet with the AMA's attorney. Lynch also understood that he created the document for the sole purpose of meeting with in-house counsel Katsuyama about the possible lawsuit. The memorandum was therefore prepared in the context of the attorney-client relationship.\nFinally, Shaffer argues that even if the attorney-client privilege would normally protect the document, the crime-fraud exception should apply here because, he asserts, it was prepared after the fact to justify the termination. \"The crime-fraud exception places communications made in furtherance of a crime or fraud outside the attorney-client privilege.\" BDO Seidman, 492 F.3d at 818. This exception comes from the recognition that when legal advice relates \"not to prior wrongdoing, but to future wrongdoing,\" the privilege goes beyond what is necessary to achieve its purpose. United States v. Zolin, 491 U.S. 554, 562-63, 109 S. Ct. 2619, 105 L. Ed. 2d 469 (1989) (citation omitted). The exception's purpose is to ensure that the confidentiality afforded to communications between attorney and client \"does not extend to communications `made for the purpose of getting advice for the commission of a fraud' or crime.\" Id. at 563, 109 S. Ct. 2619 (quoting O'Rourke v. Darbishire, [1920] A.C. 581, 604 (P.C.)).\nWe have said that the party arguing that the crime-fraud exception should apply must first \"present prima facie evidence that gives color to the charge by showing some foundation in fact.\" United States v. Boender, 649 F.3d 650, 655 (7th Cir.2011) (quoting BDO Seidman, 492 F.3d at 818). The district court can then require the defendant to come forward with an explanation for the evidence offered against the privilege. Id. Finally, the district court exercises its discretion in accepting or rejecting the proffered explanation. Id. In this case, after receiving briefs from both sides, the district court conducted an in camera review of the document, and, based on the circumstances in this case, ruled that the crime-fraud exception did not apply. We review that decision for an abuse of discretion. See BDO Seidman, 492 F.3d at 818.\nIt is certainly odd that not just Daniels, but also Lynch typed up memoranda after learning of the potential litigation *448 and dated them months before the dates on which they were typed. That said, there is no suggestion from the record that Lynch's memorandum was in furtherance of a crime or fraud. Lynch specifically told in-house counsel that he had prepared the memorandum in preparation for their meeting, and no attempt was made to hide that fact during the meeting or to anyone else thereafter. The AMA has not attempted to use Lynch's memorandum to support its termination decision, and there is no evidence that in-house counsel assisted Lynch in the commission of a fraud or gave any advice to him regarding the commission of a fraud. Cf. United States v. Al-Shahin, 474 F.3d 941, 946-47 (7th Cir.2007) (applying crime-fraud exception to communications that furthered scheme to collect money from an insurance company for a staged accident). There is no suggestion from the record that Lynch intended to commit a fraud either. Lynch was up front with Katsuyama, the memorandum's intended and only audience, that despite its date he had prepared the memorandum only recently and not in November. Lynch freely acknowledged in his deposition that he drafted the memorandum in February 2009. He also explained that he placed the November 21 date on the memorandum because he had been told to write down his rationale for taking the action he did at the time he did it. Notably, Lynch clearly knew on November 21, the date he placed on the memorandum at issue, that Shaffer had already requested leave since Shaffer had sent him an email requesting it the previous day. The date Lynch placed on his memorandum, unlike the date on the one Daniels typed, therefore does not support a theory that the memorandum was an attempt to rationalize the decision before learning of Shaffer's FMLA leave request. Under these circumstances, the district court did not abuse its discretion when it concluded that the crime-fraud exception did not apply. We therefore uphold the district court's determination that the attorney-client privilege protects the memorandum.\n\nIII. CONCLUSION\nThe judgment of the district court is REVERSED, and this case is REMANDED for further proceedings consistent with this opinion.\n", "ocr": false, "opinion_id": 615502 } ]

[ "745 F. Supp. 2d 115" ]

[ { "author_str": "Bianco", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 268, "opinion_text": "\n745 F.Supp.2d 115 (2010)\nFRANK SLOUP AND CRABS UNLIMITED, LLC, Plaintiffs,\nv.\nAlan LOEFFLER, Individually and in His Official Capacity as a Town of Islip Employee, Town of Islip, and Craig Pomroy, Individually and in His Official Capacity as a Town of Islip Employee, Defendants.\nNo. 05-CV-1766 (JFB)(AKT).\nUnited States District Court, E.D. New York.\nSeptember 30, 2010.\n*118 A. Craig Purcell, Esq. and Rebecca Ebbecke of Glynn Mercep and Purcell, LLP, Stony Brook, NY, for Plaintiff.\nJessica D. Klotz, Esq. of Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, NY, for Defendants.\nErin A. Sidaras, Esq., of the Town Attorney's Office, Islip, NY, for the Town of Islip.\n\nMEMORANDUM AND ORDER\nJOSEPH F. BIANCO, District Judge:\nPlaintiffs Frank Sloup (\"Sloup\") and his business, Crabs Unlimited, LLC (\"Crabs Unlimited\") brought this action against defendants Alan Loeffler, individually and in his official capacity as a Town of Islip employee (\"Loeffler\") and Craig Pomroy, individually and in his official capacity as a Town of Islip employee (\"Pomroy\") (together the \"individual defendants\"), as well as the Town of Islip (the \"Town\" or \"Islip\") (collectively \"defendants\"), alleging that defendants violated plaintiffs' constitutional rights when they were banned from fishing and crabbing in certain waters of the Town of Islip.\nA jury trial took place from October 19, 2009 through November 3, 2009, and the jury (1) found that a ban was imposed on plaintiff Frank Sloup, prohibiting him from fishing in the harbor areas of the Town of Islip in 2004 by both Alan Loeffler and Craig Pomroy; (2) found defendants Alan *119 Loeffler and Craig Pomroy liable under an equal protection \"class of one\" claim; (3) found defendants Alan Loeffler and Craig Pomroy liable under an equal protection \"selective enforcement\" claim; (4) found defendants Alan Loefller and Craig Pomroy liable for violating plaintiffs' substantive due process rights; and (5) found the Town of Islip liable for violations of plaintiffs' constitutional rights.\nWith respect to damages, the jury awarded $1.8 million in compensatory damages and $150,000 in punitive damages against defendant Alan Loeffler and $150,000 in punitive damages against defendant Craig Pomroy in connection with the imposition of the ban on Sloup's fishing.\nPresently before the Court are post-trial motions brought by the Town and the individual defendants. Defendant Town of Islip now moves for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) on the basis that there was an absence of proof that defendant Loeffler was a policymaker or that a long-standing custom or policy existed in the Town that led to the alleged constitutional violation. The Town also moves for a new trial under Federal Rule of Civil Procedure 59 based on the grounds that (a) defendant Loeffler was erroneously found to be a policymaker and it was error to find that the Town had a long-standing custom or policy that led to the constitutional violation; (b) excessive compensatory and punitive damages were awarded; and (c) the verdict was against the weight of the evidence.\nThe individual defendants also move for judgment as a matter of law under Rule 50(b). Specifically, they argue that plaintiffs failed to present legally sufficient evidence to support their (a) substantive due process; (b) equal protection class of one; and (c) equal protection selective enforcement claims. The individual defendants also move to set aside the verdict and for a new trial under Rule 59 on the grounds that (a) the verdict was against the weight of the evidence; and (b) the damages were grossly excessive. The individual defendants further move to set aside the verdict on the grounds that the compensatory and punitive damages awarded were excessive and against the weight of the evidence.\nFor the reasons that follow, defendants' Rule 59 motions for a new trial on the issue of damages is granted, but the remainder of defendants' claims are denied.\n\nI. BACKGROUND\nSloup filed the complaint in this action on April 7, 2005. On September 26, 2005, Islip and the individual defendants separately moved to dismiss the complaint pursuant to Rules 8 and 12(f) of the Federal Rules of Civil Procedure. By Memorandum and Order dated March 13, 2006, 2006 WL 767869, the Court denied defendants' motions in their entirety. On May 3, 2006, Islip and the individual defendants submitted their answers to the complaint, and, after discovery, on May 19, 2008, Islip and the individual defendants submitted their motions for summary judgment. On August 21, 2008, 2008 WL 3978208, the Court denied defendants' motions for summary judgment with respect to plaintiff Frank Sloup's Fourteenth Amendment claims and granted their motions with respect to plaintiff's First Amendment claims. With respect to plaintiff's municipal liability claim, the Town's motion for summary judgment was denied without prejudice to Islip renewing it at the close of evidence at trial. Familiarity with the decisions, the facts and the legal analysis contained in the Court's March 13, 2006 Memorandum and Opinion and August 21, 2008 Memorandum and Opinion is presumed. On October 20, 2008, plaintiff amended the complaint to add Crabs Unlimited, LLC, as a plaintiff to the action.\n*120 From October 19, 2009 through November 3, 2009, a jury trial was held before this Court on plaintiffs' remaining claims. On November 3, 2009, the jury found in favor of the plaintiffs as to their claims for violation of their equal protection and substantive due process rights and awarded $1.8 million in compensatory damages against all defendants. The jury also determined that punitive damages were warranted against the individual defendants. After deliberation, the jury awarded $150,000 in punitive damages against defendant Alan Loeffler and $150,000 in punitive damages against defendant Craig Pomroy.\nOn November 18, 2009, the Town and the individual defendants filed post-trial motions. Defendants moved for judgment as a matter of law notwithstanding the verdict pursuant to Federal Rule of Civil Procedure 50(b) and for remittitur or a new trial pursuant to Federal Rule of Civil Procedure 59 as to the compensatory and punitive damages against the defendants. Plaintiffs' opposition papers were filed on December 17, 2009. Defendants filed their reply papers on January 29, 2010. Oral argument was held on February 11, 2010. The Court has fully considered all submissions of the parties.\n\nII. DISCUSSION\n\nA. Rule 50(b) Motions for Judgment as a Matter of Law\n\n1. Standard of Review\nThe standard governing motions for judgment as a matter of law (formerly described as motions for directed verdict) pursuant to Rule 50 is well-settled. Judgment as a matter of law may not properly be granted under Rule 50 against a party \"unless the evidence, viewed in the light most favorable to the nonmoving party, is insufficient to permit a reasonable juror to find in his favor.\" Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007) (citing Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998)). In deciding such a motion, the Court must give deference to all credibility determinations and reasonable inferences of the jury, and it \"may not itself weigh the credibility of witnesses or consider the weight of the evidence.\" Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir.2001) (quoting Galdieri-Ambrosini, 136 F.3d at 289). Thus, judgment as a matter of law should not be granted unless:\n(1) [T]here is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or\n(2) [T]here is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].\nAdvance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir.2004) (quoting Galdieri-Ambrosini, 136 F.3d at 289) (internal citations omitted).\n\n2. The Town's Rule 50(b) Motions\n\na. Absence of Evidence of Town Policy\nFirst, the Town moves for judgment as a matter of law on the issue of municipal liability. In determining municipal liability, it is necessary to conduct a separate inquiry into whether there exists a \"policy\" or \"custom.\" The Supreme Court has identified at least two situations that constitute a municipal policy: \"(1) where there is an officially promulgated policy as that term is generally understood (ie., a formal act by the municipality's governing body), and (2) where a single act is taken by a municipal employee who, as a matter of state law, has final policymaking authority in the area in which the action was taken.\" Davis v. City of N.Y., 228 F.Supp.2d 327, 336-37 (S.D.N.Y.2002). The Town of Islip *121 contends in its motion for judgment as a matter of law that, in the instant case, liability cannot be predicated upon either theory because plaintiffs presented no evidence at trial of a longstanding policy, practice, or custom of the Town of Islip. The Town also contends that the individual defendants were not policymakers whose allegedly unconstitutional actions would result in the imposition of liability on the municipality. The Court addresses each of these arguments in turn and upholds the jury's finding of liability for the Town on each ground.\n\n(1) Practice or Custom\n\"A municipality will not be held liable under § 1983 unless plaintiffs can demonstrate that the allegedly unconstitutional action of an individual law enforcement official was taken pursuant to a policy or custom officially adopted and promulgated by that [municipality's] officers.\" Abreu v. City of N.Y., No. 04-CV-1721, 2006 WL 401651, at *4, 2006 U.S. Dist. LEXIS 6505, at *11 (E.D.N.Y. Feb. 22, 2006) (quotation marks omitted) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Here, it is not disputed that defendants Loeffler and Pomroy were acting under color of law when they approached Sloup regarding his traps being hazards to navigation.\nThe Court concludes that plaintiffs presented sufficient evidence from which the jury could conclude that the Town of Islip had a practice or custom of banning plaintiffs from fishing in the harbor areas. Plaintiffs presented several pieces of evidence tending to suggest that such a ban existed. Specifically, plaintiffs presented testimony by plaintiff Sloup that on at least four different occasions, a ban was enforced by employees of the Town of Islip against him and his fishing company: (1) in June 2004, Officer Pomroy told plaintiff Sloup to move his pots that were located in Champlin's Creek because they were a \"hazard to navigation\" (Tr. 707:21-22); (2) on the same date in June 2004, Officer Sgroi also told Sloup that \"Chief Loeffler says you have to put [your fishing pots] in the fish trap areas. They have to get out of Champlin's Creek\" (Tr. 708:17-19); (3) plaintiff Sloup also testified that he was told by Chief Harbor Master Loeffler \"to move every single piece of equipment from the harbor areas, and the killie pot\" (Tr. 712:11-12); and (4) when Sloup replaced his pots into the harbor waters in early October, he was again told to remove them by defendant Pomroy (Tr. 721:7-14).\nThere was also testimony by Sloup's attorney from the Article 78 proceeding, Richard Remmer, that defendant Loeffler explicitly stated that Sloup was banned from the harbor areas. Remmer testified that he discussed with Loeffler that Sloup had informed him that \"[Loeffler's] office [was] telling [Sloup he could fish] nowhere in the Town of Islip other than a designated fish trap area, all of which are in the Great South Bay, are not in the harbor areas.\" (Tr. 353:1-4.) Remmer asked Loeffler \"Is that really what the Town of Islip is intending to do?\" to which Loeffler replied \"yes, it is.\" (Tr. 353:4-6.)\nMoreover, plaintiffs presented testimony by the Deputy Islip Town Attorney, Richard Hoffman, from the oral argument during Sloup's Article 78 proceeding in state court. Specifically, Hoffman made the following statements during that court proceeding:\n[T]he harbor area is defined.... Now there are proportions of every waterway within the Town of Islip that are not harbor areas, and he's free to fish, do whatever he is doing. I'm not sure what it is he's doing in those nonharbor areas. Again, when he is out there after this action was posted, he did go out again, and again he was told, don't do it here. Do it here.\n\n*122 Again, no summons was issued. Please move your pots. They showed him where he can go. It's not a question of the town saying, no. We are issuing summons for violation of law.\nThere are definitions. Harbor areas defined. It's not as if it's a moving target. It's a definition. There are maps which show where harbor areas are.\n(Tr. 327:24-25, 328:5-18.) This statement, made by the Town's attorney during oral argument, could be interpreted as stating that Sloup was entirely banned from fishing in the harbor areas. During the same hearing, there was testimony by Richard Remmer, the attorney representing Sloup in that proceeding, that \"from what [Sloup] has been told, the only place he can set his gear outside of the—he can't set it in Oralock Creek, Champlin's Creek, Brown's River, or any of those areas listed in the town code as a harbor area.\" (Tr. 327:9-12.)\nThus, viewed in a light most favorable to plaintiffs, the non-moving party, the various evidence presented at trial, in the form of testimony by plaintiff Sloup and his former attorney Richard Remmer, as well as Hoffman's statements from the Article 78 proceeding that Sloup brought against the Town in 2004, provided sufficient evidence from which a reasonable jury could conclude that there was a practice or custom within the Town of Islip of banning plaintiffs from fishing in the Town's harbor areas. Accordingly, the Town's motion for judgment as a matter of law on the grounds that plaintiffs have failed to demonstrate the existence of an unconstitutional policy or custom is denied.\n\n(2) Policymaker Liability\nThe Town also argues that there was insufficient evidence to support a finding of policymaker liability. Specifically, the Town argues both that there was no basis for the Court to rule that defendant Loeffler was a policymaker as a matter of law, and there was insufficient evidence upon which to predicate municipal liability based on Loeffler's actions. As set forth below, the Court disagrees.\n\"[M]unicipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.\" Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). \"When a plaintiff's theory of municipal liability is based on showing that a single action by a municipal employee caused the constitutional injury, rather than showing that a formally adopted or ratified municipal policy caused the injury, a plaintiff must demonstrate that the official had final policymaking authority for the particular subject matter involved.\" Brocuglio v. Proulx, 478 F.Supp.2d 309, 323-24 (D.Conn.2007) (collecting cases). As discussed in this Court's Memorandum & Order dated August 21, 2008, \"[e]ven one episode of illegal retaliation may establish municipal liability under § 1983 if ordered by a person whose edicts or acts represent official city policy.\" Gronowski v. Spencer, 424 F.3d 285, 296 (2d Cir.2005); see also Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir.2004) (\"Thus, even a single action by a decisionmaker who `possesses final authority to establish municipal policy with respect to the action ordered' is sufficient to implicate the municipality in the constitutional deprivation for the purposes of § 1983.\") (quoting Pembaur, 475 U.S. at 481-82, 106 S.Ct. 1292).\nIn City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), a plurality of the Supreme Court made it clear that to hold a municipality liable for the acts of its employees, a plaintiff cannot just prove that the final policymaking authority knew of the adverse action. The plaintiff must also prove that the final policymaking authority knew that the subordinates took that action for *123 unconstitutional reasons. Id. \"If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.\" Id. (emphasis added).\n\"Whether the official in question possessed final policymaking authority is a legal question, which is to be answered on the basis of state law.... The relevant legal materials[ ] include state and local positive law, as well as custom or usage having the force of law.\" Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000). \"As with other questions of state law relevant to the application of federal law, the identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury.\" Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). The Second Circuit has cautioned that:\n[i]t is well established in this Circuit that when examining an individual's status as a policymaker under Monell, the official in question need not be a municipal policymaker for all purposes. Rather, with respect to the conduct challenged, he must be responsible under state law for making policy in that area of the [municipality's] business, or must have the power to make official policy on a particular issue, or must \"possess[ ] final authority to establish municipal policy with respect to the action ordered.\" Thus, the court must ask whether [the] governmental official [is a] final policymaker[ ] for the local government in a particular area, or on [the] particular issue' involved in the action.\nHurdle v. Bd. of Educ. of City of N.Y., 113 Fed.Appx. 423, 425 (2d Cir.2004) (internal citations omitted).\nThe Town argues that defendant Loeffler was not in a position of policymaking authority in the Town of Islip. According to the Town, Eric Hofmeister, the head of the New York State Department of Environmental Conservation (\"DEC\"), was senior to Chief Harbor Master Loeffler, and therefore was the only policymaker in the department. The Town also argues that the regulation of fishing activities, including placing a ban on the actions constituting fishing activities, is reserved exclusively to New York State under the New York State Environmental Conservation Law. The Court disagrees and concludes that it correctly determined that defendant Loeffler was a policymaker under New York State law.\nDefendant Loeffler was the \"Chief Harbor Master\" in the Town of Islip. The evidence during trial suggested that this title afforded Loeffler with complete authority to determine whether an object poses a hazard to navigation in the Town waters. During the trial, Richard Remmer testified that \"[n]ormally, as an attorney, I would speak to the attorney for the Town of Islip or the senior person who was handling the matter, which I understood to be Chief Loeffler.\" (Tr. 362:11-14.)\nFurthermore, Officer Pomroy testified that he investigated the location of Sloup's pots at the instruction of Chief Loeffler: \"Q. You speak to the chief and you report this complaint; is that correct? A. Yes. Q. The chief says go check it out, right? A. Something to that effect.\" (Tr. 1147:1-5; see also Tr. 1147:17-19 (\"Q. In any event, Chief Loeffler ordered you to go out and check it out, correct? A. In some form, yes, he told me to go check it out.\").) There was no indication or testimony suggesting that Loeffler was acting at the direction of another.[1]\n*124 Chief Harbor Master Loeffler was also in a position of authority sufficient to attempt to negotiate a compromise with Sloup's attorney regarding the location of Sloup's crab and fishing pots. (See Tr. 373:9-74:25.) This further suggests that Loeffler certainly had authority with respect to the challenged conduct—that is, regulating the placement of Sloup's fishing pots and/or imposing a ban on their placement in the harbor areas of the Town of Islip.\nIn fact, during cross-examination of Remmer by the individual defendants' counsel, it was established that the Chief Harbor Master wields significant control over regulation of the waterways of the Town of Islip:\nQ: One of the permits that you were looking to have approved was that you wanted to add some dock space, right?\nA: That's correct.\nQ: Has that permit been approved?\nA: No.\n* * *\nQ: And you're aware that that permit application at some point was put before the harbormaster because it involved the waterways?\n\nA: Yes.\n(Tr. 380:16-381:4 (emphasis added).) Indeed, unlike Officers Pomroy and Sgroi, who appeared to act under the direction or authority of Chief Harbor Master Loeffler, there was no suggestion at trial that the decisions of Loeffler were reviewed for \"substantive propriety\" by higher supervisory officials. See Praprotnik, 485 U.S. at 129, 108 S.Ct. 915. Loeffler's actions exhibited more than a mere exercise of discretion, see, e.g., Verri v. Nanna, 972 F.Supp. 773, 794 (S.D.N.Y.1997), and indicated the exercise of policymaking authority over regulation of the waters in the Town of Islip. Thus, there was sufficient evidence for this Court to conclude that defendant Loeffler was a policymaker in the Town of Islip with respect to the use and management of the navigable waters within the Town.[2]\n*125 Finally, there was evidence from which the jury could conclude that Loeffler, as a policymaker, violated plaintiffs' constitutional rights by enforcing the above-discussed ban on plaintiffs' fishing in the Town harbor areas and that defendant Loeffler took action for unconstitutional reasons. See Praprotnik, 485 U.S. at 127, 108 S.Ct. 915. As discussed supra, there was evidence indicating that Loeffler directed Officers Pomroy and Sgroy to impose the ban on plaintiffs. In addition, Sloup testified regarding at least one heated exchange between himself and defendant Loeffler in which Loeffler told him: \"If it's the last thing I do, I'm going to get your buoys out of this bay.\" (Tr. 700:6-7.) Plaintiff also testified that when he challenged the ticket he was issued for refusing to move his crab pots, Loeffler stated, \"that's it. Now, get everything out. You're done in the Town of Islip. Everything out.\" (Tr. 712:1-2.) Sloup's testimony suggested that Loeffler imposed the ban on Sloup as a result of Sloup challenging the ticket. Thus, the Court concludes that there was sufficient evidence from which to conclude that Alan Loeffler was a policymaker in the Town of Islip regarding the use and regulation of the Town's navigable waters. Furthermore, there was ample evidence upon which the jury could predicate municipal liability based upon the actions of Chief Harbor Master Alan Loeffler. Accordingly, the Court correctly determined that Chief Harbor Master Loeffler was a policymaker as a matter of law, and the Town's motion for judgment as a law on the issue of policymaker liability is denied.\n\n3. Individual Defendants' Rule 50(b) Motions\nThe individual defendants move for judgment as a matter of law on each of plaintiffs' claims. They contend that the evidence was insufficient to find that plaintiffs' constitutional rights were violated. In evaluating defendants' motion, the Court is mindful that in considering a motion for judgment as a matter of law, the Court:\nmust draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence .... \"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.\" ... Thus, *126 although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.\nZellner v. Summerlin, 494 F.3d 344, 370 (2d Cir.2007) (quoting Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The Court addresses defendants' arguments regarding each of plaintiffs' theories of liability in turn, and ultimately concludes that there was sufficient evidence upon which the jury could find defendants liable for violating plaintiffs' constitutional rights under each theory.\n\na. Substantive Due Process Claim\nIn order to demonstrate a violation of substantive due process rights under the Fourteenth Amendment, a plaintiff must demonstrate that (1) he had a \"valid property interest;\" and (2) \"defendants infringed on that property right in an arbitrary or irrational manner.\" Cine SK8 v. Town of Henrietta, 507 F.3d 778, 784 (2d Cir.2007) (citing Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir.2001)). Defendants do not take issue with the first prong—i.e., whether Sloup had a valid property interest. However, defendants argue that they did not infringe on Sloup's property right in an arbitrary or irrational manner. The jury found that they did, and the Court concludes that there is sufficient evidence from which the jury could have reached that conclusion. Accordingly, defendants' motion for judgment as a matter of law regarding plaintiffs' substantive due process claim is denied.\nIn order to meet the second prong of a substantive due process claim, plaintiffs must show \"that defendants infringed their property right in an arbitrary or irrational manner.\" Cine SK8, 507 F.3d at 785. In particular, plaintiffs must show that the government's infringement was \"`arbitrary,' `conscience shocking,' or `oppressive in the constitutional sense,' not merely `incorrect or ill-advised.'\" Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir.2006); see also Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir.2001) (\"As we have held numerous times, substantive due process `does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit.... [Its] standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.'\" (quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.1999))); Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996) (explaining that plaintiff meets second prong of substantive due process test \"only when government acts with no legitimate reason for its decision\" (citation and quotation marks omitted)); Pina v. Lantz, 495 F.Supp.2d 290, 297 (D.Conn.2007) (\"`Mere irrationality is not enough: only the most egregious official conduct, conduct that shocks the conscience, will subject the government to liability for a substantive due process violation based on executive action.'\" (quoting O'Connor v. Pierson, 426 F.3d 187, 203 (2d Cir.2005) (internal quotation marks omitted))).\nDefendants argue that plaintiffs' substantive due process claim must fail because any actions by the defendants were not arbitrary, capricious, or conscience shocking. Instead, defendants contend that Sloup did not have an unfettered right to fish in the waters of Islip; they insist that Sloup's fishing rights had to safely co-exist with the rights of others who used the waters in the Town of Islip. (See Individual Defs.' Mot. at 4.) According to defendants, the Harbor Masters \"had the authority to do what they did.\" (Id. at 5.) Specifically, they argue that there was testimony that buoys, fishing traps, and crab pots near the channel could be a hazard to *127 navigation. (See, e.g., Tr. 182:14-18, 186:3-15, 192:17-193:3.)\nHowever, there was sufficient evidence from which the jury could have concluded that defendants denied plaintiffs their property rights in an irrational, arbitrary, or conscience-shocking manner. Sloup testified that he was told to remove all of his pots from the water—not just those that specifically posed navigational hazards. In June 2004, defendant Pomroy approached Sloup regarding the location of his pots in Champlin's Creek; plaintiff testified: \"He asked me if the crab pots in Champlin's Creek were mine, and I said yes. He says: `You have to move them. They're a hazard to navigation.' ... I said they're not a hazard to navigation. They're off to the side. They're not in anyone's way.\" (Tr. 707:21-25.)\nThere was further testimony that plaintiff was told by Officer Sgroi that defendant Loeffler had stated that plaintiff could not place his traps in Champlin's Creek at all. Plaintiff stated: \"[a]t that point Mr. Sgroi was there also and he said, you have to move your pots. And Chief Loeffler says you have to put them in the fish trap areas. They have to get out of Champlin's Creek. They have to go in the fish trap areas out in the bay.\" (Tr. 708:16-20; see also Tr. 709:9-10 (\"[Officer Pomroy] said either you remove the pots or we're going to impound them or write you a ticket.\").) Sloup also testified that, during an altercation he had with defendant Loeffler, in response to plaintiff challenging the ticket he received, Loeffler stated, \"that's it. Now, get everything out. You're done in the Town of Islip. Everything out.\" (Tr. 712:1-2; see also Tr. 712:11-17 (\"I was directly told to move every single piece of equipment from the harbor areas, and the killie pot. I said: Alan, my killie pots, they're in a mosquito ditch. He says, I don't care. Any water in New York State that is navigable water, that a canoe can float in is navigable water and your pots are a hazard to canoes.\").) Indeed, Sloup testified that on multiple occasions, Chief Loeffler reiterated the nature of the ban on plaintiff fishing in the harbor areas of the Town of Islip:\nChief Loeffler had drew a line from there's a side canal by the Qunituck Country Club that goes back from that canal across to what would be the River View Restaurant in Oakdale, and there's a four mile an hour speed limit that starts basically at that point. To the south is unrestricted speed, to the north would be restricted speed. And I was not allowed to put my gear north of that line which would be the restricted speed.\n(Tr. 725:13-18.)\nMoreover, there was evidence from which the jury could have concluded that the defendants acted with malice or bad faith when they issued the ban on plaintiffs. See DeFabio v. E. Hampton Union Free Sch. Dist., 658 F.Supp.2d 461, 485-86 (E.D.N.Y.2009). For example, in addition to the fact that defendants imposed such a ban on plaintiffs, Sloup testified that defendant Loeffler told him: \"If it's the last thing I do, I'm going to get your buoys out of this bay.\" (Tr. 700:6-7.) There was further testimony that Officer Pomroy approached plaintiff on at least two separate occasions regarding removing his pots from the harbor areas. Sloup placed his pots back in the waters in early October, but shortly after he did so, he was told to remove them. Sloup testified that he was told by defendant Pomroy: \"You have to take the pots out of Champlin's Creek. I said: Why? Do you feel there's a hazard to navigation? He goes: No. Messina says just because you won in court doesn't mean you can fish in the Town of Islip. Your pots are on Town property.\" (Tr. 721:10-14.)\n*128 Finally, defendants further argue that there is no evidence that the Town Harbor Unit did not enforce this ban against others. However, there was sufficient evidence from which the jury could conclude that the enforcement of this ban against plaintiffs was arbitrary. Mr. Remmer testified that his brother George and John Boucek were fishing in October or November 2004 in Connetquot River (Tr. 330:5-22, 401:6, 401:13-22, 402:16.) Also, plaintiffs presented into evidence a picture that Mrs. Sloup took in October 2004 that shows one of John Boucek's buoys in the distance. (See, e.g., Tr. 803:15-805:6.) Thus, there was evidence from which the jury could have concluded that defendants enforced a ban on fishing and crabbing in certain waters in the Town of Islip only against plaintiffs.\nThus, the Court concludes that there was sufficient evidence to support the jury's finding that plaintiffs proved, by a preponderance of the evidence, that the defendant imposed a ban on the plaintiff Frank Sloup prohibiting him from fishing in the harbor areas of the Town of Islip in 2004 and that defendants intentionally infringed upon plaintiffs' property interest in an arbitrary or irrational manner or in a manner that is shocking to the conscience. Thus, the Court denies defendants' motion for judgment as a matter of law on the substantive due process claim.\n\nb. Class of One Claim\nDefendants contend that they are entitled to judgment as a matter of law on plaintiffs' class of one claim. The Court disagrees.\nIn a \"class of one\" case, the plaintiff uses \"the existence of persons in similar circumstances who received more favorable treatment than the plaintiff ... to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose—whether personal or otherwise—is all but certain.\" Prestopnik v. Whelan, 249 Fed.Appx. 210, 212-13 (2d Cir.2007).\nFirst, defendants argue that plaintiff was not similarly situated to any other fishermen in a manner that would support a class of one claim. Defendants contend that the summons issued to Sloup under Islip Town Code § 37-56 was the only summons ever issued under that section because no one had ever refused to move fishing equipment when asked by a Harbor Master. According to defendants, the Harbor Masters \"not only had the right to enforce Islip Town Code § 37-56, they were mandated to do so if there was a violation of the Town Code.\" (Individual Defs.' Opp. at 8.)\n\"A class-of-one plaintiff must show, among other things, `an extremely high degree of similarity' between herself and alleged comparators in order to succeed on an equal protection claim.\" Mattison v. Black Point Beach Club Assoc., 376 Fed.Appx. 92, 94 (2d Cir.2010) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006)). \"To succeed on such a claim, the plaintiff must demonstrate that (1) `no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy,' and (2) `the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.'\" Id. (citing Clubside, Inc., 468 F.3d at 159 (internal quotation marks omitted)).\nAt trial, plaintiffs presented evidence that similarly situated fishermen were not subject to the blanket ban (or any ban) that was imposed on plaintiffs. For example, Sloup testified that in October of 2004, John Boucek had a fishing *129 buoy located at the entrance of Qunituck Creek by the harbormaster's office. Plaintiffs introduced a picture of the buoy, depicting its location. (Tr. 803:15-805:6; see also Tr. 822:9-10 (\"I took [this picture] for the purposes of showing that someone else was fishing where I was not allowed to fish.\").) Evidence of even one similarly situated individual is adequate to support a class of one claim. See Viruet v. Connecticut, No. 3:03-CV-1345, 2006 WL 923711, at *4-5, 2006 U.S. Dist. LEXIS 17536, at *12 (D.Conn. Mar. 29, 2006). Captain Timothy Huss, a captain with the New York State Department of Environmental Conservation, also testified that in 2004 and 2005 there were other fishermen fishing in the bay and harbor areas of the Town of Islip. (See Tr. 171:14-24.) Thus, there was adequate evidence from which the jury could conclude that there were similarly situated fishermen to Sloup at the time of the alleged ban who were not subjected to such a ban.\nIn addition, plaintiffs must demonstrate that defendants acted intentionally and with no rational basis for their actions. See, e.g., Prestopnik, 249 Fed.Appx. at 213; Siao-Pao v. Connolly, 564 F.Supp.2d 232, 245 (S.D.N.Y.2008) (\"This Court has interpreted the [Vill. of Willowbrook v.] Olech [528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)] standard to require that differential treatment be both intentional and irrational to satisfy the class of one standard.\"). \"[T]he classic example of irrational government action in a class of one equal protection case ... is an ordinance saying: `No one whose last name begins with `F' may use a portable sign in front of a 24-hour food shop, but everyone else may' .... What makes the ordinance in the example irrational is not simply the act of singling out, but rather that the singling out is done in such an arbitrary way.\" Casciani v. Nesbitt, 659 F.Supp.2d 427, 435 (W.D.N.Y.2009) (quoting Flying J Inc. v. City of New Haven, 549 F.3d 538, 547 (7th Cir.2008)). There was sufficient evidence from which the jury could conclude that defendants did not have a rational basis for their ban on plaintiffs' fishing in the harbor areas and that, rather, the Town's action was arbitrary and irrational. As discussed extensively supra, there was ample evidence of the existence of a ban on fishing in the harbor areas against plaintiffs. Sloup further testified regarding interactions with defendants Loeffler and Pomroy that suggested that the ban against him was imposed out of personal animus rather than due to a legitimate reason. (See Tr. 721:10-14 (stating that Officer Pomroy told Sloup: \"You have to take the pots out of Champlin's Creek. I said: Why? Do you feel there's a hazard to navigation? He goes: No. Messina says just because you won in court doesn't mean you can fish in the Town of Islip. Your pots are on Town property.\"); see also Tr. 712:1-2 (noting that when Sloup challenged the ticket, Loeffler stated, \"that's it. Now, get everything out. You're done in the Town of Islip. Everything out.\").) This testimony was sufficient to support a finding that defendants acted intentionally in imposing a ban on plaintiffs and that there was no rational basis for their actions.\nDefendants contend that the actions taken by defendants were discretionary state actions that are entitled to protection under Engquist v. Oregon Department of Agriculture. As noted in this Court's prior opinion, in Engquist, the Supreme Court held that class-of-one plaintiffs must show that the differential treatment received resulted from non-discretionary state action:\nThere are some forms of state action... which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be `treated alike, *130 under like circumstances and conditions' is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.\n553 U.S. 591, 603, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008); see also Siao-Pao, 564 F.Supp.2d at 245 (\"Additionally, the Supreme Court recently clarified the Olech holding by limiting class of one claims in contexts characterized by individualized and subjective determinations ....\"). In particular, defendants argue that Loeffler and Pomroy were taking discretionary state action when they regulated the location of Sloup's fishing and crabbing pots.\nHowever, plaintiffs' claims are not based on the issuance of a ticket to Sloup, nor on the regulation of the location of individual crabbing and fishing pots belong to Sloup. If the location of individual pots or the issuance of the initial ticket for failure to remove his fishing equipment were solely at issue in this case, Engquist protection might apply. However, the entire theory upon which this case was based was that the defendants implemented a ban on plaintiffs that prevented them from placing fishing equipment in certain waters in the Town of Islip. The jury specifically and explicitly found that such a ban existed by answering \"yes\" to interrogatory question number one: \"Did the plaintiffs prove, by a preponderance of the evidence, that the defendant imposed a ban on the plaintiff Frank Sloup prohibiting him from fishing in the harbor areas of the Town of Islip in 2004?\" (Tr. 1569:24-1570:5.) The imposition of a ban, arbitrarily and against only one fisherman, cannot be said to be a discretionary action for which defendants are entitled to protection. Accordingly, Engquist's exemption of discretionary state actions from equal protection class of one liability is inapplicable. Thus, plaintiffs presented sufficient evidence from which the jury could have reasonably concluded that a preponderance of the evidence indicated that defendants subjected plaintiffs to differential treatment that was arbitrary or irrational and that was not issued as part of a discretionary action that was part of defendants' job duties. Defendants' motion for judgment as a matter of law on the class of one claim is accordingly denied.\n\nc. Selective Enforcement Claim\nA plaintiff bringing a selective enforcement claim must also demonstrate that he was treated differently from similarly situated individuals. See Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 210 (2d Cir.2004) (\"A selective enforcement claim requires, as a threshold matter, a showing that the plaintiff was treated differently compared to others similarly situated.\"). Although some district courts in the Second Circuit have stated that \"the standard for `similarly situated' when bringing a selective enforcement claim is the same as in a `class of one' claim,\" see, e.g., Kamholtz v. Yates Cnty., No. 08-CV-6210, 2008 WL 5114964, at *5 (W.D.N.Y. Dec. 3, 2008); Dones v. City of N.Y., No. 07 Civ. 3085, 2008 WL 2742108, at *7, 2008 U.S. Dist. LEXIS 53681, at *28 (S.D.N.Y. July 9, 2008), the Court employs the slightly different formulations set forth by the Second Circuit for each claim. As this Court's Memorandum and Order dated August 21, 2008 noted, if anything, the two standards differ in that the similarly situated standard for class of one claims is more stringent. Accordingly, because the Court concludes that there was sufficient evidence from which the jury could find that plaintiffs were treated differently from others who *131 were similarly situated for the purposes of plaintiffs' class of one claim, that element is also met for plaintiffs' selective enforcement claim.\nThe second element of a selective enforcement claim requires plaintiffs to demonstrate that \"such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'\" Freedom Holdings Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir.2004) (quoting Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir.1999)). As discussed in this Court's August 21, 2008 Memorandum & Order, there is a distinction between a \"motivation to punish [in order] to secure compliance with agency objectives,\" and \"spite, or malice, or a desire to `get' [someone] for reasons wholly unrelated to any legitimate state objective.\" Bizzarro v. Miranda, 394 F.3d 82, 87 (2d Cir.2005) (quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir.1995)).\nThere was evidence that the ordinance under which Sloup was issued a ticket had not ever been used to enforce Town fishing regulations before. Sloup testified: \"I never heard of this order. I have been fishing all these years. Supposedly this ordinance was written in 1978. And 25 years later, all of a sudden, they come after fishing all these years and no one said anything to me, no one warned me or gave me any kind of heads up that I'm doing something wrong, and I wanted to get a copy to read it personally.\" (Tr. 710:11-18.)\nHere, the jury determined that defendants acted with malice when they imposed a fishing ban on plaintiffs in the waters of the Town of Islip. The mere imposition of such a ban—which was found by the jury to exist—is sufficient to establish malice when there was no basis for banning plaintiffs from all of the waters of the Town. As discussed extensively above, there was ample evidence from which the jury could have concluded that there was a ban against plaintiffs fishing in the harbor areas of the Town of Islip. (See, e.g., Tr. 871:4-7 (\"Q: And you recall [Officer Pomroy] specifically telling you at that time that you had to remove all of your pots out of Champlin's Creek? A: Yes.\"); Tr. 950:19-21 (\"[Officer Pomroy] told me I could not fish in the harbor areas at all, but I could fish out in the bay in the fish trap areas.\").) Moreover, there was additional evidence, discussed above, from which the jury could have concluded that the ban was imposed in bad faith or based on malice. (See, e.g., Tr. 712:1-2 (testimony by Sloup stating that, when they argued about the issuance of the ticket, Loeffler told Sloup, \"that's it. Now, get everything out. You're done in the Town of Islip. Everything out.\").) Sloup also testified that defendant Loeffler told him: \"If it's the last thing I do, I'm going to get your buoys out of this bay.\" (Tr. 700:6-7.)\nOfficer Pomroy initially instructed Sloup to remove all of his pots from the water in June 2004. In addition to testimony regarding the directive to remove all pots from Champlin's Creek, plaintiffs presented into evidence Officer Pomroy's incident report regarding his interaction with Sloup in June 2004 regarding the pots.\nQ. Would you look at defendant's exhibit E, please, which is in evidence. Would you read to the jury the factual part beginning with the word responded to above.\nA. Responded to above incident location on complaint by Mr. McCall, of 171 Woodland Drive, East Islip, of crab traps and buoys posing a hazard to navigation. Upon observing 41 buoys in creek respondent Crabs Unlimited on Orowoc Creek, Islip, I issued summons A64A61790 to above for violating 37.56A *132 of the Islip Town Code. Advised above all traps and buoys must be removed.\nQ. So you actually told Frank that he had to move all traps and buoys as is indicated in here, correct?\nA. As the writing says.\n(Tr. 1155:11-1156:1.) There was also testimony by Captain Timothy Huss, the chief environmental conservation officer with the rank of captain of the DEC (Tr. 127:12-128:6) that Sloup's pots in Champlin's Creek were not, in fact, hazards to navigation—or at least that it is not possible that all of the pots were hazards. (See Tr. 154:5-12, 154:21-24.) Furthermore, Sloup testified that shortly after he returned his pots to the water in October 2004, he was told to remove them again by Officer Pomroy, not because they were hazards to navigation, but because they were \"on Town property.\" (Tr. 721:11-14.) This testimony, if deemed credible by the jury, was sufficient to establish that the defendants acted in bad faith or with malice by banning plaintiffs from fishing and crabbing in the Town of Islip harbor areas.\nIn sum, the Court concludes that there was sufficient evidence for a reasonable juror to conclude that plaintiffs proved, by a preponderance of the evidence, that they were treated differently from similarly situated individuals and that the differential treatment was intentional and based on malice or bad faith.\n\nB. Motions for a New Trial Under Rule 59\n\n1. Standard of Review\nUnder Rule 59(d), a court may order a new trial on its own motion. The rule provides that\nThe court may, on motion, grant a new trial on all or some of the issues and to any party as follows:\n(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court ....\nFed.R.Civ.P. 59(a)(1)(A). A Rule 59 motion for a new trial \"ordinarily should not be granted, unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.\" Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 82 (2d Cir.2006) (quoting Hygh v. Jacobs, 961 F.2d 359, 365 (2d Cir.1992) (internal citation omitted)).\nThe trial judge has \"discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence.\" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir.1998). This discretion \"includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur).\" Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). The district court has authority to enter a conditional order of remittitur, compelling a plaintiff to choose between reduction of an excessive verdict and a new trial in at least two distinct kinds of cases:\n(1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken, ... and (2) more generally, where the award is `intrinsically excessive' in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error.\nKirsch, 148 F.3d at 165 (quoting Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 337 (2d Cir.1993)).\nBoth the Town and the individual defendants argue that the jury reached a \"seriously erroneous result\" in awarding Sloup $1.8 million in compensatory damages. *133 The defendants argue that this has resulted in a serious miscarriage of justice.\n\n2. The Town's Rule 59 Motion\nThe Town moves for a new trial under Rule 59 based, in part, on the same arguments it raises in its motion for judgment as a matter of law. To the extent that the Town argues that a new trial is warranted based on plaintiffs' failure to prove the existence of a municipal policy or custom or the plaintiffs' failure to demonstrate policymaker liability, the Town's motion is denied for the same reasons that its Rule 50 motion fails.\nThe Town also argues that jury note number five indicates the jury's basis for awarding such large compensatory damages. That note read, \"we need clarification. What is the Town of Islip's responsibility with regard to compensatory and punitive damages? Will the Town pay for damages regarding Pomroy and Loeffler?\" (Tr. 1563:16-20.) At that point, the Court instructed the jury that an inquiry regarding who would ultimately pay the damages was inappropriate. (See Tr. 1563:21-1564:1 (\"The answer to that is, it is irrelevant to your consideration. The issue of whether or not the Town of Islip is responsible for payment for any damages regarding Pomroy or Loeffler is irrelevant and not something that the jury can consider in connection with its deliberations.\").) Although the Town makes much of the fact that \"[t]he jury never inquired about the Town's responsibility absent the conduct of Loeffler and Pomroy,\" this does not conclusively demonstrate that the jury found the Town liable solely based on the actions of the individual defendants. The jury verdict specifically found that the \"plaintiffs prove[d] by a preponderance of the evidence that the violation of plaintiffs' constitutional right(s) was pursuant to a long-standing custom or practice of the Town of Islip and that the policymakers approved or were deliberately indifferent to the custom or practice.\" (See Verdict Sheet at 3.) The jury further found that \"plaintiffs prove[d] by a preponderance of the evidence that defendant Loeffler was a policymaker for the Town of Islip and that the violation of plaintiffs' constitutional right(s) was caused by the actions of defendant Loeffler acting in his policymaking capacity for the Town of Islip.\" (Id. at 4.)\nNonetheless, as discussed infra, the Court concludes that the jury verdict of $1.8 million in compensatory damages \"shocks the judicial conscience.\"\n\n3. Individual Defendants' Rule 59 Motions\nThe individual defendants move for a new trial under Rule 59(a) on substantially the same grounds upon which they move for judgment as a matter of law. The individual defendants point to several pieces of testimony that were favorable to them: specifically, they point to the testimony of Captain Huss that the DEC does not regulate the placement of eel pots and crab traps, testimony by several witnesses who agreed that fishing buoys and crab traps in the harbor areas could be hazardous to boaters, and testimony by several witnesses that there was no ban against plaintiffs in the harbor areas. (Defs.' Mot. at 13-15.) However, defendants' argument is misplaced. As discussed extensively above, there was sufficient evidence to support the jury's findings that (a) defendants imposed a ban on plaintiff Frank Sloup prohibiting him from fishing in the harbor areas of the Town of Islip in 2004; (b) that plaintiffs' equal protection rights were violated under a \"class of one\" theory; (c) that plaintiffs' equal protection rights were violated by the selective enforcement of Town laws against plaintiffs; and (d) that plaintiffs' substantive due process rights were violated by defendants. Although the Court recognizes that there was testimony favorable to defendants, *134 \"[a]s a matter of law, the credibility of witnesses is exclusively for the determination by the jury.\" Cameron v. City of N.Y., 598 F.3d 50, 61 (2d Cir.2010) (citing United States v. Forrester, 60 F.3d 52, 63 (2d Cir.1995)); see also Elyse v. Bridgeside Inc., 367 Fed.Appx. 266, 268 (2d Cir. 2010) (\"The district court is authorized to grant a new trial based on the weight of the evidence only if it determines that the jury's verdict was `seriously erroneous,' or `a miscarriage of justice.' In making its determination, however, the court must refrain from invading the province of the jury to evaluate the credibility of the witnesses.\" (internal citation omitted)). Thus, it was well within the province of the jury to decide which testimony to rely upon in reaching its ultimate determination of liability.\n\nC. Motion to Set Aside the Verdict\nBoth the Town and the individual defendants have moved, under Rule 59 of the Federal Rules of Civil Procedure, to set aside the $1.8 million in compensatory damages awarded by the jury as excessive. The individual defendants also have moved to set aside the the award of $150,000 in punitive damages against each defendant as excessive.\nIn his summation, plaintiffs' counsel asked the jury to award three categories of damages. First, plaintiffs' counsel sought \"a couple of hundred thousand\" dollars based upon lost income during and after the fishing ban which, according to the plaintiffs' evidence, existed from approximately June 2004 until November 2004. Second, plaintiffs' counsel sought the equity lost in the property at 25 Degnon Avenue (bought by the plaintiff to establish his new business) when that property was the subject of a foreclosure sale in 2007. In particular, counsel argued that, by banning him from certain waters for several months in 2004 and depriving him of income, defendants had caused the foreclosure on that property that began in 2005 and was completed in 2007. Counsel estimated to the jury in his summation, without specific reference to the record, that the equity in that property was at least $550,000. Finally, plaintiffs' counsel sought an unspecified amount of non-economic damages—for substantial loss of enjoyment of life, inconvenience, and general suffering—because of the fishing ban. In particular, counsel sought compensation for Frank Sloup having to move to Maryland in 2007 and being apart from his wife during that period as they sought new employment after his foreclosure and bankruptcy.\nDuring the trial, plaintiff Sloup was asked on direct examination to summarize the compensation he was seeking in the lawsuit. In response, Sloup requested categories of damages even broader than those being sought by plaintiffs' counsel: \"I'm seeking compensation for loss of my business and home, loss of my customers, loss of business that took me 20 years to build to establish the customer base, loss of having to be away from my wife for six months because we couldn't afford to live together.\" (Tr. 775:20-24.)\nIn the post-trial opposition to defendant's motion, plaintiffs' counsel attempts to argue that the economic losses suffered by plaintiffs totaled a minimum of $1.2 million dollars, and a maximum of $1.8 million, based upon the following breakdown:\nAs to economic loss, the Plaintiffs suffered losses in income spanning multiple years as a direct result of the Defendants' actions. As a direct result of his loss of income, Mr. Sloup eventually lost his commercial property, located at 25 Degnon Blvd., with a market value of approximately $1.3 and $1.9 million dollars, subject to a mortgage of $650,000. In 2004, Plaintiffs' gross income was reduced *135 $111,232 as compared to 2003. In 2005, Plaintiffs' gross income was reduced $159,826, as compared to 2003. In 2007, Plaintiffs' gross income was reduced $300,057 as compared to 2006, as a direct result of losing his commercial property located at 25 Degnon Blvd., the location out of which he conducted business. Additionally, Plaintiffs' commercial equipment were rendered valueless as a result of the foreclosure. The damages detailed above, at a minimum, approximate $1.2 million, and a maximum, not even considering equipment and other losses, approximate damages of $1.8 million.\n(Pl.'s Opp. at 15-16.)\nAs discussed in detail below, the Court concludes that, in certain instances, the categories of compensatory damages sought by plaintiffs at trial (and which are used in the post-trial submissions to argue that the $1.8 million award was not excessive) are not recoverable as a matter of law and, in other instances, the particular amounts sought were unsupported by the record. First, with respect to lost income, plaintiff as a matter of law is not entitled to lost gross income; rather, he is only entitled to lost net income, or profits. Nevertheless, both before the jury and in the post-trial submissions, plaintiffs argue for loss of gross income. Moreover, plaintiff seeks years of lost income into 2007, even though it is undisputed the fishing ban ended in 2004 and plaintiff had one of his best years in the fishing business in 2006. There is an insufficient evidentiary basis in the record for a rational jury to find any loss of income in subsequent years after 2004 was proximately caused by the fishing ban in 2004. Thus, the amount of lost income sought during the trial was grossly in excess of any rational number that could be awarded by the jury and cannot justify the $1.8 million verdict. Second, there is a significant question, given the lack of expert testimony and the evidence in the record as a whole, as to whether a rational jury could conclude that the foreclosure sale of 25 Degnon Avenue that took place in 2007 was proximately caused by the fishing ban that existed for several months in 2004. However, the Court need not decide that issue for purposes of this motion because, even assuming arguendo that legal causation was proven, the jury had no basis in the record to determine the amount that plaintiff lost on the property given that there was no evidence regarding the results of the sale of the property in foreclosure in 2007 or plaintiff's actual loss from such sale. Thus, the jury would have had to speculate as to the value of the property and the amount of plaintiff's actual loss with respect to the property following his bankruptcy and the foreclosure sale. Third, although plaintiff could recover for non-economic damages in terms of loss enjoyment of life from not being able to fish during the fishing ban in 2004, plaintiff cannot recover for non-economic losses in terms of having to move to Maryland in 2007 and being separated from his wife after the foreclosure on his property. No rational jury could conclude that those damages in 2007 were proximately caused by the fishing ban in 2004. In short, the jury was left with a demand for damages that was grossly in excess of what the law and the evidence would rationally support. The result was a verdict in an amount that shocks the conscience of the Court and is clearly a gross miscarriage of justice.[3]\n*136 Moreover, this grossly excessive verdict cannot be corrected with remittitur under the circumstances of the instant case because of the lack of a special verdict on damages and the Court's conclusion, based upon the grossly excessive size of the award and the erroneous arguments on damages that were made to the jury, that error infected the jury's entire determination of compensatory damages. Thus, there must be a new trial on compensatory damages. Finally, although there was sufficient evidence for the issue of punitive damages to go to the jury, the new trial should include a new trial on punitive damages because, inter alia, the issue of punitive damages in this particular case—both as to whether there should be an award of punitive damages and as to the amount—is so interwoven with the issue of compensatory damages that it was likely tainted by the grossly erroneous calculation of compensatory damages.\n\n(1) Applicable Standard\nIt is well settled that, pursuant to Rule 59 of the Federal Rules of Civil Procedure, a trial judge has the discretion to grant a new trial if the verdict is against the weight of the evidence, and \"[t]his discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur)\" Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); accord Rangolan v. Cnty. of Nassau, 370 F.3d 239, 244 (2d Cir.2004); Bracey v. Bd. of Educ. of City of Bridgeport, 368 F.3d 108, 117 (2d Cir.2004). As the Second Circuit has instructed, \"[w]here there is no particular discernable error, we have generally held that a jury's damage award may not be set aside as excessive unless `the award is so high as to shock the judicial conscience and constitute a denial of justice.'\" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir.1998) (quoting O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir.1988) (internal quotations omitted)). However, if the trial judge identifies a specific error, \"the court may set aside the resulting award even if its amount does not `shock the conscience.'\" Id. In reviewing a claim that a jury's damages award was excessive, the court must \"accord substantial deference to the jury's determination of factual issues.\" Martell v. Boardwalk Enters., 748 F.2d 740, 750 (2d Cir.1984). Moreover, \"the trial judge is not called upon to say whether the amount is higher than he [or she] personally would have awarded.\" Dagnello v. Long Island R.R., 289 F.2d 797, 806 (2d Cir.1961). Nevertheless, the Second Circuit has emphasized that \"[w]hile a jury has broad discretion in measuring damages, it `may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket.'\" Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir.1993) (quoting Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir.1988) (internal quotation marks and citation omitted)). In other words, \"an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable [persons] may differ, but a question of law.\" Dagnello, 289 F.2d at 806.\n\n(2) Analysis of Compensatory Damages\nAs set forth in detail below, the Court concludes that the jury's compensatory damages award of $1.8 million in this case was excessive as a matter of law and warrants a new trial on the issue of damages. First, there was discernable error during the trial with respect to the issue of damages based upon the fact that plaintiffs' counsel urged the jury to award (1) certain categories of damages for which legal causation was lacking, and (2) amounts of damages in certain categories that were unsupported by the record and *137 would require sheer speculation and guesswork by the jury. Second, even apart from these discernable errors, the Court finds that the award is so high that it shocks the judicial conscience and constitutes a denial of justice. Thus, the award of compensatory damages must be set aside.\n\n(a) Lost Profits\nWhereas pain and suffering cannot be quantified, economic loss must be established with reasonable certainty. See, e.g., Tassone v. Mid-Valley Oil Co., 5 A.D.3d 931, 773 N.Y.S.2d 744, 746 (2004); Faas v. New York, 249 A.D.2d 731, 672 N.Y.S.2d 145, 147 (1998). \"Under New York law, it is `well established' that `[t]he rule of certainty as applied to the recovery of damages does not require mathematical accuracy or absolute certainty or exactness, but only that the loss or damage be capable of ascertainment with reasonable certainty.'\" Okraynets v. Metro. Transp. Auth., 555 F.Supp.2d 420, 444 (S.D.N.Y. 2008) (quoting Reichman v. Warehouse One Inc., 173 A.D.2d 250, 569 N.Y.S.2d 452 (1991)). In essence, economic damages need not be exact, but they cannot be speculative. Id. (citing Stringile v. Rothman, 142 A.D.2d 637, 530 N.Y.S.2d 838 (1988)).\nThere is no question that Sloup would be entitled to recover lost income to his business that resulted from the ban on fishing and crabbing in the harbor areas. However, it is axiomatic that plaintiff is entitled to loss of net income, not gross income. Nevertheless, in his summation, plaintiff's counsel asserted that the jury should award \"a couple of hundred thousand in lost income.\" Specifically, he argued:\nWe also have at least a couple hundred thousand in lost income. And I ask you to look at the charts. The seven of you are smarter than I am, and I'm not that great at economics either, but you will see a couple of hundred thousand dollars in losses as a result of what they did to him.\n(Tr. 1425:7-12.) Although not explicitly alluded to in the summation, this was based upon counsel's view that Sloup was entitled to multiple years of losses in gross income from 2004 to 2007. This is consistent with the post-trial submission which suggests the same: \"In 2004, Plaintiffs' gross income was reduced $111,232 as compared to 2003. In 2005, Plaintiffs' gross income was reduced $159,826, as compared to 2003. In 2007, Plaintiffs' gross income was reduced $300,057 as compared to 2006, as a direct result of losing his commercial property located at 25 Degnon Blvd., the location out of which he conducted business.\" (Pl. Opp. at 15.) Similarly, Sloup testified to losses of gross income in response to questions during the trial. In particular, by Sloup's own admission, his gross losses were \"about $115,000.\" (Tr. 729:19.) \"Did you determine at the end of 2004 that you had a loss in gross sales from the previous year? A. Yes. Q. What was the approximate amount of that loss? A. About $115,000.\" (Tr. 729:15-18.) This was a loss in gross sales that does not take into account plaintiffs' expenses. (See Tr. 962:6-15.)\nThus, although plaintiffs suggest that the jury could have rationally awarded several hundreds of thousand of dollars in damages in lost profits, that assertion is based on the erroneous premise that (a) one looks to lost gross profits rather than net profits, and (b) plaintiff would be entitled to loss in profits not only for the months in 2004 during which the ban is in place but also for lost profits for years 2005 and 2007, when compared to profits in 2003 before the ban. Both of those positions asserted by plaintiffs are incorrect as a matter of law. As noted above, the measure of damages is clearly net income (or profits), rather than gross income. See, e.g., Martin Motor Sales, Inc. *138 v. Saab-Scania of Am., Inc., 452 F.Supp. 1047, 1053 (S.D.N.Y.1978) (\"The general rule is that the measure of `lost profits' is the net profit which is lost.\" (collecting cases)). Plaintiffs' gross income versus net income differential for each year was as follows:\n\n\nYear Gross Net\n2002 $312,000 $97,781\n2003 $326,000 $64,572\n2004 $215,000 $33,000\n2005 $166,000 $12,000\n2006 $330,000 $94,000\n\nBased upon the evidence at trial, even in most profitable years, plaintiffs' net income was still less than one-third of their gross. Thus, construing all the facts in a light most favorable to plaintiffs, even assuming that gross sales lost from the year 2004 were $115,000, as plaintiff testified, plaintiffs' net lost income would be roughly $36,050. Plaintiffs put forward no other evidence regarding lost profits. Any other compensatory award for plaintiffs' business losses would depend \"entirely on speculation of a particularly dubious kind.\" Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 333 (2d Cir. 1993). Neither this Court nor the jury may assume, without proffered evidence, that plaintiffs' business would have been more lucrative in 2004 than it was in prior or subsequent years. In Trademark Research Corp., the Second Circuit upheld the dismissal of part of a plaintiff's lost profits claim because it was not supported by evidence in the record. Id. at 329. The Circuit noted that the plaintiff, \"assumed an abrupt expansion of the market for trademark search services, assumed that TRC would reverse the long decline in its market share, assumed that TRC's historically aggressive competitors would take no measures to counter TRC's ascendancy, and predicted which choices customers would make among a variety of new and old search technologies—all of these assumptions reduced to speciously exact dollar amounts and spun out to the year 1998.\" Id. at 333. Here too, to assume that plaintiffs would have earned greater profits in 2004 than in any prior or subsequent year would be to make assumptions that plaintiffs' business would have grown significantly in that year. There was no evidence presented at trial that would justify reaching such a conclusion.\nSimilarly, to the extent plaintiff suggests that the jury could have rationally awarded plaintiff any lost profits in 2005 through 2007, that argument is similarly flawed. The fishing ban ended in 2004, and plaintiff began fishing again. There was no evidence from which the jury could have rationally concluded that any profits that were lost in 2005 through 2007 were proximately caused by a fishing ban that expired in or about November 2004. Although plaintiff made a conclusory reference to not being able to buy new traps in 2005 because of a shortage of money, that vague statement, in the absence of expert testimony or documentation, would be insufficient for the jury to rationally conclude that his net profits in 2005 were negatively impacted by the fishing ban that ended in 2004 (or what the amounts would be). Similarly, any residual impact clearly ended by 2006 when plaintiff made net profits of $94,000, which was his best year since he made $97,781 in 2002. Nevertheless, in an effort to justify the $1.8 million compensatory award, plaintiffs inexplicably suggest that the jury could have awarded over $300,000 in gross income in 2007.\nIn sum, although plaintiff's counsel argued that the jury could rationally award lost gross income for the years 2004, 2005, and 2007, the Court concludes that the jury could only rationally award net income (or profits) for 2004 which, by any measure, would result in a lost profits amount of less than $50,000.\n\n\n*139 (b) Property at 25 Degnon Avenue\nIn his summation, plaintiff's counsel specifically argued that Frank Sloup should be entitled to at least $550,000 in equity for the building that was lost in foreclosure:\nWhat I'm asking you to do is send a message to Mr. Loeffler and to the Town of Islip. But the only message you can really send, besides ruling in Frank's favor with respect to the issues the judge will present to you, the questions that he will ask you, is to give him what you consider to be fair and just compensation. We're not asking that you make him a billionaire. We are asking you to consider that that building which he refinanced for $650,000 in 2002 was appraised for a million dollars in connection with that closing and that Mr. Mattimore testified about a 2007 offer for a building of $1.3 million. Even if you assume interest and penalties because of the foreclosure that he owes the bank $750,000, you have got a $550,000 in equity in that building that he has lost, we contend because of what Mr. Loeffler and the Town of Islip did to him. $550,000 in equity.\n(Tr. 1424:15-1425:6.)\nAs a threshold issue, there is a significant issue as to whether a rational jury, given plaintiff Frank Sloup's substantial financial problems prior to the ban, could conclude that the fishing ban for several months in 2004 (and the loss of less than $50,000 in net income) proximately caused the foreclosure on the property that began in 2005 and took place in 2007.\nFor example, Sloup testified, among other things, to the following: (1) when Sloup initially purchased the property for $550,000, he thought renovations to the property would cost $300,000, but such renovations ended up costing approximately $800,000; (2) after refinancing in 2002, plaintiff fell behind in his mortgage in 2003; (3) at the time of the ban in 2004, he was already behind on his mortgage payments; (4) the bank threatened to foreclose on the property; and (5) in the beginning of 2005, the bank started foreclosure on the property. (Tr. 741-48; 834-36; 897-98.) In fact, plaintiffs' counsel acknowledged in his summation, \"There is no question he [Frank Sloup] took on too much debt. And what happened to him financially is not solely the responsibility of the Town of Islip or Mr. Loeffler. I never said that. They kicked this guy when he was down. This was the last straw. That's what this is about.\" (Tr. 1479:3-8.) Although counsel suggests that the ban was the proximate cause because it was the \"last straw,\" there was no expert testimony, or detailed evidentiary basis, to explain why that was so. Moreover, even if the foreclosure was initiated in 2004 because of the lost net income of less than $50,000 than resulted from the ban, there was no testimony explaining why from 2005 to 2007 (during which there was no ban) plaintiff was unable to rectify the foreclosure situation before the actual sale of the property in 2007. See, e.g., Point Prods. A.G. v. Sony Music Entm't, Inc., 215 F.Supp.2d 336, 345-46 (S.D.N.Y.2002) (granting motion in limine to preclude evidence of damages at trial related to bankruptcy because, given the absence of expert testimony that plaintiff would have remained solvent absent the breach, damages were \"highly speculative and insufficiently reliable to allow a jury to consider it\").\nIn short, there is a significant issue as it relates to proximate cause regarding the foreclosure of the property at 25 Degnon Avenue. See, e.g., Point Prods. A.G., 215 F.Supp.2d at 344 (\"[I]n order to show that [defendant's] breach caused [plaintiff's] bankruptcy, plaintiff must establish a direct causal relationship. In order to hold [defendant] liable for the damages that *140 occurred post-bankruptcy, [plaintiff] would have to show either that [defendant's] breach alone would have been sufficient to force the company to declare bankruptcy or that [plaintiff] would not have had to declare bankruptcy but for [defendant's] breach. If [plaintiff's] bankruptcy was inevitable regardless of [defendant's] breach, then [plaintiff] cannot be held responsible for that injury. The burden on [plaintiff] is to prove that [defendant's] actions forced [plaintiff] to file for bankruptcy protection.\") (citation omitted); see also Kiswani v. Phoenix Sec. Agency, Inc., 247 F.R.D. 554, 561 (Bankr.N.D.Ill.2008) (\"Plaintiff claims that the arrest and prosecution caused his company, NSA, to lose a five-year contract for security services with the CTA.... This claim is totally speculative. Plaintiff has put forth no evidence to demonstrate the arrest and prosecution was the legal cause of his inability to secure this contract, nor has he shown that this was a foreseeable consequence to his arrest and prosecution.\"); In re Estrada, 349 B.R. 859, 866 (N.D.Ala.2006) (\"The Plaintiff also testified that his mortgage balance increased as a result of the delayed closing caused by the Defendant.... However, as discussed above, we do not know if the purchase[r] withdrew his offer under the first contract and the closing was delayed because of the Defendant's conduct or if it was because of other reasons not attributable to the Defendant.... Accordingly, the Court will not award damages for the delay in closing between the first contract and the second contract. To do so would be too speculative based on the evidence presented.\").\nHowever, the Court need not decide this causation issue because, even assuming arguendo that causation was proven, there was an insufficient evidentiary basis from which the jury could determine the plaintiff's actual loss with respect to the property after his bankruptcy and the foreclosure on the property. First, there was insufficient evidence from which the jury could actually determine the value of the property at the time of the foreclosure. Plaintiffs offered no testimony regarding the value of the property at the time of foreclosure, other than two offers to purchase the property (prior to the foreclosure) for $1.2 and $1.4 million in 2006, but those offers did not come to fruition. Those offers (which were not consummated in a sale) are insufficient evidence from which a rational jury could determine the value of the property. Moreover, even if the value of the property could be determined, there was no evidence in the record from which the jury could determine what the actual loss to plaintiff was after the bankruptcy and foreclosure sale. In other words, there was a substantial mortgage remaining on the property, but the jury did not have that amount before it. In the post-trial submissions, there is documentation that, at the time of Sloup's bankruptcy filing, the amount of the mortgage was $631,803.20 (Ex. D to Individual Defs.' Post-Trial Mot.) Moreover, the post-trial submissions note that, when the property was sold at auction, the bank purchased it back for the price of the mortgage. However, neither the amount of the mortgage, nor the sale price at the time of foreclosure, was presented to the jury at trial. In short, there was no evidentiary basis from which the jury could rationally determine the value of the property, or the actual loss of the plaintiffs from the foreclosure sale of the property in 2007. See generally Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir.1988) (given ongoing bankruptcy proceedings, \"at this time, it is impossible to determine the amount of damages that would be necessary to make plaintiff whole, because it is not known whether some or all of the fraudulently transferred funds will be recovered by the corporation. Should they be recovered, [plaintiff] would benefit *141 along with BAC's other creditors and its injury would decrease. As a result, the damages in this area are speculative and unprovable; any claim for relief based on the lost debt injury must therefore be dismissed without prejudice.\" (quotations and citations omitted)); Tatum v. Jackson, 668 F.Supp.2d 584, 601 (S.D.N.Y.2009) (\"With respect to medical expenses, it would have been unduly speculative for the jury to award [plaintiff] anything more than nominal expenses associated with transportation to medical appointments. . . . The only evidence [plaintiff] offered with respect to his actual medical expenses, however, was his testimony that his medical bills were `somewhere in the hundred thousand dollars area' and were paid for by Medicaid. [Plaintiff's] testimony that he believed he `would have to reimburse the state' for the Medicaid payments if he recovered money in a lawsuit was speculation and the jury could not reasonably have relied on it to find that [plaintiff] had actually suffered a compensable financial loss in the amount of $100,000 due to medical expenses.\").\nMoreover, there is no possible way that the jury could have reached $1.8 million in compensatory damages without awarding substantial compensatory damages in connection with the sale of this property. Thus, there is a likelihood, given this absence of proof and the large amount of the compensatory award, that the jury may have awarded plaintiffs more than $1 million in connection with an alleged loss on the sale of that property which, given that the mortgage was for over $600,000, would result in an unjustified windfall to plaintiffs. However, at a minimum, this category of damages cannot support the $1.8 million award because an evidentiary basis did not exist from which the jury could rationally determine the value of the property and amount of the loss.[4]\n\n(c) Non-Economic Damages\nIn his summation, plaintiff's counsel specifically argued to the jury that Frank Sloup should be compensated for the emotional distress in 2007 (three years after the fishing ban in question), which counsel contended flowed from the eventual foreclosure on the property in 2007:\n[Frank Sloup] moves to Maryland. He's separated from Tracy. He does some landscaping and some fishing in Maryland. She waitresses in Florida. And according to this they make virtually no money. Frank described the horrible conditions under which he lived in Maryland. And I'm not going to repeat them and describe what it was like being separated from her. But I submit to you *142 that they should be compensated for the intentional acts of Mr. Loeffler and the Town of Islip in forcing this situation, in forcing this foreclosure, the eventual, although it took two years, foreclosure of the property, getting locked out of their premises and having to try to do something completely different when he is past 60 years of age.\n(Tr. 1422:2-15.) This category of damages was subsequently repeated later in the summation: \"[Y]ou're entitled to compensate Mr. Sloup for what they did to him causing him to lose his business, move to Maryland, have to live under those horrible conditions, and just for the fact that he is out on the water at his age, after so many years, fishing for a living, starting at 5 o'clock in the morning.\" (Tr. 1425:13-18.)\nA plaintiff may be entitled to damages for loss of enjoyment of life and other intangible injuries. Under § 1983, compensable injuries may include \"not only monetary losses such as out-of-pocket expenses, but also injuries such as personal humiliation and mental anguish.\" Dejesus v. Vill. of Pelham Manor, 282 F.Supp.2d 162, 177 (S.D.N.Y.2003) (citing Walz v. Town of Smithtown, 46 F.3d 162, 169-70 (2d Cir.1995); Henry v. Gross, 803 F.2d 757, 768 (2d Cir.1986)). Noneconomic damages, such as shock, anxiety, fear, and humiliation have been determined to be sufficient to establish compensatory damages in civil rights cases. See id. Notwithstanding the availability of such damages, the Second Circuit has held that emotional distress damages can not be established by mere subjective statements by the plaintiff, without corroboration, when the plaintiff does not indicate any physical manifestations of distress. See Annis v. Cnty. of Westchester, 136 F.3d 239, 249 (2d Cir.1998). In Dejesus, the court expounded upon the interpretation of Annis within the Second Circuit:\nDistrict courts in this Circuit interpreting Annis have generally understood the Second Circuit's holding as not requiring a specific kind of support to justify emotional distress damages; but rather, have read it narrowly in the context of the Second Circuit's other precedents to hold that the holding in Annis is based on the particularly minimal evidence provided by the plaintiff in that case. See Mahoney v. Canada Dry Bottling Co. of N.Y./Coors Distrib. Co. of N.Y., No. 94 Civ. 2924, 1998 WL 231082, at *5 (E.D.N.Y. May 7, 1998) (\"The Court is not convinced that Annis should be read so broadly as to preclude any award of compensatory damages for mental anguish absent corroborating testimony.\"); Uddin v. N.Y. City/Admin. for Children's Servs., No. 99 Civ. 5843, 2001 WL 1512588, at *6 (S.D.N.Y. Nov. 28, 2001) (\"[T]he Annis Court itself indicated that its holding was based on the nature of plaintiff's testimony, rather than the absence of corroboration, explaining that `her testimony fails to establish that she suffers from any concrete emotional problems.'\"). Moreover, district courts have held that as long as testimony points to concrete emotional problems, such testimony may suffice to justify emotional distress damages. See Uddin, 2001 WL 1512588, at *6 (plaintiff's testimony relating concrete emotional problems such as depression and malaise sufficient to justify award for compensable damages); Mahoney, 1998 WL 231082, at *5 (testimony regarding anxiety and sleeplessness for a period of three months, with some corroboration by other witnesses, sufficient to justify award of compensatory damages).\n282 F.Supp.2d at 177-78. \"Despite . . . narrow interpretations of Annis, it is still the case that in order to justify recovery for emotional distress, [p]laintiffs must present sufficient evidence that they experienced *143 `concrete emotional problems' and mere subjective statements by a plaintiff concerning feelings of anguish or humiliation, without any physical effects of such distress, or corroborating evidence or other supporting evidence, are insufficient.\" Id. at 178 (citing Annis, 136 F.3d at 249); see also Price v. City of Charlotte, N.C., 93 F.3d 1241, 1254 (4th Cir.1996) (\"In this appeal, we express the same trepidation as our sister circuits regarding conclusory testimony with respect to the sufficiency of the evidence supporting an award of compensatory damage based on emotional distress for a constitutional violation.\").\nThis Court instructed the jury regarding this during the charge:\nWith respect to proximately caused injuries, compensatory damages can include any economic injury sustained by plaintiffs, as well as any suffering, inconvenience, loss of enjoyment of life, and other non-monetary losses that plaintiffs prove that were experienced as a consequence of the actions of a defendant. There is no requirement that evidence of the monetary value of such intangible things such as injury, pain, or suffering be introduced into evidence. There is no exact standard for figuring the compensation to be awarded for these types of damages, and no expert testimony need be introduced. Any award you make should be fair in light of the evidence presented at trial.\n(Tr. 1522:16-1523:4.)\nAs noted above, plaintiffs' counsel argued to the jury that plaintiffs were entitled to damages for loss of enjoyment in 2007, when plaintiff was out of business and did not have a premises on which to conduct his business. (See Tr. 1421:20-22:15.) During that period, Sloup moved to Maryland and was separated from his wife. He worked as a landscaper and did \"some fishing in Maryland,\" while his wife \"waitresse[d] in Florida.\" (Tr. 1422:3-4.) Specifically, plaintiffs' counsel argued that the jury was \"entitled to compensate Mr. Sloup for what they did to him in causing him to lose his business, move to Maryland, have to live under those horrible conditions, and just for the fact that he is out on the water at his age, after so many years, fishing for a living, starting at 5 o'clock in the morning.\" (Tr. 1425:13-18.) However, these damages in 2007 are too attenuated to have been proximately caused by the ban in 2004.\nSince civil actions under § 1983 \"are analogous to state common law tort actions, serving primarily the tort objective of compensation,\" Townes v. City of N.Y., 176 F.3d 138, 146 (2d Cir.1999) (citation omitted), the type of damages available for a violation of § 1983 is \"`determined according to principles derived from the common law of torts.'\" Id. at 147-48 (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986)). Thus, \"[t]o recover compensatory damages under Section 1983, a plaintiff must prove that his injuries were proximately caused by the constitutional violation.\" Tatum v. Jackson, 668 F.Supp.2d 584, 598 (S.D.N.Y.2009) (quoting Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir.1994) (internal citation omitted)). A plaintiff must \"allege a tangible connection between the acts of [the] defendant[s] and the injuries suffered.\" Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). The Court concludes that plaintiffs have not demonstrated a tangible connection between the constitutional violations by defendants in 2004 and Sloup's living situation in 2007. As a threshold matter, the Court notes that in 2006, plaintiffs had their most profitable year, earning over $330,000 in gross income. (See Tr. 779:5-25; see also Defs.' Ex. C, Tax Summary Chart.) Plaintiffs' counsel noted this during his summation: \"In '06 he is back in business. He grosses $330,000 and his net *144 is higher than ever or just about as high as it has ever been.\" (Tr. 1421:6-8.) Am. Tissue, Inc. v. Donaldson, Lufkin & Jenrette Sec. Corp., 351 F.Supp.2d 79, 93 n. 14 (S.D.N.Y.2004) (\"DLJ observes that these changes, far from injuring ATI, helped it, for `an elementary mathematical calculation demonstrates that the difference between $185 million at 11.5% and $165 million at 12.5% resulted in a net annual savings to ATI of $650,000. Moreover, . . . [DLJ] raised $190 million in total for ATI (not just $165 million), of which $25 million was not subject to debt service requirements.' These observations cast further doubt on ATI's claim that DLJ's last-minute changes to the bond offering proximately caused its bankruptcy, or indeed, injured it at all.\").\nPlaintiffs did not present evidence from which a rational jury could conclude that the ban on his fishing and crabbing in the harbor areas in 2004 proximately caused these personal hardships following his bankruptcy and foreclosure. \"Damages must be more than a mere speculative loss, and must be shown to have been proximately caused.\" Sands v. Abelli, 290 F.Supp. 677, 681 (S.D.N.Y.1968). Thus, plaintiff was not entitled to damages related to his bankruptcy or loss of enjoyment for the period in 2007, and no amount should be factored into the compensatory damages award for those items.\nAlthough Sloup could recover for noneconomic damages (such as emotional distress or loss of enjoyment of life) that occurred during the several month fishing ban in 2004, there was virtually no testimony or other evidence during the trial that would support such an award. First, there was no testimony that Sloup could not fish at all during the ban. To the contrary, there was testimony at trial that Sloup continued to fish in other areas despite the ban. (See, e.g., Tr. 727:3-11 (\"Q. What did you do to earn a living in the fall of 2004 after Mr. Remmer had the meeting with the representatives of the Town and said you can only fish in the southernmost portion of the Connetquot River, how did you make a living? A. I was fishing out in the bay doing the best I could under the circumstances in the fall. Q. Was the bay productive in the fall of '04? A. Yes.\"); see also Tr. 1408:15-17 (\"He's obviously out of the harbor areas in June and through July. He is fishing in the bay during the summer.\").) Thus, plaintiffs did not attempt to argue that Sloup suffered any intangible injury or loss of enjoyment during that period of the fishing ban in 2004. In fact, plaintiff explicitly stated during trial that the only non-economic damages he was seeking related to the period of time in 2007 when he lived and worked in Maryland, and was forced to be separated from his wife during that period:\nQ. Now, can you summarize what compensation, not the numbers because you've explained the tax returns and the decrease in your business, what the compensation is it that you're seeking here?\nA. I'm seeking compensation for loss of my business and home, loss of my customers, loss of business that took me 20 years to build to establish the customer base, loss of having to be away from my wife for six months because we couldn't afford to live together.\n(Tr. 775:16-24.) Similarly, plaintiffs' counsel's closing statement did not argue that plaintiff should be awarded damages for loss of enjoyment from fishing during the period of the ban. In short, the jury could not rationally award any significant level of damages for non-economic damages during the fishing ban and, as a matter of law, could not award such damages for events in 2007 which were not proximately caused by the constitutional violation in 2004. See, e.g., Worsham v. City of Pasadena, *145 881 F.2d 1336 (5th Cir.1989) (affirming trial court's decision to grant new trial in § 1983 lawsuit because of excessive damages and noting the following: \"The only evidence of any actual damages upon which an award could have been based was Worsham's own highly speculative and unsupported testimony regarding his emotional distress and ruined reputation. After reviewing the evidence that went to the jury, [the district judge] concluded that it simply could not support a $400,000 award of actual damages.\").\n\n* * *\nIn sum, the Court concludes that the compensatory damages awarded by the jury—$1.8 million—was grossly excessive, shocks the judicial conscience, and was a clear miscarriage of justice. Plaintiffs encouraged the jury to award damages for losses in gross income for multiple years, even though only net income for the period of the ban in 2004 was warranted under the law and the evidence. Plaintiffs further urged the jury to award compensatory damages for losses on the sale of the property at 25 Degnon Avenue even though sufficient evidence regarding the value of the property and the actual loss by the plaintiffs in the foreclosure was lacking in the record. Plaintiffs also argued to the jury that plaintiff should recover non-economic damages, not for hardships during the ban, but for hardships that occurred almost three years after the ban (following bankruptcy), even though such damages could not rationally have been proximately caused by the fishing ban. The cumulative result of these erroneous arguments was an irrational and grossly excessive award of compensatory damages. Even if the jury did not rely upon these arguments and there were no specific errors, the verdict is still grossly excessive and shocks the judicial conscience because, for all of the reasons discussed supra, the compensatory award cannot be justified by any rational calculation of the damages that could possibly be supported by the trial record.\nThe Court will now turn to an analysis as to whether the excessive award can be addressed by remittitur or whether a new trial on damages is warranted.\n\n(3) Remittitur Issue\nIf the trial judge determines that the damage award is excessive as a matter of law under the above-referenced standard, the judge must next decide whether to order a new trial on damages or enter a conditional order of remittitur, which compels a plaintiff to decide whether to accept the court's proposed reduction of the excessive verdict or to opt for a new trial. Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir.1990). As to determining when remittitur is appropriate, the Second Circuit has explained:\n[W]e have found remittitur appropriate in at least two distinct cases: \"(1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken . . . and (2) more generally, where the award is `intrinsically excessive' in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus can be ascribed to a particular, quantifiable error.\"\nTrademark Research Corp., 995 F.2d at 337 (quoting Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984)); accord Kirsch, 148 F.3d at 165. It is important to emphasize that \"[c]rucial to the practice of remittitur in either kind of case is the requirement that the court confine its role to the removal of the excess portion of the verdict so that the `damage calculation leaves in the judgement a portion of what the jury awarded.'\" Shu-Tao Lin, 742 F.2d at 49 (quoting Akermanis v. Sea-Land Serv., Inc., 688 F.2d 898, 902 (2d Cir.1982)).\n*146 Remittitur, however, is not appropriate in certain circumstances, and, instead, the trial judge should simply order a new trial on damages. In particular, there are circumstances where \"the size of a jury's verdict may be so excessive as to be `inherently indicative of passion or prejudice' and to require a new trial.\" Ramirez v. N.Y. City Off-Track Betting, 112 F.3d 38, 40-41 (2d Cir.1997) (quoting Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 603 (5th Cir.1988)). As the Second Circuit has noted, \"[t]he cases in which the jury's award is seen to reflect prejudice, however, are generally limited to those in which the remittitur granted is totally out of proportion to the damages allowed by the district court.\" Ramirez, 112 F.3d at 41 (citing Auster Oil & Gas, Inc., 835 F.2d at 603 (remittitur ordered in the amount of $4.35 million after jury awarded $5 million); Wells v. Dall. Indep. Sch. Dist., 793 F.2d 679, 683-84 (5th Cir.1986) (remittitur ordered in the amount of $1.65 million after jury awarded $1.9 million)). Moreover, there are other circumstances where a new trial, rather than the remittitur, is the only option available to the trial judge. Specifically, remittitur is not warranted in a case where prejudicial error of some type infected the jury's entire consideration of the damages issue. The Second Circuit has articulated the rationale as to why remittitur is not an option in such circumstances:\nThese [remittitur] formulations are designed for circumstances in which a properly instructed jury hearing properly admitted evidence nevertheless makes an excessive award. They are not designed for a case such as the present one, in which prejudicial error has infected the jury's entire consideration of plaintiff's pecuniary loss. In such circumstances, it is impossible to preserve a portion of the jury's verdict, . . . by starting with the jury's verdict and cutting it down [as is done with remittitur]. Instead, one must proceed to calculate the damages from zero and build up. While this distinction may seem purely semantic, it is not, since building a damage award for pecuniary loss from zero up disregards the jury's verdict entirely and deprives the defendants of their right to trial by jury. We must, therefore, remand for a new trial.\nShu-Tao Lin, 742 F.2d at 50 (citations omitted).\nWith respect to whether remittitur is possible under the circumstances of this particular case, the Court concludes that it is not. As a threshold matter, this award is so far in excess of a rational award that it that warrants a new trial on damages. In any event, the above-referenced errors in urging the jury to award certain categories or amounts of damages that were unsupportable by the law and/or the record undoubtedly infected the jury's entire determination of plaintiffs' loss. Moreover, since there was no special verdict form as to damages, it is impossible to discern whether the jury awarded any money in certain categories of damages and, if so, what the amounts were. Under these circumstances, it is impossible to preserve a portion of the jury's verdict by cutting it down by way of remittitur; rather, it would require starting from zero and trying to build up. Such an approach to remittitur is impermissible and, thus, a new trial on compensatory damages is required. See, e.g., Oakley v. Consol. Rail Corp., No. 88-CV-364, 1992 WL 198087, at *14 (N.D.N.Y. Aug. 11, 1992) (\"[T]he court is convinced that the jury reached a seriously erroneous result in calculating damages for the various items listed on the jury verdict form. Because assessment of specific amounts of damages are factual rather than legal in nature, and because the court finds no feasible method through remittitur to remedy the defects in the specific damage amounts awarded by the jury, the court grants defendant's motion *147 to set aside the damages portion of the jury verdict and hereby directs that a new trial take place on the issue of damages.\"); see also Perfect Fit Indus., Inc. v. Acme Quilting Co., 494 F.Supp. 505, 509 (S.D.N.Y.1980) (\"In light of the gross excessiveness and patent irrationality of the jury's award, there is no rational formula by which a remittitur could be calculated. Since the jury's verdict is so excessive as to suggest the possibility that it was the result of passion or prejudice, the court must order a new trial.\").\nAccordingly, defendants are entitled to a new trial to determine compensatory damages.\n\n(4) Punitive Damages\nThe individual defendants argue that punitive damages were not warranted because there was no evidence of conscious wrongdoing by either of the individual defendants, and, thus, the jury should not have been instructed on punitive damages. In the alternative, defendants argue that, even if punitive damages were warranted, the amount awarded by the jury was grossly excessive. For the reasons set forth below, the Court concludes that there was sufficient evidence of malice to have the punitive damages issue submitted to the jury. However, given that the decision on whether to award punitive damages in this case and the amount of such damages were so interwoven with the issue of compensatory damages, the Court finds that a new trial on whether punitive damages should be awarded and the amount of any such damages is warranted (along with the compensatory damages) because, inter alia, the jury's conclusion as to the amount of punitive damages may have been influenced by their erroneous conclusion that defendants' constitutional violations had caused massive compensatory harm to the plaintiffs in the amount of $1.8 million dollars.\n\n(a) Submission of Punitive Damages Issue to the Jury\nPunitive damages may be awarded in a § 1983 action \"when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.\" Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). To be entitled to an award of punitive damages, a claimant must show a \"positive element of conscious wrongdoing.\" New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 121 (2d Cir.2006) (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 538, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) (internal quotation marks omitted)). That is, a \"jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.\" Smith, 461 U.S. at 56, 103 S.Ct. 1625.\nAs a threshold matter, the individual defendants also argue that the evidence was insufficient to justify the punitive damages charge issued in the jury charge. To warrant an instruction, \"[a]ll that a party needs to show is that there is some evidence supporting the theory behind the instruction so that a question of fact may be presented to the jury.\" Cameron v. City of N.Y., 598 F.3d 50, 69 (2d Cir.2010) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994)). A punitive damages instruction is appropriate when the plaintiffs have produced evidence that \"the defendant's conduct is . . . motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others,\" or, in other words, when the plaintiffs have produced evidence of \"a positive element of conscious *148 wrongdoing\" or \"malice.\" Id. (quoting New Windsor Volunteer Ambulance Corps, Inc., 442 F.3d at 121-22 (internal quotation marks omitted)). The evidence need only be sufficient \"to permit the factfinder to infer that the responsible official was motivated by malice or evil intent or that he acted with reckless or callous indifference.. . .\" Meyers, 442 F.3d at 122 (emphasis added). As discussed earlier, Sloup testified that defendant Loeffler told him: \"If it's the last thing I do, I'm going to get your buoys out of this bay.\" (Tr. 700:6-7.) Sloup presented additional evidence that Loeffler imposed a ban on him not for a legitimate purpose, but rather, as a result of anger or frustration toward Sloup: \"We went back and forth about the situation and I told him if I move those pots, I'm going to lose my business. And it got quite heated. I said, you know, 20 years, 25 years, I'm getting robbed all the time. My pots are there seven days a week. You haven't caught one thief in 20 years. And he gets mad. Are you accusing me of not doing my job? . . . I said, no, but you haven't caught anyone in 20 years. He goes, that's it. Now, get everything out. You're done in the Town of Islip. Everything out.\" (Tr. 711:16-712:2.) Similarly, with respect to Pomroy, there was also evidence from which to conclude that defendant Pomroy acted with evil motive or intent, or with reckless or callous indifference to the federally protected rights of plaintiffs. It was Officer Pomroy who initially instructed Sloup to remove all of his pots from the water in June 2004. (See Tr. 1155:11-1156:1.) Moreover, there was testimony from Sloup that shortly after he returned his pots to the water in October 2004, he was told to remove them again by Officer Pomroy, not because they were hazards to navigation, but because they were \"on Town property.\" (Tr. 721:11-14.) Thus, there was sufficient evidence of malice to submit the punitive damages issue to the jury. However, because the other factors regarding whether punitive damages should be awarded, as well as the amount of punitive damages, are so interwoven with grossly excessive compensatory award, a new trial on the punitive damages issue is warranted.\n\n(b) Award of Punitive Damages\nThe Due Process Clause of the Fourteenth Amendment prohibits \"grossly excessive or arbitrary punishments on a tortfeasor.\" State Farm Mut. Aut. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); In re Simon II Litig., 407 F.3d 125, 135 (2d Cir.2005). A punitive damages award is excessive under the Constitution if it \"is so high as to shock the judicial conscience and constitute a denial of justice.\" DiSorbo v. Hoy, 343 F.3d 172, 186 (2d Cir.2003) (internal citation and quotation marks omitted). The Supreme Court requires courts reviewing the reasonableness of punitive damages to consider three guideposts: \"(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.\" Campbell, 538 U.S. at 418, 123 S.Ct. 1513 (citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)).\nThe Court need not analyze the amount of award under this multi-factor test because there is a more fundamental problem in this particular case with respect to punitive damages—namely, the fact that, in this case, the compensatory damages award is so interwoven with the award of punitive damages and the likelihood that the grossly excessive compensatory damages award may have impacted or tainted the jury's determination of the punitive *149 damages award. In other words, a new trial on punitive damages is necessary because the jury likely based the award of punitive damages, in some part, on a desire to punish the defendants for the extraordinary harm that they believed was proximately caused by defendants. However, their calculation of the actual harm was grossly excessive and unsupported by the evidence. Thus, the jury's punitive damages award was likely tainted by its erroneous calculation of the compensatory damages. Moreover, although not dispositive on this motion, the Court's conclusion regarding a taint in the punitive damages award is further supported by the jury note during deliberations inquiring about the issue of indemnification. Despite the Court's instruction that they could not consider (and should not speculate about) the issue of indemnification, the note, at a minimum, indicates that the jury was discussing the issue of indemnification as it related to the issue of punitive damages and raises further questions about how that punitive award was determined. These issues cannot be rectified by a remittitur under the circumstances of this case. Thus, a new trial must take place on whether punitive damages are warranted and, if so, the amount of such damages.[5]\nThis Court's conclusion on that issue under the circumstances of this case is consistent with decisions by other courts under analogous circumstances. See, e.g., Rodgers v. Fisher Body Div. Gen. Motors Corp., 739 F.2d 1102, 1109 (6th Cir.1984) (\"It is likely that the errors which tainted the compensatory award also affected the jury in its determination of punitive damages. While punitive damages may stand independently of compensatory, here the two are sufficiently interwoven that the interests of justice require that both issues be re-tried.\"); see also Ramsey v. Am. Air Filter, 772 F.2d 1303, 1314 (7th Cir.1985) (\"That both the trial court and this court already have construed as excessive two components of the jury's awards strengthens our conviction that the jury also improperly awarded punitive damages.\"). See generally Zender v. Vlasic Foods, Inc., No. 94-56499, 1996 WL 406145, at *5 (9th Cir. July 19, 1996) (unpublished decision) (noting that \"[b]oth federal and California law . . . generally require that the same jury determine both liability for, and the amount of, punitive damages because those questions are so interwoven\" (citations omitted)).\nAccordingly, in its discretion, the Court concludes, under the particular circumstances of this case, that there needs to be a new trial on both the issue of compensatory and punitive damages.\n\nIII. CONCLUSION\nFor the foregoing reasons, defendants' motions to set aside the verdict, for judgment as a matter of law, and for a new trial are granted in part and denied in part. Specifically, defendants' motion for a new trial as to the compensatory damages awarded and as to punitive damages *150 is granted. Defendants' motions for other relief are denied.\nSO ORDERED.\nNOTES\n[1] Moreover, the Court notes that, to the extent that the Town argues that the policymaker with respect to navigational hazards on the water was the head of the Department of Environmental Conservation, that argument is contrary to one theory set forth by the individual defendants' counsel at trial. Specifically, in an attempt to minimize the weight of the testimony offered by Captain Timothy Huss, an officer with the DEC, counsel queried Captain Huss, \"You don't believe that the DEC has even the authority to regulate navigational hazards. Can we agree on that?\" (Tr. 179:23-25.) The individual defendants also offered testimony from Captain Huss's deposition as follows: \"Question: Does your department have the authority to regulate navigational hazards within the Town of Islip? Answer: I don't believe we have the authority. But it's not something we do.\" (Tr. 181:15-19; see also Tr. 202:20-203:6 (\"Q. A harbormaster like Chief Loeffler, it would be well within his rights to approach a boat on the bay and take a look at a commercial fisherman's catch. A. Yes. Q. He could write him a ticket or enforce the environmental conservation law. Right? A. Yes. Q. Now, while you guys have your separate areas, you do environment, he sticks to navigation. He has that right, if he wanted to enforce, right? Right?\"); Tr. 214:13-17 (\"Q. Have you ever learned in your years with the DEC, the department of law enforcement, of one of your officers noticing a hazard to navigation and reporting it to you or to the Islip harbor police? A. Not off the top of my head, no.\").)\n[2] An alternative theory upon which liability could be predicated is that Deputy Town Attorney Richard Hoffmann, Esq. was a policymaker in the Town of Islip, and that his statements during the hearing in the Article 78 proceeding before Honorable Michael Mullen, Supreme Court Justice, Suffolk County, on October 20, 2004, were sufficient to create liability for the Town based upon the imposition of a policy banning Frank Sloup from fishing in the harbor areas.\n\nIn an unrelated argument during this discussion, the Town argues that it was error for the Court to admit the transcript from these proceedings into evidence. Specifically, the Town argues that \"[a]dmission of the transcript unduly prejudiced the defendants because the jury was directed to only certain portions of the transcript, which in and of themselves, were hearsay testimony.\" (Town's Mot. at 12.) As a threshold matter, Deputy Town Attorney Hoffman's statements during the Article 78 proceeding were clearly admissible as against the Town because they were statements made by a person authorized by the Town to make statements concerning the subject and also were statements by an agent within and during the scope of employment. See Fed.R.Evid. 801(d)(2). The Court was prepared to admit only those statements into evidence to avoid any potential prejudice from the other portions of the proceeding. However, in accordance with defendants' request (including the Town), the Court admitted the entire transcript into evidence for context. Cf. Tomaino v. O'Brien, 315 Fed. Appx. 359 (2d Cir.2009) (\"Neither did the court err in not permitting the entire trial transcript of Tomaino's criminal trial upon which this civil litigation was based to be admitted in evidence. Tomaino's attorney had an opportunity to, and did, select relevant portions that were admitted through testimony during the trial.\").\nThe Town also argues that it was unduly prejudicial that, during his closing argument, plaintiff's counsel stated to the jury that if the Town had nothing to hide, it would have called Mr. Hoffman as a witness. The Town points out that Mr. Hoffman was equally available to both parties. However, the Court instructed the jury that these were \"just the arguments of counsel,\" and that it was for the jury to \"decide whether to accept or reject the arguments and whether it is based on the evidence or not based on the evidence.\" (Tr. 1484:7-8, 1484:10-12.)\n[3] The Court notes that, even plaintiffs' above-referenced calculation in the post-trial submission to justify the verdict—which erroneously uses gross income instead of net income and contains other amounts that cannot be legally and/or factually supported—still only reaches $1.2 million in compensatory damages, well below the $1.8 million in compensatory damages awarded by the jury.\n[4] Although never argued to the jury, plaintiffs suggest in the post-trial submissions that the jury also could have properly considered, in determining the amount of compensatory damages, the $800,000 expended by Sloup in renovations and equipment related to 25 Degnon Avenue. However, even if the jury did consider and include that category of damages on their own, there was an insufficient evidentiary basis for the jury to rationally consider and calculate those damages. In particular, the only evidence regarding the nature of those renovations was a cursory summary provided during Sloup's testimony—with such costs including eel tanks, an outside freezer, installation of a deck, new windows, etc. (Tr. 941-44.) Thus, it is unclear in the record as to the full extent (and individual costs) of these renovations. More importantly, although plaintiffs' counsel argues in a conclusory fashion in the post-trial submission that the equipment was rendered \"valueless,\" it is entirely unclear from the record before the jury what happened to the equipment in terms of whether it was sold and, if so, what the loss amount was to Sloup. Therefore, there was no basis in the record from which the jury could have rationally determined the amount of any such losses related to the renovations and equipment; rather, the jury would have had to engage in speculation and guesswork to include this category of damages. Accordingly, it cannot support the $1.8 million award.\n[5] However, the Court believes that the scope of the new trial can be limited to damages, and that the liability verdict can stand, because there is no indication that (1) the liability issues were inextricably intertwined with the damages question, (2) the verdict was a result of a compromise of the liability and damage questions, or (3) the partial retrial on damages will result in the denial of justice to the defendants. See Brooks v. Brattleboro Mem. Hosp., 958 F.2d 525, 531 (2d Cir.1992); see also Atlas Food Sys. & Serv. v. Crane Nat'l Vendors, 99 F.3d 587 (4th Cir.1996) (\"Considerations of economy, fairness, and repose may provide justification for preserving a jury's liability determination that has been fairly and fully made and ordering only a new trial on damages where there is no substantial indication that the liability and damage issues are inextricably interwoven, or that the first jury verdict was the result of a compromise of the liability and damage questions.\" (quotations and citations omitted)).\n\n", "ocr": false, "opinion_id": 2473362 } ]

[ "72 So. 3d 762" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n72 So. 3d 762 (2008)\nLUCKNER\nv.\nSTATE.\nNo. 3D08-2913.\nDistrict Court of Appeal of Florida, Third District.\nDecember 17, 2008.\n\nDECISION WITHOUT PUBLISHED OPINION\nAffirmed.\n", "ocr": false, "opinion_id": 2489224 } ]

[ "58 F.3d 459" ]

[ { "author_str": "Reinhardt", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/58/58.F3d.459.94-10163.html", "author_id": null, "opinion_text": "58 F.3d 459\n 64 USLW 2063\n UNITED STATES of America, Plaintiff-Appellee,v.Jose DeJesus GONZALEZ, Defendant-Appellant.\n No. 94-10163.\n United States Court of Appeals,Ninth Circuit.\n Submitted Feb. 16, 1995*.Decided June 22, 1995.\n \n Alan Dressler, San Francisco, CA, for defendant-appellant.\n Sara Criscitelli, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee.\n Appeal from the United States District Court for the Northern District of California.\n Before: REINHARDT, THOMPSON, and KLEINFELD, Circuit Judges.\n REINHARDT, Circuit Judge:\n \n \n 1\n We are presented with the question whether, and under what circumstances, a district court may deny the government's request for leave to file a dismissal of an indictment. In the case before us, after the defendant fulfilled his agreement to cooperate with the prosecution, the government sought to dismiss one of two remaining counts against him. The district judge refused leave to dismiss. The defendant appealed, and the United States joins him in urging us to reverse the district court's decision.\n \n I.\n \n 2\n Jose de Jesus Gonzalez was indicted on three counts--(1) conspiracy to distribute and possession with intent to distribute cocaine in excess of 500 grams, in violation of 21 U.S.C. Secs. 841(a)(1), 846; (2) possession with intent to distribute 2 kilograms of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); and (3) carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c). He pled guilty to Counts I and III and agreed to cooperate in the prosecution of his codefendants and in the government's investigation of two drug organizations. In return, the government dismissed Count II.\n \n \n 3\n Seven months later, after Gonzalez had assisted the government in connection with several criminal investigations, the United States Attorney filed a sentencing memorandum and a motion under Rule 48(a) of the Federal Rules of Criminal Procedure1 seeking leave to dismiss Count III of the indictment. The memorandum suggested that the district court impose a two-level enhancement for possession of a firearm under U.S.S.G. Sec. 2D1.1. At the sentencing hearing, the Assistant United States Attorney elaborated upon the government's reasons for seeking leave to file the dismissal. First, he noted that, unless the third count was dismissed, Gonzalez would be deported when he was released from jail; he emphasized that, due to the unusual circumstances surrounding the defendant's citizenship and the inadequate assistance rendered by his counsel, Gonzalez was ignorant of this fact when he agreed to plead guilty. Second, the Assistant United States Attorney stated that Gonzalez had provided significant assistance to the government by cooperating in its investigations and that dismissing Count III was therefore in the public interest.\n \n \n 4\n The district judge refused to grant leave to dismiss Count III on the basis of the deportation justification. She also insisted that, if the government wished to dismiss the count because of Gonzalez's cooperation, it must prove that he had provided \"extraordinary significant cooperation.\" After the prosecutor filed a supplemental sentencing memorandum with two reports detailing the assistance that Gonzalez had provided, a second sentencing hearing took place. The district judge again refused to grant leave to dismiss, finding that it was clear that Gonzalez had carried a gun in violation of the law and that his cooperation \"was not substantial according to this court's standard.\"\n \n \n 5\n On appeal, both Gonzalez and the United States maintain that the district court abused its discretion in denying the uncontested motion for leave to dismiss under Rule 48(a). We agree.\n \n II.\n \n 6\n At common law a prosecutor had unrestricted authority to enter a nolle prosequi without the consent of the court. An early draft of Rule 48(a) adopted this rule but required the prosecutor to state his reasons for seeking a dismissal. The Supreme Court modified the Rule and conditioned the government's right to dismiss upon its obtaining \"leave of court.\" Congress adopted the rule as amended by the Supreme Court. See generally United States v. Salinas, 693 F.2d 348, 350-51 (5th Cir.1982).\n \n \n 7\n The primary purpose of the requirement that leave of court be obtained is to grant judges discretion to prevent the government from using its discretionary power to dismiss indictments for purposes of harassment. As the Supreme Court has noted, \"the principal object of the 'leave of court' requirement is apparently to protect the defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the government moves to dismiss an indictment over the defendant's objection.\" See Rinaldi v. United States, 434 U.S. 22, 29 n. 15, 98 S. Ct. 81, 85 n. 15, 54 L. Ed. 2d 207 (1977). Thus, when a defendant contests a Rule 48(a) motion, a court may, when circumstances warrant, exercise its discretion to protect the defendant.\n \n \n 8\n A number of courts have also concluded that the leave of court requirement applies to the other category of cases: those in which the defendant does not contest the Rule 48(a) motion. Although the Supreme Court has reserved judgment on this point, it has observed that some appellate courts have held that the rule permits a \"court to deny a government dismissal motion to which the defendant has consented, if the motion is prompted by considerations clearly contrary to the public interest.\" Id.2 The case before us falls into the uncontested motions category.\n \n III.\n \n 9\n In light of the history and purpose of Rule 48(a), we have closely scrutinized decisions to deny leave to dismiss and have required district judges entertaining such requests to grant considerable deference to the prosecutor. See, e.g., United States v. Wallace, 848 F.2d 1464, 1468 (9th Cir.1988). Although we apply an \"abuse of discretion\" standard, Hirabayashi v. United States, 828 F.2d 591, 607 (9th Cir.1987), the district court's discretion to deny leave is limited. See United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975), cert. denied sub nom Woodruff v. United States, 425 U.S. 971, 96 S. Ct. 2168, 48 L. Ed. 2d 795 (1976).\n \n \n 10\n Indeed, in the category of cases in which the defendant consents to the prosecution's request, there is a question as to whether a district court may ever deny an uncontested Rule 48(a) motion. The Supreme Court specifically reserved judgment on this issue in Rinaldi. 434 U.S. at 29 n. 15, 98 S. Ct. at 85 n. 15. The only appellate court that has decided the question has held that a district court may deny an uncontested request only \"in extremely limited circumstances in extraordinary cases ... when the prosecutor's actions clearly indicate a 'betrayal of the public interest.' \" See United States v. Welborn, 849 F.2d 980, 983 n. 2 (5th Cir.1988) (citations and internal quotation omitted). We have consistently declined to reach the issue, see, e.g., Wallace, 848 F.2d at 1468; United States v. Weber, 721 F.2d 266, 268 (9th Cir.1984), concluding that, even if a district court does have discretion to deny an uncontested motion, it could do so only if the motion were \" 'clearly contrary to manifest public interest.' \" Weber, 721 F.2d at 268; see also Wallace, 848 F.2d at 1468. In each case, we have ultimately decided that the justification provided by the government for its dismissal motion would not fall within any narrow exception that might exist, and on that basis have reversed the district court's decision to deny the Rule 48(a) motion.\n \n \n 11\n We adopt a similar approach here. We conclude that, even if the district court has discretion to deny a prosecutor's uncontested motion in exceptional circumstances, the district judge could not do so on the facts of this case. See infra pp. 461-464. Accordingly, once again we do not decide whether a district court has discretion to deny an uncontested motion under any circumstances.\n \n \n 12\n Separation-of-powers concerns generally require a district court to defer to the government's decision to seek a dismissal of a criminal charge because a denial of the motion would represent an intrusion upon prosecutorial prerogative. See United States v. Hayden, 860 F.2d 1483, 1487 (9th Cir.1988). The decision to dismiss an indictment implicates concerns that the Executive is uniquely suited to evaluate, and a district court should be reluctant to deny its request. Although the district judge in this case did not articulate the legal standard that she used to evaluate the government's motion, it is clear that she failed to grant sufficient deference to the prosecutor's proffered justifications for the motion and instead attempted to second-guess the decision of the United States Attorney. She did not apply the only standard that might have been appropriate in a case involving an uncontested motion: whether the motion was \"clearly contrary to manifest public interest.\"\n \n \n 13\n We emphasize that the degree of deference accorded to the prosecutor's decision in this case hinges in part upon the fact that the defendant consented to the motion. When the defendant contests a Rule 48(a) motion, the motion raises concerns that are not present when a court considers an uncontested motion to dismiss: the district judge represents defendants' sole source of protection against prosecutorial misconduct and must be careful to safeguard their rights. See Rinaldi, 434 U.S. at 29 n. 15, 98 S. Ct. at 85 n. 15. We are not, however, faced with such concerns here.\n \n IV.\n \n 14\n Here, we review the denial of an uncontested motion. In the case before us, the district judge did not suggest that the reasons proffered by the prosecution were \"clearly contrary to manifest public interest\" or that the government sought to dismiss the count in question for any reason other than those outlined by the Assistant United States Attorney. We conclude not only that the government's justifications for its request are not clearly contrary to the manifest public interest, but that they were entirely proper and appropriate.\n \n \n 15\n First, the Assistant United States Attorney observed that, due to the unusual circumstances of the defendant's citizenship status and the poor assistance rendered by his counsel, Gonzalez was not informed of the possible consequences of his plea--namely that he would be deported when he was released from jail. The prosecutor expressed concern that the plea agreement was unfairly negotiated, particularly in light of the fact that all of Gonzalez's codefendants had been informed of possible deportation consequences before they entered into plea agreements. He also made clear that justice would best be served by dismissing Count III and giving the defendant a two-level enhancement for possession of a firearm under U.S.S.G. Sec. 2D1.1.\n \n \n 16\n Such a justification represents an appropriate ground for a Rule 48(a) motion, as our decision in United States v. Weber, 721 F.2d 266 (9th Cir.1983), makes clear. In Weber, we explicitly held that, even after a defendant has been convicted of a crime, a prosecutor may obtain a Rule 48(a) dismissal based on broad considerations of justice. Weber, 721 F.2d at 268. We emphasized that \"it is the duty of the United States Attorney not simply to prosecute, but to do justice.\" Id. (emphases added). For that reason, we noted that\n \n \n 17\n In deciding whether to initiate or terminate a prosecution, the prosecutor has access to, and must take into consideration, a wide range of information that may not be competent evidence at trial. It's no doubt this is part of the reason the prosecutor must be given wide latitude in making those decisions.\n \n \n 18\n Weber, 721 F.2d at 268 (emphasis added). The Supreme Court shares this understanding of the prosecutor's role in the court system:\n \n \n 19\n The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal proceeding is not that it shall win a case, but that justice shall be done.\n \n \n 20\n Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935) (emphasis added). Here, the prosecutor sought to dismiss Count III in part because of a desire \"to do justice\"--that is, he was concerned about the fairness and appropriateness of a plea agreement reached when the defendant lacked full information regarding the consequences. Such a concern, if held in good faith, is a proper and appropriate reason for dismissing an indictment--at least where the dismissal is not \"clearly contrary to manifest public interest.\"\n \n \n 21\n The government's second and independent basis for requesting leave to file the dismissal also represents an appropriate justification for a Rule 48(a) motion. In support of the Rule 48(a) motion, the Assistant United States Attorney emphasized that Gonzalez's cooperation was of significant assistance to the government in its prosecution of his codefendants and in its investigation of other drug supply organizations. The prosecutor placed special weight upon the unusually open manner in which Gonzalez testified and the good faith that he consistently demonstrated in cooperating with the government's investigation, even when that cooperation was detrimental to his own interests. The district judge rejected the motion on the ground that she believed the evidence clearly established that Gonzalez had possessed a gun. She also held that she would not grant such a motion unless the prosecutor proved that Gonzalez's cooperation had been of extraordinary significance.\n \n \n 22\n In both respects, the district judge abused her discretion. Whether a defendant's possession of a gun should preclude the dismissal of a count against him, despite his cooperation with the government's investigatory efforts, is a decision for the prosecutor, not the judge. Similarly, it is for the prosecutor, not the judge, to determine how much cooperation by a defendant warrants the dismissal of a charge.3 Indeed, courts of appeals have consistently reversed decisions by district courts denying Rule 48(a) motions on grounds similar to those articulated by the district court. See, e.g., United States v. Hamm, 659 F.2d 624 (5th Cir.1981); United States v. Cowan, 524 F.2d 504 (5th Cir.1975), cert. denied sub nom Woodruff v. United States, 425 U.S. 971, 96 S. Ct. 2168, 48 L. Ed. 2d 795 (1976); United States v. Ammidown, 497 F.2d 615, 619, 623 (D.C.Cir.1973) (concluding that a Rule 48(a) motion should be granted whenever the prosecutor seeks a dismissal because of \"a need for evidence to bring another felon to justice, or other similar consideration.\"). For example, in Hamm, after the defendants were sentenced the prosecutor made a motion to dismiss an indictment under Rule 48(a) in light of the defendants' past cooperation with the government's investigation and in order to assure their safety. As in this case, the district court refused to grant the motion unless the prosecutor presented more factual information to prove that the public interest would be served by a dismissal. The Fifth Circuit held that, even though the defendants had been found guilty of the charges, the district court abused its discretion when it refused to grant the Rule 48(a) motion. It reversed the district court's decision because\n \n \n 23\n The determination of the public interest in the first instance is for the prosecutor to make. We are not in a position to second-guess his determination, and even if we were, on the facts of this case we would not say that the prosecutor mistakenly gauged the public interest when he decided that the past and future cooperation of the appellants warranted dismissal of the indictments against them.\n \n \n 24\n Hamm, 659 F.2d at 633. The argument for reversal in the case before us is equally compelling.Conclusion\n \n \n 25\n In this case, the defendant's consent obviated any concern that the prosecution sought to dismiss Count III for purposes of harassment. Thus, if the district judge had any discretion at all, it was only to deny a request that was clearly contrary to the manifest public interest. Here, the request was made for reasons that were both proper and appropriate. Accordingly, we reverse with instructions to grant leave to the prosecution to file the dismissal of Count III.\n \n REVERSED and REMANDED\n \n \n *\n The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4\n \n \n 1\n Rule 48(a) provides that \"the Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information, or complaint.\" Fed.R.Crim.P. 48(a). The defendant's consent to such a dismissal is required after trial has commenced. Id\n \n \n 2\n The Supreme Court expressly declined to determine whether a court has discretion to deny an uncontested motion, even under these circumstances. See Rinaldi, 434 U.S. at 29 n. 15, 98 S. Ct. at 85 n. 15\n \n \n 3\n In contrast, during sentencing, when the court is exercising a historically judicial function, the district court possesses significant discretion to determine whether the defendant's cooperation justifies a reduction in his sentence. Indeed, we have held that when the prosecution files a motion for departure based upon a defendant's substantial assistance, it is entirely within the sentencing court's discretion to determine the extent of any departure. See United States v. Udo, 963 F.2d 1318, 1319 (9th Cir.1992). In such circumstances the sentencing court may depart below both the government's recommendation and the statutory minimum. Id.; United States v. Keene, 933 F.2d 711 (9th Cir.1991)\n \n \n ", "ocr": false, "opinion_id": 698439 } ]

[ "59 F.3d 143" ]

[ { "author_str": "Kane", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/59/59.F3d.143.94-3269.html", "author_id": null, "opinion_text": "59 F.3d 143\n Theodore Abbott JONES, Petitioner-Appellant,v.Gary STOTTS, Mike Nelson, and Attorney General of Kansas,Respondents-Appellees.\n No. 94-3269.\n United States Court of Appeals,Tenth Circuit.\n July 6, 1995.\n \n 1\n Michael S. Holland, Russell, KS, for petitioner-appellant.\n \n \n 2\n Kyle G. Smith, Asst. Atty. Gen., Kansas Bureau of Investigation, Topeka, KS, for respondents-appellees.\n \n \n 3\n Before EBEL and BARRETT, Circuit Judges, and KANE,* Senior District Judge.\n \n \n 4\n KANE, Senior District Judge.\n \n \n 5\n Petitioner Theodore Abbott Jones appeals from an order of the district court denying his petition for habeas relief filed pursuant to 28 U.S.C. Sec. 2254. See Jones v. Stotts, 859 F.Supp. 1376 (D.Kan.1994). We affirm.1\n \n \n 6\n In 1986, petitioner was convicted of second degree murder and attempted voluntary manslaughter. He was sentenced to concurrent terms of twelve years to life on the murder conviction and two to seven years on the attempted manslaughter conviction.\n \n \n 7\n In his petition, Mr. Jones alleged ineffective assistance of trial counsel. Mr. Jones further alleged that even if the individual errors allegedly committed by counsel did not rise to the level of ineffective assistance, considered cumulatively, the errors amounted to ineffective assistance such that he was denied a fair trial. On appeal, Mr. Jones argues the district court erred in holding his allegations to be without merit.\n \n \n 8\n \"To establish a claim for ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial. The performance and prejudice components of the Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ] analysis present mixed questions of law and fact which we review de novo.\" Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir.1995) (quotations and citations omitted).\n \n \n 9\n Mr. Jones argues counsel was ineffective because counsel should have objected to the wording of a jury instruction addressing his theory that he had shot the victims in self-defense.2 Mr. Jones argues the instruction violated Kan.Stat.Ann. Sec. 21-32113 because, by using the word \"immediate\" rather than \"imminent,\" the jury was constrained in its consideration of the danger Mr. Jones perceived he faced.\n \n \n 10\n The Kansas Supreme Court has held use of the word \"immediate\" rather than \"imminent\" in a self-defense instruction to be reversible error only in the domestic violence situation. In that situation, use of the word \"immediate\" prevented the jury from considering the effects of abuse on the defendant-battered victim, a consideration critical to the jury's determination of the defendant's perception of her need to defend herself. See State v. Hodges, 239 Kan. 63, 716 P.2d 563, 565-67, 570-71 (1986) (\"immediate\" \"obliterates\" jury's consideration of \"the build-up of terror and fear the decedent systematically injected into the relationship over a long period of time\" (approximately twenty years); \"imminent\" allows jury to consider history of violence and events just prior to the shooting); State v. Osbey, 238 Kan. 280, 710 P.2d 676, 677, 679-80 (1985) (\"immediate\" prevented jury from considering two-year history of violence by decedent toward defendant); State v. Hundley, 236 Kan. 461, 693 P.2d 475, 478-80 (1985) (\"immediate\" permitted jury to consider only events immediately preceding killing, rather than \"prior, long-term [ten-year] cruel and violent actions of the deceased toward appellant, which are clearly relevant to the question of self-defense\").\n \n \n 11\n As the state court held, Mr. Jones' situation is not analogous and these cases are inapposite. See Petitioner's App. at L-99 (Jones v. State, 840 P.2d 557 (Kan.Ct.App. Nov. 13, 1992) (table), review denied, (Dec. 23, 1992)). The court noted that (1) Mr. Jones had shown no history of violent abuse over a period of time as he had arrived in town only three days before the shooting; (2) Mr. Jones presented no evidence that before the shooting, he had feared the victims or perceived threats from them; and (3) Mr. Jones had testified he had never thought about killing the deceased and he had never seen either victim with a gun. Id. No error occurred.\n \n \n 12\n Mr. Jones next argues counsel was ineffective because he did not request an additional instruction on self-defense. This was necessary, he argues, because the proffered instruction did not mention that Mr. Jones did not have to prove the defense and, thereby, permitted the jury to believe the burden of proof had shifted to Mr. Jones. On federal habeas, a state conviction may be set aside because of erroneous jury instructions only when the error denied the defendant a fair trial. Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1972, 131 L.Ed.2d 861 (1995). The instructions given included one clearly placing the burden of proof on the state. See Petitioner's App. at E-58 (law does not require defendant to prove his innocence; accordingly, jury must assume defendant innocent unless convinced of guilt considering totality of evidence). This instruction sufficiently ensured the jury knew the burden of proof remained with the prosecution.\n \n \n 13\n Mr. Jones argues counsel should have filed a motion in limine to prohibit all references to his request for counsel at trial. \"A motion in limine is a request for guidance by the court regarding an evidentiary question,\" which the court may provide at its discretion to aid the parties in formulating trial strategy. United States v. Luce, 713 F.2d 1236, 1239 (6th Cir.1983), aff'd, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); see also United States v. Yannott, 42 F.3d 999, 1007 (6th Cir.1994) (court's ruling on motion in limine is a preliminary or advisory opinion entirely within the discretion of the court which may aid the parties in formulating their trial strategy), cert. denied, --- U.S. ----, 115 S.Ct. 1172, 130 L.Ed.2d 1125 (1995). Also, the district court may change its ruling at any time for whatever reason it deems appropriate. See Yannott, 42 F.3d at 1007; see also Luce, 469 U.S. at 41-42, 105 S.Ct. at 463-64.\n \n \n 14\n Considering that a motion in limine is sought to aid counsel in formulating his trial strategy, the decision regarding whether to file such a motion is clearly part of the process of establishing trial strategy. A defendant may prevail on an ineffective assistance claim relating to trial strategy only if he can show counsel's strategy decisions would not be considered sound. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (when examining counsel's conduct pursuant to a claim of ineffective assistance, \"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.\" (quotation omitted)).\n \n \n 15\n Mr. Jones argues counsel should have objected at trial when the state referred to the fact he had exercised his Fifth Amendment right to remain silent. This error allegedly occurred when a witness mentioned that Mr. Jones had requested counsel.\n \n \n 16\n The state may not use a defendant's exercise of his right to remain silent to obtain his conviction. Wainwright v. Greenfield, 474 U.S. 284, 292, 106 S.Ct. 634, 639, 88 L.Ed.2d 623 (1986); Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). A defendant's exercise of his right to remain silent includes the defendant's expressed desire to remain silent until counsel has been consulted. Wainwright, 474 U.S. at 295 n. 13, 106 S.Ct. at 640 n. 13.\n \n \n 17\n However, mere mention of a defendant's request for counsel is not per se prohibited; rather, it is the prosecutor's exploitation of a defendant's exercise of his right to silence which is prohibited. See Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir.), cert. denied, 502 U.S. 831, 112 S.Ct. 105, 116 L.Ed.2d 74 (1991); see also Sulie v. Duckworth, 864 F.2d 1348, 1350 (7th Cir.1988) (state used defendant's request for counsel to prove defendant had the ability to understand and reason, thus contesting defendant's defense of insanity), cert. denied, 493 U.S. 828, 110 S.Ct. 93, 107 L.Ed.2d 58 (1989), overruled by implication on other grounds, Vanda v. Lane, 962 F.2d 583, 585 (7th Cir.) (Sulie's reliance on Wainwright impermissible because Wainwright introduced a new rule of law and could not be applied retroactively), cert. denied, --- U.S. ----, 113 S.Ct. 254, 121 L.Ed.2d 186 (1992).\n \n \n 18\n Because of the limited information provided in the record on appeal, we cannot determine whether counsel's failure to object to the admission of the allegedly tainted evidence constituted an error on his part. Thus, we rely on Strickland 's prejudice prong and hold that, even if the admission of the evidence violated Mr. Jones' constitutional rights, Mr. Jones failed to demonstrate that there is a reasonable possibility that the admission of the evidence contributed to his conviction. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (\"An error by counsel, even if professionally unreasonable, does not warrant setting aside a judgment of a criminal proceeding if the error had no effect on the judgment.\").\n \n \n 19\n As we consider the instant case in the context of an ineffective assistance of counsel claim, Mr. Jones has the burden of demonstrating that counsel's error in not objecting to the evidence was such that \"there is a reasonable probability [that], but for counsel's unprofessional error, the result of the proceeding would have been different.\" Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Mr. Jones has failed to meet that burden. Thus we do not find that his counsel's failure to object to the admission of his request for an attorney constituted ineffective assistance of counsel.\n \n \n 20\n Finally, Mr. Jones argues that the above alleged errors, considered cumulatively, amounted to ineffective assistance of counsel. Based on our determination that none of the issues raised by Mr. Jones could be considered error, the cumulative error analysis does not apply. See United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir.1990) (cumulative-error analysis evaluates only effect of matters determined to be error, not cumulative effect of non-errors).\n \n \n 21\n We conclude that because none of the issues Mr. Jones raised amounted to error, counsel did not provide ineffective assistance. See Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.) (counsel's failure to pursue \"nonmeritorious issues does not constitute ineffective assistance\"), cert. denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994). The judgment of the United States District Court for the District of Kansas is AFFIRMED.\n \n \n \n *\n Honorable John L. Kane, Jr., Senior District Judge, United States District Court for the District of Colorado, sitting by designation\n \n \n 1\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument\n \n \n 2\n We note that Mr. Jones alleges counsel committed errors of state law as well as federal constitutional errors. Generally, an error of state law \"provide[s] no basis for federal habeas relief.\" Estelle v. McGuire, 502 U.S. 62, 68 n. 2, 112 S.Ct. 475, 480 n. 2, 116 L.Ed.2d 385 (1991). However, the errors raised to support a claim of ineffective assistance may assert either federal law or state law violations. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 81, 130 L.Ed.2d 35 (1994); cf. Kimmelman v. Morrison, 477 U.S. 365, 375, 382-83, 106 S.Ct. 2574, 2582, 2586-87, 91 L.Ed.2d 305 (1986) (while petitioner may not raise Fourth Amendment claim on collateral attack if State has provided full and fair litigation of issue, Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53, 49 L.Ed.2d 1067 (1976), he may raise it to support ineffective assistance of counsel claim)\n \n \n 3\n Kan.Stat.Ann. Sec. 21-3211 provides that \"[a] person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force.\"\n \n \n ", "ocr": false, "opinion_id": 698771 } ]

[ "727 F. Supp. 35" ]

[ { "author_str": "Young", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3588, "opinion_text": "\n727 F. Supp. 35 (1989)\nCOMMONWEALTH OF MASSACHUSETTS, by its DEPARTMENT OF PUBLIC WELFARE, Plaintiff,\nv.\nUNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.\nCiv. A. No. 88-0949-Y.\nUnited States District Court, D. Massachusetts.\nDecember 11, 1989.\nLeah W. Sprague, Eugene B. Benson, Boston, Mass., for plaintiff.\nLeila Kern, Asst. U.S. Atty., for defendant.\n\nMEMORANDUM AND ORDER\nYOUNG, District Judge.\nThis action is brought by the Commonwealth of Massachusetts Department of Public Welfare (\"the State Agency\") under the Freedom of Information Act (\"the *36 Act\"), 5 U.S.C. sec. 552 (1966), seeking release of five documents in the custody of the United States Department of Health and Human Services (\"the Federal Agency\"). The facts are not in dispute. The parties' cross-motions for summary judgment are presently before the Court.\nBy letter dated September 10, 1987, Kristen Bauer, the Assistant General Counsel of the State Agency, requested the release, pursuant to the Act, of various documents regarding the implementation of 45 CFR sec. 205.42(g). This federal agency regulation sets out general guidelines for reducing federal financial participation in the cooperatively funded Aid to Families with Dependent Children program (\"AFDC\") as well as the provisions under which such reductions might be waived by the Federal Agency's Family Support Administration.[1] Ms. Bauer specifically requested all documents \"relating to\"[2] the evaluation of states' so-called \"good faith waiver\" requests. Russell M. Roberts, Director of the Freedom of Information/Privacy Act Division of the Federal Agency's Office of Public Affairs, withheld certain of these documents, citing 5 U.S.C. sec. 552(b). This provision makes the Act's mandatory disclosure requirements inapplicable to certain \"types of information that the Executive Branch must have the option to keep confidential, if it so chooses.\" Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S. Ct. 827, 832, 35 L. Ed. 2d 119 (1973). Acting on Ms. Bauer's appeal, the Family Support Administration withheld five documents pursuant to section 552(b)(2) (\"Exemption 2\") and section 552(b)(5) (\"Exemption 5\"). When it became clear that the final decision of the Secretary of Health and Human Services was to withhold these five documents from disclosure, the Commonwealth of Massachusetts brought this action under the Act to compel disclosure.\nThe Federal Agency has submitted a Vaughn affidavit outlining the contents of the five documents in question, Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), and has also submitted, for in camera inspection, the documents themselves. The Federal Agency argues that some of the material sought here comes within the parameters of Exemption 2, 5 U.S.C. sec. 552(b)(2), and that the other material is exempt from mandatory disclosure under Exemption 5, 5 U.S.C. sec. 552(b)(5).\n\nA. Exemption 2: \"Internal Personnel Rules and Practices\"\n\nThe factual, indeed the legal, parameters of Exemption 2 are not yet clear in this Circuit. Exemption 2 of the Act permits an agency in receipt of a disclosure request to refuse to disclose documents that are \"related *37 solely to the internal personnel rules and practices of an agency.\" 5 U.S.C. sec. 552(b)(2). The language of this exemption presents a variety of interpretive problems. It is at once both too broad and too narrow. Apart from syntactic ambiguities,[3] there is the question of how much stress to lay on the word \"solely.\" Even material that is designed exclusively to deal with internal personnel issues, such as the criteria for evaluating agency employees for promotion, does, in fact, also \"relate\" to a variety of more general policy issues — such as, for example, the general public interest in ensuring that federal agency employees are the best qualified to shoulder the kind of public responsibilities with which the nation entrusts them. See Kaganove v. Environmental Protection Agency, 856 F.2d 884, 887-88 (7th Cir.1988), cert. denied, ___ U.S. ___, 109 S. Ct. 798, 102 L. Ed. 2d 789 (1989) (calling such a question a \"close issue\"). If one were to endorse an expansive reading of the exemption, the conceivable scope of what may \"relate\" to the \"practices of an agency\" is limited only by the imagination. Alternatively, as is well-recognized, a reading of Exemption 2 that focuses narrowly on the word \"solely\" would be unworkable in particular cases, since every action of our federal government has in some way \"some effect on the public-at-large ... [for] `there are few events in our society today that occur without so much as a tiny ripple effect outside their area of prime impact.'\" Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981) (en banc) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1150 [D.C.Cir.1975] [Leventhal, J., concurring]); see also National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525, 528 (D.C.Cir.1986). Both an overly expansive and an unduly cramped reading render the exemption practically meaningless. Still, Congress plainly intended to permit an agency, in some circumstances, to refuse to comply with a request under the Act pursuant to Exemption 2.\nThe Supreme Court in Department of the Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976), identified the government interests in nondisclosure under Exemption 2 as interests (1) in avoiding disclosure where it \"may risk circumvention of agency regulation\" and (2) in being relieved \"of the burden of assembling and maintaining for public inspection matter in which the public cannot reasonably be expected to have an interest.\" Id. at 369-70, 96 S.Ct. at 1603. The Supreme Court ruled in Rose simply that summaries of Air Force Honor Board hearings were not within the scope of Exemption 2 and must be disclosed, but buttressed its reasoning by pointing out that \"the situation is not one where disclosure may risk circumvention of agency regulation.\" Id. at 369, 96 S.Ct. at 1603. (emphasis added). The comment being merely dicta, Rose does not affirmatively require any showing of either significant risk to the circumvention of agency regulation or the public's legitimate interest in the disclosure of the material in question. The Rose court thus left open whether Exemption 2 might be available to block disclosure in cases where the literal language of the exemption, fairly read, does not cover the material, but release of the information sought might nonetheless lead to a circumvention of agency statutes or regulations. Id. at 364-65, 96 S.Ct. at 1600-01.\n*38 The First Circuit has not formulated a test for use in evaluating the applicability of Exemption 2 to material such as is presented in this case.[4] The Court of Appeals for the District of Columbia Circuit, however, has recognized, in a well-considered en banc decision, both the linguistic problems inherent in the statute and the practical necessity that a workable approach be developed so that the will of Congress be done. See Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir.1981) (en banc). That Court of Appeals has set out a two-part test for Exemption 2 analysis. Id. at 1074. This test requires not only a showing that the material is \"predominantly\" for internal use, but it also requires some showing that disclosure will prejudice the enforcement of agency regulations or statutes. Under Crooker, disclosure is not mandated by the Act \"if a document for which disclosure is sought meets the test of `predominant internality,' and if disclosure significantly risks circumvention of agency regulations or statutes.\" Id. See also Founding Church of Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 830 n. 4 (D.C.Cir.1983) (material related only to \"trivial administrative matters of no genuine public interest\" need not be disclosed under Exemption 2). In the absence of more explicit guidance from the First Circuit, this Court follows Crooker and adopts its reasoning in this case.\nAs indicated, the first prong of the Crooker test recognizes that the \"critical considerations ... [focus on whether the material] is used for predominantly internal purposes....\" 670 F.2d at 1073. This approach has much to recommend it since it is both practical and implements the Congressional intent. It is apparent that Congress intended that the Exemption 2 line be drawn \"between minor or trivial matters and those more substantial matters which might be the subject of legitimate public interest,\" Rose, 425 U.S. at 365, 96 S.Ct. at 1601. (quoting Vaughn, 523 F.2d at 1142), except where there is the threat that disclosure would lead to the circumvention of agency regulation, Rose, 425 U.S. at 366-67, 96 S.Ct. at 1601-02. The question under the first prong of the Crooker test, then, is whether the material sought relates to predominantly internal agency workings or whether it is instead material in which there is a legitimate public interest in disclosure, although it still might be exempt if disclosure risks the circumvention of law.[5]\nThe second prong of the Crooker test — whether disclosure in fact \"significantly *39 risks circumvention of agency regulations or statutes,\" 670 F.2d at 1074 — also functions to implement discernible Congressional intent. As the Crooker court discussed, the House and Senate reports varied in their respective treatment of the scope of the Exemption 2 privilege against disclosure where the materials sought might aid in the circumvention of the law. 670 F.2d at 1065. The House report indicates the judgment of the House of Representatives that investigatory techniques used by law enforcement agencies, for instance, were not \"the subject of legitimate public interest\" because disclosure would undermine the effectiveness of federal law enforcement. See id. at 1059-61. Although the Senate report[6] is silent concerning this judgment, such silence is no indication of a contradictory intent. See Crooker, 670 F.2d at 1065.\nIn light of the Rose dicta noted above and in the absence of legislative history clearly to the contrary, preCrooker courts of appeals generally engrafted a \"circumvention\" element into their readings of Exemption 2 when dealing with material published for the benefit of federal law enforcement officers, the release of which might hinder effective law enforcement. See, e.g., Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (2nd Cir.1978) (Bureau's \"Raids & Searches\" manual for Bureau officers, dealing with enforcement methods, within Exemption 2). Similarly, manuals and guidelines published solely to help administrators supervise entities subject to agency supervision have been exempted for this reason where the guidelines serve an auditing function. See, e.g., Ginsburg, Feldman & Bress v. Federal Energy Administration, 591 F.2d 717, 718-21 (agency's guidelines intended \"to assure that the costs oil refiners use in computing their prices are correct and that the reports they make to the FEA are accurate\" within Exemption 2). See also Jordan v. United States Department of Justice, 591 F.2d 753, 783 (D.C.Cir.1978) (en banc) (\"Exemption 2 is applicable where the document consists of internal instructions to such government officials as investigators and bank examiners. In such a case disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation.\") This mode of analysis has obtained, post-Crooker, in other Circuits. See, e.g., Dirksen v. United States Department of Health and Human Services, 803 F.2d 1456, 1458-59 (9th Cir.1986) (\"Medicare Policy Guidelines\" that specify, inter alia, what kinds of claims were to be \"automatically granted\" held exempt on the district court's finding that some health care providers \"would try to fit their claims into the `automatically granted' category\").\nIt is indisputable that \"disclosure, not secrecy, is the dominant objective\" of the Act. Rose, 425 U.S. at 361, 96 S.Ct. at 1599. Congress intended Exemption 2 to be read narrowly. New England Apple Council v. Donovan, 725 F.2d 139, 141 (1st Cir.1984). Therefore, any extension or \"clarification\" of the problematic language of Exemption 2 to countenance nondisclosure should only apply in those circumstances in which \"knowledge of administrative procedures might help outsiders to circumvent regulations or standards.\" Rose, 425 U.S. at 364, 96 S.Ct. at 1601.\nAccordingly, this Court rules that the second prong of the Crooker test — affirmatively requiring a showing of significant risk of circumvention of agency regulation or other law by the disclosure of material that relates predominantly to internal agency *40 workings — represents a sound approach to applying the intent of Congress in this regard and adopts Crooker as the controlling standard of law in this case.[7]Cf. National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525, 531 (D.C.Cir.1986) (no need to address second prong of Crooker where the materials sought — materials used internally by personnel officers solely to evaluate candidates for job promotion — \"fall squarely within the statutory language\").\nIn this case, two of the five contested documents are being withheld pursuant to Exemption 2. The first document is a 53-page guide, in the form of a workbook, for the Family Support Administration's 1982 Waiver Review Process (\"Document 1\" or \"the 1982 Guide\"). The 1982 Guide is intended for use by administrators reviewing a State's request for waiver of the federal financial participation reduction (triggered by a State's failure to meet target error standards) by reason of that State's timely development and implementation of corrective action reasonably designed to meet the target error rate. See 45 CFR sec. 205.42(g)(2)(v). Subsection (g)(2)(v) of the pertinent agency regulation promulgates the four factors the Family Support Administration will evaluate in determining whether a State has indeed made a good faith effort in these circumstances.[8] The 1982 Guide supplements the standards as set out in the published regulation, but is not intended for public dissemination. It contains further criteria to be applied in evaluating whether a given factor under consideration weighs in favor of granting waiver or does not and, if it does, what weight that factor should be given overall. The published regulation merely indicates that \"we will consider\" the four listed factors. See 45 CFR sec. 205.42(g)(2)(v). The 1982 Guide thus provides a framework for an administrator to \"score\" a State's performance with respect to each of the four factors and assigns percentages of relative weight to accord the scores achieved by the State under each factor.\nThe second document for which exemption is claimed under Exemption 2 is the Family Support Administration's 1981 Waiver Review Guide (\"Document 5\" or the \"1981 Guide\"), a fourteen page typewritten *41 document which also contains instructions and worksheets for evaluating states' good faith waiver claims. The 1981 Guide is functionally similar to the 1982 Guide but far less detailed.\nNormally, administrative staff manuals, like these, and instructions to staff that affect a member of the public must be revealed. 5 U.S.C. sec. 552(a)(2)(C). The question before the Court is whether Exemption 2 will except the material from disclosure. This material is not \"solely\" related either to internal personnel rules or to the internal practices of an agency, as it also \"relates\" to the financing of the jointly funded AFDC program, a matter of significant public interest. The material thus is not exempt from disclosure by the express language of the exemption. Clearly, though, the two documents are predominantly for internal use: to instruct agency operatives in determining whether a state meets the Family Support Administration's qualifications for a waiver of a reduction in federal financial participation. Therefore, under Crooker, the material will be exempt under Exemption 2 only if disclosure of these documents risks circumvention of the law.\nThe cases in which courts have found a significant risk that dissemination of such internal documents might result in a circumvention of agency regulations or other law are strikingly different, factually, from the instant case. In Ginsburg, Feldman & Bress, for instance, the Court of Appeals for the District of Columbia Circuit affirmed a ruling that the Federal Energy Administration's guidelines and instructions to employees who audit the petroleum industry's compliance with various federal laws and regulations should be exempt from disclosure under Exemption 2. 591 F.2d 717. The district judge there had examined these guidelines in camera and concluded that they \"laid out the `enforcement game plan' which because `FEA auditors cannot possibly check each entry and computation necessary to determine whether refiners have complied with the regulations in full ... must rely on spot checks, random sampling, and analysis of selected key figures.'\" Id. at 728 n. 21. Thus, the requested guidelines worked to \"`outline the FEA's audit strategy.'\" Id. The Ginsburg court considered most important the distinction between administrative staff manuals, normally not exempt from disclosure, see 5 U.S.C. sec. 552(a)(2)(C), and law enforcement manuals for use by government personnel, expressly protected under Exemption 7, 5 U.S.C. sec. 552(b)(7). As the internal guidelines in Ginsburg were more analogous to law enforcement manuals, the \"disclosure [of which] would significantly impede the enforcement process,\" 591 F.2d at 731 n. 24 (emphasis original), they were properly within the scope of Exemption 2. Other circuits considering requests for disclosure of administrative manuals have focused on the distinction between law enforcement material dealing with enforcement techniques or methods and administrative material which helps staff determine when laws have been violated or regulatory standards not met. Caplan v. Bureau of Alcohol, Tobacco and Firearms, 587 F.2d 544 (2d Cir.1978) (disclosure of Bureau \"Raid and Searches\" manual would hinder investigations and enable violators to escape detection); Dirksen v. United States Department of Health and Human Services, 803 F.2d 1456 (9th Cir.1986) (disclosure of internal guidelines for Blue Shield personnel to determine whether claims for billed services should automatically be paid without review not required on district court's finding that health care providers in possession of material would try to fit their claims into the \"automatically\" granted category). See also Wilder v. Commissioner of Internal Revenue Service, 607 F. Supp. 1013 (D.C. Ala.1985) (disclosure of IRS guidelines that specify when returns would not be reviewed significantly risks circumvention of law).\nWhat makes this case strikingly different from those just cited is the fact that here it is the Commonwealth of Massachusetts — one of the sovereign states within the federal union — that desires production. This Court is aware of no reported case in which a sovereign state has requested disclosure of federal administrative manuals *42 only to find disclosure contested pursuant to Exemption 2. The reason is not difficult to discern. In effect, the federal agency is contending here that, if disclosure is made, the Commonwealth of Massachusetts will tailor its compliance to address only those criteria it learns are the subject of intensive review, ignoring the remaining criteria and thus circumventing and frustrating the federal law. Such a contention is unworthy of the Federal Agency and the attorneys who advance it. To countenance it is to ignore the essence of federal-state comity that has allowed our republic to flourish for more than two hundred years. Lest there be any doubt, the parties are reminded that, subject to the powers constitutionally delegated to the federal government, U.S. Const. amend. X, and the supremacy clause that is necessary for their proper implementation, U.S. Const. art. VI, the states of this union are themselves sovereign. The Act simply cannot be interpreted in such a way as to presumptively brand a sovereign state as likely to circumvent federal law. The second prong of Exemption 2 does not apply when it is Massachusetts itself that seeks the information.\nFalling back, the Federal Agency contends that, even if the motives of Massachusetts itself cannot be impugned, Exemption 2 may be invoked to bar access to its officials who could well be motivated to bend the regulations to maximize the federal revenues sought by the Commonwealth. This contention is likewise inapposite in the circumstances presented here.[9] State officials are entitled to a presumption of regularity in discharging their duties. See Fryer v. Department of Public Utilities, 374 Mass. 685, 690 n. 2, 373 N.E.2d 977 (1978). Upon this record, where there is not a scintilla of evidence that Massachusetts officials have circumvented or are planning any circumvention of the law, that unrebutted presumption, see Fed.R.Evid. 301, is sufficient to overcome the hypothetical potential for abuse.\nAccordingly, the documents withheld on the ground of Exemption 2 must be disclosed.\n\nB. Exemption 5: The \"Deliberative Process\" Privilege\n\nThe federal agency also seeks protection from disclosure under Exemption 5, 5 U.S.C. sec. 552(b)(5), which covers \"interagency or intra-agency memorandums [sic] or letters which would not be available by law to a party other than an agency in litigation with the agency.\" The parameters of Exemption 5 are clearer than those of Exemption 2: it \"simply incorporates civil discovery privileges.\" United States v. Weber Aircraft Corp., 465 U.S. 792, 799, 104 S. Ct. 1488, 1492, 79 L. Ed. 2d 814 (1984). See also Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184, 95 S. Ct. 1491, 1500, 44 L. Ed. 2d 57 (1975) (accord). As the Supreme Court has put it, \"[t]he test under Exemption 5 is whether the documents would be `routinely' or `normally' disclosed upon a showing of relevance.\" Weber Aircraft, 465 U.S. at 799, 104 S.Ct. at 1492 (quoting Federal Trade Commission v. Grolier Inc., 462 U.S. 19, 26, 103 S. Ct. 2209, 2213, 76 L. Ed. 2d 387 [1983]). The Supreme Court has also indicated that although \"it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery,\" Federal Open Market Committee v. Merrill, 443 U.S. 340, 354, 99 S. Ct. 2800, 2809, 61 L. Ed. 2d 587 (1979), Exemption 5 functions by rough analogy \"to exempt those documents, and only those documents, normally privileged in the civil discovery context.\" National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 1515, 44 L. Ed. 2d 29 (1975). See Environmental Protection Agency v. Mink, 410 U.S. 73, 86, 93 S. Ct. 827, 835, 35 L. Ed. 2d 119 (1973) (Exemption 5 \"clearly *43 contemplates that the public is entitled to all such memoranda or letters that a private party could discover in litigation with the agency\"). See also United States Dept. of Justice v. Julian, 486 U.S. 1, 108 S. Ct. 1606, 100 L. Ed. 2d 1 (1988). This rule is consonant with the policy of construing the Act's exemptions narrowly. New England Apple Council v. Donovan, 725 F.2d 139, 141 (1st Cir.1984).\nThe Supreme Court has expressly recognized that Congress intended Exemption 5 to encompass an \"executive privilege\" sufficiently broad to include confidential advisory opinions the disclosure of which would be injurious to the consultative functions of government, so as to protect the government's deliberative and decision-making processes. Sears, 421 U.S. at 149-50, 95 S.Ct. at 1515-16. The Act, then, is inapplicable to material that would be protected by an executive privilege from discovery in civil litigation.[10]\nTo come within Exemption 5, the material in question cannot represent effective agency policy.[11] Also, although it protects advisory materials which truly reflect the deliberative or policymaking processes of an executive agency, Exemption 5 does not protect \"purely factual, investigative matters.\" Environmental Protection Agency v. Mink, 410 U.S. at 89, 93 S.Ct. at 837.\nNot surprisingly, it has become nearly axiomatic in jurisprudence under the Act that to assert an executive privilege so as to come under the aegis of the Exemption 5 \"deliberative process\" exemption, government must show that the material sought to be withheld is both \"predecisional\" and \"deliberative.\" Wolfe v. Department of Health and Human Services, 839 F.2d 768, 774 (D.C.Cir.1988) (en banc) (citing Mink, 410 U.S. 73, 93 S.Ct. at 827). There is little ambiguity about the accepted meaning of these words. For instance, \"[a] document is `predecisional' when it is `received by the decisionmaker on the subject of the decision prior to the time the decision is made'.\" Schell v. United States Department of Health and Human Services, 843 F.2d 933, 940 (6th Cir.1988) (quoting Sears, 421 U.S. at 151, 95 S.Ct. at 1516). A document is deliberative when it \"reflects the give-and-take of the consultative process.\" Coastal States Gas Corp., 617 F.2d at 866; Wolfe, 839 F.2d at 774; Schell, 843 F.2d at 940.\nThree documents, and parts of a fourth, are in question here. \"Document 2\" consists of one hundred fifty five pages of analysis, treating the nature of the supporting information filed in nineteen states' 1981 petitions for waiver of the reduction in federal financial participation in AFDC programs, petitions which were grounded in the argument that waiver is appropriate in view of the existence of extraordinary circumstances that made it impossible to meet targeted error rates. \"Document 3\" is a document of seven pages which summarizes *44 the nature of the supporting documentation submitted by all states seeking waivers for the fiscal year 1983. \"Document 4\" is an eighty page summary and comparative evaluation of the information provided by states in their requests for extraordinary-circumstances waivers for various years. The federal agency also claims that the deliberative process exemption should apply to portions of Document 5, the typewritten 1981 Guide, specifically to handwritten marginalia referring to the established instructions, which suggest different instructions that might be adopted.\nThe Court rules that disclosure of Documents 2, 3, and 4 will not reveal predicisional deliberative material. The documents are compilations of factual data which are not protected by Exemption 5. See Environmental Protection Agency, v. Mink, 410 U.S. at 89, 93 S.Ct. at 836. Although this Court does not use the distinction between fact and opinion as a talisman for application of Exemption 5, and recognizes that \"[i]n some circumstance, even material that could be characterized as `factual' would so expose the deliberative process that it must be covered by the privilege,\" Wolfe, 839 F.2d at 774, it is also mindful that \"Exemption 5 disputes can often be resolved by the simple test that factual material must be disclosed but advice and recommendations may be withheld,\" Id. This is such a case. There is nothing \"predecisional\" about these materials. They relate to past decisions, being merely analyses of what data were submitted by states in past good faith waiver requests. The argument made by the federal agency — that knowledge of these analyses of past submissions \"might tempt a state to communicate to a reviewer its idea of how the documents [previously submitted by other states] should have been interpreted, and how best to interpret the materials the state has most recently submitted\" — is patently flawed. The agency analyses are not \"predecisional\" material about a pending matter. They are not transformed into a \"predecisional\" intra-agency communication by virtue of the fact that they may possibly be communicated to a reviewer considering pending requests.\nNeither do these documents reflect \"advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated\" within the meaning of the deliberative process privilege. National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S. Ct. 1504, 1516, 44 L. Ed. 2d 29 (1975) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jera, 40 F.R.D. 318, 324 (D.C.1966), aff'd, 384 F.2d 979 (1967)). It is apparent that none of the material is on the subject of a pending decision and it is hard to see how disclosure will inhibit the quality of agency decision-making. The government has not established its claim of privilege with respect to these documents.\nThat portion of Document 5, the 1981 Waiver Review Guide, which consists of marginal handwitten notations by an unknown hand, is also being withheld pursuant to Exemption 5. This Court rules that the government has not sustained its burden of proof to establish an executive privilege with respect to these notations. The federal agency argues that the notations suggest ways to improve the methods of analyzing waiver requests and therefore they amount to intra-agency \"advisory opinions and recommendations.\" See Meade Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 256 (D.C.Cir.1977). Unfortunately, it does not appear on the record before the Court who wrote the notations and whether they are actually memoranda to anyone else. There is, therefore, no basis for the Court to conclude either that these notations in any way \"reflect the agency's group thinking in the process of working out its policy and determining what its law shall be,\" Sears, 421 U.S. at 153, 95 S.Ct. at 1517, or that they are the comments, opinions or recommendations of a subordinate within an agency about existing or developing agency policy, see Coastal States Gas Corp., 617 F.2d at 866. The privilege of nondisclosure not being established, this document must be revealed in its entirety.\n\nC. Conclusion\n\nSince the Federal Agency has failed, for the reasons limned above, to establish the *45 applicability of either Exemption 2 or Exemption 5 to the documents it has withheld, they are ordered disclosed to the State Agency forthwith.\nNOTES\n[1] The AFDC program is a welfare program jointly administered and funded by the federal government and the states. State administrators determine who is eligible for AFDC payments and make payments to those families. The federal government participates in the program by \"matching\" the funds expended by the states in AFDC payments so that each sovereign shares the welfare burden equally. The United States Office of Family Assistance, Family Support Administration, however, monitors states' payments for error and will reduce or increase the amount of federal financial participation depending on the percentage of AFDC payments erroneously made by a State. 45 CFR sec. 205.42-43. The purpose behind this scheme is to create the incentive for states to reduce the amount of payments made in error to those not eligible for AFDC benefits. If a State does not meet the national standard for error, or the target error rate established for the individual State, its federal matching funds will be partially disallowed unless the State shows that it made a good faith effort to meet the target rate. 45 CFR sec. 205.42(f). The applicable federal regulations indicate that a finding that a State did not meet the target error rate despite a good faith effort may be made only in \"extraordinary circumstances.\" See 45 CFR sec. 205.42(g).\n[2] A request for all documents \"relating to\" a subject is usually subject to criticism as overbroad since life, like law, is \"a seamless web,\" and all documents \"relate\" to all others in some remote fashion. Such a request thus unfairly places the onus of non-production on the recipient of the request and not where it belongs — upon the person who drafted such a sloppy request. Just as such requests are objectionable under Fed.R.Civ.P. 26(b)(1), so ought they be objectionable under the Act. In this case, of course, the point is of no moment since the federal agency responded without objecting to the overbreadth of the request.\n[3] As to the syntactic difficulties, the position of the District of Columbia Circuit Court of Appeals has long been that Exemption 2 may apply not only to internal personnel rules of an agency but also to the internal practices of an agency. Ginsburg, Feldman & Bress v. Federal Energy Administration, 591 F.2d 717, 723 (D.C.Cir. 1978), aff'd en banc and per curiam by an equally divided court, 591 F.2d 752 (D.C.Cir.1978), cert. denied, 441 U.S. 906, 99 S. Ct. 1994, 60 L. Ed. 2d 374 (1979). Thus materials that are not solely related to personnel rules could still fall within Exemption 2 \"to the extent that they could be classified as `practices of an agency' as referred to in the House Report.\" Id. at 725. See also H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10, 15 (1966). The Ginsburg court concluded that the House Report evidenced a legislative intention that \"operating rules [referring to the functioning of the agency in its public duties], guidelines and manuals of procedure for government investigators or examiners\" are to be exempt under Exemption 2. Ginsburg, 591 F.2d at 724 (quoting H.R.Rep. No. 1497, 89th Cong., 2d Sess. 15 [1966]).\n[4] The First Circuit has upheld the non-disclosure of a Bureau of Alcohol, Tobacco and Firearms (\"Bureau\") investigatory report \"compiled for law enforcement purposes.\" Wightman v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d 979, 981 (1st Cir.1985). Wightman does not help this Court in its consideration of the present case, however. Its application here is problematic. The Wightman court upheld the exempt status of the material in question there under both Exemption 2 and Exemption 7. Exemption 7 applies generally to \"investigatory records compiled for law enforcement purposes.\" 5 U.S.C. sec. 552(b)(7). The material sought in Wightman included, however, \"material relating solely to the internal practices of the [Bureau] (e.g., computer codes).\" 755 F.2d at 982. This suggests that the Wightman court grounded its decision on the fact that the material at issue was in part exempt under Exemption 7 and in part exempt under Exemption 2. Unfortunately, this decision does not help resolve the issue of how broadly Exemption 2 should be interpreted, nor does it adopt or reject the approach of the D.C. Circuit as expressed below in Crooker.\n[5] The Court is mindful that in our structure of government it is ordinarily under a duty to eschew policy determinations concerning what is or is not of \"legitimate public interest\" as such determinations implicate core values under the First Amendment. Absent constitutional considerations, of course, its duty is to interpret the law Congress passed. The Court finds itself on the twin horns of a dilemma implicitly created by Crooker. On the one hand it is clear that in passing the Act \"Congress has made the determination that except for certain specified materials, all government documents are of legitimate public interest.\" Crooker, 670 F.2d at 1066. On the other hand, Rose, which provided the foundation for the Crooker test, suggests that Congress intended courts to interpret Exemption 2 conscious that \"the line sought to be drawn is between minor and trivial matters and those more substantial matters which might be the subject of legitimate public interest.\" 425 U.S. at 365, 96 S.Ct. at 1601. Obviously, this approach leaves it up to the individual judge to determine on what side of the legitimacy line a particular request for information falls.\n[6] Ventures into labyrinth of legislative history can be confusing. Peculiar hazards lurk with respect to the Freedom of Information Act. As the First Circuit has put it, discussing the scope of 5 U.S.C. sec. 552(b)(4) (Exemption 4):\n\nThe attempt to analyse the [Act's] legislative history is complicated further by the fact that the 1966 House Report has been discredited as an aid to interpreting the Act because it was submitted after the Senate had made its report and passed the bill. The House then passed the bill without amendment, thereby depriving the Senate of the opportunity to object or concur in the interpretation of the Act written into the House Report.\n9 to 5 Organization for Women Office Workers v. Board of Governors of the Federal Reserve System, 721 F.2d 1, 7 (1st Cir.1983) (citations omitted).\n[7] In the wake of Crooker, one panel of judges from the District of Columbia Circuit, in a per curiam opinion, expressed the view that \"[i]t is conceivable that this [second prong requirement] may be overbroad in light of Supreme Court precedent and the legislative history.\" Founding Church of Scientology of Washington, D.C., Inc., 721 F.2d 828, 830 (D.C.Cir.1983). That court did not address the issue further. This Court notes a more recent decision from the Seventh Circuit, discussing the applicability of Exemption 2 to the Environmental Protection Agency's employee promotion rating plan, Kaganove v. Environmental Protection Agency, 856 F.2d 884 (7th Cir.1988), cert. denied, ___ U.S. ___, 109 S. Ct. 798, 102 L. Ed. 2d 789 (1989). In Kaganove, the court points out that subsequent legislative history reinforces the view that Crooker represents a correct interpretation of Congressional intent:\n\nThe Freedom of Information Reform Act of 1986 evidences that Crooker was correctly decided. The Reform Act codified Crooker, as it applies to law enforcement agencies, into Exemption 7 of the FOIA. Pursuant to section 1802 of the Reform Act, Exemption 7 now provides, in pertinent part, that \"guidelines for law enforcement investigations or prosecutions [need not be disclosed] if such disclosure could reasonably be expected to risk circumvention of the law....\" (emphasis supplied). The legislative history of the Reform Act expressly states that this amendment was modeled after \"the `circumvention of the law' standard that the D.C. Circuit established in its en banc decision in Crooker v. BATF, 670 F.2d 1051 (D.C.Cir.1981) (en banc) (interpreting Exemption 2).\" Because Congress saw fit to codify the very language of Crooker, and because nothing in the legislative history suggests the slightest disagreement with that case's holding, we believe that Crooker accurately expresses congressional intentions.\nKaganove, 856 F.2d at 888-89 (citations omitted).\n[8] These are:\n\n(A) Demonstrated commitment by top management to the error reduction program ...\n(B) Sufficiency and quality of systems designed to reduce errors that are operational in the State\n. . . . .\n(C) Use of effective system and procedures for the statistical and program analysis of [the quality control system that provides data on incorrect payments and nonpayments] ...\n(D) Effective management and execution of the correction action process ...\n45 CFR sec. 205.42(g)(2)(v)(A-D).\n[9] The limiting phrase is unfortunately necessary since situations can be imagined where state officials may actively seek to compromise or obstruct national domestic, foreign or defense policies. See, e.g., Dukakis v. United States Department of Defense, 686 F. Supp. 30 (D.Mass. 1988), aff'd 859 F.2d 1066 (1st Cir.), cert. denied, ___ U.S. ___, 109 S. Ct. 1743, 104 L. Ed. 2d 181 (1989). Against such a backdrop, Exemption 2 might yet play some limited role in evaluating the information request of a state official.\n[10] The proper functioning and general purpose of executive privilege is well-settled. \"Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions. The quality of a particular agency decision will clearly be affected by the [inter-agency or intra-agency] communications received by the decisionmaker on the subject of the decision prior to the time the decision is made.\" Sears, 421 U.S. at 151, 95 S.Ct. at 1516. Exemption 5 is designed \"to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.\" Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir.1980).\n[11] To be legitimate, law must be promulgated. \"Secret law\" is neither legitimate nor covered by executive privilege. There is thus a difference between agency policies established and followed to implement an agency's statutory mandate, or what is effectively agency \"law,\" and what executive privilege protects. The Supreme Court has expressed this distinction: \"Exemption 5, properly construed, calls for disclosure of all opinions and interpretations which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.\" Sears, 421 U.S. at 153, 95 S.Ct. at 1517 (citations omitted).\n\n", "ocr": false, "opinion_id": 1461020 } ]

[ "562 F.2d 959" ]

[ { "author_str": "Thornberry", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/562/562.F2d.959.76-3368.html", "author_id": null, "opinion_text": "562 F.2d 959\n UNITED STATES of America, Plaintiff-Appellee,v.Raymond Edwin KOSSA, Defendant-Appellant.\n No. 76-3368.\n United States Court of Appeals,Fifth Circuit.\n Nov. 11, 1977.\n \n Kerry P. Fitzgerald, Dallas, Tex. (Court-appointed), for defendant-appellant.\n Kenneth J. Mighell, U. S. Atty., Dallas, Tex., John W. Sweeney, Jr., R. H. Wallace, Jr., Asst. U. S. Attys., Fort Worth, Tex., for plaintiff-appellee.\n Appeal from the United States District Court for the Northern District of Texas.\n Before THORNBERRY, Circuit Judge, SKELTON, Senior Judge,* and HILL, Circuit Judge.\n THORNBERRY, Circuit Judge:\n \n \n 1\n In this appeal, defendant-appellant Kossa, a former Dallas policeman, does not contest the underpinnings of his conviction for extortion and threats of violence under 18 U.S.C. §§ 1951(a) and 844(e). Rather Kossa's primary appellate contention centers on the weight and credibility to be accorded a defendant's expert testimony when he raises an insanity defense. His claim that, on the basis of newly discovered evidence, he should receive a new trial is closely related because the evidence which came to light after Kossa's trial concerned the competency of one of the government expert witnesses.\n \n \n 2\n Kossa was charged with placing two bombs in Six Flags Over Texas amusement park and then demanding a ransom for information on the location of a third bomb. After the failure of the first ransom attempt he once again telephoned the park and threatened to explode five more bombs unless money were paid. During the trial the defendant raised the question of his sanity at the time of the offense. He now contends that the testimony of his expert witnesses was not rebutted by the government and that, as a matter of law, he should have been acquitted by reason of his insanity.\n \n \n 3\n This court has consistently held that the issue of the defendant's sanity, when raised as a defense to a criminal prosecution, is a question for the trier of fact, to be determined from all the evidence. United States v. Harper, 450 F.2d 1032 (5 Cir. 1971); United States v. O'Neal, 431 F.2d 695 (5 Cir. 1970); Mims v. United States, 375 F.2d 135 (5 Cir. 1967). The defendant, Kossa, argues that the opinion testimony of his expert witnesses was not rebutted by the government.\n \n \n 4\n Our consideration of the sufficiency of the government's rebuttal must begin by noting that we will set aside a jury verdict only if the decision is unreasonable and that our review of cases involving expert witnesses and the insanity defense necessarily proceeds on a case by case basis. United States v. McCracken, 488 F.2d 406 (5 Cir. 1974). The defendant called four psychiatrists who diagnosed him variously as a psychotic, paranoid state and as a paranoid schizophrenic. Three of the defendant's witnesses testified that the defendant was delusional. Dr. Tauber thought that the defendant's thinking was irrational because in Dr. Tauber's opinion Kossa irrationally feared the FBI might come into the case and because he also feared that the telephone calls would be traced. Dr. Whipple testified that the defendant was delusional and insane because he held a \"false belief\" that the Dallas Police Department had treated him unjustly. Dr. Snow testified that at the time of the crimes the defendant was disorganized and not functioning well.\n \n \n 5\n In Mims v. United States, supra, this court catalogued the ways in which the government may seek to rebut expert evidence that a defendant is insane at the time of the offense.1 As we recognized in that opinion, expert opinion evidence may be rebutted by showing the incorrectness or inadequacy of the factual assumptions on which an opinion is based. The government's cross examination substantially undermined the factual basis of the defendant's psychiatric testimony. Dr. Tauber's opinion that the defendant was delusional because he feared the FBI's entry into the case was eroded by the government's revelation that defendant's prior allegations of police brutality while a member of the Dallas police force would have been investigated through the bureau. The government also revealed that Dr. Tauber's perception of the difficulty of tracing telephone calls was substantially incorrect. Dr. Whipple's belief that the defendant was delusional and held false beliefs was seriously undermined when the government's witness testified that indeed Kossa might have broken in rank because of police department politics. Testimony indicated, contrary to Dr. Snow's opinion that the defendant was disoriented, that the crime was well thought out and planned. Thus the government's case tended to prove that the assumptions on which the defense psychiatrists relied in characterizing the defendant as delusional were, in many cases, incorrect. Cf. Nagell v. United States, 392 F.2d 934 (5 Cir. 1968).\n \n \n 6\n The defendant's argument that he was entitled to acquittal because of the inadequacy of the government's psychiatric experts is without merit. Assuming without deciding that the government's expert witnesses were entitled to no weight at all, the prosecution could, under the rule of Mims v. United States, supra, effectively rebut the defense testimony. Defendant's contention appears to be that the cross examination of defense experts and the testimony of lay witnesses could not rebut the expert testimony put on by Kossa. The government put on two lay witnesses Dennis Palmer and Roy Cross. Palmer had worked with the appellant at a trucking company after his dismissal from the police force and saw him daily during the time the crimes were committed. Cross knew and worked with Kossa on the police force. Lay testimony that a person has never observed an abnormal act on the part of the accused is of value only if the witness has prolonged and intimate contact. United States v. Phillips, 519 F.2d 48 (5 Cir. 1975); United States v. Gray, 421 F.2d 316 (5 Cir. 1970). Palmer's testimony certainly goes beyond mere declarations of normal appearance. Palmer not only worked with the defendant but was a frequent visitor in his home during the time that the defendant perpetrated the offenses. Palmer's testimony was entitled to such weight as the jury chose to give it. The testimony of experts is not conclusive even when it is uncontradicted. Mims v. United States,supra. Questions of credibility and weight are for the trier of facts. United States v. Harper, supra. In the present case, the jury chose to believe the prosecution. We will not set aside its determination.\n \n \n 7\n The defendant also contends that he should receive a new trial because Dr. Brooks, a chief government witness, was later diagnosed as suffering from mental illness himself. The trial court discounted the medical panel's diagnosis of Dr. Brooks. Whether Dr. Brooks was mentally ill the allegations that he mixed drugs and alcohol are serious. Nevertheless we reject defendant's new trial claim because even without Dr. Brooks' testimony there was sufficient evidence to sustain the jury's verdict. Reno v. United States, 340 F.2d 307 (5 Cir. 1965). See generally Wright and Miller, Federal Practice § 557 (1977). We also reject defendant's argument that the indictment was defective because it did not show that Six Flags Over Texas was primarily an interstate operation. Appellant was charged under the Hobbs Act. It is not necessary that the corporation from whom he attempted to extort money be engaged in interstate commerce. See United States v. Nakaladski, 481 F.2d 289 (5 Cir. 1973).\n \n \n 8\n For the foregoing reasons appellant's conviction is AFFIRMED.\n \n \n \n *\n Senior Judge of the United States Court of Claims, sitting by designation\n \n \n 1\n In Mims, the court set out the following catalogue:\n It has been recognized that expert opinion evidence may be rebutted by showing the incorrectness or inadequacy of the factual assumptions on which the opinion is based, \"the reasoning by which he progresses from his material to his conclusion,\" the interest or bias of the expert, inconsistencies or contradictions in his testimony as to material matters, material variations between the experts themselves, and defendant's lack of cooperation with the expert. Also, in cases involving opinions of medical experts, the probative force of that character of testimony is lessened where it is predicated on subjective symptoms, or where it is based on narrative statements to the expert as to past events not in evidence at the trial. In some cases, the cross examination of the expert may be such as to justify the trier of facts in not being convinced by him. One or more of these factors may, depending on the particular facts of each case, make a jury issue as to the credibility and weight to be given to the expert testimony; and in determining whether such issue is raised, due consideration must be given to the fact that the trier of facts has the opportunity to observe the witness if he testifies in person.\n \n \n ", "ocr": false, "opinion_id": 349357 } ]

[ "782 F.2d 1488" ]

[ { "author_str": "Wallace", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/782/782.F2d.1488.84-7252.html", "author_id": null, "opinion_text": "782 F.2d 1488\n Reginaldo DIAZ-ESCOBAR, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.\n No. 84-7252.\n United States Court of Appeals,Ninth Circuit.\n Argued and Submitted June 10, 1985.Decided Feb. 14, 1986.\n \n Michelle L. Crawford, El Centro, Cal., for petitioner.\n Alison R. Drucker, Washington, D.C., for respondent.\n Petition for Review of a Decision of the Immigration and Naturalization Service.\n Before CHOY, GOODWIN, and WALLACE, Circuit Judges.\n WALLACE, Circuit Judge:\n \n \n 1\n Diaz-Escobar appeals the decision of the Board of Immigration Appeals (BIA) denying his request for asylum and for withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a. We affirm.\n \n \n 2\n * Diaz-Escobar is a native and citizen of Guatemala who entered this country without inspection on October 14, 1982. On October 18, 1982, the Immigration and Naturalization Service (INS) instituted deportation proceedings against him by issuing an Order to Show Cause. At his deportation hearing, Diaz-Escobar conceded deportability under 8 U.S.C. Sec. 1251(a)(2), designating Costa Rica as the country of deportation, but petitioned for either asylum or withholding of deportation.\n \n \n 3\n He stated in his application for these special relief provisions that he was unwilling to return to Guatemala for fear of being executed or persecuted if he continued to remain neutral in the conflict between the leftist guerrillas and the government. He added that he felt more secure in the United States. In his oral testimony, Diaz-Escobar stated that his departure from Guatemala was triggered by an anonymous letter found on the windshield of his car. He did not remember the exact date he received the alleged letter, nor could he produce it. But he testified that it warned him to leave the country or \"be subject to the consequences.\" He admitted that he had never been harmed by the Guatemalan government nor had he had any problems with the guerrillas, although he testified that he had been a member of the military reserve during 1981 and produced a military identification card dated 1965. He also testified that he had been tried for committing homicide with a machete in 1977, but had been acquitted on the ground of self-defense. He testified that he had no idea who sent the letter or why anyone would send it to him. But he testified that he took the alleged threat seriously because he would not have been \"the first person that had died from anonymous letters.\" He traveled through Mexico to reach this country, but did not request asylum from the Mexican authorities.\n \n \n 4\n The immigration judge (IJ) requested an advisory opinion from the State Department's Bureau of Human Rights and Humanitarian Affairs, which concluded that Diaz-Escobar had failed to establish a well-founded fear of being persecuted in Guatemala if he were returned there. The IJ came to the same conclusion and thus denied the petitions for asylum and withholding of deportation. The IJ reasoned that Diaz-Escobar's testimony concerning the letter did not establish a well-founded fear of persecution. Because he could neither produce it or any other evidence corroborating his testimony about it nor explain convincingly why he feared its alleged threat, having stated that he did not know who wrote it and that he had no known enemies, there was nothing to suggest that it was a serious, politically motivated threat. Other than the letter, the IJ found nothing in the record that could possibly suggest that Diaz-Escobar might be singled out from other Guatemalans for persecution on account of one of the five statutory grounds. The IJ stated that Diaz-Escobar had never spoken out against the government, the government had never mistreated him, it had granted him an honorable discharge from the military reserve, and it had issued him a passport. Diaz-Escobar appealed to the BIA, but the BIA dismissed the appeal on the basis of its agreement with the IJ that Diaz-Escobar had failed to establish a well-founded fear of persecution.II\n \n \n 5\n This appeal involves claims under the asylum and withholding of deportation provisions. Section 208(a) of the Immigration and Nationality Act (Act), 8 U.S.C. Sec. 1158(a), gives the Attorney General discretion to grant an alien political asylum if the Attorney General determines the alien to be a refugee within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. Sec. 1101(a)(42)(A). That section defines a refugee as any person outside his country of nationality or habitual residence who is unwilling to return to that country \"because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.\" Id. Under section 208(a), therefore, asylum is a two-part process involving a determination of statutory eligibility and a discretionary determination once eligibility is established. If an alien is granted asylum, he obtains a full range of benefits including freedom of movement, employment rights, certain forms of public assistance, and potential adjustment of status after one year to that of a permanent resident alien without being subject to numerical limitations.\n \n \n 6\n Like asylum, section 243(h) of the Act, 8 U.S.C. Sec. 1253(h), provides benefits for illegal aliens who potentially face persecution, though its benefits are more limited. But this limitation is balanced by the fact that its benefits are mandatory rather than discretionary once the petitioner meets the statutory eligibility standards. It states that \"[t]he Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.\" Id.\n \n A.\n \n 7\n Diaz-Escobar argues that although the IJ ruled he had no reasonably based fear of persecution, the BIA erred in dismissing the appeal by suggesting that the well-founded fear of persecution standard required proof of a clear probability of persecution. Prior to enactment of the Refugee Act of 1980, an alien arguably had to show a clear probability of persecution to meet the statutory threshold for asylum. See Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 n. 10 (9th Cir.1984) (Bolanos). The Refugee Act was intended to bring the language of our political asylum laws in line with articles 1.2 and 33.1 of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951). In INS v. Stevic, 467 U.S. 407, 104 S. Ct. 2489, 81 L. Ed. 2d 321 (1984) (Stevic), the Supreme Court held that the Refugee Act did not lessen the burden of proof for obtaining withholding of deportation from a clear probability of persecution. The Supreme Court assumed arguendo in Stevic that asylum's well-founded fear of persecution standard was a lesser burden, id. 104 S.Ct. at 2498, but it explicitly reserved that legal question. Id. at 2501. In Bolanos, we answered the question and stated that the well-founded fear standard is indeed a lesser burden than the clear probability of persecution standard, although we left open the question just what the well-founded fear standard requires. 767 F.2d at 1282-83; see also Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir.1985) (Garcia-Ramos).\n \n \n 8\n Contrary to Diaz-Escobar's argument, the BIA did not equate the content of the well-founded fear standard with that of the clear probability standard. The BIA held that because Diaz-Escobar failed to show a well-founded fear of persecution, he a fortiori failed to show a clear probability of it whether or not the latter standard is more stringent or the same as the former. This is not an error of law.\n \n B.\n \n 9\n Even though the BIA used an appropriate legal standard for Diaz-Escobar's asylum claim, we must still review whether there was substantial evidence in the record to support the decision that Diaz-Escobar failed to show a sufficient danger of the type of persecution mentioned in the asylum or withholding of deportation provisions to satisfy the statutory threshold for asylum or to obtain withholding of deportation relief. See McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). If the BIA is correct that Diaz-Escobar failed to demonstrate a well-founded fear of persecution, we will need to proceed no further because a fortiori, Diaz-Escobar would have failed to meet the more stringent standard of clear probability of persecution.\n \n \n 10\n We must first consider what a well-founded fear of persecution means. The Supreme Court has stated that the clear probability of persecution standard requires proof that persecution is more likely than not. See Stevic, 467 U.S. at 424, 104 S.Ct. at 2498. In Bolanos, we stated that the well-founded fear standard is less burdensome than a clear probability, but we did not define it further except to state that it had both a subjective and an objective component. See 767 F.2d at 1283 n. 11; see also Garcia-Ramos, 775 F.2d at 1373-74. The subjective component requires a showing that the alien's fear is genuine. The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution. See Espinoza-Martinez v. INS, 754 F.2d 1536, 1540 (9th Cir.1985) (\"specific\" and \"objective\" evidence); Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982) (per curiam) (\"special circumstances\" must be present--evidence of widespread violence is insufficient); cf. Garcia-Ramos, 775 F.2d at 1374 (evidence of open and extensive activism in a persecuted political group may suffice); Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (evidence of general climate of violence insufficient to justify withholding of deportation). The petitioner need not show that his well-founded fear is \"more likely than not,\" i.e., a \"clear probability.\" See Stevic, 467 U.S. at 424 n. 19, 104 S. Ct. at 2498 & n. 19. The showing may be slightly less than such a probability, although it must be grounded in substantial record evidence. See id. at 2498. The objective component ensures that an alien's subjective fear is \"well-founded\" in fact and not in fantasy. See id. Thus, to secure relief, the alien must meet the burden of proving both components. Whether a \"well-founded fear\" of persecution is called a \"reasonable chance,\" a \"reasonable possibility,\" a \"reasonable probability,\" or a \"reasonable expectation\" is not decisive. What is critical is that the alien prove his fear is subjectively genuine and objectively reasonable. Garcia-Ramos, 775 F.2d at 1373-74.\n \n C.\n \n 11\n The relevant evidence offered by Diaz-Escobar consisted solely of his own testimony, without direct corroboration. Although we give serious consideration to such testimony if unrefuted, credible, and indirectly corroborated, see Bolanos, 767 F.2d at 1283 & n. 11, deference must be given \"to the immigration judge's express and implied determination concerning credibility where the record supports this finding.\" Saballo-Cortez v. INS, 761 F.2d 1259, 1266 (9th Cir.1984) (Saballo-Cortez) (emphasis added). The Supreme Court recently stated in INS v. Rios-Pineda, --- U.S. ----, 105 S. Ct. 2098, 85 L. Ed. 2d 452 (1985) (Rios-Pineda), that \"[i]n this government of separated powers, it is not for the judiciary to usurp Congress' grant of authority to the Attorney General by applying what approximates de novo appellate review.\" Id., 105 S.Ct. at 2103. Thus, although the substantial evidence standard of review requires slightly stricter scrutiny than the ordinary clear error standard, see Bolanos, 767 F.2d at 1282 n. 8, courts must be careful to keep it sufficiently more deferential than de novo review. This is a somewhat delicate task when the alien bears the burden of proof as he does in both asylum and withholding of deportation cases. To hold that once an alien puts forth unrefuted and credible testimony he automatically satisfies his burden of proof unless the INS comes forth with substantial evidence to rebut the testimony would approximate de novo review. See id.; see also Saballo-Cortez, 761 F.2d at 1265 n. 4.D.\n \n \n 12\n There is substantial evidence in the record to support the conclusion that Diaz-Escobar failed to establish an objectively reasonable fear or expectation of persecution and thus, regardless of the subjective component, he failed to establish that his fear was well-founded. The only portion of Diaz-Escobar's testimony tending to support his claim centered on the allegedly threatening letter. On this point, Diaz-Escobar's testimony was unrefuted. Neither the IJ nor the BIA questioned his credibility with respect to it. The likelihood that such a letter might have existed and that such threats might be carried out was indirectly corroborated by the conditions of turmoil in Guatemala just as was the alien's testimony in Bolanos. See 767 F.2d at 1284-86. The magnitude of the threat was serious. The source of the threat was left wholly to speculation. The BIA did not believe that the annonymous threat provided a foundation for a well-founded fear of persecution. Consequently, the BIA found it to be immaterial that the INS failed to rebut the alien's proof with substantial evidence.\n \n \n 13\n We agree because Diaz-Escobar's evidence does not establish a reasonable expectation of persecution. There is no indication in the record that the notice on his windshield was from any political organization. It could have come from a variety of sources: relatives of the person he killed, friends who were attempting to give him a warning, pranksters, et cetera. Indeed, there is no indication that he would not be secure if he returned to Guatemala. His argument is not that the government would persecute him, but that the guerrillas would do so. It was admitted during oral argument that he is in good stead with the government. Indeed, this is clear from his army service and his receipt of a passport. His argument is that in the particular part of the country from which he came, people receive threats and are killed. Repatriation to a country does not force the alien to return to the village he left.\n \n \n 14\n The substantial evidence standard of review does not require the INS to produce any evidence at all if the alien does not independently satisfy his burden initially. See Saballo-Cortez, 761 F.2d at 1265 n. 4. If it did, it would clearly be a usurpation of Congress' authority to allocate the burden of proof to the alien. See Rios-Pineda, 105 S. Ct. at 2102-03. All the substantial evidence standard requires is that the BIA's conclusion, based on the evidence presented, be substantially reasonable. Saballo-Cortez, 761 F.2d at 1265 n. 4. If the alien presents insufficient evidence to meet his burden of proof, i.e., fails to show his fear is genuine and a reasonable expectation of persecution, then there would be substantial evidence in the record to support a decision that he failed to satisfy the statutory eligibility threshold for asylum, even if the INS produces no evidence.\n \n \n 15\n Our decision to affirm the BIA in this case does not create a conflict with Bolanos, Garcia-Ramos, or Argueta v. INS, 759 F.2d 1395 (9th Cir.1985) (Argueta). Under the deferential substantial evidence standard, we may not reverse the BIA simply because we disagree with its evaluation of the facts, but only if we conclude that the BIA's evaluation is not supported by substantial evidence. Garcia-Ramos, 775 F.2d at 1373; Argueta, 759 F.2d at 1396-98 & n. 4. The BIA's decisions in Bolanos, Garcia-Ramos, and Argueta were found not to be supported by substantial evidence. That is not the case here.\n \n E.\n \n 16\n Diaz-Escobar also claims that any threats to him would be on account of his political opinion of neutrality. To secure relief, an alien must prove the \"persecution [is] on account of race, religion, nationality, membership in a particular social group, or political opinion.\" 8 U.S.C. Sec. 1101(a)(42)(A) (asylum): see also 8 U.S.C. Sec. 1253(h) (withholding of deportation). Although Bolanos held that open assertions of neutrality may constitute political opinion for which one may be persecuted, see 767 F.2d at 1286-88 & n. 18, an alien must still prove that the alleged persecution threat exists because of his neutrality opinion. Hernandez-Ortiz v. INS, 777 F.2d 509, 516 (9th Cir.1985); see 8 U.S.C. Secs. 1101(a)(42)(A), 1253(h). A mere failure to take sides or even open and vigorous advocacy of neutrality rarely triggers retribution. That is why nations often find it advantageous to remain neutral. Thus, if the alleged threat were motivated by some reason other than Diaz-Escobar's political opinion or one of the four other statutory grounds, then his proof of the threat would be irrelevant to his asylum and withholding of deportation applications. Diaz-Escobar presented no evidence that the threats against him were politically motivated.\n \n \n 17\n Because we hold that there is substantial evidence that Diaz-Escobar did not prove one of the two required components of a well-founded fear of persecution and thus failed to meet the threshold requirement, we need not reach the question of whether he has proven the alleged persecution is \"on account of ... political opinion.\"\n \n III\n \n 18\n Diaz-Escobar's last contention is that his deportation proceedings violated due process because the IJ refused to admit certain evidence. We need not consider the merits of this claim because Diaz-Escobar failed to show how the IJ's action resulted in substantial prejudice to him. Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir.1981).\n \n \n 19\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 464674 } ]

[ "248 P.3d 451", "240 Or. App. 464" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n248 P.3d 451 (2011)\n240 Or. App. 464\nJACKSON\nv.\nNOOTH.\nA143077\nCourt of Appeals of Oregon.\nJanuary 12, 2011.\nAffirmed without opinion.\n", "ocr": false, "opinion_id": 2624807 } ]

[ "825 F. Supp. 2d 1267" ]

[ { "author_str": "Rosenbaum", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2776, "opinion_text": "\n825 F.Supp.2d 1267 (2011)\nAndrew A. OSTROW, Plaintiff,\nv.\nGLOBECAST AMERICA INCORPORATED, a Delaware corporation, Defendant.\nCase No. 10-61348-CIV.\nUnited States District Court, S.D. Florida.\nOctober 18, 2011.\n*1268 G. Ware Cornell, Jr., Cornell & Associates, Weston, FL, for Plaintiff.\nKelly-Ann Gibbs Cartwright, Holland & Knight, LLP, Miami, FL, Erika R. Royal, Holland & Knight, LLP, Fort Lauderdale, FL, for Defendant.\n\nOMNIBUS ORDER ON MOTIONS IN LIMINE\nROBIN S. ROSENBAUM, United States Magistrate Judge.\nThis matter comes before the Court upon Defendant GlobeCast America, Inc.'s Motion in Limine to Exclude Parol Evidence Consisting of Statements and Other Characterizations Regarding the Unambiguous Written Employment Agreement [D.E. 47]; Defendant's Unopposed Motion in Limine to Exclude Evidence of Settlement Negotiations Between the Parties [D.E. 48]; Defendant's Motion in Limine to Exclude the Agreement and General Release Between GlobeCast and Cathleen Togut and Communications in Which Settlement Was Discussed [D.E. 49]; Defendant's Motion in Limine to Exclude Evidence re: Alleged Discriminatory Treatment of Past GlobeCast Employees Other Than Plaintiff [D.E. 50]; and Defendant's Motion in Limine to Exclude Extrinsic Evidence of Defendant's Purported Past Practice of Severance Payments [D.E. 51]. The Court has reviewed each of Defendant's Motions in Limine, all filings in support thereof and in opposition thereto, and the record in this matter and is otherwise duly informed in the premises. After careful consideration, for the reasons set forth below, the Court now grants Defendant's Unopposed Motion in Limine to Exclude Evidence of Settlement *1269 Negotiations Between the Parties and Defendant's Motion in Limine to Exclude Evidence re: Alleged Discriminatory Treatment of Past GlobeCast Employees Other Than Plaintiff, and denies Defendant's Motion in Limine to Exclude Parol Evidence Consisting of Statements and Other Characterizations Regarding the Unambiguous Written Employment Agreement and Defendant's Motion in Limine to Exclude Extrinsic Evidence of Defendant's Purported Past Practice of Severance Payments. The Court defers ruling at this time on Defendant's Motion in Limine to Exclude the Agreement and General Release Between GlobeCast and Cathleen Togut and Communications in Which Settlement Was Discussed.\n\nI. BACKGROUND\nPlaintiff Andrew Ostrow (\"Plaintiff\" or \"Ostrow\") filed his complaint against his former employer, Defendant GlobeCast America, Inc. (\"Defendant\" or \"GlobeCast\"[1]), in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. See D.E. 1-1. The Complaint set forth a claim for age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (\"ADEA\") (Count I), and a claim for breach of contract (Count II).\nGlobeCast filed its Motion for Summary Judgment, and on October 13, 2011, 2011 WL 4853568, the Court granted in part and denied in part GlobeCast's motion. See D.E. 55. Following the Court's entry of its October 13, 2011, Order on GlobeCast's Motion for Summary Judgment, only portions of Ostrow's claim set forth in Count II of the Complaint remain. More specifically, Ostrow's claim that GlobeCast failed to comply with obligations under Ostrow's employment contract to make severance payments to Ostrow, and Ostrow's claim that GlobeCast wrongfully denied Ostrow bonus payments in 2008 and in the first half of 2009 survive GlobeCast's Motion for Summary Judgment. GlobeCast continues to dispute that Ostrow's employment agreement required GlobeCast to make severance and bonus payments. The matter is set for trial beginning October 24, 2011.\nIn preparation for trial, GlobeCast filed five motions in limine that are the subject of this Omnibus Order. The Court considers each below.\n\nII. DISCUSSION\n\nA. Defendant's Motion in Limine to Exclude Parol Evidence Consisting of Statements and Other Characterizations Regarding the Unambiguous Written Employment Agreement [D.E. 47] and Defendant's Motion in Limine to Exclude Extrinsic Evidence of Defendant's Purported Past Practice of Severance Payments [D.E. 51]\n\nIn both of these motions, GlobeCast seeks to exclude evidence concerning the parties' alleged intentions and actual practices involving the severance provision contained within Ostrow's employment agreement. GlobeCast bases these motions on its position that the contractual language is clear and unambiguous, so in order to determine Ostrow's eligibility for a severance payment, the Court may not consider any evidence beyond the language contained within the four corners of Ostrow's employment agreement. More specifically, GlobeCast seeks to exclude testimony regarding the parties' intentions *1270 with respect to the severance payment provision contained in Ostrow's contract and GlobeCast's past practices as they pertain to the payment of severance to former GlobeCast employees with written contracts containing the same severance provision as Ostrow's employment agreement, when such employees' employment with GlobeCast ended following the natural expiration of their contractual terms of employment.\nThe Court has already considered GlobeCast's concerns in the context of ruling on GlobeCast's Motion for Summary Judgment. As the Court explained in its Order on GlobeCasts's Motion for Summary Judgment, the severance provision of Ostrow's employment agreement is ambiguous with regard to whether GlobeCast agreed to make a severance payment to Ostrow upon GlobeCast's decision not to continue Ostrow's employment (whether at will or under another contract) following the expiration of the term of employment set forth in Ostrow's employment agreement. See D.E. 55 at 28-35. Thus, although where a contract's terms are \"clear and unambiguous, the `language itself is the best evidence of the parties' intent and its plain meaning controls ...,'\" Pearson v. Caterpillar Fin. Servs. Corp., 60 So.3d 1168, 1171 (Fla. 4th DCA 2011) (quoting Fecteau v. Se. Bank, N.A., 585 So.2d 1005, 1007 (Fla. 4th DCA 1991)), here, where \"`two reasonable interpretations' of a contract [exist],\" id. (quoting Fecteau, 585 So.2d at 1007), \"`the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties.'\" Id. (quoting Fecteau, 585 So.2d at 1007 (quoting Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980))).\nAs a result, the categories of evidence that GlobeCast seeks to preclude are admissible to determine the factual issue regarding the otherwise-ambiguous meaning of the severance provision contained within Ostrow's employment agreement. In this respect, evidence concerning the parties' past practices and intentions — particularly those voiced by GlobeCast agents and officers empowered to make such representations at the times that contracts containing the severance provision were executed — satisfy the definition of \"relevant evidence\" set forth by Rule 401, Fed.R.Evid., because such evidence has a tendency to make Ostrow's position that the parties intended for him to obtain a severance payment either more or less probable. Moreover, the evidence plainly pertains to a fact of consequence to the determination of the action. See Fed.R.Evid. 401. For these reasons, Defendant's Motion in Limine to Exclude Parol Evidence Consisting of Statements and Other Characterizations Regarding the Unambiguous Written Employment Agreement [D.E. 47] and Defendant's Motion in Limine to Exclude Extrinsic Evidence of Defendant's Purported Past Practice of Severance Payments [D.E. 50] must be DENIED.\n\nB. Defendant's Unopposed Motion in Limine to Exclude Evidence of Settlement Negotiations Between the Parties [D.E. 48]\n\nIn Defendant's Unopposed Motion in Limine to Exclude Evidence of Settlement Negotiations Between the Parties, GlobeCast seeks to preclude Ostrow's use at trial of evidence regarding the parties' settlement negotiations, in accordance with Rule 408, Fed.R.Evid. Ostrow does not oppose the motion, and the Court finds that the law supports the entry of an order granting the motion. Accordingly, Defendant's Unopposed Motion in Limine to Exclude Evidence of Settlement Negotiations Between the Parties [D.E. 48] is GRANTED. The parties shall not seek to *1271 admit evidence pertaining to settlement negotiations between the parties for the purpose of proving liability for, invalidity of, or amount of a claim, or to impeach through a prior inconsistent statement or contradiction.\n\nC. Defendant's Motion in Limine to Exclude Evidence re: Alleged Discriminatory Treatment of Past GlobeCast Employees Other Than Plaintiff [D.E. 50]\n\nIn Defendant's Motion in Limine to Exclude Evidence re: Alleged Discriminatory Treatment of Past GlobeCast Employees Other Than Plaintiff, Defendant seeks an order \"prohibiting Ostrow from presenting any evidence or documents regarding, questioning any witness regarding, or otherwise mentioning in the presence of the jury, any evidence at trial relating to alleged discriminatory treatment of past GlobeCast employees other than [Ostrow].\" D.E. 50 at 1. Previously, in the Court's Order on Defendant's Motion for Summary Judgment [D.E. 55], the Court granted summary judgment for GlobeCast on Count I of Ostrow's Complaint. See id. Count I contained the only discrimination claim in Ostrow's law suit. Count II, which remains, contains only a breach-of-contract claim. As a result, evidence pertaining to GlobeCast's alleged discrimination against other employees is not even arguably relevant under Rule 401, as it is not likely to make the existence of a breach of contract, which depends on the meaning of the challenged contractual provision, more or less probable. Indeed, Ostrow implicitly concedes the irrelevance of testimony relating to GlobeCast's alleged discriminatory practices with respect to other employees when he states that, in view of the present posture of the case, he does not intend to offer such evidence. Accordingly, Defendant's Motion in Limine to Exclude Evidence re: Alleged Discriminatory Treatment of Past GlobeCast Employees Other Than Plaintiff [D.E. 50] must be DENIED.\n\nD. Defendant's Motion in Limine to Exclude the Agreement and General Release Between GlobeCast and Cathleen Togut and Communications in Which Settlement Was Discussed [D.E. 49]\n\nFinally, the Court defers ruling on Defendant's Motion in Limine to Exclude the Agreement and General Release Between GlobeCast and Cathleen Togut and Communications in Which Settlement Was Discussed. Cathleen Togut (\"Togut\"), GlobeCast's former Vice President of Human Resources, had an employment contract with GlobeCast that contained the same severance provision as Ostrow's. When her employment agreement expired on December 31, 2009, GlobeCast decided not to renew the contract and to terminate Togut's employment. Among other claims, Togut demanded a severance payment pursuant to her employment agreement. Although GlobeCast denied that Togut was entitled to a severance payment, Togut did not file a lawsuit. Ultimately, however, GlobeCast and Togut negotiated a confidential settlement agreement relating, in part, to her claim for severance pay. Through its Motion in Limine, GlobeCast seeks under Rule 408, Fed.R.Evid., and, alternatively, in accordance with Rule 403, Fed.R.Evid., to prevent Ostrow from introducing evidence relating to these events and the resulting settlement.\nIn evaluating GlobeCast's motion, the Court begins with Rule 408, Fed. R.Evid. Rule 408 provides, in relevant part,\n(a) Prohibited uses. — Evidence of the following is not admissible on behalf of any party, when offered to prove liability *1272 for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:\n(1) furnishing or offering or promising to furnish — or accepting or offering or promising to accept — a valuable consideration in compromising or attempting to compromise the claim; and\n(2) conduct or statements made in compromise negotiations regarding the claim....\nFed.R.Evid. 408. According to Eleventh Circuit precedent, Rule 408 prohibits the admissibility of evidence relating to settlement negotiations only where a \"`compromise' within the meaning of Rule 408\" occurs. Dallis v. Aetna Life Ins. Co., 768 F.2d 1303, 1307 (11th Cir.1985). Such a \"compromise\" happens only where \"an actual dispute, or at least an apparent difference of opinion between the parties, as to the validity of a claim\" exists. Id. (citation omitted).\nIn Dallis, for example, the district court admitted evidence on behalf of the plaintiff, who had sued his insurer to recover the costs of treatment for his wife, that the insurer had paid a similar claim to a different insured in another state. On appeal, the defendant insurer challenged the district court's ruling under Rule 408. The Eleventh Circuit upheld the district court, concluding that no \"compromise\" had occurred under Rule 408 with regard to the insurer's payment of the other insured's claim because the record contained no evidence that the insurer had ever disputed the validity or the amount of the other insured's payment.\nApplying Dallis's rule to the pending case, the Court cannot conclude that no compromise occurred with respect to Togut's claim for severance payment. Based on GlobeCast's uncontested proffer within its Motion in Limine, although Togut never sued, GlobeCast did dispute payment of the severance, at least initially. This fact distinguishes the pending matter from Dallis, where the insurer had never suggested that the third-party insured was not entitled to payment and instead simply paid the claim. As a result, Rule 408's \"compromise\" requirement does not make GlobeCast ineligible for Rule 408's protections.\nThat circumstance, however, does not end the inquiry. Eleventh Circuit precedent raises the prospect that a different part of Rule 408 may prevent GlobeCast from being able to invoke the rule's protections successfully. In this regard, in Dallis, the Eleventh Circuit expressly left open the question of whether Rule 408 bars evidence of a settlement between one of the parties and a third party when such settlement involves similar circumstances to, but does not arise out of, the transaction with which the litigation is concerned. Dallis, 768 F.2d at 1307 n. 2; see also Wajcman v. Inv. Corp. of Palm Beach, 2009 WL 465071, *1 (S.D.Fla. Feb. 23, 2009). Nevertheless, the court noted that applying Rule 408 in such a way would require the court to \"extend\" the rule. Dallis, 768 F.2d at 1307. Thus, the Court must consider whether Rule 408 applies where evidence of settlement of a prior claim pertains to a claim different from that at issue in the case being litigated.\nTraditionally, courts have construed Rule 408 to exclude \"evidence of settlement and settlement offers only where the evidence is offered to prove liability for or invalidity [or amount] of the claim under negotiation.\" See Armstrong v. HRB Royalty, Inc., 392 F.Supp.2d 1302, 1304 (S.D.Ala.2005) (quoting Vulcan Hart Corp. v. Nat'l Labor Relations Bd., 718 F.2d 269, 277 (8th Cir.1983)) (emphasis added by *1273 Armstrong Court) (quotation marks omitted).[2] These courts have based their construction of Rule 408 in part on the language of the rule, which refers first to \"a claim,\" and later to \"the claim.\" See, e.g., Armstrong, 392 F.Supp.2d at 1304. In other words, use of the phrase \"the claim\" limits the rule's application to the same claim as first anticipated by use of the phrase \"a claim.\" And the phrase \"when offered to prove liability for, invalidity of, or amount of\" qualifies the term \"a claim,\" requiring that term to refer only to the claim under litigation in the pending case. Thus, courts have concluded that \"Rule 408 unambiguously requires that the claim as to which a settlement offer was made and the claim at issue in the litigation in which the offer is proffered as evidence must be the same claim.\" Armstrong, 392 F.Supp.2d at 1304-05.\nNevertheless, some courts have construed Rule 408 to allow for exclusion of evidence pertaining to more than one claim where the claim to which the proffered evidence relates and the claim being litigated arose out of a single event, sometimes referred to as the \"same transaction\" theory. See Armstrong, 392 F.Supp.2d at 1306 (citing Jack B. Weinstein, Margaret A. Berger & Joseph M. McLaughlin, 2 Weinstein's Evidence ¶ 408[04] at 408-30 (1996)); see also Branch v. Fid. & Cas., 783 F.2d 1289, 1294 (5th Cir.1986); McInnis v. A.M.F., Inc., 765 F.2d 240, 246-48 (1st Cir.1985); United States v. Contra Costa Cnty. Water Dist., 678 F.2d 90, 91-92 (9th Cir.1982). But \"the farthest known expansion of Rule 408\" occurred in Bradbury v. Phillips Petroleum Co., 815 F.2d 1356 (10th Cir.1987). Armstrong, 392 F.Supp.2d at 1307.\nIn Bradbury, during the defendant's undertaking of a single uranium exploration project, it trespassed on or damaged the property of nine property owners in eight separate incidents, and it settled with some of the affected property owners. The plaintiffs in Bradbury sought to introduce evidence relating to the settlement of some of the other claims, and the Tenth Circuit concluded that the prior claims were sufficiently related, \"inasmuch as they arose in the course of the same large scale uranium exploration project, and because they [were] similar enough to the claim sued upon ... to be relevant.\" Bradbury, 815 F.2d at 1363. Based on this determination, as well as on Rule 408's \"strong policy interest in encouraging the settlement of disputes without resort to litigation,\" the Tenth Circuit held that Rule 408 applied in the circumstances that occurred in Bradbury. Id.\nWithout opining on the correctness of Bradbury, the Court nonetheless notes that applying Rule 408 in the instant matter would require an extension even of Bradbury. Whereas the settlements and the claim at issue in Bradbury all arose out of a single uranium-exploration project, the Togut settlement and Ostrow's breach-of-contract claim in this case stem from two distinctly separate and unrelated legal transactions: an employment contract with Togut and a separate employment agreement with Ostrow. Consequently, GlobeCast's Motion in Limine as it seeks to exclude the Togut settlement *1274 under Rule 408 must be denied. As the Armstrong Court opined, \"Rule 408's policy of encouraging settlements is necessarily in tension with the policy behind Rule 402 of placing relevant evidence before the factfinder. Nothing would be less surprising than to learn that the `same claim' requirement of Rule 408 represents a deliberate balancing of those conflicting goals.\" Armstrong, 392 F.Supp.2d at 1309.\nNor does GlobeCast's effort to rely on the 1972 Advisory Committee Notes to Rule 408 change the equation. See D.E. 49 at 2-3. As GlobeCast notes, the 1972 Advisory Committee Notes to Rule 408 state, in pertinent part,\nWhile the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto. This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person.\n1972 Advisory Committee Notes to Fed. R.Evid. 408. Based on the language of Rule 408, as well as the numerous cases that have considered the application of Rule 408, the Court concludes that the second sentence of the quotation above from Rule 408 refers to the situation where the settled claim and the claim being litigated arise out of the same event, although they involve different parties, such as where a single accident injures several people who otherwise have no relationship to each other, and the victims pursue their claims separately. GlobeCast has directed the Court to no case justifying the broad construction of Rule 408 that it urges, based solely on the quoted language above, even though the quoted language can just as fairly be construed as limited to circumstances where a single event causes damages to multiple victims. The Court has similarly not found any opinion to support GlobeCast's urged construction. As a result, the Court finds that Rule 408 does not preclude use of the Togut settlement.\nThe Court therefore turns to GlobeCast's alternative proposed basis for excluding evidence relating to the Togut settlement: Rule 403. Under Rule 403, a court may exclude relevant evidence if \"its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\" Fed.R.Evid. 403. The Eleventh Circuit has emphasized repeatedly that courts should use Rule 403 to exclude evidence only \"very sparingly.\" See, e.g., Wilson v. Attaway, 757 F.2d 1227, 1242 (11th Cir.1985); Luka v. City of Orlando, 382 Fed.Appx. 840, 841 (11th Cir. 2010); Tambourine Comercio Internacional v. Solowsky, 312 Fed.Appx. 263, 287 (11th Cir.2009). Moreover, in determining whether evidence should be excluded under Rule 403, courts must \"look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its prejudicial impact.\" Luka, 382 Fed.Appx. at 841 (quoting United States v. Brown, 441 F.3d 1330, 1362 (11th Cir.2006)) (quotation marks omitted); see also Tambourine Comercio Internacional, 312 Fed.Appx. at 287 (quoting United States v. Elkins, 885 F.2d 775, 784 (11th Cir.1989)). Indeed, analysis under Rule 403 requires that \"[t]he balance ... be struck in favor of admissibility.\" Tambourine Comercio Internacional, 312 Fed. Appx. at 287 (quoting United States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir.2002) (citation omitted)) (quotation marks omitted). Nonetheless, district courts enjoy \"wide discretion\" in determining whether *1275 to exclude evidence under Rule 403. Wilson, 757 F.2d at 1242 (citations omitted).\nHere, GlobeCast argues first that evidence relating to the Togut settlement \"is devoid of any probative value.\" D.E. 49 at 4. If this, in fact, is the case, such evidence would not be admissible under Rule 402, Fed.R.Evid., as Rule 402 makes evidence that is not relevant inadmissible. See Fed.R.Evid. 402. Rule 401, Fed. R.Evid., in turn, defines \"relevant evidence\" as \"evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\"\nIn support of its contention that the evidence regarding the Togut settlement is not relevant, GlobeCast emphasizes that \"the issue[] in this case [is] whether Plaintiff, not Ms. Togut, ... is entitled to severance and bonus payments under the 2008 Employment Agreement.\" D.E. 49 at 4 (emphasis in original). While the Court recognizes that the case regards Ostrow's alleged entitlement to severance and bonus payments under Ostrow's employment agreement, based on the parties' submissions to date, it appears that Togut's employment agreement covering the same period as Ostrow's 2008-2009 employment agreement contained the same severance provision. To the extent that evidence regarding Togut's settlement would bear on GlobeCast's intentions in entering the 2008-2009 employment agreements containing the severance payment provision included in Ostrow's contract, such evidence would be relevant, as it would make it more or less probable that GlobeCast intended the severance provision to require payment of severance upon the natural expiration of an employment term where the employee's employment was terminated. As a result, the Court cannot find necessarily that evidence relating to the Togut settlement is irrelevant and devoid of probative value.\nOn the other hand, to the extent that the Togut settlement evidence might reveal only that GlobeCast settled Togut's claim without shedding light on any of the reasons why — or even while expressly disclaiming liability, such evidence would not appear to be relevant, as claims may be settled for any number of reasons, some of which may not relate to the merit of the claim. Because the Court has not yet heard the evidence that Ostrow might offer, the Court cannot at this time ascertain whether the Togut evidence might be relevant. Moreover, for the same reasons, even assuming arguendo that the evidence has some probative value, the Court cannot now engage in the balancing test contemplated by Rule 403 to determine whether any prejudicial effect of the evidence might outweigh its probative value.\nConsequently, the Court must defer ruling on Defendant's Motion in Limine to Exclude the Agreement and General Release Between GlobeCast and Cathleen Togut and Communications in which Settlement Was Discussed [D.E. 49] until such time as the parties proffer the proposed evidence to the Court for the Court to consider. The Court will hear Plaintiff's proffer regarding the content of the evidence relating to the Togut settlement during the Pretrial Conference set for this Friday, October 21, 2011.\n\nIII. CONCLUSION\nFor the foregoing reasons, Defendant's Unopposed Motion in Limine to Exclude Evidence of Settlement Negotiations Between the Parties [D.E. 48] and Defendant's Motion in Limine to Exclude Evidence re: Alleged Discriminatory Treatment of Past GlobeCast Employees Other Than Plaintiff [D.E. 50] are GRANTED; Defendant's Motion in *1276 Limine to Exclude Parol Evidence Consisting of Statements and Other Characterizations Regarding the Unambiguous Written Employment Agreement [D.E. 47] and Defendant's Motion in Limine to Exclude Extrinsic Evidence of Defendant's Purported Past Practice of Severance Payments [D.E. 51] are DENIED; and the Court defers ruling at this time on Defendant's Motion in Limine to Exclude the Agreement and General Release Between GlobeCast and Cathleen Togut and Communications in Which Settlement Was Discussed [D.E. 49]. During the Pretrial Conference on Friday, October 21, 2011, Plaintiff shall be prepared to present his proffer regarding the content of evidence relating to the Togut settlement that he may seek to introduce.\nNOTES\n[1] The Court points out that \"GlobeCast\" in this Order refers only to GlobeCast America, Inc., not to any of the other GlobeCast companies around the world.\n[2] Armstrong further cites the following cases in support of its conclusion that Rule 408 applies only when the evidence offered pertains to the claim that is the subject of the litigation: Uforma/Shelby Bus. Forms, Inc. v. Nat'l Labor Relations Bd., 111 F.3d 1284, 1293-94 (6th Cir.1997); Broadcort Capital Corp. v. Summa Med. Corp., 972 F.2d 1183, 1194 (10th Cir.1992); Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1363 (10th Cir.1987); Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 689 (7th Cir.2005); Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652, 655 (4th Cir.1988).\n\n", "ocr": false, "opinion_id": 2114591 } ]

[ "818 F. Supp. 2d 845" ]

[ { "author_str": "Padova", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2486, "opinion_text": "\n818 F.Supp.2d 845 (2011)\nUNITED STATES of America\nv.\nWilliam JONES.\nCriminal Action No. 10-400.\nUnited States District Court, E.D. Pennsylvania.\nMay 11, 2011.\n*847 Neuman Leverett, III, U.S. Attorney's Office, Philadelphia, PA, for United States of America.\nShaka M. Johnson, Law Offices of Shaka M. Johnson LLC, Philadelphia, PA, for William Jones.\n\nMEMORANDUM\nPADOVA, District Judge.\nDefendant William Jones has been charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Currently before the Court is Defendant's Motion to Suppress physical evidence recovered during a November 20, 2009 search of 526 N. 59th Street in Philadelphia, including the Intratec, Model AB-10, 9mm Luger semiautomatic pistol, bearing an obliterated serial number (the \"Tec-9\"), and the extended large capacity magazine, loaded with 21 live rounds of ammunition (the \"extended clip\"), that Philadelphia police officers seized from the second-floor bedroom closet. We held a Hearing on the Motion on April 12, 2011. For the reasons that follow, the Motion is granted.\n\nI. BACKGROUND\nDefendant has moved to suppress the evidence seized on November 20, 2009, asserting that the affidavit of probable cause submitted in connection with the application for the search warrant for 526 N. 59th Street (the \"affidavit\") did not establish probable cause. The affidavit states, in its entirety, as follows:\nOn Friday, 11/20/09 at or about 12:01 PM, 16th District police responded to a radio call \"Meet a complainant, 3900 Brown Street.\" On arrival, police met with a complainant who is known to the Affiant and will be available for Court proceedings. He told the police that there were two occupants in his vehicle which was parked nearby. He stated that one of the occupants was William Jones who he has known for 8 to 9 years and he knows Jones to sell drugs to earn money. He stated that the other occupant was only known to him as \"Gunplay\" and that he has known \"Gunplay\" since October and has been in his company six or seven times. He told the officers that William Jones had told him that he had killed someone on 52nd Street. While driving through 52nd Street between Greenaway and Kingsessing Avenue he pointed to the location at which he had killed someone by shooting him. The officers contacted the Homicide Unit and it was learned that Christian White had been shot and killed on 4/30/09 (M09-92, DC# XX-XX-XXXXXX) at that location. The witness further stated to police that he was with William Jones when Jones obtained a Tech 9 handgun. He stated that he saw the gun last approximately 2 to 3 weeks ago and that Jones kept the gun in his *848 room. He stated that Jones rents a room from his grandmother, and that he occupies the 2nd floor middle bedroom. This witness then led Detectives to the residence that Jones occupies and it was found to be 526 N. 59th Street, Philadelphia, Pennsylvania. William Jones and Michael Williams were found to be in the witness's vehicle and they were transported to homicide for further investigation.\nThis Search Warrant is for the recovery of any weapons, handguns, ammunition, firearms of any type, proof of residence, photographs, and any other items of evidentiary value including any illicit narcotic drugs and paraphernalia.\nThe AFFIANT is respectfully requesting a Search Warrant for the residence 526 N. 59th Street so that it can be searched for any and all evidence that will assist further in this investigation.\n(Warrant at 2.) The warrant states that it issued in connection with a \"violation of the Uniform Firearms Act.\" (Id. at 1.) The warrant describes the items to be seized as follows: \"any and all ballistics[,] guns, ammo, magazines, proof of ownership, and any and all evidence that will assist further in this investigation including any and all illegal narcotic drugs, and drug paraphenalia [sic].\" (Id.) At 7:30 p.m. on November 20, 2009, officers executed the warrant, and seized the Tec-9 and the extended clip from the second-floor bedroom closet of 526 N. 59th Street, as well as documents and photographs linking Defendant to the residence. Officers did not find any drugs or drug paraphernalia.\n\nII. LEGAL STANDARD\nThe Fourth Amendment to the United States Constitution prohibits \"unreasonable searches and seizures.\" U.S. Const. amend. IV. The home, in particular, \"is sacrosanct, and unreasonable government intrusion into the home is `the chief evil against which the wording of the Fourth Amendment is directed.'\" United States v. Zimmerman, 277 F.3d 426, 431 (3d Cir.2002) (quoting Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). \"Ordinarily, `for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause.'\" United States v. Johnson, 592 F.3d 442, 447 (3d Cir.2010) (quoting United States v. Robertson, 305 F.3d 164, 167 (3d Cir.2002)). A magistrate may find probable cause for the issuance of a search warrant if, considering the totality of the circumstances, \"there is a fair probability that contraband or evidence of a crime will be found in a particular place.\" Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).\nThe magistrate's determination that probable cause existed is to be \"paid great deference.\" Id. at 236, 103 S.Ct. 2317 (quotation omitted). Accordingly, \"[a] reviewing court must determine only that the magistrate had a `substantial basis' for concluding that probable cause existed to uphold the warrant.\" United States v. Whitner, 219 F.3d 289, 296 (3d Cir.2000) (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317). In making this determination, the reviewing court may consider only \"`the facts that were before the magistrate, i.e., the affidavit, and [may] not consider information from other portions of the record.'\" United States v. Miknevich, 638 F.3d 178, 182 (3d Cir.2011) (quoting United States v. Jones, 994 F.2d 1051, 1055 (3d Cir.1993)). The affidavit \"must be read in its entirety and in a common sense and nontechnical manner.\" United States v. Williams, 124 F.3d 411, 420 (3d Cir.1997) (citing United States v. Conley, 4 F.3d 1200, 1206 (3d Cir.1993)). Meanwhile, \"`the resolution of doubtful or marginal cases ... should be largely determined by the preference to be accorded to warrants.'\" Miknevich, 638 F.3d at 182 (quoting Jones, 994 F.2d at 1055, 1057-58). *849 This, however, \"`does not mean that reviewing courts should simply rubber stamp a magistrate's conclusions.'\" Id. (quoting United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir.1983)). The defendant bears the burden of establishing that his Fourth Amendment rights were violated. United States v. Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir.1992) (citation omitted).\nEven if the magistrate lacked a substantial basis for the issuance of a search warrant, the Court ordinarily should not suppress evidence seized pursuant to that warrant \"when an officer acting with objective good faith has obtained [the] search warrant from a judge or magistrate and acted within its scope.\" United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (footnote omitted); see also United States v. Stearn, 597 F.3d 540, 560 (3d Cir.2010) (citing Leon, 468 U.S. at 926, 104 S.Ct. 3405). Typically, \"[t]he mere existence of a warrant ... 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, 307-08 (3d Cir.2001) (citations omitted). There are four circumstances, however, in which the good faith exception is not applied:\n(1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function; (3) 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) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.\nStearn, 597 F.3d at 561 n. 19 (internal quotations and citations omitted). \"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'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 Government bears the burden of establishing that the good faith exception applies. Leon, 468 U.S. at 924, 104 S.Ct. 3430.\n\nIII. DISCUSSION\nDefendant has moved to suppress the physical evidence seized during the November 20, 2009 526 N. 59th Street on the grounds that the affidavit did not establish probable cause for the warrant and that the affidavit was so lacking in indicia of probable cause that a reasonably well-trained police officer would have known that it was insufficient. The Government argues that the affidavit did establish probable cause and that, even if the affidavit was insufficient, we should not suppress the physical evidence seized pursuant to the warrant because the officers who prepared and executed the warrant did so in good faith.\n\nA. Probable Cause\n\nDefendant argues that the affidavit did not establish probable cause to believe that evidence of a violation of the Pennsylvania Uniform Firearms Act (\"UFA\") would be found in his residence because the affidavit failed to establish that Defendant's possession of the Tec-9 referred to in the affidavit was illegal under the UFA. The UFA prohibits, among other things, carrying a firearm in a vehicle or on one's person outside one's home without a license, 18 Pa. Cons.Stat. § 6106; carrying a firearm on the public streets or public property in cities of the first class without a license, 18 Pa. Cons.Stat. § 6108; and possession of a firearm by those convicted of certain felonies, 18 Pa. Cons.Stat. § 6105. However, the affidavit does not indicate that Defendant was unlicensed, that he possessed the gun outside his home, or that he was a convicted felon. *850 Accordingly, the affidavit did not provide a substantial basis for the magistrate to conclude that probable cause existed with respect to a violation of the UFA. See United States v. Jones, 388 Fed.Appx. 175, 177 (3d Cir.2010) (agreeing with a District Court's conclusion that an affidavit failed to establish probable cause for a search seeking evidence of a violation of 18 Pa. Cons.Stat. § 6105 where the affiant failed \"to elaborate on the basis of the felony conviction\" (quotation omitted)).\nFollowing the April 12 Hearing, the Government conceded that the affidavit failed to establish probable cause for a firearms violation. (Gov't Supplemental Resp. at 6.) Despite this concession, the Government denies that the warrant is wholly lacking in probable cause. Instead, the Government now argues that the affidavit \"established probable cause to search the defendant's residence for drugs.\"[1] (Id.) The Government's new interpretation of the warrant is inconsistent with a common sense, nontechnical reading of the warrant. See United States v. Johnson, 690 F.2d 60, 64 (3d Cir.1982) (\"[P]hrases in a search warrant must be read in context and not in isolation.... [A] warrant must be read as a whole.\" (citation omitted)). The warrant states that the criminal violation at issue was a violation of the UFA. As a general matter, the violation listed on the face of a warrant may limit the warrant's scope. See United States v. Tracey, 597 F.3d 140, 152 n. 10 (3d Cir.2010) (\"[T]he description [of items to be seized]... is limited by the language indicating that the officers were seeking permission to search for and seize evidence of violations of a specific statute's subsections.\"); see also Andresen v. Maryland, 427 U.S. 463, 480-81 & n. 10, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (interpreting a warrant that authorized police to search for and seize a series of specific documents as well as \"books, records, documents, papers, memoranda, and correspondence, showing or tending to show a fraudulent intent, and/or knowledge as elements of the crime of false pretenses ... together with other fruits, instrumentalities and evidence of crime at this time unknown\" and concluding that it was \"clear from the context that the term `crime'\" referred \"only to the crime of false pretenses\").\nThe Government's new interpretation of the warrant is also inconsistent with a common sense reading of the affidavit. See Johnson, 690 F.2d at 64 (\"When a warrant is accompanied by an affidavit that is incorporated by reference, the affidavit may be used in construing the scope of the warrant.\" (citations omitted)).[2] Aside from a single bald assertion that Bowler \"knows Jones to sell drugs to earn money,\" all of the factual allegations of the affidavit concern Jones's possession and use of firearms. The affidavit does not specify what drugs Bowler knew Jones to sell, provide any time frame for the drug dealing that Bowler mentioned, set out the basis for Bowler's knowledge, report any police corroboration of Bowler's assertion that Jones was a drug dealer, or connect the drug dealing in any way with Jones's residence, which belonged to his grandmother.[3]\nThe Government's new interpretation of the warrant is also inconsistent with the *851 understandings of the police officers involved in the preparation and execution of the warrant. During the April 12 Hearing, we asked Detective Watkins, the officer who prepared the warrant, to explain what he meant by the phrase \"in this investigation\" in the warrant's description of items to be seized. (4/12/11 Hr'g Tr. at 30.) He responded, \"We were investigating at this time the gun inside of the house that could be a continuation from the murder.\" (Id.)\nIn sum, the Government's new interpretation of the warrant is inconsistent with the face of the warrant, the clear thrust of the affidavit, and the understandings of the officers involved in the preparation and execution of the warrant. We conclude that the warrant was intended solely to authorize officers to search for and seize evidence of a violation of the UFA. As we have determined that the affidavit did not establish that probable cause existed with respect to a violation of the UFA, we consider the Government's argument that the good faith exception applies.\n\nB. Good Faith\n\n\"Before determining whether the good faith exception applies,\" the United States Court of Appeals for the Third Circuit encourages us to \"reflect upon the purpose of the exclusionary rule[:]\"\nThe exclusionary rule is designed to deter police conduct that violates the constitutional rights of citizens. The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By excluding evidence seized as a result of an unconstitutional search and seizure, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Because the purpose of the exclusionary rule is to deter unlawful police conduct, the fruits of an unconstitutional search should be suppressed if, despite the magistrate's authorization, an objectively reasonable, well-trained officer would have known that the search violated the Fourth Amendment. Concomitantly, suppression should not be ordered where an officer, acting in objective good faith, has obtained a warrant without probable cause because in such cases only marginal deterrent purposes will be *852 served which cannot justify the substantial costs of exclusion.\nZimmerman, 277 F.3d at 436 (quotations and citations omitted). \"`[T]he good faith exception requires a sincerely held and objectively reasonable belief that the warrant is based on a valid application of the law to all known facts.'\" Id. at 438 (quoting United States v. Reilly, 76 F.3d 1271, 1273 (2nd Cir.1996) (alteration in original)). The \"objective standard `requires officers to have a reasonable knowledge of what the law prohibits.'\" Id. (quoting Leon, 468 U.S. at 919 n. 20, 104 S.Ct. 3405). At the same time, we should \"neither expect nor require ... `nonlawyers in the midst... of a criminal investigation'\" to have conducted a \"detailed analysis\" of the relevant case law. Stearn, 597 F.3d at 563 (quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).\nThe Government argues that the good faith exception applies here because Detective Watkins' failure to include Defendant's status as a previously convicted felon in the affidavit was merely a mistake. However, if \"the warrant and affidavit on their face preclude reasonable reliance, the reasoning of Leon does not apply.\" Zimmerman, 277 F.3d at 437 (quotation omitted). At best, the affidavit establishes that Jones might have, at one time, been involved in various types of criminal activity, including drug dealing and murder, and that he recently kept a Tec-9 in his bedroom. It would not take a detailed analysis of the relevant case law to understand that this affidavit is, on its face, insufficient to establish probable cause with respect to a violation of the UFA.\nAs we discussed previously, the Third Circuit determined in Jones that an affidavit failed to establish that probable cause existed with respect to a violation of the UFA where the affidavit failed to specify the defendant's prior felony. Jones, 388 Fed.Appx. at 177. The affidavit in the Jones case stated that the defendant \"was a convicted felon from New Jersey\" and the police officer who executed the warrant based his conclusion that \"the Defendant was not permitted to possess weapons in accordance with 18 Pa. Cons.Stat. § 6105\" on that statement. United States v. Jones, 572 F.Supp.2d 601, 625 (W.D.Pa. 2008) (internal quotation marks omitted), aff'd, Jones, 388 Fed.Appx. 175. While this statement in the Jones affidavit was insufficient \"to present a substantial basis to establish probable cause (a deficiency that should have been observed by the magistrate as well as the reviewing assistant district attorney)\" the district court concluded that it did not \"reveal such an absence of indicia of probable cause that would cause [the police officer] some pause in executing the warrant.\" Id. In reviewing the district court's decision, the Third Circuit agreed that, because the Jones affidavit described the defendant as a felon, officers could rely on the warrant in good faith. Id. In this case, however, there was nothing in the warrant or affidavit upon which a police officer could base a conclusion that the Defendant was not permitted to possess a firearm in accordance with 18 Pa. Cons.Stat. § 6105. Indeed, Detective Watkins does not claim that he based his belief that Defendant violated § 6105 on anything contained in the warrant or the affidavit. His belief was based solely on his independent knowledge that the Defendant had a previous felony conviction. (4/12/11 Hr'g Tr. at 31.)\nThe good faith exception to the exclusionary rule applies only when \"a reasonable mistake has been made in obtaining a warrant.\" Zimmerman, 277 F.3d at 436. The affidavit in this case reveals a complete absence of indicia of probable cause that Defendant violated § 6105. We conclude that the complete *853 omission from the affidavit of any fact upon which a police office could base a belief that Defendant had violated § 6105 was not a reasonable mistake that would support application of the good faith exception.[4] We conclude that the affidavit in this case was so lacking in indicia of probable cause with respect to a violation of the UFA that \"`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).\n\nIV. CONCLUSION\nFor the reasons set forth above, we conclude that the affidavit did not provide a substantial basis on which the magistrate could find probable cause to believe that evidence of a violation of the UFA would be found in Defendant's residence. We further conclude that the affidavit was so lacking in indicia of probable cause that a reasonably well-trained police officer, with a reasonable knowledge of what the law prohibits, would have known that the search was illegal despite the magistrate's authorization. Accordingly, we grant the Motion to Suppress the physical evidence recovered during the November 20, 2009 search of 526 N. 59th Street in Philadelphia.[5]\nAn appropriate Order follows.\nNOTES\n[1] We note that the Government has never taken the position that the affidavit established probable cause to search Defendant's residence for evidence relating to the murder at 52nd and Greenaway Streets. (See 4/12/11 Hr'g Tr. at 35.)\n[2] The warrant directs the reader to \"see attached affidavit of probable cause.\" (Warrant at 1.)\n[3] Even if we accepted the Government's position that the warrant authorized officers to search for and seize evidence of drug dealing in Defendant's grandmother's house, we would conclude that the affidavit failed to establish probable cause for such a search and seizure. \"The age of the information supporting a warrant application is a factor that must be considered in determining probable cause.\" United States v. Williams, 124 F.3d 411, 420 (3d Cir. 1997) (citation omitted). Here, Bowler provided no time frame for Jones's alleged drug dealing, and the affidavit contained no evidence to suggest that Defendant had engaged in drug dealing recently. See id. at 422 (emphasizing police surveillance indicating that the drug dealing referred to by the informant continued \"until at least a few weeks before the search was conducted\"). Indeed, the affidavit contained no corroboration of Bowler's assertion at all. See Stearn, 597 F.3d at 555 (3d Cir.2010) (stating that \"`[police] corroboration of details of an informant's tip' [is] an important method for establishing a tip's reliability\" (citing Gates, 462 U.S. at 241, 103 S.Ct. 2317)). Furthermore, in order to establish probable cause with respect to a drug violation, an affidavit must provide \"evidence that ... `[the] home contains contraband linking it to the dealer's drug activities.'\" United States v. Davis, 383 Fed.Appx. 172, 177 (3d Cir.2010) (quoting United States v. Burton, 288 F.3d 91, 104 (3d Cir.2002)). The affidavit provides no evidence that Defendant sold drugs out of his grandmother's house or that he used the house to store drugs or drug paraphernalia. The Government argues that the affidavit provides evidence that Defendant's residence contained the Tec-9, but the affidavit does not link the Tec-9 to Defendant's alleged drug dealing in any way.\n[4] We note two additional facts that support our conclusion that the good faith exception does not apply in this case. First, \"[i]t bears mention that [the affiant] crafted the affidavit to portray [Defendant] in the worst possible light.\" See Zimmerman, 277 F.3d at 437. The affidavit attempts, at some length, to implicate Defendant for a murder that the affidavit does not link in any way to the UFA violation at issue. Second, nothing in this case \"suggest[s] that a hurried judgment had to be made to seek the warrant, excusing any reasonably mistake; indeed the police had complete control over the timing.\" See id. (internal quotation marks omitted).\n[5] While the Motion to Suppress was pending, Defendant filed a Supplemental Motion to Suppress, in which Defendant argues that we should suppress the physical evidence seized during the November 20, 2009 search under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because the affidavit omitted the fact that Bowler told police that Defendant purchased the Tec-9 described in the affidavit after the murder at 52nd and Greenaway Streets had taken place. Defendant argues that, as written, the affidavit is misleading, in that it leads the reader to believe that the Tec-9 could have been the murder weapon. Because we grant Defendant's Motion to Suppress the physical evidence seized during the November 20, 2009 search, we do not reach the Franks issue raised by Defendant in the Supplemental Motion to Suppress, and we therefore dismiss the Supplemental Motion as moot.\n\n", "ocr": false, "opinion_id": 2114612 } ]

[ "34 So. 3d 1" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n34 So. 3d 1 (2010)\nJOHNSON\nv.\nSTATE.\nNo. SC09-1045.\nSupreme Court of Florida.\nMay 19, 2010.\nDecision Without Published Opinion Review granted.\n", "ocr": false, "opinion_id": 1564574 } ]

[ "65 F.3d 179" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/65/65.F3d.179.95-6029.html", "author_id": null, "opinion_text": "65 F.3d 179\n NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.\n UNITED STATES of America, Plaintiff-Appellee,v.Edith Evelyn YOUNG, Defendant-Appellant.\n No. 95-6029.\n United States Court of Appeals, Tenth Circuit.\n Aug. 30, 1995.\n \n Before TACHA, LOGAN and KELLY, Circuit Judges.2\n \n ORDER AND JUDGMENT1\n \n 1\n Defendant-appellant Edith Evelyn Young appeals the district court's denial of her motion to vacate, set aside, or correct her sentence, 28 U.S.C. 2255. Ms. Young pleaded guilty to a one-count indictment charging her with possession of 5.8 grams of cocaine, 21 U.S.C. 844. She now contends that the actual amount of cocaine was not determined, and that the amount relied upon by the district court was erroneous.\n \n \n 2\n Ms. Young does not claim that her plea of guilty was either uncounseled or involuntary, United States v. Broce, 488 U.S. 563, 569 (1989), but only that the trial court lacked authority under 844(a) to determine quantity. Relying upon United States v. Puryear, 940 F.2d 602, 604 (10th Cir.1991), she contends that, absent a jury finding as to the amount of cocaine involved, the district court could not enter a felony conviction and sentence based upon its own determination.\n \n \n 3\n Puryear is inapposite. It involved a trial. Here, Ms. Young entered into a plea agreement with the government, and pleaded guilty to possession of 5.8 grams of cocaine base. The district court did not err.\n \n \n 4\n AFFIRMED.\n \n \n \n 1\n This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order. 151 F.R.D. 470 (10th Cir.1993)\n \n \n 2\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered submitted without oral argument\n \n \n ", "ocr": false, "opinion_id": 703672 } ]

[ "747 F.3d 470" ]

[ { "author_str": "Hamilton", "per_curiam": false, "type": "010combined", "page_count": 22, "download_url": "http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D03-28/C:13-2302:J:Hamilton:aut:T:fnOp:N:1316217:S:0", "author_id": 1343, "opinion_text": " In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 13-2302\n\nKEVIN R. CARMODY,\n Plaintiff-Appellant,\n\n v.\n\n\nBOARD OF TRUSTEES OF THE UNIVER-\nSITY OF ILLINOIS, et al.,\n Defendants-Appellees.\n\n Appeal from the United States District Court for the\n Central District of Illinois.\n No. 12-CV-2249 — Michael P. McCuskey, Judge.\n\n\n ARGUED DECEMBER 3, 2013 — DECIDED MARCH 28, 2014\n\n\n Before POSNER, MANION, and HAMILTON, Circuit Judges.\n HAMILTON, Circuit Judge. Plaintiff Kevin Carmody worked\nfor the University of Illinois for 25 years until he was fired for\nreasons involving a security breach of the university’s email\nsystem. After unsuccessfully appealing his discharge,\nCarmody filed this suit against the university’s board of\ntrustees and several university officials claiming that they\nviolated his rights under the Due Process Clause of the\n\f2 No. 13-2302\n\nFourteenth Amendment and under an Illinois statute designed\nto protect whistle-blowers. The district court dismissed\nCarmody’s complaint with prejudice under Federal Rule of\nCivil Procedure 12(b)(6) for failure to state a claim upon which\nrelief can be granted. Carmody has appealed.\n We review de novo a district court’s grant of a motion to\ndismiss, construing the complaint in the plaintiff’s favor. Sung\nPark v. Indiana Univ. School of Dentistry, 692 F.3d 828, 830 (7th\nCir. 2012). While we take the facts alleged in the complaint to\nbe true, we also consider attached exhibits and take into\naccount any contradictions. Phillips v. Prudential Ins. Co. of\nAmerica, 714 F.3d 1017, 1019–20 (7th Cir. 2013). For a case at the\npleading stage, we have here an unusually detailed record of\nevents because the complaint includes numerous exhibits\nregarding Carmody’s termination.\n We conclude that the district court’s dismissal was prema-\nture with respect to one aspect of Carmody’s due process\nclaim: that he was not given an adequate pre-termination\nhearing. Carmody has plausibly alleged that his pre-termina-\ntion opportunity to be heard was meaningless because he\ncould not answer the university’s crucial questions or respond\nto its accusations without violating a state court order that\nrequired him not to discuss the key subject. The university\nacted to fire Carmody on the same day the state court modified\nits order to allow him to respond to the charges, so the modifi-\ncation came too late to help him. Also, Carmody has alleged\nthat he was actually fired based in part on a charge for which\nhe had no prior notice and opportunity to be heard. We\ntherefore reverse this one portion of the district court’s\n\fNo. 13-2302 3\n\njudgment and remand the case for further proceedings. We\naffirm the judgment in all other respects.\nI. Sufficiency of the Pre-Termination Process\n A. Factual Allegations\n For the last 22 years of Carmody’s employment with the\nUniversity of Illinois, he was manager of systems services in\nthe Department of Industrial and Enterprise Systems Engineer-\ning. According to Carmody’s complaint and numerous\nattached exhibits, the university’s official reasons for firing him\ninvolved a security breach of the university’s email system, a\nbreach connected to a state court lawsuit Carmody was then\npursuing against a university professor, David Goldberg.\n Carmody says that while his lawsuit against Professor\nGoldberg was pending, he discovered several printed emails\nin the newspaper box outside his home. The emails contra-\ndicted an affidavit that Professor Goldberg’s defense attorney\nhad filed in the case, an affidavit by another professor,\nDeborah Thurston. Carmody gave the emails to his lawyer,\nwho then filed a motion of some kind to which he attached the\nemails, designating them “Group Exhibit A.” Carmody denies\nknowing how the emails came to be in his newspaper box.\n(Carmody’s claim in his lawsuit against Goldberg was appar-\nently that the professor had assaulted him, though the nature\nof the claim is irrelevant to Carmody’s firing and the case\nbefore us. Carmody’s suit against Goldberg has since been\ndismissed.)\n The emails Carmody found were between university\nemployees, including Professor Thurston, and all of them\n\f4 No. 13-2302\n\nconcerned Professor Goldberg. According to Carmody’s\nfederal complaint, the state court judge ordered as follows\nregarding the emails:\n [T]he Court is going to order that Group Exhibit A\n [the Thurston emails] be placed under seal pending\n litigation of any further claims of privilege or rele-\n vance, and the Court is further going to enter a\n protective order on the parties that there is to be no\n secondary dissemination of any of the contents of Group\n Exhibit A as the court has described them, beyond the\n respective litigation files of the three lawyers here.\n(Emphasis added.) The three lawyers were Carmody’s lawyer,\nGoldberg’s lawyer, and a lawyer for Thurston. Both professors’\nlawyers were provided by the university.\n Carmody then received a pre-termination letter dated July\n19, 2010. It explained that he was being investigated for\nmisconduct, that he was suspended with pay immediately, and\nthat if the charges spelled out in the letter were substantiated,\nthey could result in discipline up to and including immediate\ntermination of employment. As far as the substance of the\ncharges went, the letter said:\n It is alleged that you attempted to use the substance\n of the email messages for non-University related\n purposes and without permission. Furthermore,\n there are open questions regarding how you came to\n be in possession of these documents, specifically\n whether you obtained them through improper\n access.\n\fNo. 13-2302 5\n\nThe July 19 letter went on to say that Carmody would have an\nopportunity to respond to the charges at a meeting later that\nmonth.\n On July 28th, university officials held a pre-termination\nmeeting with Carmody, who brought his lawyer, Robert\nKirchner. At that meeting, Carmody alleges, the university\nofficials said they intended to question him about the contents\nof the emails in Group Exhibit A. Keeping in mind that we are\nreviewing a Rule 12(b)(6) dismissal, we must give Carmody\nthe benefit of conflicting information and allegations about\nwhat happened in the meeting. We therefore assume that\nuniversity officials intended to question Carmody about the\ncontents of the emails, as well as how he received them, and\nthat both subjects were important to the pending decision\nabout what action to take against Carmody.\n Carmody’s lawyer summarized his version of the meeting\nin an August 3 letter to counsel for the university:\n This letter will summarize the meeting of July 28th,\n in which you were a participant. [Two university\n officials] had advised, and you then confirmed that\n they were in possession of a copy of a document\n ordered sealed by Judge Leonard and that you, and\n they, intended to question Kevin Carmody about the\n contents of, and substance contained in, that docu-\n ment. I advised that I would not permit Mr.\n Carmody to violate Judge Leonard’s order by\n discussing or disclosing the contents of the sealed\n materials and that by insisting that he do so, Univer-\n sity personnel would be acting in violation of the\n\f6 No. 13-2302\n\n order as well. You disagreed and advised that the\n “University is not a party to that case.” We ad-\n journed the meeting with an agreement that I would\n send this letter to you, await your reply, and then\n seek direction from the Court. I will await your\n reply.\nThe university’s counsel wrote in response:\n You are correct in that the University has copies of\n “Exhibit A,” which consist of University documents.\n The University is now investigating whether or not\n any University policies have been violated and/or\n security measures breached in the acquisition or use\n of those documents. [University officials] attempted\n to ask your client questions about the documents in\n his possession, which he declined to answer because\n of your interpretation of the Judge’s ruling.\n I advised that I did not interpret the Judge’s ruling\n as you did. It is my understanding that the Judge\n sealed the documents … because of the concerns\n with how the documents were obtained … . I do not\n believe it was the intent of the Judge to prevent the\n University from using its documents as necessary in\n order to determine if there has been a breach of\n University security and/or a breach of trust and\n responsibility of any University employees … .\n I would be happy to join you in a motion for clarifi-\n cation of the judge’s order if you feel that is neces-\n sary. In the meantime, the University will proceed\n with its investigation. If your client reconsiders\n\fNo. 13-2302 7\n\n participating in this process, please let me know.\n Otherwise, his refusal to participate may be consid-\n ered in the investigation.\n Attorney Kirchner began efforts to modify the state court\norder to allow Carmody to respond to the university’s accusa-\ntions and threat of termination. The record does not reflect\nwhether he took the university’s lawyer up on her offer to join\nhim in a motion for clarification, though the court modified its\norder about two months later, on the same day that Carmody\nwas fired.\n The investigation was conducted by the university’s\nAcademic Human Resources department and was completed\nin early September 2010. The investigators submitted a report\non September 7 to university officials. They recommended that\nCarmody’s employment be terminated. The report explained\nthat, regardless of how Carmody had obtained the emails in\nGroup Exhibit A, “he did not immediately report the breach of\nsecurity” that must have been perpetrated. Carmody also had\n“attempted to use the substance of the email messages … for\nnon-University purposes and without permission,” and it was\n“more probable than not that Mr. Carmody obtained the\ndocuments in ‘Group Exhibit A’ through improper access.”\n On September 9, attorney Kirchner sent a letter to two\nuniversity lawyers regarding the September 7 report. He\ncontended that the recommendation to fire his client was based\nin part on a new charge: that Carmody had failed to report a\nsecurity breach upon receiving the emails. Kirchner asked for\nan opportunity for Carmody to respond to this new charge.\nCarmody alleges that no opportunity was provided.\n\f8 No. 13-2302\n\n Notice was sent to Carmody on September 23, 2010 that his\nemployment was terminated. The letter also said he could\nappeal that decision to the associate provost for human\nresources. According to Carmody’s complaint, the state court\nlifted its restrictions on discussing Group Exhibit A the very\nday he was fired.\n In his complaint in this federal case, Carmody alleges that\nhe was not given sufficient notice and opportunity to respond\nto the charges against him before he was fired. The district\ncourt concluded that Carmody had not stated a due process\nclaim because he had been given an opportunity to respond to\nthe charges at the July 28 meeting but declined to take it.\nCarmody v. Board of Trustees of the Univ. of Illinois, No. 12-CV-\n2249, 2013 WL 2145878, at *8 (C.D. Ill. May 15, 2013). Moreover,\nthe court explained, Carmody had adequate notice before that\nmeeting of the charge that he failed to report a security breach.\nAlthough the charge was not explicitly leveled until after the\nmeeting, Carmody was aware that his possession of the emails\nwas being investigated. According to the court, that was\nsufficient notice of the later charge of failure to report a\nsecurity breach. Id. at *9.\n B. Analysis\n A public employee who can be fired only for good cause\nhas a property interest in his or her job and may be deprived\nof that property interest only with due process of law. See\nGilbert v. Homar, 520 U.S. 924, 928–29 (1997); Cleveland Board of\nEduc. v. Loudermill, 470 U.S. 532, 538–39 (1985); Board of Regents\nof State Colleges v. Roth, 408 U.S 564, 576–78 (1972); Harbaugh v.\nBoard of Educ. of City of Chicago, 716 F.3d 983, 986 (7th Cir. 2013).\n\fNo. 13-2302 9\n\nFor purposes of the motion to dismiss and this appeal, the\nparties agree that Carmody had a property interest in his job.\nThe university therefore could not deprive him of that prop-\nerty without due process of law.\n “The fundamental requirement of due process is the\nopportunity to be heard ‘at a meaningful time and in a mean-\ningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976),\nquoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965); see\nBaird v. Board of Educ. for Warren Cmty. Unit School Dist. No. 205,\n389 F.3d 685, 690 (7th Cir. 2004); Schultz v. Baumgart, 738 F.2d\n231, 235 (7th Cir. 1984). The nature and extent of the process a\npublic employee is due before termination depend on the\nadequacy of any post-termination hearing that was available.\nLoudermill, 470 U.S. at 545–46; Bodenstab v. County of Cook,\n569 F.3d 651, 663 (7th Cir. 2009). Because we conclude in Part\nII below that Carmody was given a full opportunity to contest\nhis firing in a post-termination hearing, before he was fired he\nwas entitled under Loudermill to only “oral or written notice of\nthe charges against him, an explanation of the employer’s\nevidence, and an opportunity to present his side of the story.”\nLoudermill, 470 U.S. at 546.\n Even where there is a robust post-termination procedure,\nthough, a meaningful opportunity to be heard before the\nemployer decides on termination is a critical protection. The\npurpose of a pre-termination hearing is to provide “an initial\ncheck against mistaken decisions—essentially, a determination\nof whether there are reasonable grounds to believe that the\ncharges against the employee are true and support the pro-\nposed action.” Loudermill, 470 U.S. at 545–46. Additionally,\n“[e]ven where the facts are clear, the appropriateness or\n\f10 No. 13-2302\n\nnecessity of the discharge may not be; in such cases, the only\nmeaningful opportunity to invoke the discretion of the\ndecisionmaker is likely to be before the termination takes\neffect.” Id. at 543; accord, Hudson v. City of Chicago, 374 F.3d\n554, 560 (7th Cir. 2004); Duchesne v. Williams, 849 F.2d 1004,\n1008 (6th Cir. 1988) (en banc).\n The Supreme Court’s view that a post-termination opportu-\nnity to try to change an employer’s mind will be less meaning-\nful is supported by common sense. It will be harder to con-\nvince an employer to reverse a decision to fire someone than to\nmake sure the initial decision is fair and thoughtful. Whether\nthat reluctance to change one’s mind is based on concerns\nabout appearing indecisive or admitting a mistake, or on\nlogistical reasons or other factors, the reluctance is real.\n The Court’s observation is also consistent with what has\nbeen shown by decades of behavioral research: once an\nindividual or group has made a decision to take a particular\ncourse of action, it becomes harder and harder to change\ncourse, even in the face of powerful conflicting evidence and\nreasons. See generally, e.g., Daniel Kahneman, Thinking Fast\nand Slow 80–85, 245–54 (2011) (describing confirmation bias,\nbiased assimilation, and sunk-cost effects on decision-making);\nGeir Kirkebøen, Erik Vasaasen & Karl Halvor Teigen, Revisions\nand Regret: The Cost of Changing Your Mind, 26 J. Behavioral\nDecision Making 1, 1 (Jan. 2013) (summarizing large body of\nresearch that demonstrates “people’s reluctance to change their\nminds”); Craig A. Anderson, Belief Perseverance, in Encyclope-\ndia of Social Psychology 109, 109–10 (Roy F. Baumeister &\nKathleen D. Vohs eds. 2007), and many sources cited in these\n\fNo. 13-2302 11\n\nworks. That’s why a meaningful opportunity to be heard\nbefore termination is so important.\n Carmody makes two arguments that the university did not\ncomply with the minimal requirements of Loudermill before\nfiring him. He first argues that at the July 28 meeting, he did\nnot have a meaningful opportunity to respond to the charges\nhe was aware of because the state court order in the Goldberg\ncase forbade him from discussing the contents of the emails in\nGroup Exhibit A. Second, he argues that the university added\nthe charge that he failed to report a security breach after the\nJuly 28 meeting and did not give him an opportunity to\nrespond to this new charge before he was fired, even though he\nrequested such an opportunity.\n Both of these are at least plausible theories sufficient to\nsurvive the defendants’ motion to dismiss. We consider first\nthe effect of the state court order. Attorney Kirchner’s letter\nsummarizing the July 28 meeting, which is part of the com-\nplaint’s allegations, says that Carmody faced questions about\nthe “substance contained in” the emails in Group Exhibit A.\nThe state court judge’s order prohibited any secondary\ndissemination of the contents of those emails beyond the\nlitigation files of the attorneys directly involved in the state\ncourt action. We must treat as at least plausible the possibility\nthat Carmody would have violated the state court order if he\nhad answered at least some of the university officials’ ques-\ntions.\n If indeed Carmody would have needed to violate the state\ncourt order to give his side of the story, he has plausibly\nalleged that he had no meaningful opportunity before the\n\f12 No. 13-2302\n\ntermination decision to respond to the most serious charge\nagainst him.\n Courts have recognized that a public employer may be\nrequired to accommodate certain temporary obstacles, such as\na serious illness, that prevent an employee from responding to\npending charges. See Calderón-Garnier v. Rodríguez, 578 F.3d 33,\n38 (1st Cir. 2009) (“We do not doubt that at some point a health\ncondition could prevent an individual from meaningfully\npresenting her side of the story.”); Buckner v. City of Highland\nPark, 901 F.2d 491, 495 (6th Cir. 1990) (“Buckner was not\nsuffering from any mental or physical disability which pre-\nvented him from offering his response to the complaint.”);\nGalloway v. Louisiana, 817 F.2d 1154, 1158 (5th Cir. 1987)\n(plaintiff who claimed he could not respond to employer’s\ncharges pre-termination because he was hospitalized might\nhave been correct, except that he abandoned an opportunity to\nrespond after his release).\n That recognition is sound. The general constitutional\nstandard is that an employee with a property interest is\nentitled to notice of the employer’s reasons and a meaningful\nopportunity to respond before the employer decides to\nterminate the employment. Domiano v. Village of River Grove,\n904 F.2d 1142, 1148–49 (7th Cir. 1990) (reversing grant of\nsummary judgment to employer because brief pre-termination\ntelephone call did not constitute a meaningful opportunity to\nrespond to charges); see generally Loudermill, 470 U.S. at 543;\nMathews, 424 U.S. at 333. An employee who is silenced tempo-\nrarily by an illness or injury has no meaningful opportunity to\nrespond. Carmody has alleged here that he was silenced\ntemporarily not by an illness or injury but by a court order,\n\fNo. 13-2302 13\n\nenforceable with contempt sanctions and other penalties,\nintended to protect the privacy interests of non-parties.1\n Adding further support to Carmody’s theory are the\nindications that his lawyer was working with the university’s\nlawyer to modify the state court order so that Carmody could\nrespond freely to the university’s allegations. The order was\nnot a permanent or long-term prohibition. It was a temporary\nobstacle that could be modified, especially with the univer-\nsity’s cooperation. Also, the timetable seems both unusual and\nrelevant. The university fired Carmody the same day the state\ncourt met with counsel for Carmody and the university and\nmodified its order to allow him to respond to the accusations.\nThere is no indication here of any special urgency that required\nthe university to fire Carmody (remember that he had been\nsuspended with pay) before he could provide a meaningful\nresponse to the accusations.\n We cannot decide at this point, of course, whether\nCarmody can present sufficient evidence to survive a motion\nfor summary judgment and to prevail at trial. Perhaps his\nanswering the university’s questions would not have required\nhim to violate the state court order. Perhaps he was not\nreasonably diligent in attempting to remove the obstacle that\n\n\n1\n Carmody’s case is substantially different from cases involving employees\nwho decline to respond to an employer’s charges because their responses\ncould be incriminating. Such employees, rather than being silenced by a\ntemporary court order, make a voluntary and self-interested choice to stay\nsilent. Cases holding that such employees have been given a sufficient\nopportunity to respond, see, e.g., Gniotek v. City of Philadelphia, 808 F.2d 241,\n245 (3d Cir. 1986), do not apply here.\n\f14 No. 13-2302\n\nthe order presented. Perhaps even a brief further delay would\nhave imposed an undue burden on the university. Such\nquestions cannot be resolved on a motion to dismiss on the\nbasis of the complaint and the attached exhibits. See Chaney v.\nSuburban Bus Div. of Regional Transp. Auth., 52 F.3d 623, 630 (7th\nCir. 1995) (reversing grant of motion to dismiss claim of\ninadequate pre-termination hearing).\n Turning to Carmody’s second theory on the pre-termina-\ntion process, the later-added charge for failure to report a\nsecurity breach, we also agree with Carmody at the pleadings\nstage that this charge may have been sufficiently distinct from\nthe original charges that he did not receive fair notice before\nthe July 28 meeting that he faced this charge. Relying on a new\ncharge without providing a meaningful opportunity to\nrespond violates due process. See Staples v. City of Milwaukee,\n142 F.3d 383, 384, 387 (7th Cir. 1998) (reversing grant of\nsummary judgment for employer because employee was\ninformed of one grievance before a pre-termination meeting\nbut not another and arguably had no meaningful opportunity\nto respond to new charge); Peery v. Brakke, 826 F.2d 740, 743–44\n(8th Cir. 1987) (reversing judgment notwithstanding the\nverdict for employer because employee had notice of only\nsome charges against him and was not “given any opportunity\nto respond to the new charges before being fired”); see also\nStone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (“Procedural\ndue process guarantees are not met if the employee has notice\nonly of certain charges or portions of the evidence and the\ndeciding official considers new and material information.”).\n The university, relying on Head v. Chicago School Reform Bd.\nof Trustees, 225 F.3d 794 (7th Cir. 2000), contends that Carmody\n\fNo. 13-2302 15\n\nshould have realized a charge of failure to report a security\nbreach was at least implicit in its July 19 letter. In Head we\naffirmed the district court’s grant of summary judgment to the\nemployer. We concluded that the rather broadly worded\ncharges leveled against the employee before his pre-termina-\ntion hearing constituted sufficient notice, particularly because\nthe employee was given an additional opportunity to respond\nto the charges after the hearing but before he was fired. Id. at\n799 n.3, 804. This case is different because we face a similar\nissue on the pleadings rather than summary judgment. We\ncannot resolve the factual issues on the pleadings, and in any\nevent there is no indication that Carmody received a second\npre-termination opportunity to respond to the arguably new\ncharge, as the plaintiff did in Head.\n The university’s response regarding Carmody’s pre-\ntermination claim is focused primarily on pointing out,\ncorrectly, that Carmody’s reliance on Baird v. Board of Educ. for\nWarren Cmty. Unit Sch. Dist. No. 205, 389 F.3d 685 (7th Cir.\n2004)—a case holding that a breach of contract suit cannot\nsubstitute for a post-termination hearing—is misplaced.\nRegarding the adequacy of Carmody’s pre-termination\nhearing, the university merely states that Carmody could have\nresponded to the charges at the July meeting despite the court\norder because “[i]t was the use of the e-mails that was being\ninvestigated, not the information contained therein.” In\naddition, the university remarks that the “district court\ncorrectly ruled that the statement of charges provided to\nCarmody was certainly sufficient to allow him to defend\nhimself.” These conclusory assertions merely contradict\nCarmody’s factual allegations. They are not sufficient to allow\n\f16 No. 13-2302\n\nus to affirm dismissal on the pleadings. Carmody should have\nbeen allowed to proceed on the theory that he was denied an\nadequate pre-termination hearing.\nII. Sufficiency of the Post-Termination Hearing\n A. Factual Allegations\n After Carmody was fired, he notified the university that he\nwould appeal. He received a document summarizing the\nhearing procedures, and his attorney Kirchner responded with\na letter objecting to a number of perceived deficiencies. The\nobjections relevant to this appeal were that the procedures did\nnot provide for access to examine the university’s email\nsystem, or for a court reporter or other means of recording the\nhearing, or for subpoenas to witnesses. The university refused\nCarmody’s requests to alter these aspects of the hearing\nprocedures.\n The hearing officer’s report, attached as an exhibit to\nCarmody’s complaint, shows that Carmody’s lawyer was\npermitted to cross-examine the university’s witnesses exten-\nsively. The university rested its case in mid-December 2010,\nand the hearing was to resume at the end of January 2011 for\nCarmody to present his evidence.\n Scheduling conflicts between attorney Kirchner and counsel\nfor the university delayed resumption, which was rescheduled\nfor May 2011. On April 17, however, Kirchner died. Carmody\nwas left unrepresented. Carmody then asked to see the hearing\nofficer’s notes, which he felt would help him find a new\nattorney. The hearing officer denied that request, but he\ngranted Carmody’s request for a few months to replace\n\fNo. 13-2302 17\n\nKirchner. Although the university sought a specific deadline,\nthe hearing officer explained that he would not “set firm time\nlimits on Mr. Carmody’s efforts to secure new representation.”\n At the end of June 2011, Carmody sent the hearing officer\nan email declining to participate in further proceedings. He\nsaid the hearing officer should conclude the post-termination\nhearing with the university’s counsel. The hearing was not\nresumed, and instead the university submitted a written\nsummary of its position.\n The hearing officer issued his findings in July 2011. He\nconcluded that the university had not shown that Carmody\nhimself breached the computer system to obtain the emails in\nGroup Exhibit A. (The university’s evidence showed that the\nemails were all accessed from Deborah Thurston’s computer,\nand no direct evidence showed that Carmody was the person\nwho accessed them.) But the hearing officer found that the\nother two charges—Carmody used the emails for non-univer-\nsity purposes without permission and failed to report a\nsecurity breach—were supported “clearly and convincingly.”\nBased on his findings, the officer recommended that university\nofficials consider whether Carmody would have been fired on\nthose grounds alone, without assuming that Carmody himself\nhad breached the system’s privacy. The university informed\nCarmody the following month that the two “clearly sup-\nported” charges were “sufficiently egregious to warrant\nimmediate dismissal.” Following the rejection of his post-\ntermination appeal, Carmody filed this federal lawsuit.\n In his complaint, Carmody alleges that one or more of the\nissues attorney Kirchner identified when he objected to the\n\f18 No. 13-2302\n\nhearing procedures constituted a denial of due process. He\nfocuses on his inability to record the hearing, to inspect the\nuniversity’s email system, and to subpoena witnesses. He also\npoints to the hearing officer’s refusal to supply him with the\nofficer’s notes and the officer’s refusal to exclude witnesses\nfrom the hearing while other witnesses were testifying.\n The district court explained that, under Mathews v. Eldridge,\n424 U.S. 319, 334–35 (1976), Carmody’s right to his employ-\nment and the probable value of his desired procedures must be\nbalanced against the cost of the procedures and the university’s\ninterest in terminating problem employees. The court con-\ncluded in short that Carmody’s ability to defend himself was\nnot unduly hindered by the hearing’s purported deficiencies,\nmeaning that he had not stated a claim based on a denial of\ndue process. Carmody, 2013 WL 2145878 at *10–11.\n B. Analysis\n The requirements of due process are “flexible” and depend\non the situation at hand, Mathews, 424 U.S. at 334, but at the\nsame time the rules that apply to a given type of situation “are\nshaped by the risk of error inherent in the truthfinding process\nas applied to the generality of cases,” id. at 344. The rules are\nnot shaped by “rare exceptions.” Id.\n On appeal Carmody again lists additional procedures he\nbelieves should have been provided, but he develops no\nargument that the potential value of these procedures in post-\ntermination hearings, when weighed against their cost, renders\nthem constitutionally required. He cites a few cases involving\npost-termination hearings in which a more extensive record\nwas produced, e.g., Willer v. Las Vegas Valley Water Dist., No.\n\fNo. 13-2302 19\n\n98-15686, 1999 WL 274472, at *2 (9th Cir. Apr. 19, 1999) (post-\ntermination hearing record was over 3700 pages long);\nEnglish v. Talladega Cnty. Board of Educ., 938 F. Supp. 775, 777\nn.2 (N.D. Ala. 1996) (transcript was produced), or unspecified\ndiscovery was conducted, e.g., Powers v. Richards, 549 F.3d 505,\n509 (7th Cir. 2008) (fired employee “had the opportunity to\nconduct discovery”). Carmody cites no case, however, holding\nthat any of his desired procedures were constitutionally\nrequired, and we have found none. The ability to subpoena\nwitnesses, for example, is not always guaranteed in an admin-\nistrative hearing. See Amundsen v. Chicago Park Dist., 218 F.3d\n712, 717 (7th Cir. 2000).\n In any event, the specific procedures Carmody requested\ndo not require individual analysis. Carmody’s decision to bow\nout of the post-termination hearing—a decision he made\nfreely—forecloses his due process claim to the extent it is\npremised on that hearing. See Swank v. Smart, 999 F.2d 263,\n264–65 (7th Cir. 1993) (employee waived right to post-termina-\ntion hearing by declining it); Farhat v. Jopke, 370 F.3d 580, 596\n(6th Cir. 2004) (“[W]here the employee refuses to participate or\nchooses not to participate in the post-termination proceedings,\nthen the employee has waived his procedural due process\nclaim.”).\n We are not suggesting that no circumstances could ever\njustify forgoing a post-termination hearing. (We allowed above\nfor just such a possibility regarding Carmody’s pre-termination\nhearing: a court order prohibiting meaningful participation.)\nBut the complaint and exhibits show that the university offered\nCarmody an adversarial post-termination hearing before a\nneutral hearing officer. He was permitted to have legal counsel\n\f20 No. 13-2302\n\nand to present evidence and cross-examine witnesses.\nCarmody participated through the close of the university’s case\nbut declined to complete the hearing. His explanation on\nappeal for bowing out—that he did not want “to participate in\nhis own lynching”—is hyperbole that is completely out of step\nwith his exhibits and allegations. The district court correctly\nrejected Carmody’s due process claim to the extent it was\npremised on the post-termination hearing.\n Carmody also appeals the district court’s denial of his\nmotion to amend his complaint, but he has given us no\nindication what allegations he would like to add. In general, a\ndistrict court should freely give leave to amend to cure curable\ndefects, at least where there is no undue delay or undue\nprejudice to the opposing party, but the court can reasonably\nexpect a party asking for an opportunity to amend to identify\nhow he proposes to cure the defects. E.g., Independent Trust\nCorp. v. Stewart Information Services Corp., 665 F.3d 930, 943–44\n(7th Cir. 2012). We see no reason to disturb the district court’s\ndecision on this point.\nIII. Illinois State Officials and Employees Ethics Act Claim\n Carmody also claims that his firing violated the provision\nof the Illinois State Officials and Employees Ethics Act that\nprohibits retaliation against employees who report illegal\nactivity. See 5 Ill. Comp. Stat. 430/15-10. This claim is based on\nCarmody’s belief that his firing actually had nothing to do with\nthe emails he found in his newspaper box. He was fired in\n2010, he contends, in retaliation for a report he made three\nyears earlier, in May 2007, about improper activity at the\nuniversity. According to his complaint, he had learned that two\n\fNo. 13-2302 21\n\nprofessors were using a popcorn machine on university\nproperty as part of “a private consulting deal” of some sort. He\nreported this so-called “popcorn activity” to Professor Deborah\nThurston (of the later Goldberg case), but she took no action,\nin Carmody’s view because her husband was one of the\nperpetrators. Carmody’s only reason for believing that his\nreport about the popcorn led to his firing seems to be that the\npopcorn incident occurred and then later he was fired.\n If the allegations in a complaint do not “‘state a claim to\nrelief that is plausible on its face,’” the claim cannot survive a\nmotion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),\nquoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).\nThe district court concluded that Carmody did not state a\nplausible claim under the Ethics Act because the three years\nseparating the popcorn incident and his firing made his claim\nimplausible. Carmody, 2013 WL 2145878, at *12–13. We agree\nwith that assessment, at least where Carmody has given us no\npotential explanation for the long delay between his report and\nthe alleged retaliation. Under these circumstances, three years\nis “well beyond the time that would allow a reasonable jury to\nconclude that his termination was causally related” to the\nreport. See Lalvani v. Cook Cnty., Illinois, 269 F.3d 785, 790 (7th\nCir. 2001) (concluding that a year and a half between em-\nployee’s action and supposed retaliation made claim implausi-\nble). Again Carmody seeks leave to amend his complaint, but\nnothing in his appellate filings identifies new allegations or\nsuggests that an amendment would make his claim plausible.\n For these reasons, we REVERSE the district court’s judg-\nment dismissing Carmody’s due process claim and REMAND\nthe case for further proceedings limited to whether he was\n\f22 No. 13-2302\n\ndenied a constitutionally adequate pre-termination hearing.\nWe AFFIRM the dismissal of Carmody’s claim under 5 Ill.\nComp. Stat. 430/15-10.\n\f", "ocr": false, "opinion_id": 2708757 } ]

[ "120 F.3d 86" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/120/120.F3d.86.96-4066.html", "author_id": null, "opinion_text": "120 F.3d 86\n 53 Soc.Sec.Rep.Ser. 891, Unempl.Ins.Rep. (CCH) P 15776BTonya ALLEN, on Behalf of Harrison ALLEN, a minor child,Plaintiff-Appellant,v.John J. CALLAHAN, Acting Commissioner of Social Security,Defendant-Appellee.\n No. 96-4066.\n United States Court of Appeals,Seventh Circuit.\n Argued May 12, 1997.Decided July 21, 1997.\n \n Elizabeth G. Tegarden (argued), Legal Services of Northwest Indiana, Gary, IN, for Plaintiff-Appellant.\n Carol A. Davilo, Office of the United States Attorney, Dyer, IN, Marc Mates (argued), Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.\n Before POSNER, Chief Judge, and EASTERBROOK and EVANS, Circuit Judges.\n TERENCE T. EVANS, Circuit Judge.\n \n \n 1\n Tonya Allen brought this action for review of a decision of the Secretary of Health and Human Services1 denying her son, Harrison, child's insurance benefits on the account of Harrison Moss, the man Ms. Allen says is her child's father. The district court affirmed the decision of the Secretary, and Ms. Allen appeals. Our task is to determine whether the district court was right in concluding that substantial evidence supports the decision of the Agency. 42 U.S.C. § 405(g).\n \n \n 2\n Ms. Allen married a man named Charles Allen in 1989. They separated, but were not divorced, in September of 1991. In November 1991 Ms. Allen met Mr. Moss, and they began a sexual relationship, although they were not living together. Allen had a minimum wage job at the time, and Moss, who had a better job, began to \"help her out\" by forking over between $30 and $60 every two weeks. Allen became aware that she was pregnant around the middle of March, 1992; both she and Moss acknowledged that he was the father.\n \n \n 3\n On March 17 (and again on March 25) Moss and Allen went to the Planned Parenthood Association, seeking an abortion. Moss was listed on the association's forms not as the father, but as Ms. Allen's friend, and he paid half of the $285 advance fee for the abortion. However, it was determined that an abortion was not possible because the pregnancy was too far along so the advance fee, minus a $20 charge for blood tests, was refunded. Moss and Allen split the refund equally. About a week later, on April 3, 1992, Moss was shot and killed.\n \n \n 4\n Under circumstances in which an unnamed father dies before a child is born, there are categories of children who are eligible for benefits; if a child does not fit one of the categories he cannot receive benefits, even if there is little question that the deceased wage earner was the father. One way to establish entitlement to benefits is for the father to have acknowledged in writing that the child was his; another is to have a court finding of paternity or an order for support; another is to show that the father was living with or contributing toward the support of the child (actually the fetus that was to become the child) at the time of his death. 42 U.S.C. §§ 416(h)(2)(A), (3)(C)(i), (ii). In this case, prior to his death, Moss had not made a written acknowledgment of paternity; there was no court decree that he was the father; there was no court order for support; and he was not living with Ms. Allen.\n \n \n 5\n Allen applied for benefits for her son, claiming the child was eligible under Harrison Moss's social security account because Moss was contributing to the support of the child (fetus, again) at the time of his death. She seems to be arguing both that she meets the standards for support we set out in Bennemon ex rel. Williams v. Sullivan, 914 F.2d 987 (7th Cir.1990), and that we should abandon our approach in Bennemon and adopt that of the Court of Appeals for the Second Circuit in Adams v. Weinberger, 521 F.2d 656 (1975).\n \n \n 6\n In Bennemon we held, in a case very much like this one, that support must be, as the regulations require, \"regular and substantial.\" 20 C.F.R. § 404.366(a)(2). Accord, Robinson ex rel. Virgies v. Shalala, 34 F.3d 665 (8th Cir.1994). In arriving at our conclusion in Bennemon we looked toward the various approaches taken by other circuits, including that of the Second Circuit in Adams, and we declined to adopt them. Adams requires only that the \"support ... [be] commensurate with the needs of the unborn child at the time of the father's death.\" 521 F.2d at 660. Because a fetus requires little, proving support becomes somewhat easier under that standard, which is, of course, why Allen urges us to adopt the Adams approach. Another approach, which we also declined to adopt, is that in which the adequacy of support is measured by the father's means or ability to pay. See Parker v. Schweiker, 673 F.2d 160 (6th Cir.1982); Jones v. Harris, 629 F.2d 334 (4th Cir.1980); McNeal v. Schweiker, 711 F.2d 18 (3rd Cir.1983). The Ninth Circuit combines the two approaches by looking to both the financial status of the father and the limited needs of the fetus. Doran v. Schweiker, 681 F.2d 605 (1982).\n \n \n 7\n Having already considered these approaches in Bennemon, we are not inclined to re-decide the issue in this case. In any event, Allen does not argue that consideration of the economic circumstances of the father would help her in this case; Moss was steadily employed at a job with AT & T. Rather, Allen would have us consider the limited needs of the unborn child. We again conclude that requiring regular and substantial support, if paternity is to be established under the Social Security regulations, is in keeping with the purpose of the benefits: to replace the support lost by a child when his father dies or, in the case of a fetus, to replace the support the unborn child could have expected to receive if the father had lived. Bennemon; Jones ex rel. Jones v. Chater, 101 F.3d 509 (7th Cir.1996).\n \n \n 8\n So we must decide whether the record supports the conclusion that Allen has not shown that Moss was providing regular and substantial support. One piece of evidence comes from her own pen. On Allen's application for child's insurance benefits on Moss's account, she said:\n \n \n 9\n I was not living with or being supported by Harrison Moss at the time of his death. My husband is alive, not disabled and not age 62. We are separated.\n \n \n 10\n At her hearing she explained that she thought that the question to which she framed this answer meant \"was he paying child support for the child.\" As it is written, however, her answer does not refer to child support, but rather to support for her personally; and she said Moss was not providing support to her.\n \n \n 11\n Nevertheless, at her hearing and again here, Allen argues that the $30 to $60 Moss gave her every two weeks provided significant support to her, given her limited income. It is no doubt true that the money was a help to her. However, it had nothing to do with supporting her unborn child because, except for perhaps one payment, it was provided before Moss (or Allen, for that matter) knew that Allen was pregnant.\n \n \n 12\n Allen also argues that because Moss supported his teenaged children he would also support Harrison. Unfortunately, the issue is whether he was providing support, not whether he might have supported Allen's child, once he was born. Furthermore, even on this point, the evidence is mixed. Unlike the father in Bennemon, who showed delight at the prospect of a child, there is no indication here that Moss was eager to be a father again. The desire to abort the pregnancy, of course, doesn't jibe with a state of glee over the birth which was, when Moss was killed, still many months away.\n \n \n 13\n Although it seems quite possible that Moss was little Harrison's father, and it may be that he would have chosen to support the child, he did not, unfortunately, live long enough to show that he would have. There is substantial evidence in the record supporting the decision to deny benefits. The decision of the district court is\n \n \n 14\n AFFIRMED.\n \n \n \n 1\n The administrative decision under review in this case was issued prior to March 31, 1995. Therefore, it was the final decision of the Secretary of Health and Human Services, even though the Commissioner of Social Security has been substituted as defendant-appellee. P.L. No. 103-296 § 106(d)\n \n \n ", "ocr": false, "opinion_id": 744217 } ]

[ "66 F.3d 339" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/66/66.F3d.339.-180.92-.94-8046.html", "author_id": null, "opinion_text": "66 F.3d 339\n NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.\n David Thomas RHODES; Rickey Carper; Tom Johnstone; JosephS. Tortolito, also known as Steve Tortolito; Jimmie CharlesWeir; Fred Williams; Scott Remington; LeonalVargas-Lopez, also known as Cesar Garcia; Byron LeeBoatner, Plaintiffs,andCraig Steven BLUMHAGEN, Plaintiff-Appellant,v.LARAMIE COUNTY BOARD OF COUNTY COMMISSIONERS; United StatesMarshall; Rudy Restivo, Laramie County Sheriff,Defendant-Appellees.\n No. 94-8046.(D.C.No. 92-CV-180)\n United States Court of Appeals, Tenth Circuit.\n Sept. 12, 1995.\n \n Before TACHA, LOGAN and KELLY, Circuit Judges.\n \n ORDER AND JUDGMENT1\n \n 1\n Plaintiffs, former inmates of the Laramie County Detention Center, appeal the district court's grant of summary judgment in favor of defendants--the Laramie County Sheriff, the Laramie County Board of Commissioners, and the United States Marshal. Plaintiffs have alleged violations of their Fifth, Eighth and Fourteenth Amendment rights by being forced to utilize showers in the detention center that produced water sometimes too hot and other times too cold. To operate the shower the prisoners had to continue to press buttons, which produced either hot or cold water only during the time the button was depressed. Plaintiffs asserted this prevented them from being able to soap and wash while maintaining a mix of hot and cold water. Some plaintiffs apparently were subjected to disciplinary violations for placing \"shower shims\" to jam the shower controls to force the water to stay on after their hands were removed from the controls.\n \n \n 2\n The district court permitted discovery and exhibited unusual patience, permitting 177 entries on the district court's docket before finally denying relief in a twenty-two-page order.\n \n \n 3\n We are in full agreement with the district court that neither the facts alleged nor the showings made through discovery established a case of cruel and unusual punishment or any other violation of the United States Constitution.\n \n \n 4\n AFFIRMED.\n \n \n 5\n The mandate shall issue forthwith.\n \n \n \n 1\n This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470\n \n \n ", "ocr": false, "opinion_id": 704863 } ]

[ "262 U.S. 91", "43 S. Ct. 496", "67 L. Ed. 881", "1923 U.S. LEXIS 2619" ]

[ { "author_str": "Taft", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 26, "opinion_text": "\n262 U.S. 91 (1923)\nEX PARTE IN THE MATTER OF FULLER ET AL., INDIVIDUALLY AND AS COPARTNERS UNDER THE NAME OF E.M. FULLER & COMPANY, PETITIONERS.\nNo. ___.\nSupreme Court of United States.\nMotion for stay submitted April 27, 1923.\nDecided April 30, 1923.\nAPPLICATION FOR A STAY OF ORDERS OF DISTRICT COURT PENDING APPEAL.\nMr. William J. Fallon, Mr. Eugene F. McGee and Mr. Arthur Garfield Hays, for petitioners, in support of the motion.\nMr. Francis L. Kohlman, for the trustee in bankruptcy, in opposition to the motion.\nMr. William M. Chadbourne, Mr. Cyrus F. Smythe and Mr. C.R. Ward, for the Creditors' Committee of E.M. Fuller & Company, in opposition to the motion.\nMr. Joab H. Banton, District Attorney for New York County, Mr. John Caldwell Myers and Mr. Hugo Wintner, by leave of court, filed a memorandum in opposition to the motion, as amici curiae.\n*92 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.\nOn June 26, 1922, a petition in involuntary bankruptcy was filed against Fuller and McGee, individually and as partners, in the name of E.M. Fuller & Company, in the District Court for the Southern District of New York. Thereafter Strasbourger was appointed Receiver and at once demanded of the bankrupts the books of accounts, records, documents, both of themselves individually and of the firm. The bankrupts claimed that the books would tend to incriminate them and refused to turn them over unless the Receiver agreed that they were to be used in connection with the civil administration of bankrupts' estate only. A stipulation of this kind was made between the Receiver and the attorneys for the bankrupts, with the further specific agreement that the books and records would not be turned over to any district attorney or used before any grand or petit jury. The district attorney, County of New York, then attempted to bring the books and records into the state court by serving a subpoena upon the Receiver. Judge Augustus Hand, at the petition of the bankrupts, enjoined the Receiver from turning the books over.\nOn April 6, 1923, the attorneys for the bankrupts demanded of the Receiver that he return the books and papers to them because his receivership had terminated by the appointment of a trustee in bankruptcy. The Referee in bankruptcy directed the Receiver to turn the books and papers over to the Trustee without condition or restriction. On review, this order was affirmed by Circuit Judge Mack sitting in bankruptcy. April 21st last, all the books and papers were then delivered over to the Trustee except certain books and papers which had been redelivered by the Receiver to the attorneys for the bankrupts on their receipts which were turned over to *93 the Trustee. The bankrupts objected to turning over the books and papers thus receipted for by their attorneys to the Trustee. Thereupon on April 24, 1923, Judge Mack made a second order directing the attorneys for the bankrupts and the bankrupts to turn over these records and papers so withheld by them to the Trustee. On April 21st, the District Attorney of New York County had subpoenaed the Trustee to produce the books and papers of the bankrupts he then had in his custody and on the 24th of April offered them in evidence in the Court of General Sessions of New York as evidence against E.M. Fuller under an indictment arising out of the business of the bankrupts. On the 25th of April Judge Mack granted an application for a stay pending proceedings for appeal to this Court and an application for a stay here; and Judge Nott presiding in the state court adjourned the trial there until April 30th.\nProceedings for appeal to this Court have now been begun under the authority of Perlman v. United States, 247 U.S. 7, and the application for a stay of Judge Mack's two orders has now been made.\nA man who becomes a bankrupt or who is brought into a bankruptcy court has no right to delay the legal transfer of the possession and title of any of his property to the officers appointed by law for its custody or for its disposition, on the ground that the transfer of such property will carry with it incriminating evidence against him. His property and its possession pass from him by operation and due proceedings of law, and when control and possession have passed from him, he has no constitutional right to prevent its use for any legitimate purpose. His privilege secured to him by the Fourth and Fifth Amendments to the Constitution is that of refusing himself to produce, as incriminating evidence against him, anything which he owns or has in his possession and control, but his privilege in respect to what was his and in his custody *94 ceases on a transfer of the control and possession which takes place by legal proceedings and in pursuance of the rights of others, even though such transfer may bring the property into the ownership or control of one properly subject to subpoena duces tecum. These conclusions follow from the principles announced by this Court in the Matter of Harris, 221 U.S. 274, 279, and Johnson v. United States, 228 U.S. 457.\nIn considering the correctness of Judge Mack's orders, it is wholly immaterial what stipulation had been entered into between the Receiver and the bankrupts in regard to the use to be made pending the receivership of the books and papers or what sanction Judge Hand's action had given the stipulations. With the appointment of the Trustee both the title and the right to possession of such books and papers passed to him and Judge Mack's orders properly confirmed this result. The Receiver, the bankrupts and their attorney must yield possession and title to the Trustee. Neither can accompany the delivery he is bound by law to make with any effective conditions restricting use of the books, papers or other property of the bankrupts' estate as evidence against them.\nThe application is denied.\n", "ocr": false, "opinion_id": 100198 } ]

[ "933 N.E.2d 586" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7263, "opinion_text": "\n933 N.E.2d 586 (2010)\nCHUPP\nv.\nSTATE.\nNo. 49A05-0912-PC-683.\nCourt of Appeals of Indiana.\nSeptember 7, 2010.\nFRIEDLANDER, J.\nDisposition of Case by Unpublished Memorandum Decision Affirmed, Vacated and Remanded.\nBARNES, J., concurs.\nCRONE, J., concurs.\n", "ocr": false, "opinion_id": 2223803 } ]

[ "169 P.3d 409" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n169 P.3d 409 (2007)\n2007-NMCERT-009\nSTATE\nv.\nTAFOYA.\nNo. 30,629 (COA 27,502).\nSupreme Court of New Mexico.\nSeptember 25, 2007.\nDenials of Certiorari.\n", "ocr": false, "opinion_id": 2625146 } ]

[ "169 P.3d 847" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 8438, "opinion_text": "\n169 P.3d 847 (2007)\nIn the Matter of the ESTATE OF Jeanette L. BORGHI, Deceased.\nBobby G. Borghi, Personal Representative of the Estate of Jeanette L. Borghi, Respondent,\nv.\nArthur R. Gilroy, Appellant.\nNo. 59223-8-I.\nCourt of Appeals of Washington, Division 1.\nOctober 22, 2007.\n*848 Robert Kendall Ricketts, Attorney at Law, Tacoma, WA, for Appellant.\nSheila Conlon Ridgway, The Law Office of Vance & Ridgway PS, Seattle, WA, Paulette Elaine Peterson, Law Offices, Bainbridge Island, WA, for Respondent.\nAPPELWICK, C.J.\n¶ 1 Jeannette L. Borghi died intestate. Prior to her marriage to Mr. Borghi, she entered into a real estate contract to purchase property. After her marriage, a statutory warranty deed was issued to both Mr. and Mrs. Borghi. Upon Mrs. Borghi's death, the court determined that the real property was community property. Arthur Gilroy, Mrs. Borghi's son from a previous marriage contends that the property was his mother's separate property. Early Washington Supreme Court precedent requires a finding that the property was the separate property of Mrs. Borghi. We reverse.\n\nFACTS\n¶ 2 Mr. and Mrs. Borghi were married on March 29, 1975. On June 12, 1975, the Cedarview Development Co. executed a Special Warranty Deed to \"Robert G. & Jeannette L. Borghi, husband and wife.\" The deed was recorded on August 13, 1979. The deed states that it was given in fulfillment of a real estate contract dated March 16, 1966. However, the real estate contract was not recorded and no copy of the contract has been found. The estate claims that the real estate contract would have been executed by either Mrs. Borghi as a single person under her previous name \"Gilroy\" or with her former husband. The record contains no evidence of the timing or frequency of the payments under the contract.\n¶ 3 Mr. and Mrs. Borghi resided on the property as their primary residence from 1975 until 1990. In August 1979, Mr. and Mrs. Borghi used the property to secure a mortgage with Washington Mutual Savings Bank. They used the mortgage to purchase a mobile home to put on the property. Mr. and Mrs. Borghi made most of the payments for the mortgage from their joint bank account. A satisfaction of the mortgage was recorded in July 1999.\n¶ 4 Mrs. Borghi died intestate on June 25, 2005. Her surviving heirs were Mr. Borghi and Arthur Gilroy, her son from a previous marriage. Mr. Borghi became the personal representative. He obtained a title report which shows that the title of the land is vested in \"Robert G. Borghi . . . as his separate estate and the Heirs and Devisees of Jeanette L. Borghi, deceased.\" Mr. Borghi filed a petition for declaratory judgment to determine title to the real property. In September 2006, a superior court commissioner ruled that the real property was the community property of Mr. and Mrs. Borghi. Under intestate succession, the property would pass to Mr. Borghi. Arthur Gilroy filed a motion for revision of the ruling which was denied. Gilroy appeals, seeking a declaration that the real property was Mrs. Borghi's separate property such that he would inherit an undivided one-half interest in the property.\n¶ 5 Mr. Borghi died in October 2006. Mrs. Borghi's sister became the successor personal representative for Mrs. Borghi's estate. The personal representatives for both estates maintain that the real property was community property.\n\nDISCUSSION\n¶ 6 We review de novo a trial court's classification of property as community or separate. In re Marriage of Chumbley, 150 Wash.2d 1, 5, 74 P.3d 129 (2003). Findings of fact are reviewed for substantial evidence. In re Marriage of Skarbek, 100 Wash.App. 444, 447, 997 P.2d 447 (2000). The character of property is established at *849 acquisition. Id. Property acquired before marriage is separate property. See, Hurd v. Hurd, 69 Wash.App. 38, 50, 848 P.2d 185 (1993) review denied, 122 Wash.2d 1020, 863 P.2d 1353 (1993); RCW 26.16.010; RCW 26.16.020. \"When it appears that property was once separate, it is presumed to maintain that character until there is some direct and positive evidence to the contrary.\" In re Estate of Madsen, 48 Wash.2d 675, 676-77, 296 P.2d 518 (1956) (citing Hamlin v. Merlino, 44 Wash.2d 851, 272 P.2d 125 (1954)). The proponent of community property has the burden of proving the change in character of the property. Jones v. Davis, 15 Wash.2d 567, 569, 131 P.2d 433 (1942). A writing is required to show the parties' mutual intention to convert property from separate into community property. In re Estate of Verbeek, 2 Wash.App. 144, 158, 467 P.2d 178 (1970).\n¶ 7 \"The ownership of real property becomes fixed when the obligation becomes binding, that is, at the time of execution of the contract of purchase.\" Beam v. Beam, 18 Wash.App. 444, 453, 569 P.2d 719 (1977). The time of payment, delivery or conveyance does not affect the initial characterization of the property. In re Estate of Binge, 5 Wash.2d 446, 484, 105 P.2d 689 (1940). The parties do not dispute that Mrs. Borghi entered into the real estate contract prior to the marriage and that Mr. Borghi was not a party to the contract. Even though the warranty deed was issued after marriage, the obligation was incurred prior to the marriage. As a result, the real estate was, at least initially, Mrs. Borghi's separate property.\n¶ 8 Once property has been established to be separate property, the proponent of community property status must demonstrate some \"direct and positive evidence\" of a change in its character. Binge, 5 Wash.2d at 485, 105 P.2d 689. The estate contends that acceptance of the deed issued to Mr. and Mrs. Borghi, as husband and wife provides evidence of the community nature of the property. To rebut this argument, Gilroy relies on the proposition that \"mere joinder in a contract, mortgage or deed by husband and wife . . . is insufficient to convert property into community property.\" Verbeek, 2 Wash.App. at 155, 467 P.2d 178. Gilroy claims that a change from separate to community property requires a specific, voluntary act of the owning spouse to manifest intent, and that a warranty deed prepared by the grantor does not overcome the presumption of separate property.\n¶ 9 Two published cases reach opposite results on similar facts. In re Estate of Deschamps, a 1914 Washington Supreme Court decision, is directly on point. 77 Wash. 514, 137 P. 1009 (1914). When she married, Anna Deschamps already owned an apartment building. Since property status is fixed at acquisition, the building was Mrs. Deschamps' separate property. Deschamps, 77 Wash. at 515, 137 P. 1009. Upon Mrs. Deschamps' death, her husband claimed the building as community property, partly based on the fact that the deed named him as a joint grantee. Deschamps, 77 Wash. at 517, 137 P. 1009. However, \"unless divested by deed, by due process of law, or the working of an estoppel\" the property remains separate property. Id. at 515, 137 P. 1009.\n¶ 10 In support of his claim of community property, Mr. Deschamps presented evidence of his wife's intention to convert her separate property to community property. One witness testified, \"as we were going down to get the deed signed up, Mr. Deschamps asked Mrs. Deschamps if she was willing for his name to appear in the deeds both the same, and she said Yes, to have them; he wanted his name in the deed.\" Id. at 517, 137 P. 1009. Another witness corroborated the evidence that Mr. Deschamps inclusion on the deed was not inadvertent or accidental.\n[S]o when the deed was drawn, I asked Mrs. Deschamps, . . . 'Now Mrs. Deschamps, do you want this deed in your name or in your husband's?' I asked Mr. Deschamps first, `Do you want this deed in your name?' He says, `Ask my wife. Whatever she says.' . . . So she says, `Why certainly,' . . . the property belongs equal between us both.\nId. at 517-18, 137 P. 1009. This direct evidence, from two independent witnesses to the transaction, demonstrated that Mrs. Deschamps knew of the option to title the property *850 in her name only and intentionally added her husband to the title. Yet, the court found that the building remained separate property. The property had been purchased with Mrs. Deschamps' separate property and the court concluded that \"[i]t is not shown that the wife ever intended to give up a one-half interest in the property or that she understood that her husband could assert a greater interest in the property than would be represented by his advances, if any.\" Id. at 518, 137 P. 1009. The inability of the wife to testify as to her intentions led the court to err on the side of protecting her assets.\nThe mouth of the wife is closed in death, and there is no one to speak for her unless it be the law, so often declared, that, where property standing in the name of either spouse, or in the name of both spouses, is presumed to be community property, such presumption is rebuttable and that courts will not be bound by the terms of the deed but will look beyond it and ascertain, if possible, the true intent and purpose of the parties. Having this principle in mind, and considering the whole record, we are not satisfied that the husband has made out a case that would warrant this or any other court in decreeing him to be the owner of a one-half interest in the property.\nId. The direct evidence from the witnesses in Deschamps showed that Mrs. Deschamps considered the property to be that of the community, yet the court maintained its separate character because of the separate nature of the funds used in its acquisition.\n¶ 11 Seventy-nine years later, in contrast to Deschamps, the Court of Appeals reached a different conclusion from similar facts in Hurd, 69 Wash.App. at 51, 848 P.2d 185. In Hurd, the husband purchased the vendor's rights under a real estate contract for the sale of a lot on Guemes Island several years prior to marriage. Hurd, 69 Wash.App. at 42, 848 P.2d 185. While the Hurds were married, the purchaser of the lot could not make the required payments. Id at 51-52, 848 P.2d 185. Mr. Hurd directed that the deed be conveyed to both himself and his wife, for \"love and consideration.\" Id. From this set of facts, the court made a presumption of community property. \"Mr. Hurd's act of requesting that the deed be conveyed back in the names of both parties permits a presumption that he intended to make a gift to the community.\" Id. at 52, 848 P.2d 185. In reaching this conclusion, the court articulated a new rule:\n[w]e now hold that a spouse's use of his or her separate funds to purchase property in the names of both spouses, absent any other explanation, permits a presumption that the purchase or transaction was intended as a gift to the community. We also hold that there must be clear and convincing proof to overcome such a presumption.\nId. at 51, 848 P.2d 185.\n¶ 12 Based on this rule, the indirect evidence of the community name on the deed is sufficient to raise the presumption of a community property. Id. at 52, 848 P.2d 185.\n¶ 13 Although the Court of Appeals presumption is directly contrary to Deschamps, Hurd does not discuss or cite Deschamps. Washington Practice gives a strong critique of Hurd. \"If the Hurd rule[1] was applied to the facts in Deschamps, the result would have undoubtedly been different. Hurd did not mention, let alone distinguish, Deschamps.\" Kenneth W. Weber, 19 Washington Practice: Family and Community Property Law Sec. 10.7, at 142 n. 4 (1997). Weber contends that Hurd \"appears most unfortunate\" and is unsupported by the cited case law. 19 Washington Practice: Family and Community Property Law Sec. 10.7, at 142 n. 4 (1997). The Washington Supreme Court denied review of Hurd, but since the opinion did not mention Deschamps, the conflict was not called to the attention of the court. To date, our Supreme Court has not revisited Deschamps and the high bar it has set for the evidence required to convert separate property to community property by deed. Furthermore, our Supreme Court does not overrule binding precedent sub silentio. State v. Studd, 137 Wash.2d 533, 548, 973 P.2d 1049 (1999); Lunsford v. Saberhagen Holdings, Inc., 139 Wash.App. 334, 160 P.3d 1089 (2007). As a *851 result, we must agree that Hurd was improperly decided. We are constrained by the binding precedent set by Deschamps.\n¶ 14 However, given the strength of the direct evidence from independent witnesses and the indirect evidence of the community name on the deed, we are firmly convinced that Deschamps was wrongly decided. A finding of separate property in the face of such clear evidence does not advance the policy concerns articulated. The harm to be avoided is a change in the character of the property when a change was not intended. Inclusion of both names on a deed could create an inadvertent change without a request, writing or document showing intent. Indeed, the harm is most likely in scenarios where an express documentation of the gift is lacking. When both spouses appear on a deed for previously separate property, and no writing exists, we should strive to determine the intent of the separate property holder. A weighing of the evidence is required to determine donative intent. A summary presumption that a gift was not intended does not serve to protect property holders but may thwart legitimate attempts to gift to the community as in Deschamps.\n¶ 15 Deschamps is clearly not a case where the deed was titled to the community through inadvertence or pressure from a third party or to accommodate the requirements of a mortgagor. The testimony shows that Mrs. Deschamps believed that the property belonged equally to both herself and her husband. Deschamps, 77 Wash. at 517-18, 137 P. 1009. Based on the independent witness testimony, there is no doubt that she knew of her option to have title in her name only, yet she expressed her desire to include her husband. Id. Her intent that they equally own the property was clear. Similarly, Mr. Hurd's instructions to title the property in the name of the marital community was not inadvertent or at the request of a third party. He indicated no reason to include his wife other than \"for love and consideration.\" This expresses a desire to benefit the community.[2]\n¶ 16 We believe that Hurd appropriately protects separate property from inadvertent changes in character but allows for gifts by deed. When the separate property owner has expressed a desire to add their spouse to the title to the separate property, a presumption should arise that the names of both spouses on the title of property acquired by separate funds changes the character of the property to community. The presumption can be overcome by clear and convincing proof that community benefit was not intended, such as evidence of accommodation of a mortgagor, duress or deception, or an unsolicited act of a third party in preparing the document. This protects against inadvertence or avarice but allows separate property owners, like Mrs. Deschamps, to demonstrate a gift of property through the deed.\n¶ 17 In this case, we know that Mrs. Borghi entered into a real estate contract on the property nine years prior to her marriage to Mr. Borghi. Fourteen days after the marriage, Mr. and Mrs. Borghi took title. The record provides no evidence that Mr. Borghi had made payments, either separate or community, or otherwise acquired an interest in the property. As Mrs. Borghi entered the contract either as a single person or with her previous husband, a deed in escrow at the time of purchase could not reflect the Borghi marital community. While there is no evidence that anyone communicated with Cedarview Development Co., the company had to be informed of the very recent remarriage in order to title the property to \"Robert G. & Jeannette L. Borghi, husband and wife.\" To include Mr. Borghi, who was not a party to the real estate contract, the issuer had to have direction that Mr. Borghi was entitled to be on the deed. This would have required an affirmative act to apprise Cedarview of the existence of a spouse and the desirability of adding him to the deed. While someone other than Mrs. Borghi could have given Cedarview this direction, *852 there is no evidence that Mrs. Borghi protested the addition of her husband. She accepted the deed and eventually recorded the deed.\n¶ 18 The evidence leads us to the conclusion that Mrs. Borghi intended the deed to reflect a gift of her separate property to the community. We believe this is the proper outcome. This is the result we would reach under Hurd. However, we are constrained by Deschamps to reach the opposite conclusion. We reluctantly conclude that the property was Mrs. Borghi's separate property.\n¶ 19 We reverse.\nWE CONCUR: AGID and COLEMAN, JJ.\nNOTES\n[1] Hurd, 69 Wash.App. 38, 848 P.2d 185.\n[2] Since the trial court did not enter findings as to whether Mr. Hurd intended a gift to the community, the Court of Appeals requested that the trial court take additional evidence on Mr. Hurd's intent. \"In view of Mr. Hurd's testimony that he often placed property in both parties' names for `love and consideration,' upon remand the court needs to determine what Mr. Hurd meant by that phrase.\" Hurd, 69 Wash.App. at 52, 848 P.2d 185.\n\n", "ocr": false, "opinion_id": 2625188 } ]

[ "952 F. Supp. 2d 213" ]

[ { "author_str": "Leon", "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv2045-25", "author_id": 1911, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\nANTHONY G. WHITE, SR., )\n )\n Plaintiff, )\n )\n v. ) Civil Action No. 11-2045 (RJL)\n )\nDEPARTMENT OF JUSTICE, )\n )\n DefundanL )\n\n •/L-~\n MEMORANDUM OPINION\n July+' 2013 [# 19]\n\n Plaintiff, proceeding prose, challenges the Department of Justice's (\"DOJ's\")\n\nresponse to his request under the Freedom oflnformation Act (\"FOIA\"), 5 U.S.C. § 552,\n\nfor records pertaining to him. On September 26, 2012, the Court denied defendant's\n\nMotion to Dismiss or for Summary Judgment and directed it to supplement the record\n\nwith regard to the search for responsive records and the claimed exemptions. White v.\n\nDOJ, 893 F. Supp. 2d 24 (D.D.C. 2012). Defendant renewed its motion for summary\n\njudgment, Def.'s Renewed Mot. for Summ. J., Dec. 6, 2012 [Dkt. # 19], and plaintiff\n\nopposed the motion. Pl.'s Mem. in Response to Def.'s Renewed Mot. for Smnm. J.\n\n(\"Pl.'s Opp'n\"), Jan. 7, 2013 [Dkt. # 20]; Pl.'s Mem. in Response to the Court's Order of\n\nJan. 9, 2013 (\"Pl.'s Supp. Opp'n\"), Jan. 15,2013 [Dkt. # 23]. Upon consideration ofthe\n\nparties' submissions and the entire record, the Court GRANTS defendant's Motion for\n\nSummary Judgment.\n\n\n\n 1\n\f BACKGROUND\n\n By letter dated January 16, 2010 and received by DOJ's Mail Referral Unit,\n\nplaintiff requested \"all records pertaining to [himself].\" White, 893 F. Supp. 2d at 26.\n\nThe request was forwarded to the Criminal Division for processing. In response to the\n\nCriminal Division's request for additional information, plaintiff completed a form\n\nindicating that he was requesting searches of the following sections: Appellate, Asset\n\nForfeiture and Money Laundering, Fraud, Gang, Narcotic and Dangerous Drug (NDDS),\n\nElectronic Surveillance Unit, Organized Crime and Racketeering, Executive Office for\n\nOrganized Crime Drug Enforcement Task Force (OCDETF), and National Gang\n\nTargeting, Enforcement & Coordination Center (GangTECC). !d.\n\n Defendant's \"search ofthe appropriate indices of Criminal Division records\"\n\nlocated no responsive records. !d. While plaintiffs request was pending, OCDETF\n\nbecame an independent DOJ component, and that \"portion of [plaintiffs] request\" was\n\nreferred to OCDETF for processing and a direct response to plaintiff. !d. OCDETF, in\n\nturn, referred three documents totaling 23 pages to DOJ's Executive Office for United\n\nStates Attorneys (\"EO USA\"). EOUSA withheld the pages in full under FOIA\n\nexemptions 2, 6, 7(C), 7(D), 7(E), and 7(F), see 5 U.S.C. § 552(b), and Privacy Act\n\nexemption U)(2). !d.\n\n STANDARD OF REVIEW\n\n Summary judgment must be granted when the movant demonstrates \"that there is\n\nno genuine dispute as to any material fact and the movant is entitled to judgment as a\n\n\n 2\n\fmatter oflaw.\" Fed. R. Civ. P. 56( a). \"When assessing a motion for summary judgment\n\nunder FOIA, the Court shall determine the matter de novo.\" Judicial Watch, Inc. v. US.\n\nDep 't of Homeland Sec., 598 F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. §\n\n552(a)( 4)(B)).\n\n In a FOIA action, the Court may award summary judgment based solely on\n\ninformation provided in affidavits or declarations if they \"describe the documents and the\n\njustifications for nondisclosure with reasonably specific detail, demonstrate that the\n\ninformation withheld logically falls within the claimed exemption, and are not\n\ncontroverted by either contrary evidence in the record nor by evidence of agency bad\n\nfaith.\" Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such\n\naffidavits or declarations \"are accorded a presumption of good faith, which cannot be\n\nrebutted by purely speculative claims about the existence and discoverability of other\n\ndocuments.\" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)\n\n(citation and internal quotation marks omitted). To rebut the presumption, a plaintiff\n\n\"must point to evidence sufficient to put the Agency's good faith into doubt.\" Ground\n\nSaucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). \"Ultimately, an agency's\n\njustification for invoking a FOIA exemption is sufficient if it appears logical or\n\nplausible[,]\" is adequately supported, and is not contradicted by the record. Larson v.\n\nDep 't ofState, 565 F.3d 857, 862, 864-65 (D.C. Cir. 2009) (citation and internal\n\nquotation marks omitted).\n\n The agency to which a FOIA request is submitted is required to \"make a good\n\nfaith effort to conduct a search for the requested records, using methods which can\n\n 3\n\freasonably be expected to produce the information requested.\" Int 'l Trade Overseas, Inc.\n\nv. Agency for Int'l Dev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting Marrera v. DOJ,\n\n622 F. Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). \"In determining the\n\nadequacy of a [FOIA] search, the Court is guided by principles of reasonableness.\" !d.\n\n(citing Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the agency is\n\nthe possessor of the records and is responsible for conducting the search, the Court may\n\nrely on \"[a] reasonably detailed affidavit, setting forth the search terms and the type of\n\nsearch performed, and averring that all files likely to contain responsive materials (if such\n\nrecords exist) were searched.\" Valencia-Lucena v. United States Coast Guard, 180 F .3d\n\n321, 326 (D.C. Cir. 1999) (citations omitted). \"Once the agency has shown that its search\n\nwas reasonable, the burden is on [the plaintiff] to rebut [the defendant's] evidence by a\n\nshowing that the search was not conducted in good faith.\" Moore v. Aspin, 916 F. Supp.\n\n32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep 't ofState, 779 F.2d 1378, 1383 (8th Cir.\n\n1985)).\n\n Summary judgment is inappropriate \"if a review of the record raises substantial\n\ndoubt\" about the adequacy of the search. Valencia-Lucena, 180 F .3d at 326 (citing\n\nFounding Church ofScientology v. Nat'l Sec. Agency, 610 F.2d 824, 837 (D.C. Cir.\n\n1979)). However, the mere fact that a particular record was not found does not render the\n\nsearch inadequate. Boydv. Crim. Div. ofU.S. DOJ, 475 F.3d 381,390-91 (D.C. Cir.\n\n2007) (citing Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003))\n\n(other citation omitted). \"The adequacy of a FOIA search is generally determined not by\n\nthe fruits of the search, but by the appropriateness of the methods used to carry out the\n\n 4\n\fsearch.\" Santana v. DOJ, 828 F. Supp. 2d 204, 209 (D.D.C. 2011) (quoting Iturralde,\n\n315 F.3d at 315) (internal quotation marks and other citation omitted).\n\n ANALYSIS\n\n Plaintiff contests two elements of defendant's response to his FOIA request. First,\n\nhe suspects that more responsive material should have been discovered in response to his\n\nFOIA request. See Pl.'s Opp'n at 2-3. Second, he contests the justification for\n\nwithholding the 23 pages from the EOUSA referral. !d. at 3-4. Unfortunately, for\n\nplaintiff, defendant has shown that it satisfied its search obligation and properly withheld\n\nthe 23 pages. As such, I must grant defendant's renewed motion for summary judgment.\n\n I. Defendant's Search for Records\n\n To demonstrate the adequacy of its search, defendant proffers the second\n\nDeclaration ofDavid Luczynski, Dec. 6, 2012 [Dkt. # 19-3], Attorney Advisor for\n\nEOUSA, and the Declaration of John E. Cunningham III, Dec. 5, 2012 [Dkt. # 19-4],\n\nTrial Attorney in DOJ's Criminal Division. Both declarants state that they work in their\n\nrespective FOIA units and have acquired personal knowledge about the processing of\n\nplaintiffs request during the performance of their official duties. See Luczynski Decl. ,-r,-r\n\n1-3; Cunningham Decl. ,-r,-r 1-4. \"A declarant in a FOIA case satisfies the personal\n\nknowledge requirement in Rule 56[(c)(4)] if in his declaration, he attests to his personal\n\nknowledge of the procedures used in handling a FOIA request and his familiarity with the\n\ndocuments in question.\" Barnard v. Dep't of Homeland Sec., 531 F. Supp. 2d 131, 138\n\n(D.D.C. 2008) (citations, internal quotation marks, and alterations omitted); see SafeCard\n\n\n\n 5\n\fServs., Inc., 926 F .2d at 1201 (determining that the person in charge of a search is \"the\n\nmost appropriate person to provide a comprehensive affidavit\") (citation omitted).\n\n Cunningham states that, on May 14, 2010, the Criminal Division's FOIA/PA Unit\n\nsearched the sections plaintiff had identified using \"the term 'Anthony Gerald White.' \"\n\nCunningham Decl. ~ 13. Each section \"would have [searched its] own Automated Case\n\nTracking System (\"ACTS\"),\" which \"is a comprehensive electronic database that stores\n\nrecords [as far back as 1978] related to investigations conducted by attorneys throughout\n\n[the Criminal Division] .... \" Jd.\n\n In addition, the Criminal Division \"electronically searched CRM-00 1, the Central\n\nCriminal Division Index File, which is a system of records consisting of indices of names\n\nand associated records related to subjects/target of investigations or defendants in\n\nprosecutions involving [the Criminal Division].\" Id. ~ 14. This search utilized four\n\nvariations of plaintiff's name and covered \"records related to the time period of' 1980-\n\nPresent,' and ... 'State/Offense: MD/Conspiracy to Distribute & Possess. Cocaine Base;\n\nPoss. ofFirearm & Poss. of Ammunition.'\" Jd. The foregoing searches failed to locate\n\nresponsive records in the Criminal Division's control. !d.~~ 13, 14.\n\n The Court is satisfied from Cunningham's description of the filing systems\n\nsearched and the search methods employed that the Criminal Division conducted a search\n\nreasonably calculated to locate responsive records. Since the documents EOUSA\n\nprocessed were \"sent as a referral from OCDETF,\" Luczynski Decl. ~ 13, EOUSA did\n\nnot perform a search and had no obligation to do so in the absence of a request made\n\n\n\n 6\n\fdirectly to it. 1 See 5 U.S.C. § 552(a)(3)(A) (agency's disclosure obligations triggered\n\n\"upon any request for records which (i) reasonably describes such records and (ii) is\n\nmade in accordance with published rules ... \"); 28 C.P.R. § 16.3 (\"In most cases, [a]\n\nFOIA request [for DOJ records] should be sent to a component's central FOIA office.\").\n\n II. Defendant's Claimed Exemptions\n\n Upon review of the claimed exemptions, the Court finds that defendant was\n\nentitled to withhold from plaintiff the 23 pages from the EOUSA referral. Initially,\n\nEOUSA withheld the 23 referred pages in full initially under FOIA exemptions 2, 6,\n\n7(C), 7(D), 7(E), and 7(F). Luczynski Decl. ~ 5 & Ex. B. In this litigation, EOUSA\n\nrelies upon only exemptions 5 and 7. Luczynski Decl. ~ 14; see Def.'s Mem. ofP. & A\n\nin Supp. ofDef.'s Renewed Mot. for Summ. J., Dec. 6, 2012 [Dkt. # 19-2] at 6 n.1\n\n(\"EOUSA is abandoning its use ofExemption (b)(2).\").\n\n\n1 In his opposition, plaintiff declares that he has \"personal knowledge that grand jury\ntestimony existed from his criminal case, and was part of the government's files .... \"\nSuppl. Aff. of Anthony G. White, Sr. [Dkt. # 23] ~ 7. The existence of such records does\nnot raise doubt about the reasonableness of the Criminal Division's search, since any\ngrand jury records are more likely maintained by EOUSA as the government's\nprosecuting arm. See, e.g., Adionser v. DOJ, 811 F. Supp. 2d 284 (D.D.C. 2011)\n(approving EOUSA's withholding of grand jury records under FOIA exemption 3);\nDipietro v. EOUSA, 357 F. Supp. 2d 177 (D.D.C. 2004) (same). To be clear, EOUSA is\nnot a party defendant in this action but rather provides material evidence with regard to\nOCDETF's referral of responsive records. See Sussman v. US. Marshals Serv., 494 F.3d\n1106, 1118 (D.C. Cir. 2007) (an agency must act upon receiving an initial request but\n\"may acquit itself through a referral, provided the referral does not lead to improper\nwithholding under the McGehee test\") (applying McGehee v. CIA, 697 F.2d 1095, 1110\n(D.C. Cir. 1983)); 28 C.P.R.§ 16.4(c) (authorizing a DOJ component to, inter alia,\n\"refer\" a record to \"the component best able to determine whether to disclose it ....\nOrdinarily, the component ... that originated a record will be presumed to be best able to\ndetermine whether to disclose it.\"). Hence, the outcome of this case has no bearing on\nany request plaintiff might submit to EO USA.\n\n 7\n\f FOIA Exemption 5 protects from disclosure inter-agency or intra-agency letters or\n\nmemoranda \"which would not be available by law to a party ... in litigation with the\n\nagency.\" 5 U.S.C. § 552(b)(5). To qualify for this exemption, a document \"must fall\n\nwithin the ambit of a privilege against discovery under judicial standards that would\n\ngovern litigation against the agency that holds it.\" Dep 't of the Interior v. Klamath Water\n\nUsers Protective Ass 'n, 532 U.S. 1, 8 (2001). Courts have incorporated civil discovery\n\nprivileges into this exemption, such as attorney work-product, attorney-client privilege,\n\nand \"deliberative process\" privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132,\n\n148-49 (1975); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 866 (D.C. Cir. 1980).\n\n EOUSA asserts the attorney work-product privilege as the basis for withholding\n\nthe referred pages in full. Luczynski Dec I. ~~ 18-19. The pages are described as\n\n\"OCDETF Forms\" comprising three documents. !d., Ex. A (Referral Letter). The\n\nattorney work-product privilege protects records prepared by or for an attorney in\n\nanticipation of litigation. See Williams & Connolly v. SEC, 662 F.3d 1240, 1243 (D.C.\n\nCir. 2011) (quoting Fed. R. Civ. P. 26(b)(3)(A)) (citing cases). \"The OCDETF program\n\nis a multi-agency organization\" that \"supports the work of ... federal agents[,]\n\nprosecutors[,] and ... state and local law enforcement officers who participate in\n\nOCDETF cases.\" Luczinsky Decl. ~ 19; Cunningham Decl., Ex. 3 (Descriptive List of\n\nCriminal Division Sections at 4 ). Luczinsky describes the OCDETF forms as\n\n\"documents ... assembled by, or at the direction of, an attorney ... made in the course of\n\nan investigation and in anticipation of one or more prosecutions.\" Luczinsky Decl. ~ 18.\n\nThe attorney uses the forms to \"track and describe the status of investigations and collect\n\n 8\n\fstatistics on investigation.\" I d. ~ 19. Luczynski states that anyone completing the forms\n\n\"is reading that [they] are 'Law Enforcement Sensitive.' \" I d. ~ 18. In addition, the\n\ncover sheet to the forms contains language that \"also restricts [their] distribution.\" ld.\n\n EO USA properly withheld in full the 23 pages of forms under exemption 5 as\n\nattorney work-product. See Martin v. DOJ, 488 F.3d 446, 455-56 (D. C. Cir. 2007)\n\n(quoting Judicial Watch, Inc., 432 F.3d at 371 (\"If a document is fully protected as\n\n[attorney] work product, then segregability is not required.\")); Dipietro, 357 F. Supp. 2d\n\nat 184 (approving EOUSA's exemption 5 attorney work-product justification). Hence,\n\nthe Court need not address whether the pages were properly withheld also under\n\nexemption 7. See Martin, 488 F.3d at 456 (declining to address the propriety of\n\nwithholding the same information under exemptions 6 and 7(C) where \"the requested\n\ndocument is attorney work-product that would not have been subject to routine\n\ndisclosure\").\n\n CONCLUSION\n\n For the foregoing reasons, the Court GRANTS defendant's renewed Motion for\n\nSummary Judgment. A separate Order accompanies the Memorandum Opinion .\n\n\n ./ I\n 1\n I {(:L~\\{vw\n RICHARD f._ L_EbN\n United States District Judge\n\n\n\n\n 9\n\f", "ocr": false, "opinion_id": 2660395 } ]

[ "232 F.2d 477" ]

[ { "author_str": "Sanborn", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/232/232.F2d.477.15345.html", "author_id": null, "opinion_text": "232 F.2d 477\n CHECKER FOOD PRODUCTS COMPANY, a corporation, Appellant,v.RALSTON PURINA COMPANY a corporation, Appellee.\n No. 15345.\n United States Court of Appeals Eighth Circuit.\n April 30, 1956.\n Rehearing Denied May 25, 1956.\n \n Murray Steinberg, St. Louis, Mo. (Richard Marx and Melvin Friedman, St. Louis, Mo., were with him on the brief), for appellant.\n John D. Pope, III, St. Louis, Mo. (Donald G. Leavitt, Frederick A. Judell, and Koenig & Pope, St. Louis, Mo., were with him on the brief), for appellee.\n Before SANBORN, JOHNSEN and VOGEL, Circuit Judges.\n SANBORN, Circuit Judge.\n \n \n 1\n This is an appeal by the plaintiff (appellant) from a judgment dismissing its action brought in December, 1951, under the Trade-Mark Act, 15 U.S.C.A., §§ 1116, 1117, 1121, upon the claim that the defendant (appellee) had infringed the plaintiff's trade-mark rights in the name \"Checker,\" and had engaged in unfair competition.\n \n \n 2\n Each of the parties is a Missouri corporation with its principal place of business in St. Louis, Missouri.\n \n \n 3\n The plaintiff in its complaint alleged that since about March 15, 1936, it has been engaged in the sale at wholesale of breakfast foods made from grains and particularly from rice and wheat; that since the inception of its business it has engaged in nationwide advertising of its trade-marks \"Checker Rice Puffs\" and \"Checker Wheat Puffs,\" which has resulted in the association of those names with the plaintiff's products in the minds of the buying public; that in 1951 the defendant advertised the manufacture and sale by it of breakfast foods and cereals known as \"Rice Chex\" and \"Wheat Chex\"; that the use of these names was a \"direct infringement on the good will and trade-mark built up by plaintiff,\" and was done for the purpose of misleading and deceiving the buying public into believing that the products of the defendant are in some way associated with the favorably known business of the plaintiff in the sale of \"Checker Rice Puffs\" and \"Checker Wheat Puffs\"; that the defendant's conduct in this regard is likely to cause confusion in the minds of buyers as to the source of the defendant's products, and constitutes unfair competition; and that the defendant, after being notified by the plaintiff of its demand that the defendant stop using the names \"Rice Chex\" and \"Wheat Chex,\" has refused to do so.\n \n \n 4\n The defendant in its answer admitted that the plaintiff had sold some puffed rice and puffed wheat in packages, and stated that the defendant in 1951 had sold, under the trade-mark \"Chex\", a shredded rice biscuit breakfast food and a shredded wheat biscuit cereal. The defendant denied that this constituted an infringement of the plaintiff's trademarks or unfair competition. The defendant alleged that it has been engaged in the milling business for more than 50 years; that its principal products throughout this period have been breakfast cereals and animal feeds; that its total sales have amounted to billions of dollars and its sales of breakfast cereals to over one hundred million dollars; that for more than 50 years a marking of contrasting colored squares, known as the \"checkerboard\" marking and registered in the United States Patent Office as the defendant's trade-mark for the various products sold by the defendant, has been used continuously by it and has come to be known by the public as the generic trade-mark for the defendant's products, and that it appears upon every unit of the products, of which the plaintiff complains. The defendant further alleged that it had used the mark \"Checker\" since 1922 on animal feeds and had registered that mark in the Patent Office; that the defendant had also used the registered trade-mark \"Checkr-\" on breakfast cereals since 1927; and that, \"should the average purchaser of breakfast cereals associate the mark `Chex' with the term `check' or combining forms thereof, * * * the average purchaser of breakfast cereals will necessarily associate the mark `Chex' with defendant rather than with plaintiff.\"\n \n \n 5\n The issues raised by the pleadings were tried to the court. There was little dispute as to the evidentiary facts, and many of them were stipulated. The controlling issue in the case was, as it usually is and has been in all such cases, see McLean v. Fleming, 96 U.S. 245, 252-256, 24 L. Ed. 828; Kann v. Diamond Steel Co., 8 Cir., 89 F. 706, 707, whether there was any confusing or deceptive similarity between the marks used by the defendant upon its shredded rice and shredded wheat breakfast foods, namely \"Rice Chex\" and \"Wheat Chex\", on cartons with a checkerboard design, and the marks used by the plaintiff — in the sale of its puffed rice and puffed wheat products — upon its cellophane packages and cartons, namely \"Checker Rice Puffs\" and \"Checker Wheat Puffs.\"\n \n \n 6\n The original corporate name of the plaintiff was Gandolfo-Ghio Manufacturing Company. It was incorporated in 1896. The name was changed to Checker Food Products Company, which name has been used since 1927. Its president purchased some of its capital stock in 1934, and eventually acquired all of such stock. After 1934 the plaintiff was selling spaghetti, macaroni, egg noodles, cream meal, pancake flour, soup mixes, puffed wheat, and puffed rice. Most of these items were sold under the Checker label. The name \"Checker\" has been used on products of the plaintiff since about 1920. The plaintiff (then Gandol-fo-Ghio Manufacturing Company) on September 20, 1920, applied for registration of the trade-mark \"Checker\" for spaghetti, macaroni, vermicelli, and noodles, and it was registered in the United States Patent Office on December 13, 1921, as No. 149,384. The registration was renewed December 13, 1941, to Checker Food Products Company. Puffed wheat and puffed rice are the major products now being sold by the plaintiff. They are not manufactured by the plaintiff, but by a corporation the capital stock of which is also owned by the plaintiff's president. The plaintiff's fiscal year ends August 31st. The largest amount the plaintiff derived from its sales of puffed wheat and puffed rice in any year from 1944 to 1951 was $153,097.76 in 1945. There was a sharp falling off in the sales of these products of the plaintiff after the war. In 1950 sales amounted to $75,072.64, and in 1951 to $94,748.64.\n \n \n 7\n The plaintiff sells puffed wheat and puffed rice in 46 states and in the District of Columbia. Outside of the metropolitan area of St. Louis, sales are made through food brokers. The plaintiff advertises by giving premiums and sales incentives to dealers, and in newspapers, and may have done some radio advertising. It runs some advertisements in cooperation with customers. It packages its products in cellophane bags or in small cartons wrapped with waxed paper.\n \n \n 8\n Since 1938 the plaintiff has had no dispute or litigation with the defendant. From 1937 or 1938 until the spring of 1950, the defendant made no claim against the plaintiff for the use of any name and the plaintiff made no such claim against the defendant. There had been some prior litigation. See Ralston Purina Co. v. Checker Food Products Co., Mo.App.1935, 80 S.W.2d 717, in which the Ralston Purina Company charged the Checker Food Products Company with unfair competition, and in which it was held that there was no reasonable probability of confusion between the then style of dress and designation adopted by the parties for their respective products, at page 720 of 80 S.W.2d.\n \n \n 9\n In the early part of April, 1950, the defendant offered to purchase the plaintiff's rights in the name \"Checker\" for $20,000. The offer was refused by the plaintiff's president.\n \n \n 10\n The use by the defendant of the name \"Rice Chex\" came to the plaintiff's attention about December, 1950, or January, 1951, and the use of the name \"Wheat Chex\" was first noticed about August, 1951. Demand was made upon the defendant to cease using those names.\n \n \n 11\n Prior to using the names \"Checker Rice Puffs\" and \"Checker Wheat Puffs,\" the plaintiff had sold these same products in 1937 and 1938 under the names \"Checker Rice Pops\" and \"Checker Wheat Pops\". It used the name \"Checker Exploded Rice\" from about 1938 to 1948. Since then it has used the names which it asserts the defendant has simulated by selling its shredded wheat and shredded rice products as \"Wheat Chex\" and \"Rice Chex\".\n \n \n 12\n The plaintiff introduced some evidence tending to support its claim that the names it used in marketing its products were confusingly similar to the names used by the defendant and that purchasers asking for the plaintiff's products had been handed defendant's products.\n \n \n 13\n It was stipulated that the \"Defendant is presently and has been widely known for many years as one of the nation's foremost manufacturers of breakfast cereal foods, and has a national reputation as one of the foremost manufacturers of breakfast cereal foods.\" The defendant was incorporated about January 8, 1894, as Robinson-Danforth Commission Company. In 1899 its name was changed to Robinson-Danforth Milling Company, and to Ralston Purina Company in 1902. Its net cereal sales from 1903 to January 1, 1951, exceeded $163,000,000. Its shredded rice product now being sold as \"Rice Chex\" was first sold in 1950; and prior to January 1, 1951, sales of that product amounted to more than $883,000, and from January 1, 1951, to February 29, 1952, amounted to more than $1,900,000. The defendant's shredded wheat product now being sold as \"Wheat Chex\" was first placed on the market in 1935, and total sales of that product up to January 1, 1951, amounted to more than $34,000,000. From January 1, 1951, to February 29, 1952, sales of \"Wheat Chex\" amounted to more than $4,000,000. The defendant first packaged its shredded wheat product as \"Wheat Chex\" on January 22, 1951. Since its incorporation, the defendant's principal products have been foods for human consumption (mainly breakfast cereals) and animal feeds. The rice product of the defendant sold as \"Rice Chex\" is a biscuit-type product made of shredded rice, and is not a puff. The product \"Wheat Chex\" is a biscuit-type product made of shredded wheat, and is not a puff. The plaintiff's product sold as \"Checker Rice Puffs\" is not a biscuit-type product and is not made of shredded rice, nor is the plaintiff's product which is sold as \"Checker Wheat Puffs\" a biscuit-type product made of shredded wheat.\n \n \n 14\n For at least 50 years defendant has used a checkerboard motif as a trademark on substantially all of its products, including breakfast cereal foods. Total sales of all its products have amounted to billions of dollars.\n \n \n 15\n The defendant's first registered trademark, No. 35,569, was dated December 11, 1900, for \"Checkerboard\" and a checkerboard design for cereal food products. Since that time the defendant has registered trade-marks for its various products, perpetuating its right to use that design for identifying them. It has also registered and used such trademarks as \"Checkr-\", \"Checker\", \"Check-R-Chix\", \"Chek-R-Fect\", and many others of a similar nature.\n \n \n 16\n It was stipulated that these registrations were valid, subsisting and owned by the defendant. The defendant's registration of the trade-mark \"Chex\", dated May 27, 1952, was applied for July 22, 1950, and is No. 559,285.\n \n \n 17\n The defendant, at the trial, introduced evidence tending to show that there was no confusion and no confusing similarity between its accused trade-marks as applied to its shredded rice and shredded wheat products and the trade-marks used by the plaintiff in marketing its puffed rice and puffed wheat.\n \n \n 18\n Enough has been said to indicate the nature of the controversy and to show that the issue of confusing similarity was an issue of fact for the trial court and not an issue of law for this Court. There is no merit in the plaintiff's contention that confusing similarity was conclusively established by the evidence. What the plaintiff is, in effect, asking this Court to do is to retry this case and to substitute its judgment for that of the trial court. This the Court will not do. See and compare, Cleo Syrup Corporation v. Coca-Cola Co., 8 Cir., 139 F.2d 416, 417-418, 150 A.L.R. 1056; Seven Up Co. v. Cheer Up Sales Co. of St. Louis, Mo., 8 Cir., 148 F.2d 909, 911. The determination of the trial court that there was no confusing similarity between the trade-marks in suit and that the defendant had not infringed the plaintiff's trade-mark rights and had not engaged in unfair competition is not erroneous. The burden of proving confusing similarity was that of the plaintiff, and the defendant, as the prevailing party, is entitled to the benefit of all reasonable inferences which can be drawn from the evidence, viewed in the aspect most favorable to it. Cleo Syrup Corporation v. Coca-Cola Co., at page 418 of 139 F.2d; Clarke Hybrid Corn Co., Inc., v. Stratton Grain Co., 8 Cir., 214 F.2d 7; Lanza v. Carroll, 8 Cir., 216 F.2d 808, 814.\n \n \n 19\n We take the liberty of saying that a comparison of the products, packages and labels used by the respective parties indicates to us that no ordinarily prudent purchaser in possession of his faculties and at all interested in the source of the breakfast food he was buying would have the slightest difficulty in distinguishing the defendant's accused products from those of the plaintiff and determining their source.\n \n \n 20\n The judgment appealed from is affirmed.\n \n ", "ocr": false, "opinion_id": 239229 } ]

[ "533 S.E.2d 22", "33 Va. App. 335" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 25, "download_url": "http://www.courts.state.va.us/opinions/opncavwp/0925982.pdf", "author_id": 8418, "opinion_text": "\n533 S.E.2d 22 (2000)\n33 Va. App. 335\nAllen Dale BENNETT\nv.\nCOMMONWEALTH of Virginia.\nRecord No. 0925-98-2.\nCourt of Appeals of Virginia, Richmond.\nAugust 29, 2000.\n*24 William J. Doran, III (Chaplin, Papa & Gonet, on brief), Richmond, for appellant.\nDonald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.\nPresent: FITZPATRICK, C.J., BENTON, COLEMAN, ELDER, BRAY, BUMGARDNER and HUMPHREYS, JJ., and COLE, Senior Judge.\n\nUPON A REHEARING EN BANC\nCOLE, Senior Judge.\nAppellant, Allen Dale Bennett, appeals his conviction of operating a motor vehicle under the influence of alcohol with two prior convictions within ten years, in violation of Code § 18.2-266. He contends the trial court erred (1) in refusing to decide whether the Commonwealth complied with Code § 18.2-268.2, pertaining to the administration of a breath test to determine his blood alcohol content, and in ruling that this issue was a jury question; and (2) in refusing to allow him to introduce evidence from the district court testimony of an absent witness whom he had failed to subpoena. A divided panel of this Court reversed the conviction of driving under the influence and remanded for a new trial. See Bennett v. Commonwealth, 31 Va.App. 30, 520 S.E.2d 845 (1999). We granted the Commonwealth's request for rehearing en banc, and upon rehearing, we affirm appellant's conviction.\n\nBackground\nAround midnight on January 18, 1997, Richmond City Police Officer John B. Sheppard was stopped at a red traffic light at the intersection of Meadow and Main Streets. When the light changed, Sheppard pulled forward and was almost hit by Bennett's pickup truck, which ran through the red light. Sheppard \"had to slam on brakes\" to keep from having a collision with Bennett's vehicle, which did not stop but continued on its way.\nSheppard activated his emergency lights and siren, accelerating to nearly fifty-five miles per hour, and caught up with Bennett in a couple of blocks. Sheppard pursued Bennett until Bennett turned right on Stafford Street. Bennett then turned into an alley and cut off the ignition on his truck.\nAccording to Sheppard, when Bennett exited his vehicle, he rocked back and forth between the door and the doorjamb. He appeared unsteady on his feet, and Sheppard smelled alcohol on his breath. His eyes were red and glassy. Bennett told the officer that he had \"a couple of beers,\" but he refused to perform field sobriety tests. Sheppard arrested Bennett for driving under the influence of alcohol and transported him to police headquarters, where he advised him of his rights under the implied consent law. Bennett agreed to take the breath test.\nSheppard administered a breathalyzer test several times, but Bennett failed to produce a satisfactory sample. He was taken before a magistrate, who again read him the implied consent law. Again, Bennett did not produce a satisfactory breath sample, and the magistrate charged Bennett with refusal to take the breathalyzer test. Bennett was convicted of both charges in general district court on January 20, 1998. These convictions were appealed to the circuit court on or about March 26, 1998. The charge of driving under the influence of alcohol with two prior convictions in ten years was tried on April 14, 1998.\nOn appeal from the circuit court, we granted Bennett's petition on the following two issues:\n1. Did the trial court err in ruling that the issue of whether the Commonwealth had complied with Code § 18.2-268.2 was a jury issue that it would not decide?\n2. Did the trial court err in refusing to allow the defendant to put on evidence as to the testimony of a material witness who had testified in the [general district] court and who was shown to be unavailable in the trial court?\n\n\n*25 Motion to Suppress\n\nIn the circuit court, Bennett filed a motion to dismiss the charges of driving under the influence of alcohol and unreasonable refusal to submit to a breath or blood test.\nIn the motion, Bennett acknowledged that at police headquarters, \"he agreed to take a breath test to determine the probable alcohol content of his blood.\" He further alleged that after the breath test was administered, he was advised that the results were not \"satisfactory.\" According to Bennett, he then requested, but was denied the opportunity to take a blood test in violation of Code § 18.2-268.2. He also alleged that when the Commonwealth requires a person to take a breath or blood test, the accused has a right to receive the benefits of the test, and the failure to permit the requested test deprived him of a significant method of establishing his innocence. Bennett alleged that the court should dismiss the charges against him because the Commonwealth failed to follow proper procedure at the time of his arrest in refusing to grant him a blood test.\nPrior to January 1, 1995, Code § 18.2-268.2 provided, in pertinent part, that \"[a]ny person so arrested for a violation of § 18.2-268.2(i) or (ii) or both ... shall elect to have either a blood or breath sample taken but not both.\" That code section was amended by the General Assembly on January 1, 1995. The revised statute, in effect at the time of this incident, provides in pertinent part:\nAny person so arrested for a violation of § 18.2-266(i) or (ii) or both ... shall submit to a breath test. If the breath test is unavailable[1] or the person is physically unable to submit to the breath test, a blood test shall be given.\nThe motion to dismiss was scheduled for a hearing on April 9, 1998 before a judge, and the trial of the case with a jury was set for April 14, 1998. Because Bennett filed the motion to dismiss, he had the burden to go forward with the evidence. See Lamay v. Commonwealth, 29 Va.App. 461, 475-76, 513 S.E.2d 411, 418 (1999). At the April 9, 1998 hearing on his motion to dismiss, Bennett called the arresting officer as his first witness. Sheppard testified about the events that took place on January 18, 1997. He explained how he stopped appellant's vehicle and described appellant's condition. He further related the details of appellant's arrest.\nOn cross-examination by the Commonwealth's attorney, Sheppard testified that Bennett was given three opportunities to take the breath test. According to Sheppard, on the first test, Bennett \"placed his lips around the plastic mouthpiece and inflated his cheeks as to appear to be blowing into the machine. The machine gives you a great amount of time to attempt to give a sample. He did this for several seconds, probably 30 or 45 seconds I believe.\"\nAfter waiting the time required by law, the officer gave Bennett the test a second time. Bennett placed his lips around the mouthpiece and allowed the air to escape rather than enter the mouthpiece. The machine ran out of time and registered that it had not received an air sample. At that point, Sheppard took Bennett before a magistrate. The magistrate read Bennett the implied consent law and asked if he would consent to take the breath test. Bennett agreed to take the test. However, he did the same thing he had done with the officer. He expanded his cheeks so that the machine would not receive air. Thereupon, the magistrate cited Bennett for refusal to take the breath test.\nSheppard testified that Bennett did not advise him of any physical problems that would prevent him from taking the breath test.\nAt the hearing, Bennett testified on his own behalf. In response to questions from his attorney, he testified that he now knew that he had a physical condition that might impact his ability to take the test, namely, bronchitis and asthma. The following dialogue occurred between Bennett and his attorney:\n\n*26 [DEFENSE COUNSEL]: You cannot say today you had asthma in January of 1997, can you?\n[BENNETT]: Just by what my doctor says, that you cannot occur [sic]. Like it's in my lungs now. If a doctor was here and put a thing on there, you could hear it in my chest when I breath [sic].\nBennett produced no evidence to prove he was physically unable to take the test. Bennett acknowledged that he did not tell the police officer or the magistrate that physical or medical problems prevented him from blowing into the breathalyzer. The reason Bennett gave for his failure to do so was that he was \"never asked about my medical condition.\" In response to a question posed by the trial judge, Bennett admitted he had successfully blown into a breath machine on two previous occasions, one in 1989 and one in 1994.\nAfter all the evidence was presented, the trial judge asked counsel if they wished to be heard. The following colloquy occurred:\n[DEFENSE COUNSEL]: Judge, under 18.2-268.2, the Commonwealth is required if the breath test is unavailable or if the individual is physically unavailable to take the breath test to administer the blood test. It's an absolute requirement.\n[THE COURT]: Isn't that a jury question?\n[DEFENSE COUNSEL]: No, sir, I don't [think] so.\n[THE COURT]: How am I going to say that, the officer says he was blowing out the sides of the mouth and at one time, he wasn't blowing at all. Then your client comes on and says, well, no, I tried but it didn't work. What am I supposed to do?\n[DEFENSE COUNSEL]: I understand that there is a question of credibility there. If you choose to resolve against the defendant, you can certainly do that.\n[THE COURT]: Well, isn't it a jury question? Isn't this something that a fact finder [must] decide?\n[DEFENSE COUNSEL]: No, sir. It seems to me that the statute is mandatory....\nThe basic factual issue to be decided on Bennett's motion to dismiss was whether he faked the breath test, refusing to properly breathe into the tube, or whether he was \"physically unable to submit to the breath test.\" The question then before the trial court was whether, under the statute, this issue was to be decided by the judge or the jury. Defense response to the trial judge was correct. It was a legal question to be decided by the trial judge. If the trial judge believed Officer Sheppard, Bennett had no defense on this issue because he had failed in his burden of proof to prove that he was physically unable to take the breath test. See Lamay, 29 Va.App. at 473, 513 S.E.2d at 417 (holding that the accused bears the burden of establishing physical inability to take the breath test). If the trial judge believed appellant's theory of the case and found he was physically unable to take the breath test, then appellant would have been entitled to a blood test and the motion to dismiss should have been granted.\nBecause the trial judge did not grant the motion to dismiss, he implicitly found as a fact that appellant did not establish that he was physically unable to take the breath test. The trial judge at no time entered any order holding that the question of Bennett's physical inability to take the breath test was a jury question. To the contrary, he decided the question was one of law to be decided by the trial judge.\nIt is not unusual for a trial judge to instruct jurors that they are the judges of the facts, the credibility of the witnesses, and the weight of the evidence. The judge, as he is required to do from time to time, asked counsel on both sides for advice and guidance on the issue. Such \"brainstorming\" by the trial court and counsel is an integral part of our judicial system. Further, as previously stated, Code § 18.2-268.2 was amended effective as of January 1, 1995, and no cases had been decided interpreting the statute at that time. The trial judge and the attorneys did not have the benefit of Lamay, which was not decided until April 12, 1999, one year later. In Lamay we said:\nAppellant contends the trial court erred in refusing to allow testimony relating to *27 the failure of the police to comply with the requirement that when a person is physically unable to submit to a breath test, a blood test shall be given. We have not had an opportunity to construe fully the provisions of Code § 18.2-268.2 since its effective revision date of January 1, 1995. Therefore, this case come before us as one of first impression and requires us to analyze Code § 18.2-268(B) in situations where at his or her DUI trial an accused DUI driver alleges physical inability to take a breath test. We must determine under the limited facts of this case, what evidence is admissible, the procedure to follow, and what remedy, if any, should issue.\n\nId. at 467-68, 513 S.E.2d at 414-15 (emphasis added).\nIn this setting, the trial judge understandably but perhaps erroneously said: \"We will have to let the jury decide.\"\nHowever, we do not view the trial judge's statement as constituting an order or ruling on the motion to dismiss. He never took any action or entered any order based upon the statement. It is well understood that circuit court judges act only through written, signed orders. See Rule 1:1; Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996); see also Robertson v. Superintendent of the Wise Correctional Unit, 248 Va. 232, 235 n. *, 445 S.E.2d 116, 117 n. * (1994) (citing cases). Nothing in the record suggests that the trial judge entered any order or that the attorneys understood otherwise at the motion hearing. Furthermore, judges can change their minds, and the Rules of Court give them twenty-one days to do so.\nThe statement made by the trial judge at the motion hearing did not conclude the hearing. The trial judge and counsel continued to talk about the appearance of defense witnesses for the trial scheduled on April 14, 1998. If counsel thought the judge had ruled upon the motion, this would have ended the case, and they would have had no reason to discuss further proceedings that were to occur at the trial. After the discussion about the witness, the motion hearing was adjourned with no decision having been made.\nIn effect, the judge took the motion under advisement.\nOn the same date as the hearing, April 9, 1998, the trial judge entered an order which could not have been clearer or more explicit. He ruled and appropriately memorialized his ruling in the following signed, written order:\nEvidence and arguments of counsel having this day been presented on the defendant's motion to dismiss these Appeals, the court denied said motion.\nThis order complies in every respect with Rule 1:1. Furthermore, the order shows that the trial judge accepted the testimony of the police officer that Bennett repeatedly feigned his offer to take the breath test and rejected the unsubstantiated testimony of Bennett.\nThe trial judge was not required to give any written explanation for his signed, written order. In Freeman v. Peyton, 207 Va. 194, 196, 148 S.E.2d 795, 797 (1966), Freeman contended he \"was denied a full and complete hearing because the [trial] judge ruled on only the first two questions raised by [his habeas corpus] petition.\" Finding that Freeman failed to distinguish \"between failure to rule and failure to announce reasons for a ruling,\" id., the Supreme Court said:\n[T]he [trial] Judge ruled on all points raised in the petition. The [trial] Judge saw fit to state reasons for rejecting two of the alleged grounds for granting the writ, and he saw fit to refrain from stating reasons for rejecting the other ... alleged grounds. He may have refrained because he thought the reasons self-evident. In any event, he was not required to give his reasons.\nId.\nThe only ruling made by the trial court upon the motion to dismiss was on the issue of Bennett's ability to take the breath test. Resolution of that issue rested on which witness to believe, Sheppard or Bennett. This issue relates to the previous dialogue between the trial judge and defense counsel. Defense counsel advised the judge, \"I understand that there is a question of credibility there. If you choose to resolve against the defendant you can certainly do that.\" The *28 trial judge accepted Sheppard's testimony that Bennett repeatedly feigned his attempts to take the breath test, and he rejected Bennett's unsubstantiated theory, raised for the first time at that hearing, that he might possibly have an asthmatic condition, making him physically unable to take a breath test. That disposed of the motion to dismiss on the issue of Bennett's physical inability to take the breath test. Because Bennett failed to establish physical inability, he was not entitled to a blood test under Code § 18.2-268.2.\nMoreover, had Bennett truly believed the trial judge ruled that the jury was to determine whether he was physically unable to take the test, he would have attempted to raise that issue at trial before the jury. He did not do so. At trial, the parties confined themselves to Bennett's guilt, namely, whether he was driving under the influence of alcohol. Ostensibly, Bennett failed to bring the matter up at trial because he was aware of the written order denying the motion to dismiss based on the credibility determination made by the trial judge and suggested by defense counsel at the pretrial hearing.\nIn summary, we hold that the trial judge, in his order following the motion hearing on April 9, 1998, implicitly found that Bennett feigned the taking of the breath test in order to prevent a proper breath analysis of the alcohol content of his blood and that he was not physically unable to take the breath test. We find that the Commonwealth fully complied with Code § 18.2-268.2. We further find that this issue was a question of law and was so decided by the trial judge and was not submitted or intended to be submitted to the jury for determination.\n\nTestimony of Unavailable Witness\nBennett filed a motion in limine in the circuit court, which was heard at a motion hearing on April 9, 1998, and on the morning of the trial on April 14, 1998. He moved the court to permit the introduction of the prior testimony of Pamela Peterson, who testified in the general district court as a witness on January 20, 1998, about sixteen months before the circuit court trial. Bennett moved that Peterson's prior testimony be presented to the jury in the form of either a stipulation or by the testimony of persons present in the general district court who heard Peterson's testimony. However, no transcript was made of the general district court proceeding, and no proffer is in the record showing what the testimony of any witness was.\nIn argument on the motion in limine, defense counsel explained that he attached a stipulation to the motion, hoping to get an agreement with the Commonwealth. However, the Commonwealth's attorney refused to agree with the stipulation.\nFurther, defense counsel sought to ask Ms. Vigilance, the prosecutor in the general district court, to appear and \"possibly recite what she recalls of that testimony.\" The Commonwealth objected to this procedure. Nothing in the record indicates what Ms. Vigilance recalled, if anything, or what her testimony would have been if called.\n\"It is well established that `testimony given at a former trial is admissible as an exception to the hearsay rule if certain requirements are met.'\" Jones v. Commonwealth, 22 Va.App. 46, 50, 467 S.E.2d 841, 843 (1996) (citation omitted); see also Longshore v. Commonwealth, 260 Va. 3, 3-4, 530 S.E.2d 146, 146 (2000). These requirements are as follows:\n\"(1) The original witness must be unavailable. (2) The witness who is now unavailable must have been testifying under oath (or affirmation) at the former trial. (3) The issues must be substantially the same in both trials. (4) The party against whom the hearsay testimony is now offered (or his privy in interest) must have been a party in the former trial. (5) The witness who is now testifying as to what was said at the former trial must be able to do so with reasonable accuracy.\"\nDoan v. Commonwealth, 15 Va.App. 87, 100, 422 S.E.2d 398, 405 (1992) (citation omitted). The party offering the testimony bears the burden of establishing the witness' unavailability. See Jones, 22 Va.App. at 50, 467 S.E.2d at 843.\n\"`[A] declarant is unavailable if the party seeking to introduce the statement has been unable by diligent inquiry to locate the *29 declarant.'\" Cooper v. Commonwealth, 26 Va.App. 537, 542, 496 S.E.2d 77, 79 (1998) (citation omitted). We have held that reasonable or \"due diligence is that amount of prudence 'as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances.'\" McDonnough v. Commonwealth, 25, Va.App. 120, 128, 486 S.E.2d 570, 574 (1997) (citation omitted). This standard \"requires only a good faith, reasonable effort; it does not require that every possibility, no matter how remote, be exhausted.\" Id. at 129, 486 S.E.2d at 574. Furthermore, \"it is well established that the sufficiency of the proof to establish the unavailability of a witness is largely within the discretion of the trial [judge], and, in the absence of a showing that such discretion has been abused, will not be interfered with on appeal.\" Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 665 (1954).\nIn Doan, we explained that, \"for a witness to be deemed unavailable, the proponent of the evidence bears the burden of proving ... that one of the following conditions exists:\n(1) The declarant is dead; (2) The declarant is too ill to testify; (3) The declarant is insane; (4) The declarant is absent from the state and the party is unable to obtain the declarant's deposition; (5) The party has been unable by diligent inquiry to locate the declarant; (6) The declarant cannot be compelled to testify; and (7) The opposite party has caused the declarant's absence.\"\nDoan, 15 Va.App. at 101, 422 S.E.2d at 406.\nAt the April 9, 1998 motion hearing, appellant testified regarding Peterson's unavailability. Bennett contends that he met his burden under Doan and established Peterson's unavailability, so that her testimony should have been presented to the jury. We look to the facts to determine whether Bennett was unable by diligent inquiry to locate the witness.\nAt the time of the January 20, 1998 general district court trial, Peterson lived with friends in Hampton. Bennett and his mother picked her up and transported her to court. After the trial, she was taken to the bus station and returned to Hampton by bus. A week later, Peterson contacted Bennett and gave him her telephone number and address.\nAfter obtaining the circuit court trial date, Bennett called Peterson's telephone number and a man answered. He said Peterson no longer lived there. When asked where he could \"get in touch with her,\" the man told Bennett he could try her place of employment at Bilo's in Newport News. Bennett tried several times to contact her at Bilo's by telephone, but the company would not give him any information about Peterson.\nThree weeks prior to the trial, Peterson called Bennett's wife, but his wife was ill. Peterson said she would call back but did not do so.\nBennett never made any attempt to locate Peterson in person at her place of employment. He relied on Peterson to contact him rather than attempting to locate her in the Hampton area. Bennett did not subpoena her at her last place of residence or at her place of employment. The only excuse given for not issuing a subpoena was that he did not know her address. Peterson had friends in the Hampton area because Bennett picked her up at their home for the general district court trial. He made no effort to contact any of them to locate her.\nBased on this evidence, the trial judge ruled that reasonable or due diligence had not been exercised and that appellant failed to prove Peterson was unavailable. After reviewing the record before us, we cannot say the trial judge abused his discretion.\nIn Doan, we said that \"`[t]he witness who is now testifying as to what was said at the former trial must be able to do so with reasonable accuracy.'\" Id. at 100, 422 S.E.2d at 405 (citation omitted). In this case, we do not know who the witness would be. Defense counsel suggested that the former prosecutor, Ms. Vigilance, might testify concerning what Peterson's testimony might have been. However, nothing in this record proves that Ms. Vigilance recalled the Peterson testimony with reasonable accuracy.\nThe trial judge refused to admit the evidence proposed by Bennett because he *30 failed to prove the former witness was unavailable. The trial judge also found the proposed evidence was speculative. We agree with these rulings.\nAccordingly, we affirm the judgment of the trial court.\nAffirmed.\nCOLEMAN, Judge, with whom BENTON and ELDER, JJ., join, dissenting, in part, and concurring, in part.\nA panel of this Court reversed the defendant's conviction for a second or subsequent offense of driving while intoxicated because the trial court erroneously ruled that the jury, rather than the trial judge, had to decide whether the defendant was \"physically unable to submit to the breath test\" and thereby entitled to a blood test as provided by Code § 18.2-268.2(B). See Bennett v. Commonwealth, 31 Va.App. 30, 520 S.E.2d 845 (1999). In support of its decision reversing the trial court, the panel set forth the dialogue between defense counsel and the judge at the hearing on the motion to dismiss that led up to the trial court's erroneous ruling, \"We will have to let the jury decide [that issue].\"[2] Based upon that dialogue, the panel concluded that the trial judge ruled that the issue was a factual question for the jury and, therefore, denied the motion to dismiss.\nNow, a majority of the Court disregards the clear ruling of the trial judge by characterizing it as an \"understandabl[e] but perhaps erroneous[ [statement].\" Inexplicably, the majority further holds that the trial judge \"implicitly\" ruled on the merits of the motion to dismiss and found that Bennett was not physically unable to submit to the breath test. The record contains not the slightest suggestion that the trial judge found that the defendant was not physically unable to submit to the breath test. The trial judge denied the motion to dismiss because he decided it was an issue for the jury, not because he decided the merits of the motion. Accordingly, I respectfully disagree with the majority's opinion and dissent from that holding.[3]\nI would reverse and remand to the trial court with directions for the court to conduct an evidentiary hearing on the motion to dismiss and to rule on that motion. If the trial court finds by a preponderance of the evidence that the defendant was able to submit to a breath test and denies the motion, the judgment of the jury should be reinstated. However, if the trial judge finds that the defendant was unable to submit to the breath test and was denied a blood alcohol *31 test, the motion to dismiss should be granted. See Lamay v. Commonwealth, 29 Va.App. 461, 476, 513 S.E.2d 411, 418 (1999).\nThe analysis in support of my dissent in this case is ably set forth in the panel's opinion authored by Judge Willis, who has approved my adopting it verbatim:\nThe order reciting the proceedings on Bennett's motion to dismiss states, in essential part:\nEvidence and arguments of counsel having this day been presented on the defendant's motion to dismiss these Appeals, the Court denies said motion.\n* * * * * *\n\"It is firmly established law in this Commonwealth that a trial court speaks only through its written orders.\" Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). Normally, in reviewing a trial court's factual holding, we inquire whether the record contains credible evidence supporting that holding. Were that the standard of review to be applied in this case, we would affirm the trial court's dismissal of Bennett's motion. Officer Sheppard's testimony sufficiently supported that ruling.\nHowever, upon the record presented in this case, our first inquiry is to identify the trial court's ruling. Its holding, embodied in the order, can be read fairly only in the context of its pronouncements from the bench. From the bench, the trial court made no ruling and directed the entry of no order addressing the merits of the motion. The order itself contains no recitation suggesting a ruling on the merits. Rather, the trial court stated plainly and repeatedly that it found the issues raised by the motion inappropriate for decision by it. It refused decision on those issues and reserved them for presentation to the jury, should Bennett so elect.[4] Plainly, the trial court's dismissal of the motion was based not upon a determination on the merits, but rather upon its refusal to entertain the motion as a preliminary matter. In so ruling, the trial court erred.\nThe credibility issue concerning compliance with Code § 18.2-268.2 was a question of fact preliminary to a ruling of law. This question necessarily required determination by the trial court. \"Issues of fact are usually left to the jury, but there are strong reasons here for not doing so.\" 6 McCormick on Evidence § 53 (Edward W. Cleary ed., 3rd ed. 1984). The motion to dismiss addressed whether the Commonwealth might prosecute the charge.\n\"Questions as to the competency or admissibility of testimony ... are referred to the decision of the judge. `As it is the province of the jury to consider what degree of credit ought to be given to evidence, so it is for the court alone to determine whether a witness is competent, or the evidence admissible. Whether there is any evidence is a question for the court; whether it is sufficient is for the jury. And whatever antecedent facts are necessary to be ascertained, for the purposes of deciding the question of competency — as, for example, whether a child understands the nature of an oath, or whether the confession of a prisoner was voluntary, or whether declarations offered in evidence as dying declarations were made under the immediate apprehension of death — those, and other facts of the same kind, are to be determined by the court, and not by the jury.'\"\nMullins v. Commonwealth, 113 Va. 787, 791, 75 S.E. 193, 195-96 (1912) (citations omitted).\nThe action of the [trial] court in leaving evidence objected to provisionally to the jury, to be considered or rejected by them, as they might determine its admissibility or inadmissibility under the instruction given by the [trial] court, was not proper practice, as the jury has nothing to do with the admissibility of the evidence.\nId. See 7B Michie's Jurisprudence, Evidence § 287 (1998). \"The factual determinations which are necessary predicates to rulings on the admissibility of evidence and the purposes for which it is admitted [as well as related questions] are for the trial judge and not the jury.\" Rabeiro v. Commonwealth, 10 Va.App. 61, 64, 389 S.E.2d 731, 732 (1990). See also C. Friend, The Law of *32 Evidence in Virginia, §§ 1-5 (4th Ed.1993). The same rule governs resolution of preliminary questions of fact underlying rulings of law by a trial court.\nIf the trial court believed Bennett, Code § 18.2-268.2 required dismissal of the charge. If, however, the trial court believed Officer Sheppard, the motion to dismiss should have been denied.\nThe trial court erred in refusing to determine the preliminary question of credibility and in refusing to rule on the merits of the motion to dismiss.\nFor these reasons, I dissent from the majority's decision on the motion to dismiss and would reverse and remand with directions for the trial court to hear and rule upon the motion to dismiss.\nNOTES\n[1] Bennett has not raised any issue that a breath test was not available. The issue is whether he was physically unable to submit to it.\n[2] The following dialogue ensued between the trial court and defense counsel:\n\nTHE COURT: Do you have anything further? Do you want to be heard?\nMR. DORAN (defense counsel): Yes, sir, just briefly. Judge, under 18.2268.2 [sic], the Commonwealth is required if the breath test is unavailable or if the individual is physically unavailable to take the breath test to administer the blood test. It's an absolute requirement.\nTHE COURT: Isn't that a jury question?\nMR. DORAN: No, sir, I don't think so.\nTHE COURT: How am I going to say that, the, the officer says he was blowing out the side of the mouth and at one time, he wasn't blowing at all. Then, your client comes on and says, well, no, I tried but it didn't work. What am I supposed to do?\nMR. DORAN: I understand that there is a question of credibility there. If you choose to resolve against the defendant, you can certainly do that.\nTHE COURT: Well, isn't it a jury question? Isn't this something that a fact finder to decide?\nMR. DORAN: No, sir. It seems to me that the statute is mandatory and if there is sufficient indication, I think the standard of proof is on the probable cause. You may reject it and say that factually we have not laid the predicate for you to call into play the mandatory language of the statute. If you do that, it's not much I can say except I appeal or otherwise. THE COURT: Wait a minute. You are hanging your hat on the fact that he asked for a blood test?\nMR. DORAN: That is right\nTHE COURT: The officer said he never asked for a blood test.\n* * * * * *\nTHE COURT: Isn't this a jury question?\n* * * * * *\nTHE COURT: We will have to let the jury decide. It's not for me to decide, I can't just do that. I'm not even going to try the case. I'm just going to sit here and watch you try the case.\n[3] I concur in the majority's opinion on \"The Unavailable Witness.\"\n[4] These issues were not presented to the jury.\n\n", "ocr": false, "opinion_id": 1065543 }, { "author_str": "Cole", "per_curiam": false, "type": "070rehearing", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nUPON A REHEARING EN BANC\nCOLE, Senior Judge.\nAppellant, Allen Dale Bennett, appeals his conviction of operating a motor vehicle under the influence of alcohol with two prior convictions within ten years, in violation of Code § 18.2-266. He contends the trial court erred (1) in refusing to decide whether the Commonwealth complied with Code § 18.2-268.2, pertaining to the administration of a breath test to determine his blood alcohol content, and in ruling that this issue was a jury question; and (2) in refusing to allow him to introduce evidence from the district court testimony of an absent witness whom he had failed to subpoena. A divided panel of this Court reversed the conviction of driving under the influence and remanded for a new trial. See Bennett v. Commonwealth, 31 Va.App. 30, 520 S.E.2d 845 (1999). We granted the Commonwealth’s request for rehearing en banc, and upon rehearing, we affirm appellant’s conviction.\n\nBackground\n\nAround midnight on January 18,1997, Richmond City Police Officer John B. Sheppard was stopped at a red traffic light at the intersection of Meadow and Main Streets. When the light changed, Sheppard pulled forward and was almost hit by Bennett’s pickup truck, which ran through the red light. Sheppard “had to slam on brakes” to keep from having a collision with Bennett’s vehicle, which did not stop but continued on its way.\nSheppard activated his emergency lights and siren, accelerating to nearly fifty-five miles per hour, and caught up with Bennett in a couple of blocks. Sheppard pursued Bennett *339until Bennett turned right on Stafford Street. Bennett then turned into an alley and cut off the ignition on his truck.\nAccording to Sheppard, when Bennett exited his vehicle, he rocked back and forth between the door and the doorjamb. He appeared unsteady on his feet, and Sheppard smelled alcohol on his breath. His eyes were red and glassy. Bennett told the officer that he had “a couple of beers,” but he refused to perform field sobriety tests. Sheppard arrested Bennett for driving under the influence of alcohol and transported him to police headquarters, where he advised him of his rights under the implied consent law. Bennett agreed to take the breath test.\nSheppard administered a breathalyzer test several times, but Bennett failed to produce a satisfactory sample. He was taken before a magistrate, who again read him the implied consent law. Again, Bennett did not produce a satisfactory breath sample, and the magistrate charged Bennett with refusal to take the breathalyzer test. Bennett was convicted of both charges in general district court on January 20, 1998. These convictions were appealed to the circuit court on or about March 26, 1998. The charge of driving under the influence of alcohol with two prior convictions in ten years was tried on April 14,1998.\nOn appeal from the circuit court, we granted Bennett’s petition on the following two issues:\n1. Did the trial court err in ruling that the issue of whether the Commonwealth had complied with Code § 18.2-268.2 was a jury issue that it would not decide?\n2. Did the trial court err in refusing to allow the defendant to put on evidence as to the testimony of a material witness who had testified in the [general district] court and who was shown to be unavailable in the trial court?\n\nMotion to Suppress\n\nIn the circuit court, Bennett filed a motion to dismiss the charges of driving under the influence of alcohol and unreasonable refusal to submit to a breath or blood test.\n*340In the motion, Bennett acknowledged that at police headquarters, “he agreed to take a breath test to determine the probable alcohol content of his blood.” He further alleged that after the breath test was administered, he was advised that the results were not “satisfactory.” According to Bennett, he then requested, but was denied the opportunity to take a blood test in violation of Code § 18.2-268.2. He also alleged that when the Commonwealth requires a person to take a breath or blood test, the accused has a right to receive the benefits of the test, and the failure to permit the requested test deprived him of a significant method of establishing his innocence. Bennett alleged that the court should dismiss the charges against him because the Commonwealth failed to follow proper procedure at the time of his arrest in refusing to grant him a blood test.\nPrior to January 1, 1995, Code § 18.2-268.2 provided, in pertinent part, that “[a]ny person so arrested for a violation of § 18.2 — 268.2(i) or (ii) or both ... shall elect to have either a blood or breath sample taken but not both.” That code section was amended by the General Assembly on January 1, 1995. The revised statute, in effect at the time of this incident, provides in pertinent part:\nAny person so arrested for a violation of § 18.2 — 266(i) or (ii) or both ... shall submit to a breath test. If the breath test is unavailable1 or the person is physically unable to submit to the breath test, a blood test shall be given.\nThe motion to dismiss was scheduled for a hearing on April 9, 1998 before a judge, and the trial of the case with a jury was set for April 14, 1998. Because Bennett filed the motion to dismiss, he had the burden to go forward with the evidence. See Lamay v. Commonwealth, 29 Va.App. 461, 475-76, 513 S.E.2d 411, 418 (1999). At the April 9, 1998 hearing on his motion to dismiss, Bennett called the arresting officer as his first witness. Sheppard testified about the events that took place on January 18, 1997. He explained how he stopped *341appellant’s vehicle and described appellant’s condition. He further related the details of appellant’s arrest.\nOn cross-examination by the Commonwealth’s attorney, Sheppard testified that Bennett was given three opportunities to take the breath test. According to Sheppard, on the first test, Bennett “placed his lips around the plastic mouthpiece and inflated his cheeks as to appear to be blowing into the machine. The machine gives you a great amount of time to attempt to give a sample. He did this for several seconds, probably 30 or 45 seconds I believe.”\nAfter waiting the time required by law, the officer gave Bennett the test a second time. Bennett placed his lips around the mouthpiece and allowed the air to escape rather than enter the mouthpiece. The machine ran out of time and registered that it had not received an air sample. At that point, Sheppard took Bennett before a magistrate. The magistrate read Bennett the implied consent law and asked if he would consent to take the breath test. Bennett agreed to take the test. However, he did the same thing he had done with the officer. He expanded his cheeks so that the machine would not receive air. Thereupon, the magistrate cited Bennett for refusal to take the breath test.\nSheppard testified that Bennett did not advise him of any physical problems that would prevent him from taking the breath test.\nAt the hearing, Bennett testified on his own behalf. In response to questions from his attorney, he testified that he now knew that he had a physical condition that might impact his ability to take the test, namely, bronchitis and asthma. The following dialogue occurred between Bennett and his attorney:\n[DEFENSE COUNSEL]: You cannot say today you had asthma in January of 1997, can you?\n[BENNETT]: Just by what my doctor says, that you cannot occur [sic]. Like it’s in my lungs now. If a doctor was here and put a thing on there, you could hear it in my chest when I breath [sic].\n*342Bennett produced no evidence to prove he was physically unable to take the test. Bennett acknowledged that he did not tell the police officer or the magistrate that physical or medical problems prevented him from blowing into the breathalyzer. The reason Bennett gave for his failure to do so was that he was “never asked about my medical condition.” In response to a question posed by the trial judge, Bennett admitted he had successfully blown into a breath machine on two previous occasions, one in 1989 and one in 1994.\nAfter all the evidence was presented, the trial judge asked counsel if they wished to be heard. The following colloquy occurred:\n[DEFENSE COUNSEL]: Judge, under 18.2-268.2, the Commonwealth is required if the breath test is unavailable or if the individual is physically unavailable to take the breath test to administer the blood test. It’s an absolute requirement.\n[THE COURT]: Isn’t that a jury question?\n[DEFENSE COUNSEL]: No, sir, I don’t [think] so.\n[THE COURT]: How am I going to say that, the officer says he was blowing out the sides of the mouth and at one time, he wasn’t blowing at all. Then your client comes on and says, well, no, I tried but it didn’t work. What am I supposed to do?\n[DEFENSE COUNSEL]: I understand that there is a question of credibility there. If you choose to resolve against the defendant, you can certainly do that.\n[THE COURT]: Well, isn’t it a jury question? Isn’t this something that a fact finder [must] decide?\n[DEFENSE COUNSEL]: No, sir. It seems to me that the statute is mandatory____\nThe basic factual issue to be decided on Bennett’s motion to dismiss was whether he faked the breath test, refusing to properly breathe into the tube, or whether he was “physically unable to submit to the breath test.” The question then before the trial court was whether, under the statute, this issue was to be decided by the judge or the jury. Defense *343counsel’s response to the trial judge was correct. It was a legal question to be decided by the trial judge. If the trial judge believed Officer Sheppard, Bennett had no defense on this issue because he had failed in his burden of proof to prove that he was physically unable to take the breath test. See Lamay, 29 Va.App. at 473, 513 S.E.2d at 417 (holding that the accused bears the burden of establishing physical inability to take the breath test). If the trial judge believed appellant’s theory of the case and found he was physically unable to take the breath test, then appellant would have been entitled to a blood test and the motion to dismiss should have been granted.\nBecause the trial judge did not grant the motion to dismiss, he implicitly found as a fact that appellant did not establish that he was physically unable to take the breath test. The trial judge at no time entered any order holding that the question of Bennett’s physical inability to take the breath test was a jury question. To the contrary, he decided the question was one of law to be decided by the trial judge.\nIt is not unusual for a trial judge to instruct jurors that they are the judges of the facts, the credibility of the witnesses, and the weight of the evidence. The judge, as he is required to do from time to time, asked counsel on both sides for advice and guidance on the issue. Such “brainstorming” by the trial court and counsel is an integral part of our judicial system. Further, as previously stated, Code § 18.2-268.2 was amended effective as of January 1, 1995, and no cases had been decided interpreting the statute at that time. The trial judge and the attorneys did not have the benefit of Lamay, which was not decided until April 12, 1999, one year later. In Lamay we said:\nAppellant contends the trial court erred in refusing to allow testimony relating to the failure of the police to comply with the requirement that when a person is physically unable to submit to a breath test, a blood test shall be given. We have not had an opportunity to construe fully the provisions of Code § 18.2-268.2 since its effective revision date of January 1, 1995. Therefore, this case comes *344before us as one of first impression and requires us to analyze Code § 18.2-268(B) in situations where at his or her DUI trial an accused DUI driver alleges physical inability to take a breath test. We must determine under the limited facts of this case, what evidence is admissible, the procedure to follow, and what remedy, if any, should issue.\nId. at 467-68, 513 S.E.2d at 414-15 (emphasis added).\nIn this setting, the trial judge understandably but perhaps erroneously said: “We will have to let the jury decide.”\nHowever, we do not view the trial judge’s statement as constituting an order or ruling on the motion to dismiss. He never took any action or entered any order based upon the statement. It is well understood that circuit court judges act only through written, signed orders. See Rule 1:1; Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996); see also Robertson v. Superintendent of the Wise Correctional Unit, 248 Va. 232, 235 n. *, 445 S.E.2d 116, 117 n. * (1994) (citing cases). Nothing in the record suggests that the trial judge entered any order or that the attorneys understood otherwise at the motion hearing. Furthermore, judges can change their minds, and the Rules of Court give them twenty-one days to do so.\nThe statement made by the trial judge at the motion hearing did not conclude the hearing. The trial judge and counsel continued to talk about the appearance of defense witnesses for the trial scheduled on April 14, 1998. If counsel thought the judge had ruled upon the motion, this would have ended the case, and they would have had no reason to discuss further proceedings that were to occur at the trial. After the discussion about the witness, the motion hearing was adjourned with no decision having been made. In effect, the judge took the motion under advisement.\nOn the same date as the hearing, April 9, 1998, the trial judge entered an order which could not have been clearer or more explicit. He ruled and appropriately memorialized his ruling in the following signed, written order:\n*345Evidence and arguments of counsel having this day been presented on the defendant’s motion to dismiss these Appeals, the court denied said motion.\nThis order complies in every respect with Rule 1:1. Furthermore, the order shows that the trial judge accepted the testimony of the police officer that Bennett repeatedly feigned his offer to take the breath test and rejected the unsubstantiated testimony of Bennett.\nThe trial judge was not required to give any written explanation for his signed, written order. In Freeman v. Peyton, 207 Va. 194, 196, 148 S.E.2d 795, 797 (1966), Freeman contended he “was denied a full and complete hearing because the [trial] judge ruled on only the first two questions raised by [his habeas corpus] petition.” Finding that Freeman failed to distinguish “between failure to rule and failure to announce reasons for a ruling,” id., the Supreme Court said:\n[T]he [trial] Judge ruled on all points raised in the petition. The [trial] Judge saw fit to state reasons for rejecting two of the alleged grounds for granting the writ, and he saw fit to refrain from stating reasons for rejecting the other ... alleged grounds. He may have refrained because he thought the reasons self-evident. In any event, he was not required to give his reasons.\n\nId.\n\nThe only ruling made by the trial court upon the motion to dismiss was on the issue of Bennett’s ability to take the breath test. Resolution of that issue rested on which witness to believe, Sheppard or Bennett. This issue relates to the previous dialogue between the trial judge and defense counsel. Defense counsel advised the judge, “I understand that there is a question of credibility there. If you choose to resolve against the defendant you can certainly do that.” The trial judge accepted Sheppard’s testimony that Bennett repeatedly feigned his attempts to take the breath test, and he rejected Bennett’s unsubstantiated theory, raised for the first time at that hearing, that he might possibly have an asthmatic condition, making him physically unable to take a breath test. That *346disposed of the motion to dismiss on the issue of Bennett’s physical inability to take the breath test. Because Bennett failed to establish physical inability, he was not entitled to a blood test under Code § 18.2-268.2.\nMoreover, had Bennett truly believed the trial judge ruled that the jury was to determine whether he was physically unable to take the test, he would have attempted to raise that issue at trial before the jury. He did not do so. At trial, the parties confined themselves to Bennett’s guilt, namely, whether he was driving under the influence of alcohol. Ostensibly, Bennett failed to bring the matter up at trial because he was aware of the written order denying the motion to dismiss based on the credibility determination made by the trial judge and suggested by defense counsel at the pretrial hearing.\nIn summary, we hold that the trial judge, in his order following the motion hearing on April 9, 1998, implicitly found that Bennett feigned the taking of the breath test in order to prevent a proper breath analysis of the alcohol content of his blood and that he was not physically unable to take the breath test. We find that the Commonwealth fully complied with Code § 18.2-268.2. We further find that this issue was a question of law and was so decided by the trial judge and was not submitted or intended to be submitted to the jury for determination.\n\nTestimony of Unavailable Witness\n\nBennett filed a motion in limine in the circuit court, which was heard at a motion hearing on April 9, 1998, and on the morning of the trial on April 14, 1998. He moved the court to permit the introduction of the prior testimony of Pamela Peterson, who testified in the general district court as a witness on January 20, 1998, about sixteen months before the circuit court trial. Bennett moved that Peterson’s prior testimony be presented to the jury in the form of either a stipulation or by the testimony of persons present in the general district court who heard Peterson’s testimony. However, no transcript was made of the general district court *347proceeding, and no proffer is in the record showing what the testimony of any witness was.\nIn argument on the motion in limine, defense counsel explained that he attached a stipulation to the motion, hoping to get an agreement with the Commonwealth. However, the Commonwealth’s attorney refused to agree with the stipulation.\nFurther, defense counsel sought to ask Ms. Vigilance, the prosecutor in the general district court, to appear and “possibly recite what she recalls of that testimony.” The Commonwealth objected to this procedure. Nothing in the record indicates what Ms. Vigilance recalled, if anything, or what her testimony would have been if called.\n“It is well established that ‘testimony given at a former trial is admissible as an exception to the hearsay rule if certain requirements are met.’ ” Jones v. Commonwealth, 22 Va.App. 46, 50, 467 S.E.2d 841, 843 (1996) (citation omitted); see also Longshore v. Commonwealth, 260 Va. 3, 3-4, 530 S.E.2d 146, 146 (2000). These requirements are as follows:\n“(1) The original witness must be unavailable. (2) The witness who is now unavailable must have been testifying under oath (or affirmation) at the former trial. (3) The issues must be substantially the same in both trials. (4) The party against whom the hearsay testimony is now offered (or his privy in interest) must have been a party in the former trial. (5) The witness who is now testifying as to what was said at the former trial must be able to do so with reasonable accuracy.”\nDoan v. Commonwealth, 15 Va.App. 87, 100, 422 S.E.2d 398, 405 (1992) (citation omitted). The party offering the testimony bears the burden of establishing the witness’ unavailability. See Jones, 22 Va.App. at 50, 467 S.E.2d at 843.\n“ ‘[A] declarant is unavailable if the party seeking to introduce the statement has been unable by diligent inquiry to locate the declarant.’ ” Cooper v. Commonwealth, 26 Va.App. 537, 542, 496 S.E.2d 77, 79 (1998) (citation omitted). We have *348held that reasonable or “due diligence is that amount of prudence ‘as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances.’” McDonnough v. Commonwealth, 25 Va.App. 120, 128, 486 S.E.2d 570, 574 (1997) (citation omitted). This standard “requires only a good faith, reasonable effort; it does not require that every possibility, no matter how remote, be exhausted.” Id. at 129, 486 S.E.2d at 574. Furthermore, “it is well established that the sufficiency of the proof to establish the unavailability of a witness is largely within the discretion of the trial [judge], and, in the absence of a showing that such discretion has been abused, will not be interfered with on appeal.” Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 665 (1954).\nIn Doan, we explained that, “for a witness to be deemed unavailable, the proponent of the evidence bears the burden of proving ... that one of the following conditions exists:\n(1) The declarant is dead; (2) The declarant is too ill to testify; (3) The declarant is insane; (4) The declarant is absent from the state and the party is unable to obtain the declarant’s deposition; (5) The party has been unable by diligent inquiry to locate the declarant; (6) The declarant cannot be compelled to testify; and (7) The opposite party has caused the declarant’s absence.”\nDoan, 15 Va.App. at 101, 422 S.E.2d at 406.\nAt the April 9, 1998 motion hearing, appellant testified regarding Peterson’s unavailability. Bennett contends that he met his burden under Doan and established Peterson’s unavailability, so that her testimony should have been presented to the jury. We look to the facts to determine whether Bennett was unable by diligent inquiry to locate the witness.\nAt the time of the January 20, 1998 general district court trial, Peterson lived with friends in Hampton. Bennett and his mother picked her up and transported her to court. After the trial, she was taken to the bus station and returned to Hampton by bus. A week later, Peterson contacted Bennett and gave him her telephone number and address.\n*349After obtaining the circuit court trial date, Bennett called Peterson’s telephone number and a man answered. He said Peterson no longer lived there. When asked where he could “get in touch with her,” the man told Bennett he could try her place of employment at Bilo’s in Newport News. Bennett tried several times to contact her at Bilo’s by telephone, but the company would not give him any information about Peterson.\nThree weeks prior to the trial, Peterson called Bennett’s wife, but his wife was ill. Peterson said she would call back but did not do so.\nBennett never made any attempt to locate Peterson in person at her place of employment. He relied on Peterson to contact him rather than attempting to locate her in the Hampton area. Bennett did not subpoena her at her last place of residence or at her place of employment. The only excuse given for not issuing a subpoena was that he did not know her address. Peterson had Mends in the Hampton area because Bennett picked her up at their home for the general district court trial. He made no effort to contact any of them to locate her.\nBased on this evidence, the trial judge ruled that reasonable or due diligence had not been exercised and that appellant failed to prove Peterson was unavailable. After reviewing the record before us, we cannot say the trial judge abused his discretion.\nIn Doan, we said that “ ‘[t]he witness who is now testifying as to what was said at the former trial must be able to do so with reasonable accuracy.’ ” Id. at 100, 422 S.E.2d at 405 (citation omitted). In this case, we do not know who the witness would be. Defense counsel suggested that the former prosecutor, Ms. Vigilance, might testify concerning what Peterson’s testimony might have been. However, nothing in this record proves that Ms. Vigilance recalled the Peterson testimony with reasonable accuracy.\n*350The trial judge refused to admit the evidence proposed by Bennett because he failed to prove the former witness was unavailable. The trial judge also found the proposed evidence was speculative. We agree with these rulings.\nAccordingly, we affirm the judgment of the trial court.\n\nAffirmed.\n\n\n. Bennett has not raised any issue that a breath test was not available. The issue is whether he was physically unable to submit to it.\n\n", "ocr": false, "opinion_id": 9525487 }, { "author_str": "Coleman", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCOLEMAN, Judge,\nwith whom BENTON and ELDER, JJ., join, dissenting, in part, and concurring, in part.\nA panel of this Court reversed the defendant’s conviction for a second or subsequent offense of driving while intoxicated because the trial court erroneously ruled that the jury, rather than the trial judge, had to decide whether the defendant was “physically unable to submit to the breath test” and thereby entitled to a blood test as provided by Code § 18.2-268.2(B). See Bennett v. Commonwealth, 31 Va.App. 30, 520 S.E.2d 845 (1999). In support of its decision reversing the trial court, the panel set forth the dialogue between defense counsel and the judge at the hearing on the motion to dismiss that led up to the trial court’s erroneous ruling, ‘We will have to let the jury decide [that issue].”2 Based upon that dialogue, the panel *351concluded that the trial judge ruled that the issue was a factual question for the jury and, therefore, denied the motion to dismiss.\nNow, a majority of the Court disregards the clear ruling of the trial judge by characterizing it as an “understandable] but perhaps erroneous[ ] [statement].” Inexplicably, the majority further holds that the trial judge “implicitly” ruled on the merits of the motion to dismiss and found that Bennett was not physically unable to submit to the breath test. The record contains not the slightest suggestion that the trial judge found that the defendant was not physically unable to submit to the breath test. The trial judge denied the motion to dismiss because he decided it was an issue for the jury, not because he decided the merits of the motion. Accordingly, I respectfully disagree with the majority’s opinion and dissent from that holding.3\nI would reverse and remand to the trial court with directions for the court to conduct an evidentiary hearing on the motion to dismiss and to rule on that motion. If the trial court finds by a preponderance of the evidence that the defendant was able to submit to a breath test and denies the motion, the judgment of the jury should be reinstated. However, if the trial judge finds that the defendant was unable to *352submit to the breath test and was denied a blood alcohol test, the motion to dismiss should be granted. See Lamay v. Commonwealth, 29 Va.App. 461, 476, 513 S.E.2d 411, 418 (1999).\nThe analysis in support of my dissent in this case is ably set forth in the panel’s opinion authored by Judge Willis, who has approved my adopting it verbatim:\nThe order reciting the proceedings on Bennett’s motion to dismiss states, in essential part:\nEvidence and arguments of counsel having this day been presented on the defendant’s motion to dismiss these Appeals, the Court denies said motion.\n******\n“It is firmly established law in this Commonwealth that a trial court speaks only through its written orders.” Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). Normally, in reviewing a trial court’s factual holding, we inquire whether the record contains credible evidence supporting that holding. Were that the standard of review to be applied in this case, we would affirm the trial court’s dismissal of Bennett’s motion. Officer Sheppard’s testimony sufficiently supported that ruling.\nHowever, upon the record presented in this case, our first inquiry is to identify the trial court’s ruling. Its holding, embodied in the order, can be read fairly only in the context of its pronouncements from the bench. From the bench, the trial court made no ruling and directed the entry of no order addressing the merits of the motion. The order itself contains no recitation suggesting a ruling on the merits. Rather, the trial court stated plainly and repeatedly that it found the issues raised by the motion inappropriate for decision by it. It refused decision on those issues and reserved them for presentation to the jury, should Bennett so elect.4 Plainly, the trial court’s dismissal of the motion was based not upon a *353determination on the merits, but rather upon its refusal to entertain the motion as a preliminary matter. In so ruling, the trial court erred.\nThe credibility issue concerning compliance with Code § 18.2-268.2 was a question of fact preliminary to a ruling of law. This question necessarily required determination by the trial court. “Issues of fact are usually left to the jury, but there are strong reasons here for not doing so.” 6 McCormick on Evidence § 53 (Edward W. Cleary ed., 3rd ed. 1984). The motion to dismiss addressed whether the Commonwealth might prosecute the charge.\n“Questions as to the competency or admissibility of testimony ... are referred to the decision of the judge. ‘As it is the province of the jury to consider what degree of credit ought to be given to evidence, so it is for the court alone to determine whether a witness is competent, or the evidence admissible. Whether there is any evidence is a question for the court; whether it is sufficient is for the jury. And whatever antecedent facts are necessary to be ascertained, for the purposes of deciding the question of competency— as, for example, whether a child understands the nature of an oath, or whether the confession of a prisoner was voluntary, or whether declarations offered in evidence as dying declarations were made under the immediate apprehension of death — those, and other facts of the same kind, are to be determined by the court, and not by the jury.’ ”\nMullins v. Commonwealth, 113 Va. 787, 791, 75 S.E. 193, 195-96 (1912) (citations omitted).\nThe action of the [trial] court in leaving evidence objected to provisionally to the jury, to be considered or rejected by them, as they might determine its admissibility or inadmissibility under the instruction given by the [trial] court, was not proper practice, as the jury has nothing to do with the admissibility of the evidence.\nId. See 7B Michie’s Jurisprudence, Evidence § 287 (1998). “The factual determinations which are necessary predicates to rulings on the admissibility of evidence and the purposes for *354which it is admitted [as well as related questions] are for the trial judge and not the jury.” Rabeiro v. Commonwealth, 10 Va.App. 61, 64, 389 S.E.2d 731, 732 (1990). See also C. Friend, The Law of Evidence in Virginia, §§ 1-5 (4th Ed.1993). The same rule governs resolution of preliminary questions of fact underlying rulings of law by a trial court.\nIf the trial court believed Bennett, Code § 18.2-268.2 required dismissal of the charge. If, however, the trial court believed Officer Sheppard, the motion to dismiss should have been denied.\nThe trial court erred in refusing to determine the preliminary question of credibility and in refusing to rule on the merits of the motion to dismiss.\nFor these reasons, I dissent from the majority’s decision on the motion to dismiss and would reverse and remand with directions for the trial court to hear and rule upon the motion to dismiss.\n\n. The following dialogue ensued between the trial court and defense counsel:\nTHE COURT: Do you have anything further? Do you want to be heard?\nMR. DORAN (defense counsel): Yes, sir, just briefly. Judge, under 18.2268.2 [sic], the Commonwealth is required if the breath test is unavailable or if the individual is physically unavailable to take the breath test to administer the blood test. It’s an absolute requirement.\nTHE COURT: Isn’t that a jury question?\nMR. DORAN: No, sir, I don’t think so.\nTHE COURT: How am I going to say that, the, the officer says he was blowing out the side of the mouth and at one time, he wasn’t blowing at all. Then, your client comes on and says, well, no, I tried but it didn’t work. What am I supposed to do?\nMR. DORAN: I understand that there is a question of credibility there. If you choose to resolve against the defendant, you can certainly do that.\nTHE COURT: Well, isn’t it a jury question? Isn’t this something that a fact finder to decide?\n*351MR. DORAN: No, sir. It seems to me that the statute is mandatory and if there is sufficient indication, I think the standard of proof is on the probable cause. You may reject it and say that factually we have not laid the predicate for you to call into play the mandatory language of the statute. If you do that, it’s not much I can say except I appeal or otherwise. ,\nTHE COURT: Wait a minute. You are hanging your hat on the fact that he asked for a'blood test?\nMR. DORAN: That is right.\nTHE COURT: The officer said he never asked for a blood test.\nsjs\nTHE COURT: Isn’t this a jury question?\nH* H* He * H*\nTHE COURT: We will have to let the jury decide. It’s not for me to decide. I can’t just do that. I’m not even going to tiy the case. I’m just going to sit here and watch you try the case.\n\n\n. I concur in the majority’s opinion on \"The Unavailable Witness.”\n\n\n. These issues were not presented to the jury.\n\n", "ocr": false, "opinion_id": 9525488 } ]

[ "232 F.2d 584" ]

[ { "author_str": "Huxman", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/232/232.F2d.584.5199.html", "author_id": null, "opinion_text": "232 F.2d 584\n CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a corporation, Appellant,v.HUGH BREEDING, Inc., a corporation, Appellee.\n No. 5199.\n United States Court of Appeals Tenth Circuit.\n March 20, 1956.\n \n COPYRIGHT MATERIAL OMITTED Nell Rhodes Fisher, Oklahoma City, Okl. (Robert E. Shelton, of Savage, Gibson, Benefield & Shelton, Oklahoma City, Okl., were with her on the brief), for appellant.\n Gus Rinehart, Oklahoma City, Okl. (Butler, Rinehart & Morrison, Oklahoma City, Okl., were with him on the brief), for appellee.\n Before HUXMAN and PICKETT, Circuit Judges, and MELLOTT, District Judge.\n HUXMAN, Circuit Judge.\n \n \n 1\n This is an appeal from a summary judgment for the United States District Court for the Western District of Oklahoma, awarding Hugh Breeding, Inc.,1 an Oklahoma corporation, judgment in the sum of $7,939 against the Chicago, Rock Island and Pacific Railroad Company2 and denying relief upon its cross-complaint. Before entering judgment for Breeding, the court overruled the railroad's motion to transfer the case to the United States District Court for Kansas at Wichita for trial under the provisions of 28 U.S.C.A. § 1404(a).\n \n \n 2\n The action arose out of a collision between an oil transport truck belonging to Breeding which was stalled on the railroad crossing at 37th Street, north of the city limits of Wichita, Kansas, and a train being operated by the railroad company. The company alleged as grounds for recovery that the railroad company was guilty of negligence in operating its train at a high and dangerous rate of speed under the circumstances, towit, in excess of 40 miles per hour; that the weather and visibility were very bad; and that the agents of the railroad company failed to heed warnings by flagmen who were attempting to stop or retard the train prior to its reaching the crossing. In addition to its answer, the railroad also filed a cross-complaint in which it alleged the collision was due to the negligent manner in which Breeding operated its truck and that such negligence resulted in damage to the railroad company's equipment for which recovery was sought.\n \n \n 3\n The evidence before the court in the form of depositions upon which summary judgment was granted showed these facts. Gainer, the driver of the truck, left Tulsa, Oklahoma, on the morning of the day of the accident with a load of gasoline which he unloaded in Wichita, Kansas, about 5:30 p. m. It had been snowing and the roads were slick and slippery. He had chains with him but did not put them on the tires. After unloading his gasoline he went to Phillips Petroleum Company in North Wichita where he loaded his truck with more gasoline to be delivered to an air line company at Tulsa, Oklahoma. 37th Street is in the country adjacent to Wichita on the north. It runs east and west and is immediately south of Phillips' plant where Gainer obtained his load of gasoline. Upon leaving Phillips' plant, Gainer turned left on 37th Street, intending to cross a railroad track which was near by and at right angles to the street. As he turned left onto 37th Street, the left rear wheel of the truck slid off the north side of the street and, as he put it, he was \"stuck.\" The tractor of the truck was sitting squarely on the railroad track.\n \n \n 4\n Being unable to extricate the truck, he left it and ran to a near by place to attempt to contact the railroad office by phone but was unable to do so. In the meantime two motorists stopped and proceeded north along the right of way in an attempt to flag the train which was approaching at about 40 miles per hour. Because of the weather conditions the trainmen were unable to see them from any appreciable distance. The flagmen were observed at about the same time the truck was seen on the track. The engineer applied the emergency brake but was unable to stop before hitting the truck.\n \n \n 5\n It is without dispute that visibility was very poor and that because of whirling and swirling snow along the ground the engineer could see but a very short distance ahead of the engine. One witness testified the visibility was about thirty feet. The engineer testified that conditions were nearly blizzard conditions and that at most he could see about one hundred feet and that he could not stop within the range of his vision at the speed he was going. There was testimony by a railroad brakeman that the railroad had a rule that \"if you can't see, why then you are going to slow down to where you can see.\" Other railroad witnesses testified there was no such rule. There was other testimony \"That the condition of the whole thing would govern the operation of the train.\" This in substance was the evidence upon which the trial court granted summary judgment for plaintiff.\n \n \n 6\n Preliminary to a consideration of the principal question, we must dispose of appellant's contention that the trial court erred in refusing to sustain its motion for a change of venue from the Western District of Oklahoma to the United States District Court of Kansas at Wichita.3 Section 1404(a) is a new section in the Code. The subject matter thereof relates to the old doctrine of forum non conveniens. By the adoption of this section Congress intended to broaden the old doctrine of forum non conveniens and to especially ameliorate the harshest part of the old rule which required the court to either retain the case or dismiss it. It is the spirit of the new section to vest the trial court with the exercise of a reasonable discretion in determining whether it would exercise its jurisdiction or transfer the case to another forum for trial.4 It has been held that the judgment of a trial court will be reversed only where the appellate court finds there has been an abuse of discretion.5\n \n \n 7\n In Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 843, 91 L. Ed. 1055, the Supreme Court said that \"unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.\" Various courts have adhered to this pronouncement.6\n \n \n 8\n Here we have practically no dispute as to what occurred. Neither is the amount of damage suffered by either of the parties in dispute.7 The eyewitnesses to the accident are few in number and their testimony is not in conflict. They consist of the driver of the truck, the two persons who undertook to flag the train and the engineer and his fireman who were in the engine at the time of the accident. Even the conductor of the train is not a key witness. His testimony at most would seem to be cumulative and perhaps corroborative of that of the engineer and the fireman, testimony which is not disputed. The police officer and the deputy sheriff, who testified he was a candidate for sheriff, came upon the scene after the accident and can testify to nothing materially challenging the testimony of any of the eyewitnesses.\n \n \n 9\n The affidavit in support of the motion for transfer in substance states that the railroad will be required to have in attendance twenty witnesses who are residents of Kansas; that of these, ten are not employed by the railroad; that to compel them to attend the trial in Oklahoma will be a serious burden to them; and that the railroad cannot force non-employee witnesses to attend the trial. These statements in our opinion are insufficient to discharge the heavy duty resting upon the railroad to obtain a transfer of the case to the Kansas court. We reach this conclusion without taking into consideration the considerable burden on the plaintiff, a resident of Oklahoma, to bring or compel its witnesses to come to Wichita.\n \n \n 10\n It is not sufficient to merely state that the railroad has twenty witnesses it must transport to Oklahoma. To discharge the burden resting upon it, it was necessary to set out in the affidavit the substance of the evidence of these witnesses so the court in reaching its conclusion might consider the materiality thereof or whether it tended to establish a material fact different from that of the eyewitnesses or whether it tended to contradict material testimony of other witnesses.8 In the absence of any showing as to materiality of the evidence of these twenty witnesses, merely stating that the railroad is compelled to transport ten of its employees to Oklahoma and that it may not be able to compel the attendance of the ten nonemployee witnesses is not sufficient for us to conclude that the trial court abused its discretion in refusing to transfer the case to the Kansas Court.\n \n \n 11\n The allegation of negligence upon which Breeding relied for recovery was that the train was being operated at an excessive rate of speed under existing weather \"to-wit, in excess of 40 miles per hour\" and because of such speed the engineer was unable to stop the train in time to prevent the collision with the truck because of poor visibility. The theory upon which the court predicated its summary judgment was that it was the duty of the railroad to operate its train at such a speed so it could be stopped within the assured distance ahead and since under the undisputed facts of the case the train was not being so operated plaintiff was entitled to judgment.\n \n \n 12\n It is generally held and certainly that is the established law of Kansas that a high rate of speed in the open country does not in and of itself and without more constitute negligence.9 But Kansas has never said that a high rate of speed in open country may not under certain conditions and circumstances constitute negligence. In every case in which the Kansas court has considered the question of high or even very high rate of speed in open country, it has indicated that peculiar conditions may impose liability because of such high rate of speed, even outside the city limits. The following statement by the Kansas court in Atchison, Topeka & Santa Fe Railway Co. v. Schriver, 80 Kan. 540, 103 P. 994, 995, that \"it is now generally understood that an unusually high rate of speed is not of itself improper or negligent. In the open country, where no peculiar conditions exist which make it dangerous, and speed is not limited by statute, trains may be operated at any speed which the existing exigencies of public travel seem to require\", appears in substance in many decisions. Here the train was approaching a large city where highway traffic was bound to be heavy. 37th Street adjoined the City of Wichita on the north. It is doubtful if it can be said that this constituted open country. Visibility was almost zero. According to the engineer's testimony he could see at most one hundred feet in front of the engine which was woefully inadequate to bring the train to a stop at the speed at which he was going. Whether it was negligence on his part under such conditions to operate his train at the edge of the City of Wichita at 40 miles per hour is to say the least a question upon which reasonable minds might differ. We, therefore, think it was a question of fact for the jury and not for the court. Negligence ordinarily is a fact question and that is so even though there be no conflict in the evidence if different conclusions can be drawn therefrom. It is only in those rare cases where but one conclusion can be drawn from the evidence that a court is warranted in deciding the question of negligence as a matter of law, and this in our view is not such a case.\n \n \n 13\n There is yet another reason why summary judgment should not have been entered for Breeding. The railroad's answer as an additional defense charged the driver of the truck with negligence which in any event contributed to the accident. It was charged that he was guilty of negligence in operating the truck on the slick and slippery highway without installing the chains which he had with him. Whether chains would have prevented him from slipping into the ditch may be a disputed question of fact. The driver did testify that the roads were slick and slippery. Whether he was negligent in not attaching the chains or in respect to the other acts of negligence charged and whether such acts contributed to the accident is a debatable issue which should have been submitted to the jury.\n \n \n 14\n Reversed and remanded.\n \n \n 15\n As to that portion of the opinion dealing with the motion to transfer under § 1404(a), 28 U.S.C.A., PICKETT, Circuit Judge, concurs only in the result.\n \n \n \n Notes:\n \n \n 1\n Herein called Breeding\n \n \n 2\n Herein called railroad\n \n \n 3\n 28 U.S.C.A. § 1404(a) provides:\n \"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.\"\n \n \n 4\n Norwood v. Kirkpatrick, 349 U.S. 29, 75 S. Ct. 544, 99 L. Ed. 789\n \n \n 5\n General Portland Cement Co. v. Perry, 7 Cir., 204 F.2d 316\n \n \n 6\n Nicol v. Koscinski, 6 Cir., 188 F.2d 537, and cases there cited; General Portland Cement Co. v. Perry, 7 Cir., 204 F.2d 316\n \n \n 7\n The amount of damage suffered by Breeding and the Railroad Company was stipulated\n \n \n 8\n Goodman v. Southern Railway Company, D.C., 99 F. Supp. 852; Jenkins v. Wilson Freight Forwarding Company, D.C., 104 F. Supp. 422\n \n \n 9\n See Chicago, Rock Island & Pacific Railroad Co. v. Consumers Cooperative Association, 10 Cir., 180 F.2d 900, and Kansas cases there cited\n \n \n ", "ocr": false, "opinion_id": 239252 } ]

[ "226 N.W.2d 699", "57 Mich. App. 696" ]

[ { "author_str": "Danhof", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n57 Mich. App. 696 (1975)\n226 N.W.2d 699\nKALITA\nv.\nCITY OF DETROIT\nDocket No. 17790.\nMichigan Court of Appeals.\nDecided January 27, 1975.\n*698 Bruce L. Randall, for plaintiffs.\nElliott S. Hall, Corporation Counsel, and Thomas H. Gallagher, William P. Doran, Peter A. Letzmann, and Geoffrey S. Taft, Assistants Corporation Counsel, for defendants.\nBefore: BASHARA, P.J., and DANHOF and VAN VALKENBURG,[*] JJ.\nLeave to appeal applied for.\nDANHOF, J.\nPlaintiffs are owners or operators of adult bookstores located in the City of Detroit. They were cited for violating a municipal ordinance, § 39-1-50 of the Code of the City of Detroit, which regulates the distribution of \"sex inciting devices or contrivances\", and other related products. Plaintiffs thereupon brought an action seeking a declaratory judgment that the ordinance is unconstitutional, and a permanent injunction enjoining its enforcement. Arguments were heard, briefs were filed, and the trial court issued a written opinion upholding the ordinance as constitutional and denying injunctive relief. Plaintiffs appeal from this decision and order; we affirm.\nPlaintiffs argue that the language of the ordinance is unconstitutionally vague because it fails *699 to accurately describe the conduct which is forbidden by the ordinance, and consequently it does not give reasonable notice of the prohibited conduct and it encourages discriminatory and arbitrary enforcement. In a related issue, plaintiffs contend that the ordinance is overbroad, so that under its nebulous standards innocent conduct is made criminal. These defects, according to plaintiffs' argument, deny due process in violation of the Michigan and Federal constitutions. Const 1963, art 1, § 17; US Const, Am XIV.\nThat part of the challenged ordinance, § 39-1-50 of the Detroit city code provides:\n\"It shall be unlawful for any person other than a druggist operating a bona fide drugstore equipped with a prescription department and actually engaged in the business of compounding prescriptions and complying with the state pharmacy laws, or a physician duly licensed to practice in the state, to sell, offer for sale, distribute or give away any appliance, drug or medicinal preparation intended or having special utility for the prevention of conception or venereal diseases, or any contraceptive devices or any prophylactic rubber goods or any other articles for the prevention of venereal diseases and infections or any sex inciting device or contrivance in the city; except, that the foregoing provisions shall not apply to wholesale druggists, jobbers or manufacturers who sell to retail drugstores for resale; and provided further, that all such articles, applicances, drugs or medicinal preparations described in this section shall when sold, offered for sale, given away or distributed in accordance with the provisions of this section, conspicuously bear the identification of the manufacturers thereon or on the retail container thereof.\"\nA penal ordinance must provide sufficient notice of its elements to forewarn as to the kind of conduct which is made criminal, and it must establish objective standards by which guilt may be *700 determined. The ordinance must adequately differentiate between conduct which is harmful and which is made a prohibited activity on the one hand, and essentially innocent conduct on the other hand. An ordinance which fails to satisfy these requirements is vague, overbroad, and constitutionally defective. See People v Otis Adams, 34 Mich App 546, 558-559; 192 NW2d 19 (1971), modified as People v Adams, 389 Mich 222; 205 NW2d 415 (1973).\nIn the context of the case presently before this Court, the test under both of these constitutional doctrines is fundamentally the same. A penal ordinance must be so clear that any ordinary person can tell what he may or may not do thereunder; that is, the terms of the ordinance cannot be so indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application. Connally v General Construction Co, 269 US 385; 46 S Ct 126; 70 L Ed 322 (1926); People v Thompson, 259 Mich 109; 242 NW 857 (1932); People v Wiegand, 369 Mich 204; 119 NW2d 545 (1963).\nThe question then becomes, is the language of the ordinance specific enough to meet the constitutional test? More precisely, does the use of the phrase \"sex inciting device or contrivance\" adequately inform persons of ordinary intelligence as to what behavior is prohibited, and in so doing, does it sufficiently delineate those activities which are made illegal so as to preclude its application to harmless behavior? We conclude that it does.\nThe limitations inherent in the use of language prevent absolute certainty in the drafting of statutes. Words cannot be expected to convey mathematically precise meanings. Therefore, the terms found in a statute and ordinance must be examined *701 with a reasonable eye. \"It would be little short of judicial nonsense to hold that the State in defining offenses must use such simple or exact terms that they cannot possibly be misunderstood or distorted into uncertainty. If the language used conveys the intended meaning with reasonable certainty it is sufficient.\" People v Thompson, supra, 259 Mich 117. This Court discussed a constitutional challenge similar to the argument advanced here in Dearborn Heights v Bellock, 17 Mich App 163, 167; 169 NW2d 347 (1969), in which it was said:\n\"The requisite of definiteness demands no more than a reasonable degree of certainty. Boyce Motor Lines, Inc v United States, supra [342 US 337; 72 S Ct 329; 96 L Ed 367 (1952)]. As stated in 21 Am Jur 2d, Criminal Law, § 17:\n\"`The requisite certainty may sometimes be supplied by materials outside the statutory definition of the offense. Thus, in the case of a statute that deals with offenses difficult to define, the entire text of the statute or the subject dealt with may furnish an adequate standard of definiteness.'\"\nThe ordinance with which we are presently concerned is primarily designed to regulate the distribution of contraceptive products and devices in general, and prophylactic rubber goods specifically. In addition to the listed and described items, any \"sex inciting device or contrivance\" is logically included as a manufactured item, usually made of rubber, which is used by some in connection with sexual activity and which is likely to have a tendency to encourage such activity. The phrase, therefore, derives added certitude from its inclusion among the other products.\nA greater degree of exactitude in the terminology and in the definitions used in the present *702 ordinance cannot be expected. No effort to precisely describe in detail the devices and contrivances regulated by the ordinance could possibly be complete in view of the almost limitless imagination and degeneracy evidenced by the record in this case. Furthermore, since the activity involved is of an indelicate nature, failure to graphically outline the conduct regulated by the ordinance does not cause the ordinance to be unconstitutionally vague or overbroad. People v Green, 14 Mich App 250; 165 NW2d 270 (1968). lv den, 381 Mich 815 (1969); People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), and cases cited therein.\nProprietors of adult bookstores and related business enterprises, including the plaintiffs in the present case, are undoubtedly intimately familiar with the products referred to in the ordinance. Thus, \"we do not here find a problem of failure of communication between the enacting legislative body and the members of the public whose behavior is sought to be controlled\". Detroit v Detroit Edison Co, 16 Mich App 423, 428; 168 NW2d 320 (1969).\nThe Supreme Court of Wisconsin in State v Arnold, 217 Wis 340; 258 NW 843 (1935), passed upon the constitutionality of a statute which defined and regulated \"indecent articles\". The Court refuted the argument made by the plaintiffs here that the language used in the statute could conceivably be construed to apply to legitimate common products, and that therefore the statute was vague and overbroad. The Court concluded that the Legislature intended to confine the application of the statute only to those articles whose sole or intended purpose was within the class of conduct regulated by the statute. It is also of significance that the ordinance complained of here does not *703 totally curtail all traffic in these items. It merely regulates this traffic by restricting distribution to physicians and qualified pharmacists. See People v Baird, 47 Misc 2d 478; 262 NYS2d 947 (1965).\nThis Court has recognized that a duly passed ordinance is presumed constitutionally valid, and the burden of overcoming the presumption must be met by the party challenging the ordinance as being vague and overbroad. Detroit v Wedlow, 17 Mich App 134; 169 NW2d 145 (1969); Detroit v Bowden, 6 Mich App 514; 149 NW2d 771 (1967), lv den, 379 Mich 772 (1967). We hold that the plaintiffs have not met their burden in the present case.\nPlaintiffs' next issue raises another constitutional objection to the ordinance. They contend that the ordinance is an invalid exercise of the police power because \"no valid reason exists for enacting the ordinance\". Apparently, plaintiffs are denying \"the existence of a real and substantial relationship between the exercise of those powers in a particular manner in a given case and the public health, safety, morals, or the general welfare\". Grocers Dairy Co v Department of Agriculture Director, 377 Mich 71, 76; 138 NW2d 767 (1966), quoted in Tally v Detroit, 54 Mich App 328, 335; 220 NW2d 778 (1974).\nPlaintiffs recognize the controlling significance of the decision in People v Pennock, 294 Mich 578; 293 NW 759 (1940). In that case, our Supreme Court discussed the contention that the ordinance which was the predecessor to the one presently under consideration, and which is virtually identical in terminology, including the phrase \"sex inciting device or contrivance\", was not a proper exercise of the police power. After discussing the salutary purpose fulfilled by the ordinance, the Court concluded that its regulations were \"within the police power of the city\".\n*704 Changing conditions, attitudes, and morals are urged upon us as reason to disregard this decision made almost 35 years ago. While we are not necessarily persuaded by this argument, it matters little, because \"Once a rule has been promulgated by the Supreme Court of this State, that rule may not be altered by this Court, however outdated or unwise we may think the rule\". People v Ernest Edwards, 47 Mich App 307, 309-310; 209 NW2d 527 (1973), lv granted, 390 Mich 787 (1973). If plaintiffs believe that an incorrect decision was made in Pennock, \"it is for the Supreme Court to say. As an intermediate appellate court, we are bound by the Supreme Court's opinion * * * \". People v O'Neal, 22 Mich App 432, 436; 177 NW2d 636 (1970).\nPlaintiffs argue that the ordinance cannot be reconciled with the decision in Eisenstadt v Baird, 405 US 438; 92 S Ct 1029; 31 L Ed 2d 349 (1972). In that case, the United States Supreme Court held that a Massachusetts statute restricting the distribution of contraceptives violated the equal protection clause. It did so, according to the Supreme Court, because it sought to restrict the sale and use of contraceptives to married persons who could not be denied access to them under the Court's earlier decision in Griswold v Connecticut, 381 US 479; 85 S Ct 1678; 14 L Ed 2d 510 (1965). The ordinance in the present case makes no distinction based on marital status; it does not attempt to restrict either the sale or the use of these products to any class of persons. Rather, the ordinance is designed to regulate the method of distribution and the professional competency of the distributors of these products. Consequently, the decision in Eisenstadt is not in point under the facts of this case.\n*705 The final issue raised by the plaintiffs asserts that the ordinance is invalid because it conflicts with state law, MCLA 329.251 et seq.; MSA 14.353(1) et seq. This assertion is of no merit. As a general rule, local regulation in addition to state law does not constitute a conflict therewith where the statute has not preempted the field, and the state law can work effectively despite local intervention. Walsh v River Rouge, 385 Mich 623; 189 NW2d 318 (1971). Here, the ordinance does not conflict with the state regulatory scheme. Contrary to plaintiffs' assertion, the mere fact that the ordinance authorizes the imposition of a greater penalty than does the statute, will not necessarily invalidate the ordinance. Owosso v Michigan Central R Co, 183 Mich 688; 150 NW 323 (1915).\nAffirmed.\nAll concurred.\nNOTES\n[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.\n\n", "ocr": false, "opinion_id": 2213175 } ]

[ "740 F.3d 1139" ]

[ { "author_str": "Lee", "per_curiam": false, "type": "010combined", "page_count": 14, "download_url": "http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D01-29/C:12-3625:J:Lee:aut:T:fnOp:N:1281877:S:0", "author_id": null, "opinion_text": "   \n\n In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________ \nNo. 12‐3625 \nESTHER HUSSEY, \n Plaintiff‐Appellant, \n\n v. \n\nMILWAUKEE COUNTY, \n Defendant‐Appellee. \n ____________________ \n\n Appeal from the United States District Court for the \n Eastern District of Wisconsin. \n No. 12‐C‐73 — William J. Callahan, Jr., Magistrate Judge. \n ____________________ \n\n ARGUED APRIL 25, 2013 — DECIDED JANUARY 29, 2014 \n ____________________ \n\n Before  MANION  and  KANNE,  Circuit  Judges,  and  LEE, \nDistrict Judge.* \n LEE, District Judge. Esther Hussey, on behalf of herself and \nall  others  similarly  situated,  sued  Milwaukee  County  (the \n“County”)  in  state  court  alleging  that  its  failure  to  provide \ncost‐free  health  insurance  to  retirees  constituted  a  taking  of \n                                                 \n* The Honorable John Z. Lee of the Northern District of Illinois, sitting by \n\ndesignation. \n\f2  No. 12‐3625 \n\nproperty  without  due  process  of  law  in  violation  of  the \nUnited  States  and  Wisconsin  constitutions.  The  County \nremoved the case to the United States District Court for the \nEastern District of Wisconsin.  \n The parties consented to the jurisdiction of the magistrate \njudge,  who  stayed  briefing  on  the  class  certification  issues \npending  the  resolution  of  the  parties’  cross‐motions  for \nsummary judgment. On summary judgment, Hussey argued \nthat  the  County  ordinances  bestowed  upon  retirees  a \nproperty interest in “cost‐free” health insurance. In response, \nthe  County  contended  that  it  only  promised  retirees  the \nability to participate in the same health insurance plan (“the \nPlan”)  as  active  employees  on  a  “premium‐free”  basis.  The \nmagistrate  judge  reviewed  the  language  of  the  ordinances \nand  agreed  with  the  County,  granting  its  motion  for \nsummary  judgment  and  denying  Hussey’s  cross‐motion. \nHussey appealed.1 We affirm. \n I.  Background \n Hussey worked for the County, primarily in the Register \nof Deeds Office, starting in 1961 until she retired in 1991. At \nthe  time  that  she  was  hired,  she  was  required  to  make  a \nmonthly  contribution  toward  the  cost  of  her  health \ninsurance. \n By 1971, the County provided its employees with health \ninsurance  pursuant  to  the  Milwaukee  County  Code  of \nGeneral  Ordinances  (hereinafter  “MCCGO”)  §  17.14(7), \n\n                                                 \n1  On  September  10,  2013,  Esther  Hussey  passed  away  during  the \npendency  of  this  appeal.  On  October  25,  2013,  the  Court  granted  her \nestate’s motion for substitution of party.  \n\fNo. 12‐3625  3 \n\nwhich  stated  in  pertinent  part:  “Hospital  and  surgical \ninsurance  shall  be  provided  for  county  employees  upon \napplication of each employe. The county shall participate in \nthe payment of monthly premiums for such insurance … for \neligible  employes  in  the  classified  service,  except  for \nemployes  65  years  or  age  or  over.”  MCCGO  §  17.14(7)(a) \n(1971). \n In  June  of  that  same  year,  the  County  amended  the \nordinance  to  expand  this  coverage  to  retired  County \nemployees.  Specifically,  Section  17.14(7)(i)  was  amended  to \nread that the “[p]rovisions of (a), (b), (c) and (d) shall apply \nto retired members of the County Retirement System with 15 \nor  more  years  of  creditable  pension  service  as  a  County \nemploye  or  beneficiaries  of  such  members.”  MCCGO  § \n17.14(7)(i) (1971). \n Since  1971,  Section  17.14  has  undergone  a  number  of \namendments.  By  1989,  Section  17.14(7)  provided  that  “[t]he \nCounty shall participate in the payment of the monthly costs \nor  premium  for  [health  insurance]  benefits.”  MCCGO  § \n17.14(7) (1989). Section 17.14(7)(a) was amended that year to \nprovide  that  “[t]he  County  shall  pay  the  full  monthly  costs \nof  providing  such  coverage  for  employes  who  commenced \ntheir  employment  with  Milwaukee  County  prior  to  July  31, \n1989.”  MCCGO  §  17.14(7)(a)  (1989). And  Section  17.14(7)(h) \nmade this provision applicable to eligible retired employees. \nMCCGO § 17.14(7)(h) (1989). \n In 1993, Section 17.14(7)(h) itself was amended to provide \nexpressly that “[t]he County shall pay the full monthly cost \nof  providing  such  [health  insurance]  coverage  to  retired \nmembers of the County Retirement System with 15 or more \nyears of creditable pension service.” Furthermore, starting in \n\f4  No. 12‐3625 \n\n1996, Section 17.14(7) also stated that “[t]he provisions of this \nsubsection  are  considered  a  part  of  an  employee’s  vested \nbenefit contract.” MCCGO § 17.14(7) (1996). \n It  is  undisputed  that,  at  the  time  of  her  retirement  in \n1991,  Hussey  had  paid  no  co‐payments,  co‐insurance \npayments,  or  deductibles  in  conjunction  with  her  health \nplan. Also that year, Hussey received a benefit plan booklet \nthat  explained:  “If  an  active  employee  retires  with  fifteen \nyears or more of County service, the retiree may participate \nin  the  health  plan  in  which  he/she  is  currently  enrolled  on \nthe same basis as coverage provided to the active employee \ngroup. The County will make the full premium contribution \non behalf of the retiree.” \n Furthermore,  it  is  worth  noting  that,  prior  to  Hussey’s \nretirement  in  1991,  the  County  had  revised  its  health  care \ninsurance  benefits  to  include  a  “fee‐for‐service”  plan  and  a \nHealth  Maintenance  Organization  (“HMO”)  plan  and \nrequired  employees  who  were  hired  after  July  31,  1989,  to \ncontribute  to  their  selected  plan.  See  MCCGO  §  17.14(7)(a), \n(b)  (1989).  The  County  continued  to  modify  its  health \ninsurance  plans  after  1991,  changing  insurance  carriers  and \nrevising  the  applicable  deductibles,  co‐payments  and  co‐\ninsurance  amounts.  In  fact,  as  early  as  2001,  the  ordinance \nincreased  the  various  charges  that  active  employees  and \nretirees  had  to  pay  as  participants  in  the  plans.  See.  e.g., \nMCCGO § 17.14(7)(a), (b) (2000); § 17.14(8)(d), (e) (2000). The \nCounty nevertheless continued to pay the “monthly costs of \nproviding such coverage” for eligible retirees. See MCCGO § \n17.14(7)(h) (2000). As for  Hussey,  according  to  her  affidavit, \nshe  “never  had  to  pay  any  co‐pays  or  any  contributions \ntoward [her] retirement healthcare benefits” until 2006, or if \n\fNo. 12‐3625  5 \n\nshe  had  been  required  to  make  such  payments  “they  either \nwere  not  exacted  by  the  provider  or  [she  has]  no \nrecollection” of them. \n In  2012,  the  County  again  amended  its  health  insurance \nplans, which further increased the deductibles, co‐payments, \nand  co‐insurance  charges  that  Hussey  would  have  to  bear. \nThese amendments also modified the plan’s coordination of \nbenefits  with  Medicare  for  retirees  over  the  age  of  65.  Prior \nto  the  2012  amendments,  the  County’s  plan  had  employed \nthe  “come‐out‐whole”  method  of  benefits  coordination, \nunder which any expenditures not covered by Medicare was \npaid  in  full  by  the  County.  Starting  in  2012,  the  County \nbegan  to  utilize  the  “non‐duplication”  method,  which \ndesignated  Medicare  as  the  primary  health  coverage \nprovider  and  reduced  the  benefits  to  be  paid  under  the \nCounty’s  plan  by  the  amount  of  benefits  paid  by  Medicare. \nAmong  other  things,  this  change  ensured  that  retirees  over \nthe age of 65 would pay the same deductibles, co‐payments, \nand  co‐insurance  charges  as  other  retirees  and  active \nemployees. \n II.  Discussion \n “We  review a summary  judgment determination  as well \nas  any  questions  of  constitutional  law  under  the  de  novo \nstandard  of  review.”  Anderson  v.  Milwaukee  Cnty.,  433  F.3d \n975, 978 (7th Cir. 2006). “Summary judgment is appropriate \nwhere  the  pleadings,  discovery, disclosure  materials on file, \nand  any  affidavits  show  that  there  is  no  genuine  issue  of \nmaterial fact and that the movant is entitled to judgment as a \nmatter of law.” Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d \n647, 654 (7th Cir. 2011). \n\f6  No. 12‐3625 \n\n Hussey alleges that the County’s  failure  to  provide  cost‐\nfree  health  insurance  to  retirees  constitutes  a  taking  of \nproperty  without  due  process  of  law  in  violation  of  the \nUnited  States  and  Wisconsin  constitutions.  Because \nWisconsin  courts  employ  the  same  analysis  for  takings \nclaims  under  either  the  federal  or  state  constitution,  City  of \nMilwaukee  Post  No.  2874  Veterans  of  Foreign  Wars  v. \nRedevelopment Auth. of the City of Milwaukee, 768 N.W.2d 749, \n757  (Wis.  2009),  the  Court  utilizes  a  single  analysis  with \nregard to Hussey’s takings claims. \n The  Fifth  Amendment  provides  that  “private  property \n[shall  not]  be  taken  …  without  just  compensation.”  U.S. \nConst. amend. V. The Due Process Clause of the Fourteenth \nAmendment  provides:  “[N]or  shall  any  State  deprive  any \nperson  of  life,  liberty,  or  property,  without  due  process  of \nlaw.”  U.S.  Const.  amend.  XIV,  §  1.  To  establish  either  a  due \nprocess violation or an unconstitutional taking, Hussey must \ndemonstrate  that  she  was  deprived  of  a  vested  property \nright.  Bettendorf  v.  St. Croix Cnty., 631 F.3d 421,  429 (7th Cir. \n2011) (due process); Landgraf v. USI Film Prods., 511 U.S. 244, \n267–68 (1994) (taking).  \n Under  the  Fifth  and  Fourteenth  Amendments, \n“[p]roperty  …  is  an  entitlement,  by  which  we  mean  a \nvaluable  right  that  cannot  be  withdrawn  unless  a  specified \nsubstantive  condition  comes  to  pass.”  Lim  v.  Cent.  DuPage \nHosp.,  871  F.2d  644,  646  (7th  Cir.  1989)  (quotation  omitted). \n“To  have  a  property  interest  in  a  benefit,  a  person  clearly \nmust  have  more  than  an  abstract  need  or  desire  for  it.  He \nmust have more than a unilateral expectation of it. He must, \ninstead,  have  a  legitimate  claim  of  entitlement  to  it.”  Bd.  of \nRegents  of  State  Colls.  v.  Roth,  408  U.S.  564,  577  (1972). \n\fNo. 12‐3625  7 \n\n“[V]iewed  functionally,  property  is  what  is  securely  and \ndurably yours under … law, as distinct from what you hold \nsubject  to  so  many  conditions  as  to  make  your  interest \nmeager,  transitory,  or  uncertain  …  .”  Reed  v.  Vill.  of \nShorewood, 704 F.2d 943, 948 (7th Cir. 1983). \n “Property  interests,  of  course,  are  not  created  by  the \nConstitution.” Roth, 408 U.S. at 577. “[T]hey are created and \ntheir  dimensions  are  defined  by  existing  rules  or \nunderstandings that stem from an independent source such \nas  state  law‐rules  or  understandings  that  secure  certain \nbenefits  and  that  support  claims  of  entitlement  to  those \nbenefits.”  Id.;  see,  e.g.,  Germano  v.  Winnebago  Cnty.,  403  F.3d \n926,  927–28  (7th  Cir.  2005)  (holding  that  state  law  created  a \nproperty  interest  in  continued  group  insurance  to  retired \ndeputies  at  the  same  premium  rate  charged  to  active \ndeputies).  On  appeal,  Hussey  argues  that  the  district  court \nerred in granting summary judgment in favor of the County \nbecause it misapplied the Wisconsin law that establishes her \nvested  property  right  in  cost‐free  health  insurance.  The \nCounty, of course, disagrees. \n It  is  undisputed  that  Hussey  has  a  vested  property \ninterest  in  participating  in  the  County’s  retiree  health \ninsurance  plan.  However,  the  parties  hotly  dispute  the \ncontours  of  that  interest.  In  short,  Hussey’s  position  is  that \nshe  has  a  property  interest  in  “cost‐free”  health  insurance, \nthat is, insurance coverage free of deductibles, co‐payments, \nand co‐insurance charges. The County in turn acknowledges \nthat Hussey possesses a property interest, but contends that \nthis  interest  is  limited  to  participating  in  the  same  health \ninsurance plan as active employees without the need to pay \n\f8  No. 12‐3625 \n\nthe  attendant  premiums—what  the  County  refers  to  as \n“premium‐free” health insurance. \n As an initial matter, Hussey argues that the district court \nerred  in  ignoring  a  number  of  well‐established  Wisconsin \ncases  that  stand  for  the  proposition  that  once  a  property \nright in a benefit is vested, the benefit cannot be modified or \neliminated. See, e.g., Roth v. City of Glendale, 614 N.W.2d 467, \n473–74 (Wis. 2000); Wis. Retired Teachers Ass’n, Inc. v. Employe \nTrust Funds Bd., 558 N.W.2d 83, 92 (Wis. 1997); Ass’n of State \nProsecutors  v.  Milwaukee  Cnty.,  544  N.W.2d  888,  889  (Wis. \n1996);  Schlosser  v.  Allis‐Chalmers  Corp.,  271  N.W.2d  879,  885 \n(Wis.  1978).  Hussey’s reliance  on  these  cases,  however,  puts \nthe proverbial cart before the horse. Before we can determine \nwhether  a  vested  property  right  has  been  modified  or \ninfringed,  we  first  must  ascertain  the  exact  nature  of  that \nright.  For  present  purposes,  we  must  determine  whether \nHussey  has  a  vested  property  interest  in  “premium‐free” \nhealth  insurance  or  “cost‐free”  health  insurance.  For  if  the \nexisting  rules  and  understandings,  as  defined  by  state  law \nand municipal ordinances, demonstrate that Hussey lacks a \nproperty  interest  in  “cost‐free”  health  insurance,  the \nrequirement that she pay deductibles, co‐payments, and co‐\ninsurance charges beginning in 2006 would not  constitute  a \nmodification of a vested property right. \n Unfortunately,  the  cases  and  state  statutes  cited  by \nHussey that discuss pension and health benefits provide no \nassistance  in  our  determination  of  whether  Hussey  has  a \nproperty  interest  in  cost‐free  health  insurance.  Moreover, \nbecause  the  health  insurance  program  for  retirees  was  not \ncreated  until  1971,  her  reliance  on  pre‐1971  statutes, \nordinances, cases, and plan booklets is equally unhelpful.  \n\fNo. 12‐3625  9 \n\n Rather  than  resting  upon  these  sources,  we  must \ndetermine  the  contours  and  dimensions  of  Hussey’s \nproperty  interest  by  examining  the  existing  rules  and \nunderstandings that stem  from state law and  the municipal \nordinances  defining  the  County’s  obligation  to  provide \nhealth  insurance  for  active  and  retired  employees.  See  Town \nof  Castle  Rock  v.  Gonzales,  545  U.S.  748,  756  (2005)  (stating \nproperty  interests  “are  created  and  their  dimensions  are \ndefined  by  existing  rules  or  understandings  that  stem  from \nan independent source such as state law”). \n The  1971  General  Ordinance  provided  for  the  first  time \nthat the health insurance provisions applicable to employees \nalso “appl[ied] to retired members of the County Retirement \nSystem  with  15  or  more  years  of  creditable  pension  service \nas  a  County  employe.”  MCCGO  §  17.14(7)(i)  (1971).  The \nordinance also stated that “[t]he payment of Blue Cross‐Blue \nShield  and  major  medical  insurance  premiums  as  above \nprovided  shall  be  made  for  coverage  commencing  July  1, \n1971  for  employees  presently  enrolled  and  payment  of \npremiums for those retired employees not presently enrolled \nshall be made for coverage commencing September 1, 1971.” \nId. (emphases added). Thus, as of 1971, the plain language of \nthe  ordinance  made  it  abundantly  clear  that  the  County \ncommitted  itself  to  pay  only  the  premiums  of  retired \nemployees  for  their  medical  insurance.  See  Conn.  Nat’l  Bank \nv. Germain, 503 U.S. 249, 253–54 (1992) (“We have stated time \nand again that courts must presume that a legislature says in \na statute what it means and means in a statute what it says \nthere.”). \n By 1989, the ordinance provided that “[t]he County shall \nparticipate in the payment of the monthly costs or premium \n\f10  No. 12‐3625 \n\nfor  [health  insurance]  benefits.”  MCCGO  §  17.14(7)  (1989). \nAnd Section 17.14(7)(a) was amended to provide that “[t]he \nCounty  shall  pay  the  full  monthly  costs  of  providing  such \ncoverage  for  employes  who  commenced  their  employment \nwith  Milwaukee  County  prior  to  July  31,  1989.”  MCCGO  § \n17.14(7)(a)  (1989).  Section  17.14(7)(h)  made  this  provision \napplicable  to  eligible  retired  employees.  MCCGO  § \n17.14(7)(h) (1989). \n Then,  in  1993,  Section  17.14(7)(h)  itself  was  amended  to \nprovide  expressly  that  “[t]he  county  shall  pay  the  full \nmonthly  cost of providing such  [health insurance] coverage \nto retired members of the County Retirement System with 15 \nor  more  years  of  creditable  pension  service  as  a  County \nemploye.” MCCGO § 17.14(7)(h) (1993). \n Accordingly,  by  the  time  that  Hussey  retired  and  in  the \nyears  thereafter,  the  municipal  ordinances  required  the \nCounty  to  pay  the  “premiums”  or  “monthly  costs”  of \nproviding  the  same  health  insurance  coverage  for  retirees \nthat it was providing to active employees. No deductive leap \nis  needed  to  conclude  that  the  County’s  promise  to  pay \n“premiums”  does  not  comprise  a  promise  to  pay  all  of  the \ncosts  incurred  by  a  retiree  in  obtaining  health  care. And  as \nfor the term “monthly costs,” we agree with the district court \nthat co‐payments, deductibles, and co‐insurance charges are \nnot monthly costs because they are not incurred on a month‐\nto‐month basis. Rather, such costs are incurred if and when a \nhealth  care  service  is  provided  and  then  only  on  an  annual \nbasis  (in  the  case  of  deductibles)  or  an  as‐needed  basis  (in \nthe  case  of  co‐payments  and  co‐insurance  charges).Thus, \nnowhere  do  these  ordinances  create  an  entitlement  for \nretirees—or  active  employees  for  that  matter—to  receive \n\fNo. 12‐3625  11 \n\ncost‐free  health  insurance  as  Hussey  contends.  Put  another \nway, in light of the plain and unambiguous language of the \nrelevant  ordinances,  we  cannot  equate  the  County’s \nobligation  to  pay  the  premiums  and  monthly  cost  of \nproviding  health  insurance  with  the  obligation  to  pay  the \nfull  cost  incurred  by  Hussey  of  receiving  health  care \nservices. See United States v. Rosenbohm, 564 F.3d 820, 823 (7th \nCir. 2009) (“If the language … is clear and unambiguous, in \nthe  absence  of  a  clearly  expressed  legislative  intent  to  the \ncontrary,  that  language  must  ordinarily  be  regarded  as \nconclusive.”) (quotation omitted).2 \n The  language  in  the  benefits  booklet  that  Hussey \nreceived when she retired in 1991 only serves to bolster this \nconclusion. The booklet states: “If an active employee retires \nwithin  fifteen  years  or  more  of  County  service,  the  retiree \nmay  participate  in  the  health  plan  in  which  he/she  is \ncurrently enrolled on the same basis as coverage provided to \nthe  active  employee  group.  The  County  will  make  the  full \npremium  contribution  on  behalf  of  the  retiree.”  (emphasis \nadded). \n Hussey  also  takes  umbrage  with  the  district  court’s \nconclusion  that  the  municipal  ordinances  only  required  the \nCounty  to  provide  retirees  with  the  same  level  of  health \ninsurance  coverage  that  was  provided  to  active  employees. \n                                                 \n2  Similarly,  the  ordinances  do  not  obligate  the  County  to  utilize  any \nparticular  coordination  of  benefits  formula  with  respect  to  retirees  who \nreceive benefits under Medicare. Although the change from a come‐out‐\nwhole  formula  to  a  non‐duplication  formula  in  2011  “undoubtedly \nincrease  co‐payments  for  certain  retirees,  it  put  them  in  no  worse \nposition than they would have been absent Medicare.” Diehl v. Twin Disc, \nInc., 102 F.3d 301, 309 (7th Cir. 1996).  \n\f12  No. 12‐3625 \n\nThis  objection  is  unfounded.  Throughout  its  various \niterations,  Section  17.14(7)  defined  the  health  care  coverage \navailable  to  retirees  in  relation  to  the  coverage  provided \nsimultaneously  to  active  employees.  For  example,  the  June \n1971 amendments noted that the “[p]rovisions of (a), (b), (c) \nand  (d)  [which  applied  to  active  employees]  shall  apply  to \nretired  members.”  MCCGO  §  17.14.7(i)  (1971).  The  1989 \namendments  declared  that  “[p]rovisions  of  (a)  [which \napplied  to  active  employees]  shall  apply  to  retired \nmembers.” MCCGO § 17.14(7)(h) (1989). The 1993  and 1996 \nversions  of  the  ordinance  stated  that  the  “County  shall  pay \nthe  full  monthly  cost  of  providing  such  coverage  [i.e., \ncoverage  applicable  to  active  employees]  to  retired \nmembers.”  MCCGO  §  17.14(7)(h)  (1993,  1996)  (emphasis \nadded).  And,  indeed,  the  1991  benefits  booklet  expressly \nequates  the  scope  of  the  coverage  that  an  employee  can \nexpect to receive upon retirement with that “provided to the \nactive  employee  group.”  Nor  does  the  record  support  the \nproposition  that  Hussey  has  been  treated  differently  when \ncompared  to  active  employees  who  had  received  similar \nhealth care services under the same plan.3 \n\n                                                 \n3  For  example,  starting  in  2001  and  continuing  through  2006,  the \nordinances required active employees to pay certain monthly fees as well \nas various other charges. Whether Hussey had to pay such charges and, \nif  so,  what  those  charges  were  is  unclear  from  the  record.  See,  e.g., \nAppellant’s  Br.  20  (noting  that  Hussey  had  paid  “administratively \nenacted  co‐pays”  starting  in  2006).  Furthermore,  in  her  brief,  Hussey \nappears  to  argue  that  she  and  similarly  situated  retirees  were  not \nadversely  affected  by  the  County’s  alterations  to  the  health  care  plans \nuntil 2011. See id. 21 (“It was not until the 2011 enactments that retirees \nwere directly affected by [the] ordinances, though the County had earlier \nadministratively demanded small contributions from retirees at the point \n\fNo. 12‐3625  13 \n\n Hussey’s  consternation  is  understandable.  For  many \nyears, she participated in the County’s health insurance plan \nand received health care services without having to pay any \ndeductibles, co‐payments, or co‐insurance charges. But there \nis no evidence in the record that the County had ever failed \nto  pay  a  health  care  insurance  premium  on  Hussey’s behalf \nas  it  had  promised.  Additionally,  even  assuming  for  the \nmoment that she had not been asked to pay any deductibles, \nco‐payments,  or  co‐insurance  charges  prior  to  2006,  this  in \nand  of  itself  does  not  mean  that  the  County  had  promised \nher  these  benefits  under  the  applicable  ordinances,  thereby \ncreating  a  constitutionally  cognizable  property  interest.  See, \ne.g.,  Brown  v.  City  of  Mich.  City,  462  F.3d  720,  729  (7th  Cir. \n2006) (city’s historical practice of allowing its residents to use \nits  parks  free  of  charge  did  not  create  a  property  interest), \nreh’g  denied  en  banc,  No.  05‐3912,  (7th  Cir.  Oct.  12,  2006); \nCoghlan v. Starkey, 845 F.2d 566, 570 (5th Cir. 1988) (plaintiff’s \nexpectation  that  she  would  continue  receiving  free \nmunicipal  water  based  on  past  practices  was  insufficient  to \ncreate a property interest). \n Hussey also points out (and the County does not contest) \nthat the level of deductibles, co‐payments, and co‐insurance \ncharges  levied  upon  plan  participants  bears  an  inverse \nrelationship to the level of premiums charged by the health \n                                                 \nof service.”). In her affidavit, however, Hussey states that she “never had \nto  pay  any  co‐pays  or  any  contributions”  until  2006  and,  as  a  hedge, \nimmediately adds “if I was required to make those payments, they either \nwere not exacted by the provider or I have no recollection.” In any event, \nto  the  extent  that  Hussey  received  health  care  services  after  2006,  the \nrecord  is  devoid  of  any  evidence  of  any  active  employees  who  had \nobtained  similar  services  and  whether  they  were  required  to  make \npayments under the health care plan. \n\f14  No. 12‐3625 \n\ninsurance  plans,  and  by  adopting  and  implementing  plans \nthat  impose  such  charges,  the  County  can  decrease  or \nmaintain  the  premium  levels,  thereby  shifting  a  portion  of \nthe  cost  of  providing  health  care  coverage  to  retired \nemployees.  But  as  discussed,  Hussey  was  entitled  only  to \nreceive  health  care  insurance  without  being  charged  a \npremium;  she  was  not  entitled  to  participate  in  a  particular \nhealth  insurance  plan.  Furthermore,  it  is  worth  noting  that, \nso long as the terms of the health insurance plan provided to \nretired  employees  remain  the  same  as  those  provided  to \nactive employees, the County cannot shift the costs of health \ninsurance  coverage  to  retirees  without  limit,  for  doing  so \nwould  substantially  impede  its  ability  to  recruit  and \nmaintain active employees. \n In conclusion, Hussey held a secure and durable right to \nparticipate in the health care insurance plans that the County \noffered  to  active  employees  without  having  to  pay  an \ninsurance  premium.  She  never  had  the  right,  however,  to  a \nhealth care insurance plan that allowed her to obtain health \ncare services on a completely cost‐free basis. Because Hussey \nnever  had  a  vested  property  right  in  cost‐free  health \ninsurance,  the  requirement  starting  in  2006  that  she  pay \ndeductibles, co‐payments, and co‐insurance charges does not \ndiminish  a  property  right.  The  district  court  properly \ngranted  summary  judgment  in  Milwaukee  County’s  favor, \nand the opinion is AFFIRMED. \n\f", "ocr": false, "opinion_id": 2708954 } ]

[ "77 F.3d 478" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/77/77.F3d.478.95-60516.html", "author_id": null, "opinion_text": "77 F.3d 478\n Nelsonv.State of MS*\n NO. 95-60516\n United States Court of Appeals,Fifth Circuit.\n Jan 08, 1996\n Appeal From: S.D.Miss., No. 3:95-CV-538\n \n 1\n AFFIRMED.\n \n \n \n *\n Fed.R.App.P. 34(a); 5th Cir.R. 34.2\n \n \n ", "ocr": false, "opinion_id": 713498 } ]

[ "740 F.3d 1088" ]

[ { "author_str": "Manion", "per_curiam": false, "type": "010combined", "page_count": 18, "download_url": "http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D01-22/C:13-1761:J:Manion:aut:T:fnOp:N:1277738:S:0", "author_id": 2027, "opinion_text": " In the\n\n United States Court of Appeals\n For the Seventh Circuit\nNo. 13-1761\n\nBECKY S. CHASENSKY,\n Plaintiff-Appellee,\n\n v.\n\n\nSCOTT WALKER, et al.,\n Defendants-Appellants.\n\n Appeal from the United States District Court for the\n Eastern District of Wisconsin.\n No. 11-C-1152 — Rudolph T. Randa, Judge.\n\n\n ARGUED NOVEMBER 13, 2013 — DECIDED JANUARY 22, 2014\n\n\n Before MANION, KANNE, and HAMILTON, Circuit Judges.\n\n MANION, Circuit Judge. Wisconsin Governor Scott Walker\nplanned to appoint Becky Chasensky interim Marinette County\nRegister of Deeds but decided against it after learning she had\nfiled for bankruptcy. In response, Chasensky sued Walker and\nhis then-spokesperson, Cullen Werwie, alleging that Walker’s\ndecision not to appoint her along with their public statements\nconcerning that decision violated her constitutional and\n\f2 No. 13-1761\n\nstatutory rights. The district court held that the defendants\nwaived qualified immunity by failing to raise it as a defense\nuntil their motion to dismiss Chasensky’s amended complaint.\nThe defendants then filed this interlocutory appeal claiming\nthey did not waive and are entitled to qualified immunity. We\nagree, and reverse.\n I. BACKGROUND\n In Wisconsin, the state constitution makes the Register of\nDeeds an elected position. See Wis. Const. art. VI, § 4. How-\never, if a vacancy occurs mid-term, the governor is authorized\nto appoint an interim Register to complete the remainder of\nany unexpired portion of the term until a successor is elected.\nSee Wis. Const. art. VI, § 4(5).\n Chasensky alleges the following facts which, given the\nprocedural posture of this case, we accept as true. See Serino v.\nHensley, 735 F.3d 588, 590 (7th Cir. 2013) (citing Parish v. City of\nElkhart, 614 F.3d 677, 678 n.1 (7th Cir. 2010) (“In reviewing a\nmotion to dismiss, we accept the facts of the plaintiff’s com-\nplaint as true.”). On December 29, 2010, the Register of Deeds\nfor Marinette County announced her mid-term retirement. By\nletter dated January 11, 2011, Chasensky applied directly to\nGovernor Walker seeking this interim appointment. Am.\nCompl. Because Chasensky was employed as Chief Deputy\nRegister of Deeds, she was elevated and served as the acting\nRegister of Deeds for Marinette County, effective January 14,\n2011. On February 18, 2011, Chasensky was personally\ninterviewed by Eric Esser, Governor Walker’s appointments\nofficial, and Esser informed Chasensky that he would forward\nher application directly to Governor Walker for appointment\n\fNo. 13-1761 3\n\nto the Register of Deeds position. Thereafter, Esser learned that\nChasensky was involved in a personal bankruptcy proceeding.\nOn April 5, 2011, Esser called Chasensky to inform her that\nGovernor Walker would not be appointing her as interim\nRegister of Deeds. Chasensky subsequently received a letter\nfrom Governor Walker confirming that he would not be\nappointing her as interim Register of Deeds.\n According to Chasensky’s amended complaint, Cullen\nWerwie, as Governor Walker’s official spokesperson,\npublically broadcast statewide that Governor Walker did not\nappoint her to the position because the governor had been\ninformed that she was in a bankruptcy proceeding. In addition\nto her non-appointment, Chasensky complained that\n“[d]erogatory comments and innuendo regarding [her]\nbankruptcy, personal financial matters and character which\nimpugned and harmed [her] professional and personal\nreputation were intentionally publically disclosed by Governor\nWalker and Mr. Werwie.” Am. Compl. ¶ 15. She insisted that\nthis occurred when Governor Walker spoke statewide on the\nFOX television network. There he demeaned her professional\nand personal character by implying that information learned\nduring an investigation was the reason he did not appoint her.\nAbout the same time, Werwie publically announced that\nGovernor Walker had planned to appoint her until he learned\nof her 2009 bankruptcy proceeding. Chasensky further alleges\nthat the individual ultimately appointed Register of Deeds was\nunqualified and “[c]onsequently, [she] was professionally\ndisparaged, humiliated and demoted for a period of time from\nher Chief Deputy Register of Deeds position.” Am. Compl. ¶\n18. Chasensky claims this sequence subjected her to an\n\f4 No. 13-1761\n\n unwanted, highly embarrassing and intrusive\n media-fest [at work] on April 20–21, 2011 … [when]\n [t]elevision reporters and camera crews, newspaper\n and radio reporters and curious members of the\n public confronted her and other Marinette County\n employees with highly intrusive questions about her\n bankruptcy and professional and personal character\n and sought derogatory details implied in the defen-\n dants’ public broadcasts.\n Am. Compl. ¶ 21. Finally, in May 2011, she was threatened\nwith “employment retaliation” if she did not continue to cover\nand perform core Register of Deeds duties which the appointee\nwas incapable of performing. As a result of these actions, she\nhas “suffer[ed] lost employment, salary, and other employ-\nment benefits, damage to her professional and personal\nreputation, and emotional and physical pain and suffering.”\nAm. Compl. ¶ 23.\n II. PROCEDURAL HISTORY\n This interlocutory appeal comes to us with a complicated\nprocedural history that we distill as follows. Chasensky filed\nher complaint on December 21, 2011, alleging that Walker and\nWerwie (the “defendants”) violated her privacy rights and\nemployment rights and that Walker violated 11 U.S.C. § 525(a)\n(the “bankruptcy discrimination claim”) by failing to appoint\nher as interim Register of Deeds of Marinette County upon\nlearning of her bankruptcy proceeding. Pretrial litigation\nensued including intervention by the United States Depart-\nment of Justice resulting in the dismissal of the employment\n\fNo. 13-1761 5\n\nclaims and the bankruptcy discrimination claim.1 On January\n14, 2013, Chasensky filed an amended complaint reasserting all\nof her initial claims and adding an equal protection claim\nagainst Walker. On January 28, 2013, defendants filed a motion\nto dismiss Chasensky’s amended complaint based on qualified\nimmunity.2 However, the district court concluded that defen-\ndants had waived the defense of qualified immunity by not\nraising it earlier in the proceeding.3 Defendants timely filed an\ninterlocutory appeal. We then issued an order directing the\ndistrict court to explain its reasons for failing to address\nqualified immunity in its March 14, 2013, order. On July 28,\n2013, the district court issued a second order explaining its\nMarch 14, 2013, order. The district court’s July 28, 2013, order\nstates, in pertinent part:\n Defendants never raised the issue of qualified\n immunity—not in their initial motion to dismiss, not\n in their supplemental briefing in relation to the\n United States’ motion to intervene, not in their brief\n\n\n1\n Neither Chasensky’s bankruptcy discrimination claim nor her employ-\nment claims are implicated by this appeal.\n\n2\n After the district court’s order, the defendants filed their answer to the\nfirst amended complaint on March 27, 2013, wherein they reiterated their\nqualified immunity defense.\n\n3\n The district court’s March 14, 2013, order did not dismiss the bankruptcy\ndiscrimination claim and employment claims that Chasensky re-alleged in\nher amended complaint. The district court, though, had previously\ndismissed them. On remand, the district court should enter an order\nreaffirming its dismissal of Chasensky’s bankruptcy discrimination claim\nand employment claims.\n\f6 No. 13-1761\n\n in opposition for leave to file an amended com-\n plaint, and not even in their answer to the original\n complaint. It was only after the Court granted leave\n to file an amended complaint, and after over a year\n of extensive motion practice, that the defendants\n raised qualified immunity. The Court’s subsequent\n order was terse because the Court had already\n issued rulings allowing [plaintiff’s] claims to go\n forward, and the defendants were clearly engaged\n in dilatory tactics to either delay or avoid discovery.\n Defendants waived the qualified immunity defense,\n at least with respect to the pre-discovery stage of\n this litigation. See, e.g., English v. Dyke, 23 F.3d 1086,\n 1090 (6th Cir. 1994) (“the trial court has discretion to\n find a waiver if a defendant fails to assert the de-\n fense within time limits set by the court or if the court\n otherwise finds that a defendant has failed to exercise due\n diligence or has asserted the defense for dilatory pur-\n poses”) (emphasis added).\nChasensky v. Walker, Case No. 11-C-1152, 2013 U.S. Dist. LEXIS\n105698, *2–3 (E.D. Wis., July 28, 2013). Defendants timely filed\nan interlocutory appeal contesting the district court’s July 28,\n2013, order.\n III. ANALYSIS\n A. Interlocutory appellate jurisdiction\n Initially, Chasensky argues that we lack jurisdiction over\nthis interlocutory appeal. It is well-settled law that we “treat [ ]\nthe rejection of an immunity defense as a final decision for the\npurpose of 28 U.S.C. § 1291.” Bond v. Atkinson, 728 F.3d 690,\n\fNo. 13-1761 7\n\n691(7th Cir. 2013); see also Mitchell v. Forsyth, 472 U.S. 511,\n524–25 (1985). When, as here, the district court rejects the\ndefense of qualified immunity raised in a defendant’s motion\nto dismiss under Fed. R. Civ. P. 12(b)(6), we review the district\ncourt’s ruling de novo, accepting as true the plaintiff’s factual\nallegations and drawing all reasonable inferences in her favor.\nMay v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000).\n Nevertheless, Chasensky asserts that we lack interlocutory\nappellate jurisdiction to review the district court’s denial of\nqualified immunity regarding her privacy claims because the\ndefendants waived this defense by not timely raising it.\nHowever, “a finding of waiver is a legal determination which\nenables appellate review of the denial of qualified immunity.”\nHernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 912–13 (7th\nCir. 2011); see also Pasco v. Knoblauch, 566 F.3d 572, 575 (5th Cir.\n2009) (exercising appellate jurisdiction over denial of summary\njudgment based on the district court’s finding that qualified\nimmunity had been waived); Eddy v. V.I. Water & Power Auth.,\n256 F.3d 204, 209 (3d Cir. 2001) (same). Accordingly, we have\ninterlocutory appellate jurisdiction to consider the defendants’\ndefense of qualified immunity.\n B. Defendants did not waive the defense of qualified\n immunity\n Because we have concluded that we have appellate jurisdic-\ntion, we now turn to the issue of whether defendants’ failure\nto raise the defense of qualified immunity until their motion to\ndismiss Chasensky’s amended complaint (filed fourteen days\nafter her amended complaint was filed) was waiver. The\ndistrict court ruled that defendants\n\f8 No. 13-1761\n\n never raised the issue of qualified immunity—not in\n their initial motion to dismiss, not in their supple-\n mental briefing in relation to the United States’\n motion to intervene, not in their brief in opposition\n for leave to file an amended complaint, and not even\n in their answer to the original amended complaint.\n It was only after the Court granted leave to file an\n amended complaint, and after over a year of exten-\n sive motion practice, that the defendants raised\n qualified immunity.\n Chasensky, 2013 U.S. Dist. LEXIS 105698, at *2. This ruling\nsidesteps basic pleading principles. After obtaining leave of\ncourt, Chasensky filed her amended complaint on January 14,\n2013. Defendants filed their brief in support of their motion to\ndismiss her amended complaint on January 28, 2013. “When a\nplaintiff files an amended complaint, the new complaint\nsupersedes all previous complaints and controls the case from\nthat point forward … [b]ecause a plaintiff’s new complaint\nwipes away prior pleadings, the amended complaint opens the\ndoor for defendants to raise new and previously unmentioned\naffirmative defenses.” Massey v. Helman, 196 F.3d 727, 735 (7th\nCir. 1999) (citation omitted); see also Charles Alan Wright,\nArthur R. Miller & Mary Kay Kane, Federal Practice and\nProcedure § 1476 at 636 (3d ed. 2010).4 That the defendants did\nnot raise qualified immunity earlier in response to Chasensky’s\n\n\n4\n Chasensky asserts that the defendants raised qualified immunity for the\nfirst time in their reply brief, see Appellee Br. 18, but a review of defendants’\npleadings filed after Chasensky filed her amended complaint makes clear\nthat this assertion is incorrect.\n\fNo. 13-1761 9\n\noriginal complaint is irrelevant because the defendants raised\nthe defense of qualified immunity at the very first opportunity\nafter Chasensky filed her amended complaint. They then\nraised it again later in their answer to her amended complaint.\nAccordingly, as a matter of law, defendants did not waive the\ndefense of qualified immunity. See English v. Dyke, 23 F.3d\n1086, 1089 (6th Cir. 1994) (reversing district court’s holding that\ndefendants’ failure to raise the defense of qualified immunity\nin their pre-answer motion to dismiss operated as a waiver of\nthat defense).\n C. Defendants have qualified immunity from\n Chasensky’s privacy and equal protection claims\n i. Qualified Immunity\n “The doctrine of qualified immunity protects government\nofficials from liability for civil damages when their conduct\ndoes not violate clearly established statutory or constitutional\nrights of which a reasonable person would have known.” Rabin\nv. Flynn, 725 F.3d 628, 632 (7th Cir. 2013) (citation omitted).\n“Immunity has of course two parts: the right not to be tried,\nand the right not to pay damages.” Abel v. Miller, 904 F.2d 394,\n397 (7th Cir. 1990). “To be clearly established, at the time of the\nchallenged conduct, the right’s contours must be sufficiently\nclear that every reasonable official would have understood that\nwhat he is doing violates that right [and] … and existing\nprecedent must have placed the statutory or constitutional\nquestion beyond debate.” Humphries v. Milwaukee Cnty., 702\nF.3d 1003, 1006 (7th Cir. 2012) (internal quotation marks and\ncitation omitted). This standard “protects the balance between\nvindication of constitutional rights and government officials’\n\f10 No. 13-1761\n\neffective performance of their duties by ensuring that officials\ncan reasonably … anticipate when their conduct may give rise\nto liability for damages.” Reichle v. Howards, 132 S. Ct. 2088,\n2093 (2012) (internal quotation marks and citations omitted).\n“[A] court may grant qualified immunity on the ground that a\npurported right was not ‘clearly established’ by prior case law\nwithout first resolving whether the purported right exists.”\nHumphries, 702 F.3d at 1006 (quoting Pearson v. Callahan, 555\nU.S. 223, 236 (2009)). The plaintiff carries the burden of\ndefeating the qualified immunity defense. Id.\n We review the validity of a qualified immunity defense de\nnovo. Estate of Rudy Escobedo v. Martin, 702 F.3d 388, 404 (7th\nCir. 2012) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994)).\nFurther, “[b]ecause ‘the district court’s refusal to address the\nmerits of [defendants’] motion asserting qualified immunity\nconstitutes a conclusive determination for the purposes of\nallowing an interlocutory appeal,’ and the record permits this\ncourt to resolve some of [d]efendants’ immunity claims, this\ncourt will reach the merits of those claims rather than remand\nthem to the district court.” Smith v. Leis, 407 Fed. Appx. 918,\n927 (6th Cir. 2011) (unpublished) (citing Summers v. Leis, 368\nF.3d 881, 887 (6th Cir. 2004)). Accordingly, we now examine\nthe merits of the defendants’ qualified immunity defense.\n ii. Chasensky’s privacy allegations in her amended\n complaint fail to allege a violation of clearly established\n law\n First, we consider Chasensky’s privacy allegations.\nChasensky’s amended complaint alleged that defendants\nrecklessly “broadcast[ed] throughout the State of Wisconsin\n\fNo. 13-1761 11\n\nderogatory and demeaning information about her professional\nand personal character and reputation … .” Am. Compl. ¶ 24\n(Walker); ¶ 26 (Werwie). Defendants respond that the allega-\ntions in Chasensky’s amended complaint do not survive the\npleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009),\nwhich requires the plaintiff to “state a claim to relief that is\nplausible on its face.” Id. at 678 (internal quotation marks and\ncitation omitted).\n Initially, we note that it is difficult to see where in\nChasensky’s complaint or amended complaint she alleged a\nprivacy claim,5 since neither her complaint (nor her subse-\nquently filed amended complaint) contained the word\n“privacy.” To survive a motion to dismiss, “a complaint need\nnot plead legal theories, which can be learned during discov-\nery,” Alito v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)\n(citations omitted). Yet, we cannot see why a plaintiff would\nelect not to include the word “privacy” when alleging—or at\nleast titling the counts when alleging—a violation of the right\nto privacy in a complaint. Nevertheless, we consider whether\nthe allegations lodged in Chasensky’s complaints at ¶¶ 14–17,\nif true, give rise to a violation of a clearly established right to\nprivacy.\n Chasensky argues that they do based on Denius v. Dunlap,\n209 F.3d 944, 955–56 (7th Cir. 2000); Malleus v. George, 641 F.3d\n560, 564–66 (3d Cir. 2011); and Whalen v. Roe, 429 U.S. 589,\n599–600 (1977). These cases, she asserts, recognize a “clearly\nestablished right to informational privacy,” Appellee Br. 23,\n\n\n5\n At oral argument, Chasensky directed us to ¶¶ 14–17 of her complaints.\n\f12 No. 13-1761\n\nwhich defendants violated by “recklessly broadcasting\nthroughout the State of Wisconsin derogatory and demeaning\ninformation about her professional and personal character and\nreputation … .” Am. Compl. ¶ 24 (Walker); ¶ 26 (Werwie).\nIndeed, it is true that\n [t]he courts of appeals, including this court, have\n interpreted Whalen to recognize a constitutional\n right to the privacy of medical, sexual, financial, and\n perhaps other categories of highly personal\n information—information that most people are\n reluctant to disclose to strangers—and have held\n that the right is defeasible only upon proof of a\n strong public interest in access to or dissemination\n of the information.\nWolfe v. Schaefer, 619 F.3d 782, 785 (7th Cir. 2010) (citing Denius,\n209 F.3d at 955–58; other citations omitted).\n But the Denius case does not help Chasensky. In Denius, the\ndirector of a GED school refused to renew plaintiff’s employ-\nment contract unless he signed an authorization releasing\ninformation, including financial information. 209 F.3d at\n955–56. Although we recognized that the director violated the\nteacher’s privacy rights by requiring disclosure of his medical\nrecords, we nonetheless “conclude[d] that Dunlap [wa]s\nshielded by qualified immunity for requiring Denius to\ndisclose confidential financial information. …” Id. at 958.\nThere, the teacher was commanded to produce private medical\ninformation or face termination. Id. at 949. Here, all the\ndefendants allegedly did was publicize the already-published\nfact that Chasensky had filed bankruptcy. Chasensky’s desire\n\fNo. 13-1761 13\n\nto avoid the broad public disclosure of already-published\nfinancial information so that she might secure a discretionary\npolitical appointment is simply not similar to compulsory\ndisclosure of private medical information in the face of\ntermination. The right of privacy Chasensky asserts in her\nfinancial situation was not recognized in Denius. The fact that\nthe school director in Denius received qualified immunity for\nrequiring the disclosure of plaintiff’s financial records under-\nscores this point. Id. at 958. Chasensky fails to allege sustain-\nable privacy claims against the defendants.\n Chasensky fares no better with Malleus v. George, 641 F.3d\n560 (3d Cir. 2011). The Malleus decision concluded that\ninformation voluntarily disclosed may not form the basis of a\nconstitutional privacy claim, even when it is subsequently\npassed on to a much wider audience than the one that initially\nreceived it. Id. at 565 (“She may not have intended wide-\ndissemination of her opinion but she volunteered it to others\n…”). Here, Chasensky acknowledges that she voluntarily\nsigned a waiver authorizing the disclosure of private informa-\ntion to the Wisconsin Department of Justice in exchange for\nbeing considered for the appointment she sought.6 Although\n\n\n6\n Defendants filed a motion to dismiss Chasensky’s complaint. In her\nopposition, Chasensky asserted that her complaint at ¶¶ 16–17 alleged that\nshe was “required to sign an extremely broad authorization for release of\nfinancial and other private information.” Br. in Op. 20. Although we were\nnot able to discover this allegation in her complaint (or amended complaint,\nwherein these paragraphs remain identical), we may consider representa-\ntions drawn from Chasensky’s opposition to defendants’ motion to dismiss\ninsofar as they are consistent with her complaint. Geinosky v. City of Chicago,\n (continued...)\n\f14 No. 13-1761\n\nwe need not—and do not—decide whether Malleus accurately\nstates the law regarding constitutional privacy claims, that\ndecision’s reasoning certainly does not support Chasensky’s\nclaim in this instance.\n Moreover, Chasensky overlooks the fact that the defendants\ndid not need her consent in the first place to learn that she filed\nbankruptcy. Bankruptcy proceedings, like most unsealed legal\nproceedings, are public record. This information is frequently\npublished in newspapers and is easily accessible in cyberspace.\n“For example, all bankruptcy court dockets can be searched\nsimultaneously through the federal courts’ PACER service.”7\nPippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir.\n2013). At its core, Chasensky’s privacy claim is merely the\nassertion of a right to the limited publicity of an already-\npublished fact. Here, that claim must fail because the informa-\ntion about her financial history that she claims defendants\nunlawfully publicized was not private even before she signed\na waiver authorizing defendants to explore it.\n For Chasensky’s privacy allegations to defeat defendants’\ndefense of qualified immunity, “existing precedent must have\nplaced the statutory or constitutional question beyond debate.”\n\n\n6\n (...continued)\n675 F.3d 743, 745–46 n.1 (7th Cir. 2012) (collecting cases).\n\n7\n “Public Access to Court Electronic Records (PACER) is an electronic\npublic access service that allows users to obtain case and docket information\nfrom Federal Appellate, District and Bankruptcy courts, and from the\nPACER Case Locator via the Internet.” See PACER - Frequently Asked\nQuestions, http://www.pacer.gov/psc/faq.html (last visited January 14,\n2014).\n\fNo. 13-1761 15\n\nHumphries, 702 F.3d at 1006 (citations and internal quotation\nmarks omitted). We recognize that “‘a case directly on point is\nnot required for a right to be clearly established’ and ‘officials\ncan still be on notice that their conduct violates established law\neven in novel factual circumstances.’” Phillips v. Cmty. Ins.\nCorp., 678 F.3d 513, 528 (7th Cir. 2012) (quoting Hope v. Pelzer,\n536 U.S. 730, 741 (2002)). But for the purpose of defeating\nqualified immunity in this instance, Chasensky has not proven\nthat her right to the limited publicity of an already-published\nfact is “clearly established” so that an individual may be held\ncivilly liable for publicizing already-published information.\nDefendants are, therefore, entitled to qualified immunity\nbecause they have violated no clearly established privacy right.\n iii. Walker did not violate the equal protection clause\n when he declined to award a discretionary appointment\n to Chasensky\n Chasensky’s amended complaint also alleged that Walker\nviolated her equal protection rights by denying her employ-\nment because she filed for bankruptcy. Am. Compl. ¶ 25. In\nUnited States v. Kras, the Court rejected the plaintiff’s equal\nprotection claim and held that challenges to government-\nimposed burdens from bankruptcy are subject to rational basis\nreview. 409 U.S. 434, 446 (1973). Accordingly, Chasensky’s\nbankruptcy equal protection challenge cannot succeed “if there\nis any reasonably conceivable state of facts that could provide\na rational basis for the classification.” F.C.C. v. Beach Commc’n,\nInc., 508 U.S. 307, 313 (1993). In other words, Chasensky bears\nthe burden of “negat[ing] every conceivable basis which might\nsupport [Walker’s decision not to appoint her].” Id. at 315\n(citation omitted).\n\f16 No. 13-1761\n\n In light of this steep burden, it is unreasonable to suggest\nthat gubernatorial consideration of an applicant’s bankruptcy\n—a component of her personal history—could not be rationally\nrelated to legitimate governmental interests. The responsibili-\nties associated with the office at issue entail maintaining\nfinancial and public land records and collecting and disbursing\nsubstantial sums of money, including recording fees and\ntransfer taxes. The fact that a candidate for this appointment\nhas filed bankruptcy, coupled with the fact that the desired\npublic office involves management of a staff responsible for\nsignificant sums of money, conceivably raises questions\nregarding the practical—and political—wisdom of appointing\nthat applicant. While the parties dispute whether the position’s\nduties are “ministerial” or not, it is apparent from the defini-\ntion of its defined duties in Wis. Stat. § 59.43 that the position\nof Register demands—at minimum—supervisory and financial\nresponsibility.\n Chasensky cites no case law suggesting that the equal\nprotection clause precludes gubernatorial consideration of an\napplicant’s bankruptcy when she has applied for a political\nappointment. Consequently, Walker violated no “clearly\nestablished” law by failing to appoint Chasensky for the\nposition she sought. Humphries, 702 F.3d at 1006 (quoting\nPearson, 555 U.S. at 236). Nor did Walker violate Chasensky’s\nconstitutional rights by declining to exercise his gubernatorial\ndiscretion for her benefit. The rule in this circuit is clear. “A\ngovernmental officer holding the power of appointment may\nmake any decision he pleases, unless the Constitution bars the\n\fNo. 13-1761 17\n\nway.” Kurowski v. Krajewski, 848 F.2d 767, 770 (7th Cir. 1988).8\nThe Constitution does not bar Walker’s non-appointment of\nChasensky to Register of Deeds.\n Alternatively, and despite the fact that the appointment in\nquestion is awarded by the elected head of state, Chasensky\nasserts that neither gubernatorial concern about the potential\nappointee’s ultimate electability nor Walker’s desire to avoid\nadverse political repercussions from unwise appointments is\na legitimate governmental interest. We disagree. “[I]t would\nundermine the democratic process to hold that the winners at\nthe polls may not employ those committed to implementing\ntheir political agenda.” Id. Chasensky argues that the Supreme\nCourt recognized a distinction between pure partisan political\ninterests and legitimate governmental interests in Elrod v.\nBurns, 427 U.S. 347 (1976). But it is precisely because these\ninterests are aligned here that we must respect the weight\nappointment decisions made by elected and politically-\naccountable individuals are due. Chasensky implies that in\npractice wise appointment decisions inure principally to the\nbenefit of the elected official, not the citizenry. But that\nperspective fails to appreciate what should be obvious: both\nthe official and the citizenry are better off when elected officials\navoid poor appointment decisions that have the potential to\nmature into public malfeasance.\n\n\n8\n Cf. Saikrishna Prakash, The Appointment and Removal of William J. Marbury\nand When an Office Vests, 89 NOTRE DAME L. REV. 199, 231 (2013) (“Because\nthe Constitution never dictates how or when an appointment is made, an\nappointment vests however and whenever the appointer decides that it\nshould vest.”).\n\f18 No. 13-1761\n\n There was no violation—let alone a clearly established\nviolation—of the equal protection clause when Walker de-\nclined to award Chasensky a discretionary appointment to a\nconstitutional office. Consequently, Walker enjoys qualified\nimmunity from Chasensky’s equal protection claim.\n IV. CONCLUSION\n For the reasons stated above, we conclude that we have\ninterlocutory appellate jurisdiction to consider this appeal.\nFurther, we conclude that the defendants did not waive the\ndefense of qualified immunity when they did not raise it until\ntheir motion to dismiss Chasensky’s amended complaint.\nFinally, the defendants are entitled to qualified immunity from\nChasensky’s privacy and equal protection claims. For the\nforegoing reasons, we REVERSE the March 14, 2013, and July\n28, 2013, orders of the district court and REMAND this case for\nproceedings consistent with this opinion.\n\f", "ocr": false, "opinion_id": 2708986 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 41, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\91/91-8649.0.wpd.pdf", "author_id": null, "opinion_text": " UNITED STATES COURT OF APPEALS\n FIFTH CIRCUIT\n\n ______________\n\n 91-8649\n ______________\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\n VERSUS\n\n FELMON LAKEITH LAURY,\n a/k/a FELMON KEITH ASHLEY,\n a/k/a WALTER RAY NICHOLSON,\n\n Defendant-Appellant.\n\n __________________________________________________\n\n Appeal from the United States District Court\n For the Western District of Texas\n __________________________________________________\n (March 2, 1993)\n\nBefore GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.\n\nEMILIO M. GARZA, Circuit Judge:\n\n Defendant Felmon Lakeith Laury appeals his conviction for\n\nrobbery of a bank by force and violence and by intimidation, in\n\nviolation of 18 U.S.C. § 2113(a) (1988). Laury also challenges the\n\ndistrict court's calculation of his sentence. Finding no error, we\n\naffirm.\n\n I\n\n On December 19, 1988, at approximately 12:15 p.m., an armed\n\nman entered Planters National Bank in Rosebud, Texas. The robber\n\nwas wearing a pair of light-colored jeans, Puma tennis shoes, and\n\na dark bandanna across his face. From atop a teller's counter, the\n\nrobber demanded that the bank employees give him all of their\n\fmoney. After forcing the bank employees into the vault, the robber\n\nleft the bank with over $130,000, including $300 in dimes. The\n\nrobber left a shoe impression on the countertop.\n\n FBI agents received a tip from a confidential informant (\"CI\")\n\nthat, according to one of Laury's friends, Laury robbed a bank in\n\nRosebud, Texas in December 1988. In addition, the CI stated that\n\nLaury had recently purchased a number of expensive items, even\n\nthough he was unemployed. The CI also stated that Laury was using\n\nan alias and identified Laury's place of residence. Based on the\n\nCI's information, FBI agents obtained a search warrant for Laury's\n\nresidence.1 Executing the search warrant, FBI agents seized a pair\n\nof light-colored jeans, a blue bandanna, a bag containing $189.60\n\nin dimes, a pair of Puma tennis shoes, numerous purchase receipts,\n\nand a photograph of Laury displaying large sums of money. A\n\nspecial agent in the FBI laboratory compared the shoe print\n\nimpression left by the robber with the tennis shoes found in\n\nLaury's apartment, and found that the two shared common\n\n\n\n 1\n Laury, who was not present during the execution of the search\nwarrant, called the FBI's office upon learning of the search, and denied robbing\nthe bank. Laury's uncontradicted testimony on direct examination was as follows:\n A: I wanted to know what [the search] was about, and I called the\n FBI station that same day and I asked them))Well, I identified\n myself and told them who I was, and they told me they were looking\n for me for a bank robbery.\n Q: Okay.\n A: And I told them, \"I'm not a bank robber.\" I told them, \"I'm a\n thief, I don't rob banks.\"\n Q: Okay.\n A: I don't know how to rob a bank.\n Q: Okay.\n A: So he stated to me, \"Well, if you didn't do it, [Laury], you\n know who did it.\" And I told him I don't, you know, and I left that\n there.\nRecord on Appeal, vol. 5, at 308.\n\n -2-\n\fcharacteristics. Laury was thereafter arrested. Immediately after\n\nhe received his Miranda warnings, Laury told the FBI agents that he\n\nwas the only adult male living in his apartment and all of the\n\nmen's clothing belonged to him. He also admitted that he made\n\nnumerous large cash expenditures between December 1988 and January\n\n1989. He claimed he obtained his money from two jobs. In\n\naddition, Laury stated that his girlfriend, DeShannon Cooper\n\n(\"Dinky\"), who was on welfare, and Dinky's grandmother both gave\n\nhim some of the money. Laury also informed the FBI agents that he\n\nhad been in Calvert, Texas (near Rosebud) a few days before\n\nChristmas. Laury denied robbing the bank.\n\n Laury was subsequently indicted for robbery by force and\n\nviolence and by intimidation, in violation of 18 U.S.C. § 2113(a)\n\n(1988). Before trial, Laury moved to suppress the evidence seized\n\nfrom his apartment and the statements he made to FBI agents\n\nfollowing his arrest. The district court denied both motions. At\n\ntrial, Laury testified that he had obtained most of the money he\n\nspent by robbing a drug dealer of $19,000. Furthermore, Laury and\n\nthree alibi witnesses testified that Laury was in Dallas, attending\n\nhis cousin's birthday party on the date of the robbery. Laury also\n\ntestified that one of his relatives owned the Puma tennis shoes.\n\nNevertheless, the jury found Laury guilty.\n\n At sentencing, the district court arrived at a total offense\n\nlevel of 26, and a criminal history category of VI. The district\n\ncourt denied Laury's objection to a two-point increase in his\n\noffense level for obstruction of justice. The district court\n\n\n -3-\n\fupwardly departed from the sentencing guideline range of 120-150\n\nmonths because of Laury's recidivism and display of violence.\n\nLaury was sentenced to 175 months imprisonment, followed by three\n\nyears of supervised release. In addition, Laury was ordered to pay\n\nrestitution of $130,068.00, as well as a $50 mandatory assessment.\n\n II\n\n Laury appeals his conviction and sentence, contending that:\n\n (a) the district court erroneously submitted an aiding\n and abetting instruction to the jury;\n\n (b) the prosecution improperly suggested that he and his\n witnesses should have come forward sooner with his alibi,\n depriving him of a fair trial;\n\n (c) the evidence was insufficient to sustain the jury\n verdict;\n\n (d) the prosecutor misstated the testimony of witnesses,\n depriving him of a fair trial;\n\n (e) the district court erred in adding two points to his\n offense level for obstruction of justice;\n\n (f) the district court abused its discretion in upwardly\n departing from the guidelines;\n\n (g) the district court erred in denying his motion to\n suppress evidence seized from his residence; and\n\n (h) the district court erred in denying his motion to\n suppress statements he made to FBI agents after his\n arrest.\n\n III\n\n A\n\n Laury first alleges that the district court erred in\n\ninstructing the jury that, under 18 U.S.C. § 2 (1988), whoever aids\n\nor abets the commission of an offense is punishable as the\n\nprincipal. Laury claims that the jury convicted him as the\n\n\n -4-\n\fprincipal pursuant to the aiding and abetting instruction,2 even\n\nthough there was insufficient evidence that the robber was aided\n\nand abetted.3 Therefore, Laury argues that his conviction should\n\nbe reversed.\n\n \"The standard of review of a defendant's claim that a jury\n\ninstruction was error is `whether the court's charge, as a whole,\n\nis a correct statement of the law and whether it clearly instructs\n\njurors as to the principles of law applicable to the factual issues\n\nconfronting them.'\" United States v. Ojebode, 957 F.2d 1218, 1228\n\n(5th Cir. 1992) (quoting United States v. Stacey, 896 F.2d 75, 77\n\n(5th Cir. 1990)), cert. denied, 1993 U.S. LEXIS 1313 (Feb. 22,\n\n1993). The court \"`may not instruct the jury on a charge that is\n\nnot supported by the evidence.'\" Id. (quoting United States v.\n\nOrtega, 859 F.2d 327, 330 (5th Cir. 1988)). After reviewing the\n\nrecord, we conclude that the aiding and abetting charge was\n\nsupported by the evidence. Laury testified that he did not rob\n\nPlanters National Bank. See Record on Appeal, vol. 5, at 319. The\n\nbank vice-president testified that he felt that the bank robber\n\nmust have had an accomplice. See Record on Appeal, vol. 5, at 63-\n\n64. The record shows that: (1) Laury expended large amounts of\n\n\n 2\n \"`[T]he rule is well-established . . . that one who has been indicted\nas a principal may be convicted on evidence showing that he merely aided and\nabetted the commission of the offense.'\" United States v. Walker, 621 F.2d 163,\n166 (5th Cir. 1980) (quoting United States v. Bullock, 451 F.2d 884, 888 (5th\nCir. 1971)), cert. denied, 450 U.S. 1000, 101 S. Ct. 1707, 68 L. Ed. 2d 202\n(1981).\n 3\n Laury alleges that the aiding and abetting instruction effectively\nreduced the government's burden of proof. In Walker, we rejected Laury's\nargument, stating that 18 U.S.C. § 2 simply \"makes a defendant liable as a\nprincipal when he consciously shares in any criminal act.\" Walker, 621 F.2d at\n167.\n\n -5-\n\fcash following the date of the bank robbery; (2) clothing (Puma\n\ntennis shoes, a pair of light-colored jeans, and a blue bandanna)\n\nwas found in Laury's apartment that was similar to the clothing the\n\nrobber wore (Puma tennis shoes, a pair of grey or light-colored\n\njeans, and a blue or black bandanna); (3) Laury initially stated to\n\nFBI agents that he owned the Puma tennis shoes seized from his\n\napartment; (4) the shoeprint impression left by the robber\n\ncorresponded in size, design, mold characteristics, and wear\n\npattern with the Puma tennis shoes found in Laury's closet; and (5)\n\n$189.60 in dimes were found in Laury's apartment (the robber took\n\n$300.00 in dimes from the bank). Such evidence is sufficient to\n\nsupport the submission of an aiding and abetting instruction.\n\nTherefore, the district court did not err in submitting the aiding\n\nand abetting instruction to the jury.\n\n Even assuming the district court erred in submitting the\n\naiding and abetting instruction, the error was harmless. See 28\n\nU.S.C. § 2111 (1988) (A judgment will not be reversed on account of\n\nerror that is harmless.). Absent the aiding and abetting\n\ninstruction, the jury still could have convicted Laury as the\n\nprincipal based on the same evidence that suggested he aided and\n\nabetted the robber.4 The standard of review for judging the\n\nsufficiency of circumstantial evidence is \"whether [, viewing the\n\n\n 4\n In addition to the aiding and abetting instruction, the district\ncourt instructed the jury that they could find Laury guilty as the principal of\nthe robbery if they believed beyond a reasonable doubt that: (1) Laury\n\"intentionally took money from the person or the presence of the person described\nin the indictment;\" (2) \"the money was then in the possession of a federally\ninsured bank;\" and (3) Laury \"did so by means of force or violence or by means\nof intimidation.\" Record on Appeal, vol. 2, at 286, 290.\n\n -6-\n\fevidence in the light most favorable to the government,] a\n\nreasonable trier of fact could find that the evidence establishes\n\nguilt beyond a reasonable doubt.\" United States v. Salazar, 958\n\nF.2d 1285, 1294 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct.\n\n185, 121 L. Ed. 2d 129 (1992). Because a reasonable trier of fact\n\ncould find that the evidence establishes guilt beyond a reasonable\n\ndoubt on each element of the offense, the district court's error,\n\nif any, in submitting the aiding and abetting instruction was\n\nharmless.\n\n B\n\n Laury claims that his rights to due process and against self-\n\nincrimination were violated because (1) the prosecution used his\n\nsilence to impeach him at trial by suggesting that he should have\n\ncome forward sooner with his alibi, and (2) the prosecution\n\nsuggested that Laury's alibi witnesses should have come forward\n\nsooner with his alibi. At trial, Laury and his alibi witnesses\n\ntestified that Laury was at his cousin's birthday party in Dallas\n\non the date of the robbery. Neither Laury nor the witnesses told\n\nauthorities about the alibi prior to trial.\n\n 1\n\n The alleged improper comments occurred during the prosecutor's\n\ncross-examination of Laury and in his closing argument:\n\n Q: When did you call Mr. Farnsworth or Mr. Seale or\n anybody in the FBI and say, \"Wait a minute, you've got\n the wrong guy, here's what really happened\"? When did\n you do that?\n A: At no time.\n Q: When did you call the FBI, Mr. Seale, Mr. Farnsworth\n or the United States Attorney's office and say, \"It\n\n\n -7-\n\f couldn't have been me on December the 19th, 1988, because\n I was at a birthday party\"? When did you do that?\n A: I called the FBI agent))\n Q: Did you call him and tell him that you were\n somewhere else on that day?\n A: I just told him that I didn't commit no robbery.\n Q: But you didn't tell him where you were, you didn't\n tell him about your alibi?\n A: No, sir, and they didn't ask.\n Q: Waited until you get to court and that's when you're\n going to have it all come out?\n A: Well, I feel like this, sir))\n Q: I'm not asking you how you feel, sir, just answer my\n question.\n A: Repeat your question, sir.\n Q: You've been sitting where for the last several\n months?\n A: Here in jail.\n Q: And you'd rather sit in jail than tell the FBI the\n truth, is that right?\n A: Well, actually since I've been sitting in jail,\n there hasn't no FBI came to see me and))\n Q: You didn't call them and tell them you had this\n alibi?\n A: I told my attorney.\n\n\nRecord on Appeal, vol. 5, at 327. In his closing argument, the\n\nprosecutor stated:\n\n When you look at all of the evidence, when you take\n everything together, . . . and you couple all of that\n together with the tennis shoes from the unbiased expert\n and you listen to the people that wanted to give him an\n alibi and couldn't remember who all was at the party,\n what everybody else was wearing, and didn't even\n remember))remember when Miss Cooper said that))that\n [Laury] came and got her in the middle of the party and\n then left. None of the other witnesses said [Laury]\n left, said he was there all the time. Yeah, they\n couldn't remember that. They didn't tell the FBI he had\n an alibi. He doesn't tell the FBI he has an alibi,\n there's no talk.\n\nId. at 373.\n\n\n\n\n -8-\n\f The prosecutor's interrogation of Laury5 and his comment))\"[h]e\n\ndoesn't tell the FBI he has an alibi\"))were sufficiently broad that\n\nthey may be construed as commenting on Laury's failure to come\n\nforward with his alibi (a) prior to arrest, (b) immediately after\n\nhis arrest and Miranda warnings, and (c) during the time period\n\nprior to trial but following his arrest.\n\n a\n\n We first address whether any prosecutorial comment aimed at\n\nLaury's pre-arrest silence was improper. There is no\n\nconstitutional violation where the prosecution uses pre-arrest\n\nsilence to impeach a criminal defendant because \"no governmental\n\naction [has] induced [the defendant] to remain silent.\" Jenkins v.\n\nAnderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 2129-30, 65 L. Ed. 2d\n\n86 (1980); see also United States v. Collins, 972 F.2d 1385, 1408\n\nn.48, 1409 & n.50 (5th Cir. 1992), petitions for cert. filed, (U.S.\n\nDec. 4, 1992) (No. 92-6813) and 61 U.S.L.W. 3446 (U.S. Dec. 7,\n\n1992) (No. 92-964); United States v. Cardenas Alvarado, 806 F.2d\n\n566, 572 (5th Cir. 1986). Therefore, any constitutional claim that\n\nthe prosecution improperly commented on Laury's pre-arrest silence\n\nhas no merit.\n\n b\n\n Insofar as the prosecutor's comments may be construed as\n\ncommenting on Laury's failure to come forward with his alibi\n\n\n 5\n Although Laury answered the prosecutor's questioning by bringing up\nhis pre-Miranda phone call to the FBI, the prosecutor's initial questions were\nmuch broader and not limited to the period prior to Laury's arrest. Furthermore,\nthe prosecutor referred to Laury \"sitting in jail,\" which was a clear reference\nto the post-arrest, post-Miranda time period.\n\n -9-\n\fimmediately following his arrest, we must determine whether the\n\nprosecutor attempted to impeach Laury with silence, which is not\n\npermissible, or inconsistent statements, which is permissible.\n\n In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 610, 49 L. Ed. 2d 91\n\n(1976), the Court held that the due process clause prohibits\n\nimpeachment of a defendant's exculpatory story by using the\n\ndefendant's immediate post-arrest, post-Miranda warnings silence.6\n\nId. at 619, 96 S. Ct. at 2245. Doyle involved two defendants who,\n\nsubsequent to their arrest and Miranda warnings, declined to make\n\na statement.7 See id. at 611-14, 96 S. Ct. at 2241-43. At trial,\n\nthe defendants presented an alibi that they had not previously\n\ndisclosed to authorities. See id. at 613, 96 S. Ct. at 2242. On\n\ncross-examination, the prosecutor questioned the defendants about\n\ntheir failure to disclose their alibi to the police following their\n\narrest. See id. at 2243 & n.5, 96 S. Ct. at 613, 614 & n.5, 615\n\n(The Court held that the cross-examination violated the due process\n\nclause.). \"The Court's conclusion in [Doyle] was based on the\n\n\n\n 6\n The Court stated:\n\n Silence in the wake of these [Miranda] warnings may be nothing more\n than the arrestee's exercise of these Miranda rights. Thus, every\n post-arrest silence is insolubly ambiguous because of what the State\n is required to advise the person arrested. Moreover, while it is\n true that the Miranda warnings contain no express assurance that\n silence will carry no penalty, such assurance is implicit to any\n person who receives the warnings. In such circumstances, it would\n be fundamentally unfair and a deprivation of due process to allow\n the arrested person's silence to be used to impeach an explanation\n subsequently offered at trial.\nDoyle, 426 U.S. at 617-18, 96 S. Ct. at 2244-45 (citation omitted).\n 7\n Following his arrest, one of the defendants made statements such as\n\"I don't know what you are talking about.\" Doyle, 426 U.S. at 614 n.5, 96 S. Ct.\nat 2243 n.5. The Court treated the statements as being tantamount to silence.\nSee id. at 617-19, 96 S. Ct. at 2244-45.\n\n -10-\n\fambiguity inherent in a defendant's silence after he has been\n\narrested and informed of his Miranda rights. A defendant's silence\n\nmay indicate that he is exercising the rights of which he has just\n\nbeen advised; it does not necessarily mean that a defendant does\n\nnot have an exculpatory story to tell.\" Cardenas, 806 F.2d at 572.\n\n However, in Anderson v. Charles, 447 U.S. 404, 100 S. Ct.\n\n2180, 65 L. Ed. 2d 222 (1980), a defendant voluntarily gave a\n\nstatement to the police, after arrest and Miranda warnings, and\n\nthen told a different story at trial. Id. at 405-09, 100 S. Ct. at\n\n2180-83. There the Court held that the prosecutor could properly\n\nquestion the defendant about his prior inconsistent statements.\n\nSee id. at 409, 100 S. Ct. at 2183. In Anderson, the defendant,\n\ncharged with murder, gave the police a post-arrest statement\n\ndescribing the location from which he had stolen the victim's car.\n\nSee id. at 405, 100 S. Ct. at 2180. At trial, however, the\n\ndefendant testified that he had stolen the car from a different\n\nlocation. See id. On cross-examination, the prosecution asked the\n\ndefendant why he had not previously disclosed the latter version of\n\nevents, thereby suggesting that this latter version was a recent\n\nfabrication. See id. at 405-06, 100 S. Ct. at 2181. The Court\n\nheld that Doyle did not prohibit the prosecutor's cross-examination\n\nbecause \"`[t]he questions were not designed to draw meaning from\n\nsilence [as in Doyle], but to elicit an explanation for a prior\n\ninconsistent statement.'\" Id. at 409, 100 S. Ct. at 2182.\n\n Although \"`virtually any description of a defendant's silence\n\nfollowing arrest and a Miranda warning will constitute a Doyle\n\n\n -11-\n\fviolation,'\" a prosecutor's comments must be evaluated in context.\n\nUnited States v. Blankenship, 746 F.2d 233, 238 (5th Cir. 1984)\n\n(quoting United States v. Shaw, 701 F.2d 367, 381-82 (5th Cir.\n\n1983), cert. denied, 465 U.S. 1067, 104 S. Ct. 1419, 79 L. Ed. 2d\n\n744 (1984)). We stated in Shaw that:\n\n The alternative tests for determining whether a\n prosecutor's or witness's remarks constitute comment on\n a defendant's silence are whether the \"manifest intent\"\n was to comment on the defendant's silence or,\n alternatively, whether the character of the remark was\n such that the jury would \"naturally and necessarily\"\n construe it as a comment on the defendant's silence.\n Both the intent of the prosecutor and the character of\n the remarks are determined by reviewing the context in\n which they occur, and the burden of proving such intent\n is on the defendant.\n\nId. at 381 (citations omitted) (footnotes omitted).\n\n Although Laury made post-arrest statements to FBI agents, he\n\ndid not discuss his whereabouts during the robbery.8 Therefore,\n\nnothing Laury told the FBI agents was inconsistent with his trial\n\ntestimony that he was at a party on the date of the bank robbery.\n\nThe prosecutor did not comment on what Laury told FBI agents, but\n\non what he did not tell them. Jurors would naturally and\n\nnecessarily view the prosecutor's line of questioning on cross-\n\nexamination, as well as his statement in closing argument, as an\n\n\n 8\n Laury told FBI agents: (1) he was the only man living in his\napartment; (2) he lived with his girlfriend, Dinky; (3) he owned the men's\nclothing in the apartment; (3) when and where he purchased the items described\nin purchase receipts; (4) he purchased the items with money that he obtained from\ntwo jobs, Dinky, and Dinky's grandmother; (5) he was in Calvert, Texas a few days\nbefore Christmas; and (6) he did not rob Planters National Bank.\n The arresting officer, Agent Farnsworth, stated on direct examination that\nLaury did not make any statements concerning his whereabouts on the date of the\nrobbery. See Record on Appeal, vol. 4, at 187-88 (In response to the\nprosecutor's question, \"Did [Laury] give you any kind of alibi or any excuse or\nany place that he was on December the 19th of 1988,\" Agent Farnsworth stated, \"No\nsir. He just simply denied that he had robbed that bank.\").\n\n -12-\n\fattack on Laury's credibility. On cross-examination, the\n\nprosecutor suggests an implausible scenario))that Laury would\n\nprefer to languish in jail than tell the FBI about his alibi.\n\nClearly the prosecutor meant to suggest that Laury's alibi was not\n\ndisclosed prior to trial because it was not true, for the\n\nprosecutor's comments could not have served any other purpose.\n\nTherefore, the prosecutor's \"manifest intent\" was to comment on\n\nLaury's post-arrest silence with regard to his alibi. Only \"[w]hen\n\na defendant chooses to contradict his post-arrest statements to the\n\npolice . . . [does] it become[] proper for the prosecutor to\n\nchallenge him with those [post-arrest] statements and with the fact\n\nthat he withheld his alibi from them.\" Lofton v. Wainwright, 620\n\nF.2d 74, 78 (5th Cir. 1980). Because Laury's post-arrest and trial\n\nstatements were not inconsistent, we view the prosecutor's comments\n\nas comments on Laury's post-arrest silence,9 and therefore in\n\nviolation of Doyle.10\n\n\n\n 9\n We have not found any analogous cases where the prosecution attempted\nto impeach the defendant with post-arrest and trial statements that were not\ninconsistent. The relevant cases are either a clear Doyle case))where the\ndefendant remained completely silent following arrest, but gave an exculpatory\nstory at trial, see, e.g., Shaw, 701 F.2d at 382, or a clear Anderson case))where\nthe defendant gave a statement to the police, and then gave a clearly\ninconsistent story at trial. See, e.g., Brogdon v. Butler, 838 F.2d 776, 781\n(5th Cir. 1988); Lofton, 620 F.2d at 76.\n\n 10\n The government claims that the prosecutor's comments did not violate\nDoyle, because Laury did not remain completely silent following his arrest. We\ndo not believe, however, that the Supreme Court in Doyle intended that a\ndefendant remain completely silent following arrest in order to rely on the\nprotection of the due process clause. In fact, the Court in Doyle did not treat\nthe defendant's post-arrest comments as a waiver of his right to remain silent.\nDoyle, 426 U.S. at 614 n.5, 96 S. Ct. at 2243 n.5. That Laury did not remain\ncompletely silent following his arrest did not give the prosecutor unbridled\nfreedom to impeach Laury by commenting on what he did not say following his\narrest.\n\n -13-\n\f We normally review Doyle violations for harmless error.\n\nChapman v. United States, 547 F.2d 1240, 1248-49 (5th Cir.), cert.\n\ndenied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977); see\n\nalso United States v. Carter, 953 F.2d 1449 (5th Cir.), cert.\n\ndenied, ___ U.S. ___, 112 S. Ct. 2980, 119 L. Ed. 2d 598 (1992);\n\nCardenas Alvarado, 806 F.2d at 572-73. However, because Laury\n\nfailed to object to the prosecutor's comments at trial, we review\n\nthe prosecutor's comments for plain error. See Carter, 953 F.2d at\n\n1463; Cardenas Alvarado, 806 F.2d at 573. \"Plain error is error so\n\ngreat that it cannot be cured at trial; the error `must be obvious,\n\nsubstantial, and so basic and prejudicial that the resulting trial\n\nlacks the fundamental elements of justice.'\" United States v.\n\nDavis, 831 F.2d 63, 66 (5th Cir. 1987) (quoting United States v.\n\nBirdsell, 775 F.2d 645, 653 (5th Cir. 1985), cert. denied, 476 U.S.\n\n1119, 106 S. Ct. 1979, 90 L. Ed. 2d 662 (1986)). We will reverse\n\nonly to prevent a grave miscarriage of justice. Carter, 953 F.2d\n\nat 1463; Cardenas Alvarado, 806 F.2d at 573.\n\n Despite any improper prosecutorial comments on Laury's\n\nimmediate post-arrest silence, the record contained sufficient\n\nevidence of Laury's guilt. See discussion supra part III.A.\n\nTherefore, the prosecutor's error was not substantial or so\n\nprejudicial that Laury's trial lacked the fundamental elements of\n\njustice. The prosecutor's comments did not constitute plain error.\n\n c\n\n The prosecutor's comments were also aimed, in part, at Laury's\n\nfailure to come forward with his alibi while he was in jail prior\n\n\n -14-\n\fto trial. See Record on Appeal, vol. 5, at 327 (Prosecutor asked\n\nLaury on cross-examination: \"And you'd rather sit in jail than\n\ntell the FBI the truth . . . ?\"). The prosecutor's \"manifest\n\nintent\" was to comment on Laury's silence, and thereby raise an\n\ninference that his alibi was a recent fabrication. See Carter, 953\n\nF.2d at 1464. (\"The purpose behind the [prosecutor's comments] is\n\napparent: the prosecutor clearly hoped that [the defendant's\n\nsilence prior to trial, although he was languishing in jail for two\n\nand a half months,] would raise the inference that [his exculpatory\n\nstory] was a recent fabrication.\"). However, Doyle did not decide\n\nwhether comments on a defendant's failure to give an alibi anytime\n\nprior to trial is unconstitutional. See id., 426 U.S. at 616 n.6,\n\n96 S. Ct. at 2244 n.6; Carter, 953 F.2d at 1464. Doyle involved\n\nimpeachment by silence immediately following arrest, just after\n\nMiranda rights were given and while the defendant was in the\n\ncustody of the arresting officers. Nevertheless, we held in Carter\n\nthat a Doyle violation does occur where the prosecution comments on\n\nthe defendant's failure to give an alibi prior to trial but\n\nsubsequent to the time of arrest.11 See Carter, 953 F.2d at 1464;\n\nbut see United States ex rel. Smith v. Howe, 746 F.2d 386, 387-88\n\n\n 11\n In Carter, we distinguished between classic Doyle violations))where\nthe prosecution comments on a defendant's silence immediately following arrest,\nand non-classic Doyle violations))where the prosecution comments on a defendant's\nlater post-arrest silence. See Carter, 953 F.2d at 1464. We stated that\n\"Supreme Court decisions have clarified that the Doyle protection derives\nprimarily from the implicit assurance of the Miranda warnings and thus is\nstrongest in the context of immediate post-Miranda warning interrogation.\" Id.\nConsequently, we held that the usual harmless-error standard used to determine\nwhether classic Doyle violations constitute reversible error, see Chapman, 547\nF.2d at 1248-49, does not apply to non-classic Doyle violations. See Carter, 953\nF.2d at 1464. Rather, non-classic Doyle violations are reviewed for plain error.\nId.\n\n -15-\n\f(7th Cir. 1984) (citing Fletcher v. Weir, 455 U.S. 603, 102 S. Ct.\n\n1309, 71 L. Ed. 2d 490 (1982)) (no Doyle violation where there was\n\nno indication that defendant had received Miranda warnings prior to\n\npost-arrest silence), cert. denied, 471 U.S. 1104, 105 S. Ct. 2335,\n\n85 L. Ed. 2d 852 (1985). Therefore, the prosecutor's comments\n\nsatisfy this Circuit's test for a comment on the defendant's\n\nsilence, in violation of Doyle. See Carter, 953 F.2d at 1464.\n\nHowever, for the reasons set forth in the preceding subsection, the\n\nprosecutor's comments did not constitute plain error.\n\n 2\n\n Laury seeks relief based on other instances of alleged\n\nprosecutorial misconduct. Laury claims that the prosecutor\n\nviolated his due process rights by cross-examining his alibi\n\nwitnesses on their failure to come forward sooner with his alibi,\n\nand by commenting on the alibi witnesses' silence in his closing\n\nargument.12 Because Laury did not object to the prosecutor's\n\n\n 12\n Ethel Curry, Henry Lee Laury, and Annette Curry were Laury's alibi\nwitnesses. One alleged instance of prosecutorial misconduct arose out of the\nprosecutor's cross-examination of Ethel Curry:\n Q: [W]hen he was arrested and charged with this crime, did you go\n to the police and tell them that it couldn't have been him because\n he was at a birthday party?\n A: No.\n Q: When was the first time that you told))went and told the\n police or the FBI that it couldn't have been him because he was at\n this birthday party?\n A: I didn't. They came by my house.\nRecord on Appeal, vol. 4, at 199-200. Laury also claims that the prosector made\nimproper comments during his cross-examination of Henry Lee Laury:\n Q: Mr. Laury, when did you go to the police and tell them that\n [Laury] couldn't be guilty of this case, that he had an alibi?\n A: I didn't never talk to no police.\n Q: Well, do you know))how long has he been arrested and charged\n with this?\n A: I don't know how long he's been arrested and charged, because\n I wasn't here.\n\n -16-\n\fcomments at trial, \"we will reverse only if the comment[s] rise to\n\nthe level of plain error, i.e., if the error is `obvious,\n\nsubstantial, and so basic and prejudicial that the trial lacks the\n\nfundamental elements of justice.'\" Carter, 953 F.2d at 1460\n\n(quoting United States v. Simpson, 901 F.2d 1223, 1227 (5th Cir.\n\n\n Q: Well))\n A: I was in the state penitentiary myself.\n Q: Well, we'll get to that in a minute. But how long have you\n known that he's been charged with this bank robbery?\n A: I just))I was in the penitentiary when I found out what he was\n in there for. They just told me he went to report and they locked\n him up, that's all I know about this.\n Q: Well, how many times have you talked to him since he's been\n here in Waco, Texas?\n A: I talked to him on))talked to him and his girlfriend on the\n phone.\n Q: Well, how many times?\n A: One or two times. I don't keep up with no phone calls.\n Q: Well, over the last period of time))how long have you known\n that he's been charged with this crime?\n A: I'm telling you I was in the penitentiary, came home and found\n out he was in here.\n Q: Well, when did you get out of the penitentiary?\n A: I got out of the penitentiary in May.\n Q: In May of when?\n A: `91.\n Q: And so you've known since May of `91 that he was charged with\n it?\n A: Yeah, I've known it since then.\n Q: Okay. And when did you go to the FBI and tell them it\n couldn't have been him because he was at this birthday party?\n A: I haven't talked to a FBI or city official or county or\n nobody.\n Q: You didn't tell anybody.\n A: I haven't talked to nobody.\nId. at 208-09. The prosecutor also asked Annette Curry about her failure to come\nforward with Laury's alibi:\n\n Q: When did you call the police and tell them that it couldn't\n have been [Laury] that did this robbery because he was with you?\n A: Who called the police?\n Q: Did you?\n A: No.\n Q: You hadn't ever called the police or the FBI?\n A; No.\n Q: Well, how long have you known he's been charged with this\n crime?\n A: When the lawyer))I guess the DA or whoever he is))came over to\n the apartment to talk to me that day.\nId. at 218. In addition, the prosecutor in his closing argument commented on the\nwitnesses' silence: \"[The alibi witnesses] didn't tell the FBI that [Laury] had\nan alibi.\" Id., vol. 5, at 373.\n\n\n -17-\n\f1990)). It is permissible for a prosecutor to \"take the wind out\n\nof the defendant's sails regarding [a] witness' credibility.\"\n\nUnited States v. Handly, 591 F.2d 1125, 1128 n.1 (5th Cir. 1979).\n\nThe prosecutor's comments regarding the failure of the witnesses to\n\ncome forward sooner with Laury's alibi was a permissible attack on\n\ntheir credibility.13 Therefore, the prosecutor's comments did not\n\namount to error, plain or otherwise. Even if, arguendo, the\n\nprosecutor's comments were improper, in light of all the evidence\n\npresented at trial that indicated Laury's guilt, see discussion\n\nsupra part III.A., we do not find that the prosecutor's comments\n\nwere so prejudicial that the trial lacked the fundamental elements\n\nof justice.\n\n C\n\n Laury argues that the evidence was insufficient to sustain the\n\njury's verdict because the prosecution only presented\n\ncircumstantial evidence, and never produced a witness that could\n\n\n\n\n 13\n See United States v. Johns, 734 F.2d 657, 664-665 (11th Cir. 1984).\nIn Johns, the defendant argued that the prosecutor improperly commented on the\nfailure of his alibi witness to come forward sooner with his alibi. See id. at\n663. The court stated: \"That anyone, defendant or witness, fails to present a\ndefendant's alibi to law enforcement at the earliest time possible has some\nlogical negative reflection on the credibility of the alibi defense.\" Id.\n(emphasis added). In holding that the prosecutor's comment did not amount to\nmisconduct the court stated:\n\n The [issue] is whether for some policy reasons we should not allow\n the prosecutor to present otherwise admissible evidence to the jury.\n For example, when a defendant does not tell police his alibi, we\n prohibit such argument for Miranda reasons. See Doyle v. Ohio, 426\n U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). We find no\n similar policy that would prevent our allowing the prosecutor to\n attack an alibi witness' credibility by pointing out that he did not\n come forward until trial.\nId. at 664-65 (emphasis added).\n\n -18-\n\fidentify him as the robber.14 The usual standard of review for\n\njudging the sufficiency of evidence in a circumstantial evidence\n\ncase \"is not whether the evidence excludes every reasonable\n\nhypothesis of innocence or is wholly inconsistent with every\n\nconclusion except that of guilt, but whether [, viewing the\n\nevidence in the light most favorable to the government,] a\n\nreasonable trier of fact could find that the evidence establishes\n\nguilt beyond a reasonable doubt.\" United States v. Salazar, 958\n\nF.2d 1285, 1294 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct.\n\n185, 121 L. Ed. 2d 129 (1992). However, because Laury failed to\n\nmove for either a directed verdict at the close of the government's\n\nevidence or a judgment of acquittal following the trial, we review\n\nhis insufficiency of the evidence claim under a much stricter\n\nstandard. See United States v. Galvan, 949 F.2d 777, 782 (5th Cir.\n\n1991); United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988).\n\n\"`We are limited to the determination of \"whether there was a\n\nmanifest miscarriage of justice.\" Such a miscarriage would exist\n\nonly if the record is \"devoid of evidence pointing to guilt,\" or\n\n. . . \"because the evidence on a key element of the offense was so\n\ntenuous that a conviction would be shocking.\"'\" Galvan, 949 F.2d\n\nat 783 (quoting Ruiz, 860 F.2d at 617). \"In making this\n\ndetermination, the evidence, as with the regular standard for\n\nreview of insufficiency of evidence claims, must be considered `in\n\n\n 14\n Laury also argues that the government failed to prove that the\noffense occurred in the Western District of Texas. Because Laury never objected\nto venue before the district court, this objection is waived. See Keene v.\nInternational U. of Operating Eng., Local 624, AFL-CIO, 569 F.2d 1375, 1378 (5th\nCir. 1978) (\"Unlike jurisdiction, venue can be waived.\").\n\n -19-\n\fthe light most favorable to the government, giving the government\n\nthe benefit of all reasonable inferences and credibility choices.'\"\n\nRuiz, 860 F.2d at 617 (quoting United States v. Hernandez-Palacios,\n\n838 F.2d 1346, 1348 (5th Cir. 1988)), quoted in Galvan, 949 F.2d at\n\n783.\n\n After reviewing the record, we find that it contains an\n\nabundance of evidence pointing to guilt. See discussion supra part\n\nIII.A. Accordingly, no manifest miscarriage of justice has been\n\nshown in finding Laury guilty of robbery.\n\n D\n\n Laury alleges that the prosecutor mischaracterized the\n\ntestimony of his witnesses, depriving him of his constitutional\n\nright to a fair trial. Because Laury failed to object to the\n\nprosecutor's comments at trial, we review the statements for plain\n\nerror. See United States v. Davis, 831 F.2d 63, 66 (5th Cir.\n\n1987).\n\n Laury argues that the prosecutor, in his closing argument,\n\nimproperly inferred that Dinky admitted that Laury owned the Puma\n\ntennis shoes seized from his apartment. In closing argument, an\n\nattorney may \"assist the jury in analyzing, evaluating, and\n\napplying the evidence.\" United States v. Morris, 568 F.2d 396, 401\n\n(5th Cir. 1978). Accordingly, \"[a]n attorney may state to the jury\n\nthe inferences and conclusions he wishes them to draw\" as long as\n\nthey are based on the evidence. Davis, 831 F.2d at 66; see also\n\nMorris, 568 F.2d at 401 (During closing argument, an attorney has\n\na \"right to state his contention as to the conclusions that the\n\n\n -20-\n\fjury should draw from the evidence.\"). Although the jury could\n\nhave reasonably concluded from the prosecutor's summation of the\n\nevidence that Dinky admitted that Laury owned the shoes, the\n\nprosecutor did not tell the jury that they should draw that\n\nconclusion.15 The prosecutor merely restated Dinky's testimony to\n\nsupport his argument that Laury owned the tennis shoes. Because\n\nthe prosecutor properly assisted the jury in evaluating Dinky's\n\ntestimony, we find no error.\n\n Laury also claims that the prosecutor mischaracterized the\n\ntestimony of his witnesses by stating that they testified that\n\nLaury had been present at his cousin's party the entire time, even\n\nthough Dinky testified that Laury left the party to pick her up.\n\nSee Record on Appeal, vol. 5, at 372-73 (\"[R]emember when [Dinky]\n\nsaid that))that [Laury] came and got her in the middle of the party\n\nand then left. None of the other witnesses said [Laury] left, said\n\nhe was there all the time.\"). Although the prosecutor was correct\n\nthat none of these witnesses testified that Laury had left the\n\nparty, he misstated these witnesses' testimony, because no one\n\n\n\n\n 15\n Dinky testified that Laury did not own or wear tennis shoes. See\nRecord on Appeal, vol. 5, at 273, 280-81. On cross-examination, however, Dinky\nidentified a government exhibit as a photograph of Laury in her house wearing\ntennis shoes. See id. at 283. Dinky also identified another exhibit as a\nphotograph of tennis shoes in her hall closet. See id. at 284-85. The\nprosecutor asked Dinky whether Laury owned the shoes in the closet, and she\nresponded affirmatively. See id. During closing argument, the prosecutor\nstated: Dinky says, `[Laury] doesn't even own tennis shoes, he doesn't wear\ntennis shoes. I don't know anything about tennis shoes.' Well, she hadn't seen\nthe photographs until today. She looks at the photographs and says, `Oh, yeah,\nthose are tennis shoes. Oh, yeah, they're in the hall closet. Oh, yeah, those\nare his shoes on his feet in the picture.'\" Id. at 351.\n\n -21-\n\ftestified that Laury was at the party the entire time.16 Despite\n\nthe prosecutor's error, after reviewing the record, we find that\n\nthe record contained sufficient evidence of Laury's guilt. See\n\ndiscussion supra part III.A. Accordingly, we find that the\n\nprosecutor's error was not so prejudicial that Laury's trial lacked\n\nthe fundamental elements of justice. Therefore, the prosecutor's\n\nerror did not amount to plain error.\n\n E\n\n Laury next contends that the district court erred in adding\n\ntwo points to his base offense level for obstruction of justice.17\n\nSee United States Sentencing Commission, Guidelines Manual, § 3C1.1\n\n(West rev. ed. August, 1988). The district court found that Laury\n\nobstructed justice when he (1) lied under oath as to the source of\n\nthe money he spent following the date of the bank robbery, and (2)\n\nlied to the probation officer preparing the presentence report\n\nabout a prior arrest and conviction.18\n\n\n 16\n The government claims that the prosecution did not mischaracterize\nthe witnesses' testimony, arguing that \"[t]he prosecutor was attempting, by his\nargument to highlight the inconsistency between [Dinky's testimony that Laury had\nleft the party to pick her up] and Henry Lee Laury, Jr.'s testimony that [Laury]\nstayed at the party from `about a quarter to 11 . . . until about two or three.'\"\nBrief for United States at 20-21. We disagree because none of the witnesses,\nincluding Henry Lee Laury, stated that Laury was at the party all the time. We\nconstrue the prosecutor's statement that \"[n]one of the other witnesses said\n[Laury] left, said he was there all the time\" to mean \"[n]one of the other\nwitnesses said [Laury] left, [they] said he was there all the time.\" The other\npossible construction))\"[n]one of the other witnesses said [Laury] left, [none]\nsaid he was there all the time [either]))in the context of the prosecutor's\nargument does not make sense.\n 17\n Laury was sentenced under the guidelines in effect at the time the\noffense was committed.\n 18\n The probation officer made these findings in the presentence report,\nand consequently, recommended that the district court adjust Laury's sentence for\nobstruction of justice. Because the district court expressly adopted the factual\nfindings in the presentence report, see Record on Appeal, vol. 2, at 325, we\n\n -22-\n\f Section 3C1.1 instructs the district court to enhance a\n\ndefendant's offense level by two points \"[i]f the defendant\n\nwillfully impeded or obstructed, or attempted to impede or obstruct\n\nthe administration of justice during the investigation or\n\nprosecution of the instant offense.\" The section is not designed\n\nto punish a defendant for exercising a constitutional right, and\n\n\"[a] defendant's denial of guilt is not a basis for application of\n\nthis provision.\" U.S.S.G. § 3C1.1, comment. (n.3). An enhancement\n\nmay be appropriate where a defendant \"testif[ies] untruthfully or\n\nsuborn[s] untruthful testimony concerning a material fact.\" Id.,\n\ncomment. (n.1(c)). In applying section 3C1.1, the district court\n\nshould evaluate alleged untruthful testimony \"in a light most\n\nfavorable to the defendant.\" Id., comment. (n.2). We review a\n\ndistrict court's determination that a defendant has obstructed\n\njustice under section 3C1.1 for clear error. United States v.\n\nBethley, 973 F.2d 396, 402 (5th Cir. 1992), cert. denied, 1993 U.S.\n\nLEXIS 1483 (Feb. 22, 1993); United States v. Paden, 908 F.2d 1229,\n\n1236 (5th Cir. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 710,\n\n112 L. Ed. 2d 699 (1991).\n\n The district court found that Laury obstructed justice by\n\ntestifying untruthfully as to the source of the money he spent))in\n\nexcess of $26,000 in cash))following the date of the bank robbery.\n\nIt is proper for the district court to enhance a defendant's\n\nsentence for obstruction of justice where the defendant committed\n\nperjury by giving false testimony at trial. See United States v.\n\n\ntreat the findings as those of the district court.\n\n -23-\n\fDunnigan, 1993 U.S. LEXIS 1779, at *11-*17 (Feb. 23, 1993)\n\n(upholding obstruction of justice enhancement where district court\n\ndisbelieved defendant's trial testimony that she was not involved\n\nin a conspiracy); United States v. Goldfaden, 959 F.2d 1324, 1331\n\n(5th Cir. 1992) (upholding obstruction of justice adjustment where\n\ndefendant gave perjurious testimony); United States v. Velasquez-\n\nMercado, 872 F.2d 632, 636 (5th Cir.) (upholding two-point\n\nadjustment where district court found that defendant committed\n\nperjury, because it disbelieved defendant's claim at sentencing\n\nthat he did not have a leadership role in recruiting undocumented\n\naliens), cert. denied, 493 U.S. 866, 110 S. Ct. 187, 107 L. Ed. 2d\n\n142 (1989). In Dunnigan, the Supreme Court defined perjury as\n\nfollows: \"A witness testifying under oath or affirmation [commits\n\nperjury under section 3C1.1] if the witness gives false testimony\n\nconcerning a material matter with the willful intent to provide\n\nfalse testimony, rather than as a result of confusion, mistake or\n\nfaulty memory.\" Id., 1993 U.S. LEXIS at *14. The Supreme Court\n\nalso stated that if a defendant objects to an obstruction of\n\njustice enhancement resulting from the defendant's trial testimony,\n\nthe district court must review the evidence and \"make independent\n\nfindings necessary to establish a willful impediment to or\n\nobstruction of justice, or an attempt to do the same, under the\n\nperjury definition we have set out.\" Id. at 16. In making its\n\nfindings it is preferable for the district court to make a separate\n\nand clear finding on each element of the alleged perjury. Id. It\n\nis sufficient, however, if the district court \"makes a finding of\n\n\n -24-\n\fobstruction or impediment of justice that encompasses all of the\n\nfactual predicates for a finding of perjury.\" Id. at 16.19\n\n In his post-arrest statement, Laury claimed that he had\n\nobtained the money from two jobs, and that both Dinky and her\n\ngrandmother had given him some of the money. See Record on Appeal,\n\nvol. 4, at 185-86 (direct examination of Agent Farnsworth). Laury\n\ntold Agent Farnsworth that he had no other source of income. See\n\nid. at 185, 188. At trial, however, Laury stated for the first\n\ntime that he had obtained most of the money by robbing a drug\n\ndealer of $19,000. See id., vol. 5, at 292. In finding that Laury\n\ncommitted perjury, and thereby obstructed justice, the district\n\ncourt stated: \"Obviously if the jury's verdict means anything,\n\nthen Mr. Laury did commit perjury when he testified, and I believe\n\nthe jury's verdict means exactly what it found.\" Record on Appeal,\n\nvol. 6, at 6 (transcript of sentencing proceeding).20 In addition,\n\nthe court found that \"[i]f the jury had been convinced that [Laury]\n\n\n\n 19\n The Supreme Court held that the district court's finding of\nobstruction of justice was sufficient where the district court stated:\n\n The court finds that the defendant was untruthful at trial with\n respect to material matters in this case. The defendant denied her\n involvement when it is clear from the evidence in the case as the\n jury found beyond a reasonable doubt that she was involved in the\n conspiracy alleged in the indictment, and by virtue of her failure\n to give truthful testimony on material matters that were designed to\n substantially affect the outcome of the case, the court concludes\n that the false testimony at trial warrants an upward adjustment by\n two levels.\nDunnigan, 1993 U.S. LEXIS at *16-*17.\n 20\n Laury argues that \"[t]he [d]istrict court did not make any\nindependent factual finding that [he] lied in his trial testimony, but rather\nrelied completely and solely upon the [guilty] verdict.\" Brief for Laury at 24.\nLaury's argument is meritless because the district court expressly adopted the\nfactual findings in the presentence report. See Record on Appeal, vol. 2, at\n325.\n\n -25-\n\fhad obtained the money as he indicated, it may have affected the\n\ndetermination of guilt. Statements made by the defendant were made\n\nin an effort to obstruct or impede the administration of justice\n\nduring prosecution.\" Presentence Report at 5. The district\n\ncourt's finding that Laury committed perjury was sufficient. See\n\nDunnigan, 1993 U.S. LEXIS at *17. Furthermore, because the record\n\nsupports the district court's finding that Laury committed perjury,\n\nthe district court did not clearly err in finding that Laury had\n\nobstructed justice.21\n\n The district court also found that Laury obstructed justice by\n\nlying to the probation officer preparing the presentence report\n\nabout a prior arrest and conviction. A defendant's offense level\n\nmay be enhanced where the defendant \"furnish[es] material\n\nfalsehoods to a probation officer in the course of a presentence\n\nreport or other investigation for the court.\" U.S.S.G. § 3C1.1,\n\ncomment. (n.1(e)). During the presentence interview, the probation\n\nofficer asked Laury about a prior arrest and conviction arising out\n\n\n\n 21\n Laury also argues that an obstruction of justice enhancement based\non perjury infringes on his constitutional right to testify. We disagree. The\nSupreme Court in United States v. Dunnigan, 1993 U.S. LEXIS 1779, at *17-*18, *22\n(Feb. 23, 1993), expressly held that an obstruction of justice enhancement based\non perjury does not interfere with a defendant's right to testify: \"Upon a\nproper determination that the accused has committed perjury at trial, an\nenhancement of sentence is required by the Sentencing Guidelines. That\nrequirement is consistent with our precedents and is not in contravention of the\nprivilege of an accused to testify in [the accused's] own behalf.\" Id. at *22;\nsee also United States v. Collins, 972 F.2d 1385 (5th Cir.) (holding that\nenhancement for obstruction of justice based on perjury does not infringe on a\ndefendant's right to testify), petitions for cert. filed, (U.S. Dec. 4, 1992)\n(No. 92-6813) and 61 U.S.L.W. (U.S. Dec. 7, 1992) (No. 92-964); Goldfaden, 959\nF.2d at 1331 (\"Though the court may not penalize a defendant for denying his\nguilt as an exercise of his constitutional rights, an enhancement based upon\nperjury is permissible.\")\n\n\n\n -26-\n\fof an incident in Houston. Laury denied any involvement. Laury\n\nstated that it was his uncle who was involved in the incident, and\n\nthat the uncle used Laury's name when arrested. Subsequently, the\n\nprobation officer obtained a photograph of the person arrested,\n\nwhich clearly revealed that it was Laury. Because the record\n\nsupports the district court's finding that Laury lied to the\n\nprobation officer preparing the presentence report, the district\n\ncourt did not err in finding that Laury obstructed justice. See\n\nVelasquez-Mercado, 872 F.2d at 636 (upholding obstruction of\n\njustice adjustment where district court found that defendant had\n\nlied to probation officer preparing presentence report).\n\n F\n\n Laury next claims that the district court erred in upwardly\n\ndeparting from the sentencing guidelines. The district court\n\nsentenced Laury to 175 months imprisonment, 25 months above the\n\nsentencing guidelines maximum.22 A departure from the sentencing\n\nguidelines will be upheld if (1) the district court provided\n\nacceptable reasons for the departure, and (2) the extent of the\n\ndeparture was reasonable. United States v. Fields, 923 F.2d 358,\n\n\n\n\n 22\n Laury's criminal history score of 20 points placed him in criminal\nhistory category VI, the highest possible category under the sentencing\nguidelines. Based on Laury's criminal history category and offense level of 26,\nthe guidelines recommended a sentence of 120-150 months.\n We note that section 4A1.3 of the guidelines was amended on November 1,\n1992. See United States v. Lambert, No. 91-1856, 1993 WL 35719, at *6 (5th Cir.\nFeb. 16, 1993) (en banc). \"According to the amendment, [when] a district court\nintends to depart above Category VI, it should still stay within the guidelines\nby considering sentencing ranges for higher base offense levels. This amendment\nemphasizes the Commission's concern for systematic, uniform sentences even in\ncases where a departure is appropriate.\" Id.\n\n -27-\n\f361 (5th Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 2066, 114 L.\n\nEd. 2d 470 (1991).\n\n Laury argues that the district court's upward departure was\n\nunreasonable because it was based on a factor (Laury's criminal\n\nhistory) already taken into account by the guidelines. The\n\npresentence report stated that Laury had been convicted seven times\n\nfor offenses involving theft and burglary in a span of six years.\n\nThe presentence report also showed that Laury repeatedly violated\n\nparole and probation. Adopting the factual findings of the\n\npresentence report, the district court stated that it was upwardly\n\ndeparting because of Laury's \"constant recidivism and displaying of\n\nviolent behavior.\" Record on Appeal, vol. 2, at 325. Thus, the\n\ndistrict court upwardly departed because Laury's criminal history\n\ncategory did not adequately reflect the seriousness of his past\n\ncriminal conduct. We review this finding of fact for clear error.\n\nSee United States v. Roberson, 872 F.2d 597, 607 (5th Cir. 1989),\n\ncert. denied, 493 U.S. 861, 110 S. Ct. 175, 107 L. Ed. 2d 131\n\n(1989). We review the district court's decision to depart upward\n\nfrom the guidelines for abuse of discretion. See Roberson, 872\n\nF.2d at 601.\n\n That a defendant's criminal history category does not\n\nadequately reflect the seriousness of a defendant's past criminal\n\nconduct \"is a factor not taken into account by the Guidelines and\n\nis a permissible justification for upward departure.\" United\n\nStates v. Geiger, 891 F.2d 512, 514 (5th Cir. 1989) (emphasis\n\nadded) (upholding upward departure where defendant's criminal\n\n\n -28-\n\fhistory category did not adequately reflect seriousness of\n\ndefendant's criminal history), cert. denied, 494 U.S. 1087, 110 S.\n\nCt. 1825, 108 L. Ed. 2d 954 (1990), overruled on other grounds\n\nUnited States v. Lambert, No. 91-1856, 1993 WL 35719, at *1 (5th\n\nCir. Feb 16, 1993) (en banc); see also Roberson, 872 F.2d at 606\n\n(same). In fact, the Commission itself stated that \"[a] departure\n\n. . . is warranted when the criminal history category significantly\n\nunder-represents the seriousness of the defendant's criminal\n\nhistory or the likelihood that the defendant will commit further\n\ncrimes.\" U.S.S.G. § 4A1.3, p.s.. Furthermore, the Commission\n\nstated that it \"contemplates that there may, on occasion, be a case\n\nof egregious, serious criminal record in which even the guideline\n\nrange for a category VI criminal history is not adequate to reflect\n\nthe seriousness of the defendant's criminal history.\" Id.\n\n Given Laury's past criminal convictions, the district court\n\ndid not clearly err in finding that Laury's criminal history\n\ncategory did not adequately reflect the seriousness of his criminal\n\nhistory. Furthermore, because Laury's criminal history points (20)\n\nwere well above the minimum required (13) to place him in a\n\ncategory of VI, and the district court gave adequate reasons for\n\nits upward departure, the district court did not abuse its\n\ndiscretion in upwardly departing from the sentencing guidelines.\n\n Laury's challenge to the extent of the district court's\n\ndeparture is equally unavailing. Because the departure was within\n\nthe statutory limit, see 18 U.S.C. § 2113(a) (1988), we will review\n\nit only for a \"`gross abuse of discretion.'\" United States v.\n\n\n -29-\n\fHuddleston, 929 F.2d 1030, 1031 (5th Cir. 1991) (quoting United\n\nStates v. Juarez-Ortega, 866 F.2d 747, 748 (5th Cir. 1989)). \"If\n\nthe district finds that it is necessary to go beyond the\n\nguidelines, the court must give adequate reasons why the guideline\n\ncalculation is inadequate and why the sentence it imposes is\n\nappropriate.\" Lambert, 1993 WL at *5. In light of the district\n\ncourt's articulated reasons for the departure))Laury's constant\n\nrecidivism and display of violence))we do not view a 25-month\n\nupward departure to a 175-month sentence for a crime with a maximum\n\nstatutory sentence of 240 months as unreasonable. See, e.g.,\n\nUnited States v. Fields, 923 F.2d 358, 361 (5th Cir.), cert.\n\ndenied, ___ U.S. ___, 111 S. Ct. 2066, 114 L. Ed. 2d 470 (1991)\n\n(upholding departure of 24 months to a 204-month sentence for a\n\ncrime with a minimum statutory sentence of 180 months and maximum\n\nof life).\n\n G\n\n Laury contends that the district court erred in denying his\n\nmotion to suppress the evidence obtained from the search of his\n\napartment. Laury contends that the affidavit in support of the\n\nsearch warrant did not establish probable cause because: (a) the\n\naffidavit was based on conclusory statements and unreliable\n\nhearsay; (b) the affidavit did not establish a nexus between\n\nLaury's home and the instrumentalities and evidence of the robbery;\n\nand (c) the information provided by affiant Agent Garcia and the CI\n\nwas stale. We disagree.\n\n\n\n\n -30-\n\f In reviewing a district court's denial of a motion to\n\nsuppress, we engage in a two-part inquiry: (1) whether the good-\n\nfaith exception to the exclusionary rule applies, see United States\n\nv. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984);\n\nand (2) whether the warrant was supported by probable cause.\n\nUnited States v. Satterwhite, 980 F.2d at 317, 320 (5th Cir. 1992);\n\nsee also United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.),\n\ncert. denied, ___ U.S. ___, 113 S. Ct. 355, 121 L. Ed. 2d 269\n\n(1992). We need not, however, address the probable cause issue if\n\nthe good-faith exception applies, and the case does not involve a\n\n\"`novel question of law whose resolution is necessary to guide\n\nfuture action by law enforcement officers and magistrates.'\"\n\nIllinois v. Gates, 462 U.S. 213, 264, 103 S. Ct. 2317, 2346, 76 L.\n\nEd. 2d 527 (1983) (White, J., concurring); Satterwhite, 980 F.2d at\n\n320 (quoting Gates). This case does not present a novel question\n\nof law. Therefore, we address the good-faith issue first.\n\n The Supreme Court in Leon held that evidence obtained by\n\nofficers in objectively reasonable good-faith reliance upon a\n\nsearch warrant is admissible, even though the warrant was\n\nunsupported by probable cause. See Leon, 468 U.S. at 922-23, 104\n\nS. Ct. at 3420; Satterwhite, 980 F.2d at 1640. Where a warrant is\n\nsupported by more than a bare bones affidavit,23 an officer may rely\n\nin good faith on the warrant's validity. Id.; Pigrum, 922 F.2d at\n\n252. We review de novo the reasonableness of an officer's reliance\n\n 23\n A bare bones affidavit contains \"wholly conclusory statements, which\nlack the facts and circumstances from which a magistrate can independently\ndetermine probable cause.\" Satterwhite, 980 F.2d at 321.\n\n -31-\n\fupon a warrant issued by a magistrate. Satterwhite, 980 F.2d at\n\n321 (citing United States v. Wylie, 919 F.2d 969, 974 (5th Cir.\n\n1990)).\n\n Laury first claims that the warrant was not supported by\n\nprobable cause because it was based solely upon a bare bones\n\naffidavit. We disagree. The affidavit shows that eyewitnesses to\n\nthe robbery provided a description of the robber which was similar\n\nto Laury's.24 See Record on Appeal, vol. 1, at 157-58. The\n\naffidavit also states:\n\n A confidential source who has provided reliable\n information in the past to local law enforcement officers\n and whose information has culminated in three arrests and\n three convictions furnished the following information to\n which he had access:\n\n 1. A personal friend of Felmon Lakeith Laury stated\n that Laury robbed a bank in Rosebud, Texas during\n December, 1988.\n\n 2. Felmon Lakeith Laury is unemployed and has been for\n some time. However, in late December, 1988, Laury\n purchased a 1982, two-door, white Lincoln Continental\n with a tan \"convertible look\" vinyl top. He also\n purchased a yellow Chevrolet Z.28 Camaro for his\n girlfriend. Around Christmas, 1988, Laury went to\n Houston with another black male and purchased expensive\n clothes, and had a $1,500 stereo installed in his car.\n\n\n 24\n Laury argues that the affidavit did not establish probable cause\nbecause it \"include[d] information that the Defendant was not the one who\ncommitted the instant offense, namely that he did not match the description given\nby the eyewitnesses to the crime.\" See Brief for Laury at 32. Eyewitnesses to\nthe robbery described the suspect \"as being a black male in his late 20's,\napproximately 5'10\" to 6' tall, approximately 150 pounds, slim build, short black\nhair, with large eyes.\" Record on Appeal, vol. 1, at 158. The affidavit states\nthat Laury is \"a black male, 25 years old, 5'8\" tall, weighs 140 pounds, has a\nslender build, short black hair and large eyes.\" Id. at 157. Laury's attempt\nto discredit the affidavit by pointing out discrepancies between the two\ndescriptions is frivolous because the eyewitness description was only an\napproximation. See Greer v. Turner, 639 F.2d 229, 230 n.1, 232 & n.4 (5th Cir.\n1981) (where defendant pointed out that eyewitnesses described robber as about\n6'2\" and he was only 5'11\", defendant's attempt to discredit the description\nprovided by eyewitnesses was frivolous because the description was only an\napproximation).\n\n -32-\n\f Laury also gave some of his friends $100 each as a\n Christmas gift.\n\n 3. Felmon Lakeith Laury is currently using an alias of\n Walter Ray Nicholson.\n\n 4. Felmon Lakeith Laury was raised in the Calvert,\n Texas area near Rosebud, Texas and frequently travels to\n that area.\n\n 5. Felmon Lakeith Laury currently lives with his\n girlfriend DeShannon \"Dinky\" Cooper at the Estell Village\n Apartments, 5938 Highland Village Drive, Apartment #D,\n Dallas, Texas. Laury has lived there since December,\n 1988.\n\nId. at 157. The CI's statements provided the magistrate with ample\n\nfacts, not conclusions, for finding that there was a fair\n\nprobability that Laury robbed a bank.\n\n Laury further alleges the government is attempting to put\n\nflesh on an otherwise bare bones affidavit by the use of unreliable\n\nhearsay. Laury avers that Agent Garcia and the CI had no personal\n\nknowledge of the robbery, and that the CI did not reveal the\n\nunderlying facts and circumstances of how he obtained the\n\ninformation.\n\n An affidavit may rely on hearsay))information not within the\n\npersonal knowledge of the affiant, such as an informant's\n\nstatement))as long as the affidavit presents a \"`substantial basis\n\nfor crediting the hearsay.'\" Gates, 462 U.S. at 242, 103 S. Ct. at\n\n2334 (quoting Jones v. United States, 362 U.S. 257, 269, 80 S. Ct.\n\n725, 735, 4 L. Ed. 2d 697 (1960)); see also Draper v. United\n\nStates, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959);\n\nSatterwhite, 980 F.2d at 321. In determining whether an\n\ninformant's report is credible, we examine the informant's veracity\n\n\n -33-\n\fand basis of knowledge. See Gates, 462 U.S. at 230-33, 103 S. Ct.\n\nat 2328-29. These factors are relevant considerations under the\n\n\"totality of the circumstances\" test for valuing an informant's\n\nreport. See id. \"[A] deficiency in one may be compensated for, in\n\ndetermining the overall reliability of a tip, by a strong showing\n\nas to the other, or by some other indicia of reliability.\" Id. at\n\n232, 103 S. Ct. at 2329.\n\n The affidavit adequately demonstrated the CI's veracity. The\n\nveracity of an informant is often assessed from the accuracy of\n\nprevious tips. See United States v. Barbin, 743 F.2d 256, 259\n\n(1984). Agent Garcia stated that the CI in the past had furnished\n\nreliable information to local law enforcement officers leading to\n\nthree arrests and three convictions. These statements sufficiently\n\nestablished the CI's veracity. See United States v. McKnight, 953\n\nF.2d 898, 905 (5th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct.\n\n2975, 119 L. Ed. 2d 594 (1992) (assertion that informant in the\n\npast had given true and reliable information sufficiently\n\nestablished veracity); Barbin, 743 F.2d at 256 (veracity was\n\nestablished where informant in the past had given information\n\nresulting in several arrests and convictions); United States v.\n\nAlmas, 507 F.2d 65, 66 n.1 (5th Cir. 1975) (veracity established\n\nwhere informant had provided information leading to four arrests\n\nand four convictions).\n\n The affidavit also sufficiently demonstrated the CI's basis of\n\nknowledge. \"An informant's basis of knowledge can . . . be\n\nestablished by a particularly detailed tip.\" United States v.\n\n\n -34-\n\fJackson, 818 F.2d 345, 349 (5th Cir. 1987). The CI knew where\n\nLaury lived, the name of Laury's girlfriend, Laury's use of an\n\nalias, and where Laury was raised. Furthermore, the CI knew with\n\nspecificity expenditures that Laury made in December 1988. In\n\naddition, the affidavit stated that an FBI agent had verified the\n\nresidence of Laury's girlfriend. While the source of the CI's\n\ninformation was not disclosed, nor how the information was\n\nobtained, the detailed facts given were of such a nature, in light\n\nof the surrounding circumstances, that the magistrate could have\n\nreasonably concluded that the CI obtained the information in a\n\nreliable manner. Therefore, the CI's tip, given his past accuracy\n\nand the detailed information he furnished, provided the magistrate\n\nwith a substantial basis for crediting the CI's statements.\n\n Laury also claims that the affidavit was based on unreliable\n\ndouble hearsay because some of the CI's statements were based on\n\ninformation given to the CI by an unidentified personal friend.\n\nSee Record on Appeal, vol. 1, at 157. Laury argues that the\n\naffidavit failed to establish the personal friend's veracity and\n\nbasis of knowledge. Although it is true that the affidavit did not\n\nestablish the personal friend's veracity, we are not precluded from\n\ndetermining that a substantial basis existed for crediting the\n\npersonal friend's statement. See Gates, 462 U.S. at 232, 103 S.\n\nCt. at 2329 (\"A deficiency in [either veracity or basis of\n\nknowledge] may be compensated for, in determining the overall\n\nreliability of a tip, by a strong showing as to the other, or by\n\nsome other indicia of reliability.\"); see also Satterwhite, 980\n\n\n -35-\n\fF.2d at 322 (\"Where an informant's report is not based on personal\n\nknowledge, but rather on the information of a second individual, we\n\nmust determine whether a substantial basis exists for crediting the\n\nsecond individual's information.\" (citing Spinelli, 393 U.S. at\n\n410, 89 S. Ct. at 584, 593 (White, J., concurring)).\n\n First, the personal friend did more than merely state that\n\nLaury had robbed a bank. The personal friend correctly identified\n\nRosebud as the place of the robbery and December 1988 as the month\n\nand year the robbery took place. This is even more significant\n\nbecause both the CI and Laury lived in Dallas: it is unlikely that\n\nthe CI would know about, and implicate Laury in, a bank robbery in\n\nthe distant town of Rosebud. Second, the personal friend's\n\nstatements were corroborated by the CI's statements. \"`It is\n\nenough . . . that [c]orroboration through other sources of\n\ninformation reduced the chances of a reckless or prevaricating\n\ntale,' thus providing a `substantial basis for crediting the\n\nhearsay.'\" Id. at 322-23 (quoting Gates, 462 U.S. at 244-45, 103\n\nS. Ct. at 2335). The CI stated that Laury was raised near Rosebud\n\nand frequently traveled to that area. The CI's statement\n\ncorroborates the personal friend's claim that Laury robbed a bank\n\nby connecting Laury to the area of the bank robbery. Therefore,\n\nthe affidavit provided the magistrate with a substantial basis for\n\ncrediting the personal friend's statement.\n\n Laury further alleges that the affidavit was totally lacking\n\nin indicia of probable cause because it did not establish a nexus\n\nbetween Laury's home and the instrumentalities and evidence of the\n\n\n -36-\n\frobbery. The affidavit must contain facts which \"establish a nexus\n\nbetween the house to be searched and the evidence sought.\" United\n\nStates v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982). This nexus\n\n\"may be established through . . . normal inferences as to where the\n\narticles sought would be located.\" Id. \"`For instance, evidence\n\nthat a defendant has stolen material which one would normally\n\nexpect him to hide at his residence will support a search of his\n\nresidence.'\" Id. (quoting United States v. Maestas, 546 F.2d 1177,\n\n1180 (5th Cir. 1977)).\n\n The instrumentalities and evidence of the crime were not found\n\nat the scene of the crime.25 Furthermore, Agent Garcia stated in\n\nthe affidavit that, based on his training, experience, and\n\nparticipation in the investigation of over 200 bank robberies,\n\n\"[i]ndividuals who commit bank robberies tend to keep evidence and\n\ninstrumentalities of their robberies in their personal possession,\n\nas well as their homes.\" Record on Appeal, vol. 1, at 160.\n\nTherefore, the affidavit furnished the magistrate with enough\n\ninformation to conclude that there was a nexus between Laury's home\n\nand the instrumentalities and evidence of the robbery. See United\n\nStates v. Pace, 955 F.2d 270, 277 (5th Cir. 1992) (Where agent\n\nstated in affidavit that individuals who cultivate marijuana\n\nroutinely conceal evidence of the crime in their homes, court held:\n\n\n\n\n 25\n The government sought to obtain two basic types of items from Laury's\nresidence: (1) instrumentalities of the crime (tennis shoes, loot bag, jacket,\nbandanna, gloves, revolver, jeans); and (2) evidence of the crime (coin bag\ncontaining dimes, money straps, wooden money dividers, currency). See Record on\nAppeal, vol. 1, at 153.\n\n -37-\n\f\"The expectation of finding evidence of the crime at the suspect's\n\nhome, given that such evidence was not found at the scene of the\n\nillegal activity, was a reasonable inference which supported the\n\nmagistrate's determination of probable cause to search the\n\nresidence.\"); see also United States v. Thomas, 973 F.2d 1152, 1157\n\n(5th Cir. 1992) (\"Since [the] criminal instruments were not found\n\nat the scene of Thomas's business, the expectation of finding the\n\n[criminal instruments] at Thomas's home was a reasonable inference\n\nsupporting a determination of probable cause.\").\n\n Laury also contends that the information supporting the search\n\nwarrant was stale. \"[T]he amount of delay which will make\n\ninformation stale depends upon the particular facts of each case,\n\nincluding the nature of the criminal activity and the type of\n\nevidence sought.\" Freeman, 685 F.2d at 951. \"`A mechanical count\n\nof days is of little assistance in [the] determination.'\" Id.\n\n(quoting United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978)).\n\nThe FBI agent stated in his affidavit that individuals who commit\n\nbank robberies tend to keep instrumentalities and evidence of the\n\noffense in their homes and that \"investigations [that he has]\n\nconducted have revealed that often this evidence and\n\ninstrumentalities of these crimes are kept for long periods of\n\ntime, up to and including a period of several years.\" Record on\n\nAppeal, vol. 1, at 160. Also, less than two months elapsed from\n\nthe date of the robbery to the issuance of the warrant. Therefore,\n\nit was reasonable for the magistrate to conclude that the\n\ninformation forming the basis of the warrant was not stale. See\n\n\n -38-\n\fUnited States v. Barfield, 507 F.2d 53, 57-58 (5th Cir.), cert.\n\ndenied, 421 U.S. 950, 95 S. Ct. 1684, 44 L. Ed. 2d 105 (1975)\n\n(upholding search warrant issued forty days after information as to\n\nthe location of stolen coins and burglary tools was received by the\n\ngovernment).\n\n H\n\n Lastly, Laury argues that the district court erred in denying\n\nhis motion to suppress incriminating statements made after his\n\narrest because he did not voluntarily waive his Miranda rights.\n\nAfter holding a hearing on Laury's motion to suppress, the district\n\ncourt held that Laury made a voluntary and intelligent waiver of\n\nhis rights after receiving Miranda warnings. \"`[I]n reviewing a\n\ntrial court's ruling on a motion to suppress based on live\n\ntestimony at a suppression hearing, the trial court's factual\n\nfindings must be accepted unless clearly erroneous, or influenced\n\nby an incorrect view of the law . . . .'\" United States v. Ibarra,\n\n965 F.2d 1354, 1356 (5th Cir. 1992) (en banc) (equally divided\n\ncourt) (quoting United States v. Muniz-Melchor, 894 F.2d 1430,\n\n1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S. Ct. 1957,\n\n109 L. Ed. 2d 319 (1990)); see also United States v. Cagle, 849\n\nF.2d 924, 924 n.1 (5th Cir. 1988) (citing United States v.\n\nMaldonado, 735 F.2d 809, 814 (5th Cir. 1984)). Furthermore, the\n\nevidence must be viewed in the light most favorable to the party\n\nthat prevailed below. Id. (quoting Muniz-Melchor, 894 F.2d at\n\n1433-34); Cagle, 849 F.2d at 924 n.1 (citing Maldonado, 735 F.2d at\n\n814). Defendants may waive their Miranda rights provided that they\n\n\n -39-\n\fwaive their rights voluntarily, knowingly, and intelligently.\n\nUnited States v. McClure, 786 F.2d 1286, 1288 (5th Cir. 1986). In\n\ndetermining whether defendants have validly waived their Miranda\n\nrights, the court must take into account the \"totality of the\n\ncircumstances surrounding the interrogation.\" Id. at 1289 (quoting\n\nMoran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410\n\n(1986)). At the hearing, FBI agents testified that they had\n\nproperly advised Laury of his constitutional rights and that he\n\nknowingly and voluntarily waived these rights. See Record on\n\nAppeal, vol. 3, at 5-11. The FBI agents stated that Laury was\n\nadvised of his constitutional rights when he was initially\n\narrested. The agents also testified that later, at the police\n\nstation, they again informed Laury of his rights, and had him read\n\nout loud from a written advice of rights form. At that point,\n\ntestified an agent, Laury indicated that he had no reservations\n\nabout talking to the agents.26 See Hearing on Pre-Trial Motions at\n\n7. Agents also stated that Laury answered affirmatively after\n\nbeing asked multiple times whether he had been informed of his\n\nrights. In his brief in support of his motion to suppress, Laury\n\nalleged in conclusory fashion that his statements were coerced, but\n\ndid not point to any supporting evidence. Furthermore, nothing in\n\nthe record suggests that Laury's statements were compelled.\n\nTherefore, the district court's did not clearly err in finding that\n\nLaury made a voluntary and intelligent waiver of his Miranda\n\n 26\n At the bottom of the advice of rights form, there is a notation that\nLaury \"[r]efused to sign [the waiver of rights], but agree[d] [to] talk to\n[a]gents.\" Id. at 192.\n\n -40-\n\frights. Consequently, the district court did not err in denying\n\nLaury's motion to suppress.\n\n IV\n\n For the foregoing reasons, we AFFIRM.\n\n\n\n\n -41-\n\f", "ocr": false, "opinion_id": 5498 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/004/rodgersjw.pdf", "author_id": 8284, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT JACKSON\n Assigned on Briefs July 11, 2000\n\n STATE OF TENNESSEE v. JERRY W. RODGERS\n\n Direct Appeal from the Criminal Court for Shelby County\n No. 97-04098 Chris Craft, Judge\n\n\n\n No. W1999-01443-CCA-R3-CD - Filed October 11, 2000\n\n\nThe defendant was convicted of reckless homicide and sentenced to eight years as a Range II,\nmultiple offender. On appeal, the defendant raises the issue of whether the trial court erred in relying\non New York convictions as prior felonies in order to sentence him as a multiple offender. After\nreview, we conclude that the record does not support the trial court’s finding that the New York\nconvictions qualified as prior felonies for sentencing purposes. Accordingly, we reverse, and remand\nthe case to the trial court for resentencing.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and\n Remanded\n\nALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and CORNEL IA\nA. CLARK, SP .J., joined.\n\nA C Wharton, Jr., Public Defender; Tony N. Brayton, Assistant Public Defender (on appeal); and\nMozella Ross, Assistant Public Defender (at trial), for the appellant, Jerry W. Rodgers.\n\nPaul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;\nWilliam L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General,\nfor the appellee, State of Tennessee.\n\n OPINION\n\n The defendant, charged with second degree murder for shooting and killing his older brother,\nwas convicted of reckless homicide. It was undisputed that the defendant had one prior felony\nconviction in Tennessee, for possession of a prohibited weapon. At sentencing, the trial court\nconsidered two New York weapons convictions as additional prior felonies, and sentenced the\ndefendant to eight years as a Range II, multiple offender. The sole issue the defendant raises on\nappeal is whether the trial court erred in sentencing him as a Range II, multiple offender. Based\nupon our review, we conclude that there was insufficient proof to support the trial court’s finding\n\fthat the defendant had the requisite minimum number of prior felony convictions to be classified as\na Range II, multiple offender. Accordingly, we remand the matter for resentencing.\n\n FACTS\n\n On April 17, 1997, the defendant, Jerry W. Rodgers, was indicted for the second degree\nmurder of his older brother, Joe Rodgers. The autopsy revealed that the victim, who was intoxicated\nat the time of his death, was killed by a single shotgun blast to the chest.\n\n The jury found the defendant guilty of reckless homicide. At the sentencing hearing, held\nJune 17, 1999, the State introduced evidence to show that the defendant had a 1994 Tennessee\nconviction for possession of a prohibited weapon, a Class E felony. The State also introduced\nevidence of a large number of convictions in New York, including a 1979 conviction for attempted\ncriminal possession of a weapon in the third degree, apparently a Class E felony in New York, and\na 1987 conviction for criminal possession of a weapon in the third degree, a Class D felony. The\nrecords indicated that at the trial resulting in his 1987 conviction for criminal possession of a\nweapon, the defendant had also been convicted of manslaughter in the first and second degree.\nThese manslaughter convictions, however, were later overturned.\n\n Very little information about these convictions was available at the sentencing hearing. The\ndefendant testified that he did not remember the 1979 conviction, and that he had not been in\npossession of the weapons on which his 1987 and 1994 convictions were based. According to the\ndefendant, “They ain’t never found one on me. They always find it someplace else in my location.”\nWith regards to the 1987 conviction, the defendant admitted that there had been a death involved,\nbut denied that he was responsible or that he had possessed the gun that was used.\n\n At the conclusion of the sentencing hearing, the trial court found that the defendant was a\nRange II, multiple offender, based on his undisputed prior Tennessee felony conviction for\npossession of a prohibited gun, as well as his two prior New York felony convictions for attempted\ncriminal possession of a weapon and criminal possession of a weapon. The trial court found three\nenhancement factors under Tennessee Code Annotated Section 40-35-114 to be applicable: (1), the\ndefendant’s prior criminal record, which the court characterized as “horrible,” noting that many of\nthe crimes to which he pled guilty, although reduced to misdemeanors, involved violence, alcohol,\nor the use of a weapon; (8), the defendant had shown a previous history of unwillingness to comply\nwith the conditions of sentence involving release in the community; and (9), the defendant used a\nfirearm in the commission of the crime. Because of his “horrible” criminal history, the court gave\ngreat weight to all three of these factors. The trial court found no relevant mitigating factors.\nConsequently, the trial court sentenced the defendant to eight years imprisonment.\n\n ANALYSIS\n\n The sole issue the defendant raises on appeal is whether the trial court erred in sentencing\nhim as a Range II, multiple offender. The defendant admits the prior felony conviction in Tennessee,\n\n\n -2-\n\fbut argues that the trial court should not have counted his two New York weapons convictions as\nprior felonies. The defendant asserts that, because there existed no equivalent named felonies in\nTennessee at the time of his New York weapons convictions, the trial court was required to examine\nthe elements of the offenses to determine if they constituted felonies under Tennessee law at the\ntime. The defendant contends that the State failed to produce sufficient information to enable the\ntrial court to make this determination. The defendant asserts that the trial court erroneously based\nits finding that the New York convictions were felonies on the punishments that had been imposed\nfor those crimes.\n\n The State argues that the trial court did not err in sentencing the defendant as a Range II,\nmultiple offender, insisting that there can be “no doubt” that the 1987 conviction, for which the\ndefendant received a sentence of forty-eight months to seven years, was a felony conviction. The\nState contends, moreover, that the defendant conceded that the 1987 weapons conviction was a\nfelony. The State further argues that the defendant’s criminal record reveals an additional New\nYork felony conviction in 1979 that can be used to support the defendant’s classification as a\nmultiple offender. The State asserts that the elements of the New York statute upon which this\nadditional 1979 felony conviction was based are essentially the same as the elements of a Tennessee\nstatute in effect at the time, Tennessee Code Annotated Section 39-6-1713, the violation of which\nwas a felony.\n\n Standard of Review\n\n When an accused challenges the length, range, or the manner of service of a sentence, this\ncourt has the duty to conduct a de novo review of the sentence with a presumption that the\ndeterminations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This\npresumption is “conditioned upon the affirmative showing in the record that the trial court\nconsidered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823\nS.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sentence, this court must\nconsider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence\nreport; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and\ncharacteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors;\n(f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential\nfor rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210. See State v. Smith,\n735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).\n\n Classification as a Range II Offender\n\n The trial court may sentence a defendant as a Range II, multiple offender when it finds\nbeyond a reasonable doubt that the defendant is a multiple offender. A multiple offender is a\ndefendant who has received “[a] minimum of two (2) but not more than four (4) prior felony\nconvictions within the conviction class, a higher class, or within the next two (2) lower felony\nclasses.” Tenn. Code Ann. § 40-35-106(a)(1) (1997). For range enhancement purposes, a “certified\ncopy of the court record of any prior felony conviction, bearing the same name as that by which the\n\n\n -3-\n\fdefendant is charged in the primary offense, is prima facie evidence that the defendant named therein\nis the same as the defendant before the court, and is prima facie evidence of the facts set out therein.”\nTenn. Code Ann. § 40-35-202(a) (1997).\n\n Tennessee Code Annotated Section 40-35-106(b)(5) states that prior convictions include\nconvictions under the laws of any other state which, if committed in Tennessee, would have\nconstituted an offense cognizable by the laws of this state. In the event that the out-of-state felony\nis not a named felony in this state, the statute provides that “the elements of the offense shall be\nused by the Tennessee court to determine what classification the offense is given.” Tenn. Code Ann.\n§ 40-35-106(b)(5) (1997) (emphasis added). The appropriate analysis of prior out-of-state\nconvictions is under Tennessee law as it existed at the time of the out-of-state conviction. State v.\nBrooks, 968 S.W.2d 312, 313-14 (Tenn. Crim. App. 1997), perm. app. denied (Tenn. 1998).\n\n Criminal possession of a weapon was not a named felony in Tennessee in 1979 or in 1987.\nTherefore, in order to utilize the defendant’s New York convictions for criminal possession of a\nweapon as prior felonies for sentencing, the trial court was required to analyze the elements of the\noffenses, to determine whether they would have constituted felonies under Tennessee law at the time.\nThe trial court relied on New York’s classification of the offenses as felonies, and on the fact that\nthe defendant received sentences of more than one year for his violations of the New York statute,\nto find that the convictions were prior felonies for sentencing purposes. In its analysis of the\ndefendant’s 1979 conviction for attempted criminal possession of a weapon, the trial court stated:\n\n Now, from the law given me by the State–and I have no reason to\n doubt it–a copy of this attached Exhibit A–criminal possession of a\n weapon in the third degree is a Class-D felony.\n\n I don’t know what an attempt is. But, of course, in Tennessee an\n attempt would be reduced one letter grade to a Class-E felony,\n assuming Ds and Es mean the same thing here and in New York.\n\n Looking at the punishment for criminal possession of a weapon\n in the third degree, he got sixty days but four years and ten months\n probation. So we know that offense carries at least five years.\n\n He’s getting probation for more than a year on that. And so it’s\n criminal–attempt criminal possession of a weapon should be–I should\n equate it as a Class-E felony since it carries more than a year,\n pursuant to statute.\n\nThe trial court employed similar reasoning to find that the defendant’s 1987 New York conviction\nconstituted a felony for sentencing classification purposes:\n\n\n\n\n -4-\n\f It clearly says he was tried and found guilty of criminal possession\n of a weapon third degree, which from the law attached to Exhibit A\n the State’s given me, which I don’t have any reason to doubt, is a\n Class-D felony. Whether that equates to a D or E in Tennessee is not\n relevant; it is a felony.\n\n Mr. Rodgers got, pursuant to this page 2 document, three and a\n half to seven years for criminal possession of a weapon. It does not\n say third degree. But earlier in the document on the same page it does\n say third degree. And the fact that he got three and a half to seven\n years means that it’s got to be a felony.\n ....\n\n So even if the second–even if the criminal attempt possession of\n a weapon third degree turned out to be a misdemeanor, we would still\n have two felony convictions.\n\n The Court finds, therefore, by a preponderance of the evidence\n he’s got three prior felony convictions. Whether Ds or Es, it makes\n no difference. He’s charged with a D.\n\n Since the procedure set forth in Tennessee Code Annotated Section 40-35-106(b)(5) for\nanalyzing an out-of-state conviction for which there is no named equivalent felony in Tennessee was\nnot utilized, we must review this issue de novo, with no presumption of correctness given to the trial\ncourt’s findings.\n\n The defendant’s 1979 and 1987 convictions were both based on violations of New York\nPenal Law Section 265.02. This statute states that a person is guilty of “criminal possession of a\nweapon in the third degree,” a Class D felony, if he violates any one of a number of different\nsubsections contained within the statute. Thus, an individual can be convicted of a Class D felony\nunder New York Penal Law Section 265.02 if he, inter alia: (1) “commits the crime of criminal\npossession of a weapon in the fourth degree” and “has been previously convicted of any crime;”or\n(2) “possesses any explosive or . . . firearm silencer, machine-gun or any other firearm or weapon\nsimulating a machine-gun . . .;” or (3) “knowingly has in his possession a machine-gun or firearm\nwhich has been defaced for the purpose of concealment or prevention of the detection of a crime .\n. .;” or (4) “possesses any loaded firearm,” except when “such possession takes place in such\nperson’s home or place of business.” N.Y. Penal Law § 265.02 (McKinney 1974).1\n\n The State had the burden of proof to establish the sentencing status of the defendant. In this\ncase, the State filed a notice of its intent to seek an enhanced punishment, to which it attached a\n\n\n 1\n Appare ntly, this statute was amende d in 1980 so that posse ssion of twenty o r more firear ms was, also, a\ncriminal offense.\n\n -5-\n\fcertified copy of the defendant’s New York “Criminal History Record Information” report. Included\nwithin the New York criminal history report was information about the defendant’s 1979 and 1987\nconvictions, containing arrest dates, the New York Penal Law section upon which the arrests were\nbased, the disposition of the cases, and the punishment that was imposed. The underlying facts of\nthose convictions, however, were provided neither in the report, nor at the sentencing hearing. The\nrecord does not establish which portion of this statute the defendant was convicted of violating in\n1979 or 1987. Without such information, it is impossible to determine whether the defendant’s acts\nin New York that led to his felony conviction under New York Penal Law Section 265.02 would\nhave constituted a felony in Tennessee.2\n\n In its brief, the State acknowledges that it “would prove extremely difficult, at best” to\nanalyze the elements of the New York statute with those of any comparable Tennessee statute,\n“especially given the absence of the underlying facts of the conviction.” We agree with that\nstatement. The State argues, however, that such an analysis is unnecessary. The State contends that\nthe defendant’s lawyer conceded, at sentencing, that the defendant’s 1987 New York conviction was\na felony for purposes of sentencing. We disagree. Our review of the transcript of the sentencing\nhearing reveals that, while the defendant’s lawyer conceded that the defendant’s conviction was a\nfelony in New York, she did not concede that it would have constituted a felony conviction in this\nstate.\n\n The State also argues that the defendant’s New York criminal record shows another felony\nconviction upon which the trial court could have relied to find that the defendant had the requisite\nnumber of prior felonies to qualify as a multiple offender. The State points to the defendant’s 1979\nconviction for violation of New York Penal Law Section 265.10, prohibiting the “manufacture,\ntransport, disposition and defacement of weapons and dangerous instruments and appliances.” The\nState asserts that the elements of that offense are analogous to those of a Tennessee statute in effect\nat the time, Tennessee Code Annotated Section 39-6-1713, which made it a felony to manufacture,\nimport, purchase, possess, sell, or dispose of a sawed-off shotgun, sawed-off rifle, or machine gun.\n\n However, as with the statute governing the criminal possession of a weapon in the third\ndegree, this New York statute provides that an individual can be convicted for violating any one of\na number of different subsections contained within the statute. Only one of those subsections\ncontains elements analogous to those of Tennessee Code Annotated Section 39-6-1713. Once\nagain, we have no means of determining if the defendant’s conviction under the New York statute\nwas based on an action which would have resulted in a conviction under Tennessee Code Annotated\nSection 39-6-1713.\n\n CONCLUSION\n\n\n\n 2\n For instance, we no te that subsectio n (4) of the N ew York statute, makin g it a felony for an ind ividual to\npossess a loaded firearm in a location other than his home or business, wo uld have co nstituted a misd emeano r in\nTennessee in 1987, under Tennessee Code Annotated Section 39-6-1701.\n\n -6-\n\f We conclude that the trial court improperly classified and sentenced the defendant as a Range\nII, multiple offender. Therefore we reverse, and remand the case to the trial court for resentencing.\n\n\n\n\n ___________________________________\n ALAN E. GLENN, JUDGE\n\n\n\n\n -7-\n\f", "ocr": false, "opinion_id": 1079725 } ]

[ "125 P.3d 98", "203 Or. App. 196" ]

[ { "author_str": "Haselton", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n125 P.3d 98 (2005)\n203 Or. App. 196\nJacob Henry BARRETT, Petitioner,\nv.\nDEPARTMENT OF CORRECTIONS, Respondent.\nA125875.\nCourt of Appeals of Oregon.\nSubmitted on Record and Briefs November 4, 2005.\nDecided December 14, 2005.\n*99 Jacob Henry Barrett filed the briefs pro se.\nHardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney General, filed the brief for respondent.\nBefore HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.\nHASELTON, P.J.\nPetitioner seeks judicial review of two administrative rules of the Department of Corrections (DOC) pursuant to ORS 183.400. Petitioner argues that DOC lacked statutory authority to enact OAR XXX-XXX-XXXX(15)[1] and OAR XXX-XXX-XXXX(5), (6), and (9)(d),[2] concerning prison disciplinary fines, and that the rules violate various constitutional provisions. We reject without discussion petitioner's constitutional arguments, and write only to address his argument that the rules lack statutory authority. As explained below, we hold that the rules are valid.\nOAR XXX-XXX-XXXX(15) defines \"[f]ine\" as a \"monetary sanction imposed in accordance with\" OAR XXX-XXX-XXXX. OAR XXX-XXX-XXXX and the exhibits incorporated by reference therein permit DOC to impose disciplinary sanctions for various types of misconduct, and set forth a grid showing the maximum fines, segregation, and loss of privileges that inmates may be assessed for the various types of misconduct. Petitioner asserts that those rules lack statutory authority because DOC's sole authority for assessing fines against inmates derives from ORS 421.125, which provides in part that DOC shall adopt rules to \"[a]ssess the inmate for damages or destruction caused by willful misconduct of the inmate.\" ORS 421.125(2)(e). Petitioner acknowledges that we upheld a similar DOC rule in Clark v. Schumacher, 103 Or.App. 1, 795 P.2d 1093 (1990), but argues that Clark is not controlling here because it did not address whether ORS 421.125 limited DOC's authority.\nIn Clark, we upheld a rule allowing imposition of fines for misconduct, rejecting an argument that no statutory authority existed for such a rule:\n\"ORS 423.075(5)(d) allows the director of the Department of Corrections to `adopt rules for the government and administration of the department.' The only statutory limitations on sanctions for rule violations are that they be `appropriate' and not *100 `inflict any cruel and unusual punishment.' ORS 421.105(1). We conclude that the `general policy' of the statutory framework permits the imposition of fines as disciplinary sanctions.\"\n103 Or.App. at 5-6, 795 P.2d 1093 (footnote omitted). Thus, in Clark, we concluded that the authorization under ORS 421.105(1) for imposition of \"appropriate punishment\"[3] as a means of enforcing institutional discipline encompassed authority to impose disciplinary fines. That construction accords with the plain meaning of \"punishment.\" See Webster's Third New Int'l Dictionary 1843 (unabridged ed 2002) (defining \"punishment\" as, inter alia, \"the infliction of a penalty\").\nPetitioner is correct that, in Clark, we did not consider whether ORS 421.125 contains a statutory limitation on sanctions for rule violations that otherwise would be authorized by ORS 421.105. We therefore address that question. As noted, ORS 421.125(2)(e) specifically authorizes DOC to assess inmates for damage or destruction caused by willful misconduct. Petitioner asserts that that statute describes the only circumstance in which an inmate may face a financial penalty due to misconduct. We disagree.\nTo determine the intent of the legislature in enacting a statute, we look to the text of the statute in context, giving words of common usage \"their plain, natural, and ordinary meaning.\" PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). ORS 421.125(2)(e) concerns recovery of money from inmates \"for damages\" caused by willful misconduct. \"Damages\" has a well-understood common meaning: \"the estimated reparation in money for detriment or injury sustained: compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right[.]\" Webster's at 571. Damages, therefore, concern reparation or restitution. A \"fine,\" however, as used in the present context, is \"the monetary penalty imposed for infraction of a rule or obligation.\" Id. at 852 (emphasis added). Thus, we conclude that statutory text pertaining to \"damages\" does not, on its face, appear to pertain to fines, as the concepts involved are distinct from one another.\nThat conclusion comports with ORS 421.068(1), on which DOC specifically relied in enacting the challenged rule. ORS 421.068(1) provides, in part:\n\"Revenues, less operating expenses, from the following sources shall be deposited into an account established by the Department of Corrections to provide money to enhance inmate activities and programs including education programs:\n\"* * * * *\n\"(d) Funds confiscated from the inmates under existing disciplinary procedures[.]\"[4]\nThus, that statute explicitly contemplates that \"funds\" may be confiscated from inmates pursuant to \"disciplinary procedures.\"[5]\nIn sum, we conclude that nothing in ORS 421.125 calls into question our conclusion in Clark that ORS 421.105(1), which authorizes DOC to enforce obedience to institutional rules \"by appropriate punishment,\" authorizes the imposition of fines for inmate misconduct.\nOAR XXX-XXX-XXXX(15) and OAR XXX-XXX-XXXX(5), (6), and (9)(d) held valid.\nNOTES\n[1] OAR XXX-XXX-XXXX(15) defines a \"[f]ine\" as \"[a] monetary sanction imposed in accordance with the Department of Corrections rule on Prohibited Inmate Conduct and Processing Disciplinary Actions. Inmate fines shall be deposited in the Department of Corrections Inmate Welfare Fund as confiscated funds.\"\n[2] OAR XXX-XXX-XXXX provides, in part:\n\n\"(5) The Department's rule on Prohibited Inmate Conduct and Processing Disciplinary Actions contains two inmate disciplinary grids. One grid governs inmate disciplinary action for major violations (Exhibit 1). One grid governs inmate disciplinary action for minor violations (Exhibit 2).\n\"(6) Each of the inmate disciplinary grids shall outline the available sanctions within each box, which includes fines, segregation time and the loss of privileges.\n\"* * * * *\n\"(9) Limitations on the Length of Confinement in Disciplinary Segregation for Rule Violations:\n\"* * * * *\n\"(d) New Violations Committed While Assigned to Intensive Management Unit/IMU Status: An inmate who commits a new rule violation while assigned to the Intensive Management Unit (IMU), or while assigned to IMU status, shall not be ordered to serve a disciplinary segregation sanction for the violation. The inmate shall be subject to the range of additional sanctions described in OAR XXX-XXX-XXXX & OAR XXX-XXX-XXXX, including but not limited to fines and loss of privileges.\"\n[3] ORS 421.105(1) provides:\n\n\"The superintendent may enforce obedience to the rules for the government of the inmates in the institution under the supervision of the superintendent by appropriate punishment but neither the superintendent nor any other prison official or employee may strike or inflict physical violence except in self-defense, or inflict any cruel or unusual punishment.\"\n[4] ORS 421.068(1) was enacted after our decision in Clark. Or. Laws 1991, ch. 663, § 1.\n[5] In addition, ORS 421.068(1) directs that those monies will be used to \"enhance\" various inmate programs. If the legislature's reference to \"funds confiscated\" in ORS 421.068(1) had been merely to \"damages\" collected from inmates pursuant to ORS 421.125(2)(e), it seems unlikely that the legislature would have directed that those funds be used for inmate activities and programs rather than for repair and replacement of whatever was damaged in the course of the misconduct.\n\n", "ocr": false, "opinion_id": 2625482 } ]

[ "781 N.W.2d 307" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20100511_S139438_48_139438-cjord.pdf", "author_id": null, "opinion_text": "\n781 N.W.2d 307 (2010)\nTrina Lee BEATTIE, Plaintiff-Appellant,\nv.\nMark P. MICKALICH, Defendant-Appellee.\nDocket No. 139438. COA No. 284130.\nSupreme Court of Michigan.\nMay 11, 2010.\n\nOrder\nOn order of the Chief Justice, the motion by the Michigan Association for Justice *308 for leave to file a brief amicus curiae in this case is considered, and it is GRANTED.\n", "ocr": false, "opinion_id": 831417 } ]

[ "208 Cal. App. 2d 803" ]

[ { "author_str": "Sullivan", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6604, "opinion_text": "\n208 Cal. App. 2d 803 (1962)\nBALDWIN-LIMA-HAMILTON CORPORATION, Petitioner,\nv.\nTHE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; ALLIS-CHALMERS MANUFACTURING COMPANY, etc., et al., Real Parties in Interest.\nCiv. No. 20694. \nCalifornia Court of Appeals. First Dist., Div. One. \nOct. 24, 1962.\n Chickering & Gregory and Frederick M. Fisk for Petitioner.\n No appearance for Respondent.\n Thomas M. O'Connor, City Attorney (San Francisco), William F. Bourne, Public Utilities Counsel, Harold C. Brown, Frank M. Brown, Johnson & Stanton, Gardiner Johnson and Marshall A. Staunton for Real Parties in Interest.\n SULLIVAN, J.\n Petitioner Baldwin-Lima-Hamilton Corporation, hereafter referred to as Baldwin, seeks a writ of prohibition restraining the respondent superior court from taking further action in a mandamus proceeding pending therein, except such as may be necessary to deny a peremptory writ of mandate, discharge the alternative writ issued, and dissolve an injunction pendente lite.\n The following background facts appear to be generally undisputed. On July 6, 1961, the purchasing department of the City and County of San Francisco, acting under the direction *807 of Ben Benas, purchaser of supplies of said city, issued and published contract proposal No. 12625 inviting and calling for the submission of sealed bids for the furnishing and delivery of certain equipment including turbines, governors, valves and pipes for the Canyon Generating Station at the Canyon-Cherry Power Development. Prior to the time specified for closing of bids on August 7, 1961, both Baldwin and the Allis-Chalmers Manufacturing Company, hereafter referred to as Allis, submitted sealed bids. Baldwin's bid was in the sum of $1,356,386. Allis' bid was in the sum of $1,319,105. Benas first took the position that Allis' bid, although the low bid, was invalid because it deviated from the bid invitation in certain material respects. On October 26, 1961, however, acting pursuant to section 95 of the San Francisco Charter and to section 21.9 of the Administrative Code of the city, Benas formally rejected all bids on the above-mentioned contract proposal No. 12625. [fn. 1]\n On November 20, 1961, Benas issued, as a new invitation, contract proposal No. 12885 for the same equipment. Such proposal contained the following specification under the heading \" 'Place of Manufacture' \": \" 'All materials, supplies and equipment covered by this contract proposal shall be manufactured in the United States, except as otherwise provided in the Government Code of the State of California. In the event that alloy steel castings for the \"solid\" type runner required by the specifications are not produced in the United States, such castings produced outside the United States will be acceptable.' \"\n In response to the above proposal and prior to the time specified for the closing of bids on December 4, 1961, three bids were submitted: (1) A bid by Allis in the sum of $1,308,555 based on the specification that the equipment, except as noted above, be manufactured in the United States. (2) A bid of Baldwin in the sum of $1,337,036 submitted on *808 the same basis. (3) An additional bid of Baldwin in the sum of $1,237,036 based on the furnishing of certain component parts manufactured outside the United States. [fn. 2]\n On January 18, 1962, Benas announced his intention to award the contract to Baldwin upon the basis that the additional bid of Baldwin (bid No. 3 above) in the sum of $1,237,036 was the lowest and best responsible bid received. Benas concedes here that he actually made his official award of the contract to Baldwin on the above date. It appears that such action on his part was taken on the advice of the city attorney of San Francisco, Benas' counsel before us, upon the theory that the \"place of manufacture\" specification included in the contract proposal and set forth by us above, was illegal and therefore to be disregarded since it was in conflict with the \"supremacy clause\" of the Constitution of the United States (art. VI, cl. 2) and certain treaties and trade agreements.\n Allis, therefore, on January 24, 1962, and before the awarded contract was certified by Harry D. Ross, the controller of the City and County of San Francisco, in accordance with applicable provisions of the city's charter, filed in the respondent superior court its \"Petition for Writ of Mandate and Injunctive Relief,\" the pending proceedings of which we are now asked to restrain.\n The petition for writ of mandate is directed against Benas and Ross and contains allegations setting forth in substance the above facts with reference to the two contract proposals, the submission of the two bids on August 7 in response to the first proposal No. 12625, the receipt of notification by Allis from Benas that its bid, although low, was invalid because it contained certain material reservations, conditions and deviations from the invitation for bids and that it was the intention of Benas to award the contract to Baldwin, the subsequent rejection by Benas on October 27 of both bids, the three bids received in response to the second proposal No. 12885 thereafter issued, the above \"place of manufacture\" clause and the ultimate decision of Benas to award the contract to Baldwin. So far as is pertinent here, the petition contains the following additional allegations: that Allis is a Delaware corporation, with its home office in Milwaukee, Wisconsin, organized and licensed to transact business in California, including *809 the City and County of San Francisco; that Benas' action in rejecting Allis' first bid on August 7 \"was wrongful, illegal and unlawful\" in that such bid was the lowest responsible bid received, was without reservation or deviation from the contract proposal and therefore \"should have resulted in the award of said contract\" to Allis; that Baldwin, in submitting on December 4, in connection with the second proposal No. 12885, its additional bid based on furnishing component parts from without the United States, committed a material deviation from the \"place of manufacture\" clause and thus the contract proposal; that Baldwin's sole purpose in submitting such a bid was to obtain a competitive advantage over other bidders and as a result Baldwin did obtain such an advantage of not less than $250,000; that the contemplated action by Benas and Ross would be arbitrary and capricious and an abuse of discretion, causing great and irreparable damage to Allis; and that Allis \"is the party beneficially interested herein.\" The prayer of such petition was that an alternative writ of mandate issue directed to Benas and Ross, commanding them \"to award the contract ... to Petitioner as the lowest responsible bidder therefor ... and to refrain from proceeding to award or certify said contract to Baldwin ... or to any person other than Petitioner ... [and] [f]or a temporary restraining order and for an Injunction Pendente Lite enjoining and restraining said respondents ... [and all persons acting for them] from proceeding with the award or certification of the said contract ... to Baldwin ... or to any bidder or person other than Petitioner pending the final determination of this action.\" The alternative writ of mandate was issued forthwith on January 24, 1962.\n On February 6, 1962, Benas and Ross, the respondents below, filed their return and answer to the alternative writ and Baldwin, upon leave of court, filed a complaint in intervention \"uniting with the respondents in resisting the claims of petitioner.\" [fn. 3] On the same day Baldwin filed a demurrer.\n Since Baldwin is an intervener on the side of the respondents Benas and Ross, its complaint in intervention is in effect an answer to Allis' petition. (Cf. People v. Perris Irrigation Dist. (1901) 132 Cal. 289, 291 [64 P. 399, 773].) Such complaint admits in general substance the background facts of the invitations *810 for bids, the specifications as to place of manufacture, the bids submitted on each contract proposal, and the proposed awarding of the contract to Baldwin on its bid submitted on proposal No. 12885; alleges that prior to the rejection of Allis' bid opened on August 7, 1961, Benas requested opinions of counsel as to the lawfulness of such bid, copies of which opinions by the public utilities counsel and by the city attorney of San Francisco are attached to the complaint as exhibits and incorporated therein; denies that Allis' bid on the second contract proposal was the lowest responsible bid; denies that by submitting its additional bid (bid No. 3 above) it committed a material deviation from the specifications; denies that the purpose or effect of such bid was to secure for Baldwin a competitive advantage; alleges in substance that Baldwin's above bid of $1,237,036 on the second contract proposal No. 12885 was the lowest and best bid received which the respondents had the right and duty to accept and certify; alleges that prior to determining to award said contract to Baldwin, Benas requested the opinion of counsel as to its lawfulness, a copy of which opinion of the city attorney of San Francisco is attached to the complaint as an exhibit and incorporated therein; and denies that Allis is a party beneficially interested. The foregoing complaint in intervention also alleges that the petition for writ of mandate does not state facts sufficient to constitute a cause of action or sufficient to constitute cause for the issuance of the writ; that the court below has no jurisdiction over the subject matter of the proceeding; and that the action of the respondents in rejecting Allis' bid on the first contract proposal and in determining to award the contract to Baldwin on the second contract proposal was predicated upon advice of their counsel. The prayer of the complaint in intervention was that Allis' petition be dismissed and the alternative writ of mandate discharged.\n Baldwin's demurrer also specifies in language similar to the complaint in intervention that the petition fails to state sufficient facts and that the court below lacks jurisdiction of the subject matter. [fn. 4]*811\n The return and answer of Benas and Ross is in general similarly responsive to the allegations of the petition; admits in substance the essential and, as we have pointed out, undisputed background facts; alleges that during all of the times within which such events occurred there were in effect the provisions of the San Francisco Charter and Administrative Code referred to by us above; denies, as did Baldwin, that the purpose and effect of Baldwin's accepted bid was to secure for the latter a competitive advantage over other bidders; alleges that because of the supremacy clause of the United States Constitution and certain provisions of a federal treaty, Benas \"was required to treat and consider the said bid ... as being a legal and proper bid and the lowest and best bid submitted to him\"; denies that Allis was the lowest and best bidder on either contract proposal; alleges that the awarding of the contract to Baldwin is and will be in conformity to the contract proposal; and admits that Allis is a party beneficially interested. The answer and return also set forth three separately stated defenses relating to the bidding in response to the first contract proposal (No. 12625) which it is not necessary for us to detail here.\n The respondent superior court reserving its ruling on the demurrer which had been argued before it, thereupon proceeded to a hearing upon the above- mentioned pleadings. [fn. 5] At the conclusion of the hearing, the court overruled the demurrer and denied Baldwin's motion to strike all of the evidence, oral and documentary. On April 26, 1962, it issued a memorandum opinion holding that the \"place of manufacture\" provision of contract proposal No. 12885 was in violation of the \"supremacy clause\" of the United States Constitution and certain trade treaties and that \"[t]his illegal provision inserted in the specifications and in the contract proposal defeats the fundamental requirement in awarding public contracts that the call for bids clearly apprise prospective *812 bidders of the terms, conditions and specifications in such a manner as to promote free, open, honest, competitive bidding on equal terms equally open to all prospective bidders. No contract can be awarded on Contract Proposal ... [No. 12885] as published and issued on or about November 20, 1961.\" The opinion further stated therein that the petition for a peremptory writ of mandate compelling Benas to award the contract to Allis on its bid \"is hereby denied and the alternative writ of mandate ... hereby dissolved\"; and that Benas \"be and he is hereby enjoined pendente lite, from awarding a contract\" to Baldwin on either of its bids \"or to any other person, firm or corporation on that certain contract proposal ... [No. 12885]. ...\"\n Thereupon, and before any additional proceedings were taken in the court below, the petition for writ of prohibition now before us, was filed with the Supreme Court on May 25, 1962, and thereafter transferred to this court on June 7, 1962. We granted an alternative writ of prohibition on June 21, 1962. A return and answer to the alternative writ has been filed by Allis and a separate answer and return filed by Benas, Ross and the City and County of San Francisco, all of whom have been named respondents in the instant proceedings.\n As it is stated in City of Los Angeles v. Superior Court (1959) 51 Cal. 2d 423, 429-430 [333 P.2d 745]: \"The writ of prohibition is an appropriate remedy to arrest the proceedings of a court when there is not a plain, speedy, and adequate remedy in the ordinary course of the law and when the proceedings of the court are without or in excess of its jurisdiction. (Code Civ. Proc., 1102, 1103.) The absence of another adequate remedy was determined by this court when we granted an alternative writ. (Cf. Atkinson v. Superior Court, 49 Cal. 2d 338, 342 [316 P.2d 960]; Bowles v. Superior Court, 44 Cal. 2d 574, 582 [283 P.2d 704].) [1] To permit the issuance of prohibition it is not necessary that there be a lack of jurisdiction over the subject matter or parties in the fundamental sense but only that there be a want or excess of the power of the court as defined by statute or by rules developed and followed under the doctrine of stare decisis. (Tide Water Assoc. Oil Co. v. Superior Court, 43 Cal. 2d 815, 821 [279 P.2d 35]; Abelleira v. District Court of Appeal, 17 Cal. 2d 280, 287 et seq. [109 P.2d 942, 132 A.L.R. 715].)\" (See also City & County of San Francisco v. Superior Court (1959) 53 Cal. 2d 236 [1 Cal. Rptr. 158, 347 P.2d 294].) *813\n Baldwin contends before us that Allis' petition for a writ of mandate filed in the respondent court does not state facts sufficient to constitute cause for the issuance of a writ of mandate or to entitle Allis to incidental injunctive relief; that as a result, any further proceedings in said court, except such as may be necessary to deny the peremptory writ of mandate and discharge the alternative writ, are in excess of that court's jurisdiction; and that more specifically, the action which the respondent court has announced it intends to take in preventing Benas from awarding the contract in question to Baldwin or any other bidder by issuing an injunction pendente lite and in addition in holding that the bid call is illegal and that therefore no contract can be awarded pursuant thereto, is and will be in excess of the court's jurisdiction.\n In the foregoing position, Baldwin is joined by Benas, Ross and the City and County of San Francisco who urge that the bid call was and is legal and that the respondent court should be restrained from taking action of any kind which will prevent the awarding of the contract to Baldwin.\n Allis, on the other hand, takes the position that the intended action of the court below is not in excess of its jurisdiction and that the peremptory writ of prohibition here sought should be denied.\n We therefore proceed to examine the proceedings below and to determine whether the judicial action announced to be taken therein is in excess of the jurisdiction of the respondent superior court.\n It is elementary that the remedy of mandamus which was sought below issues only \"to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station\" (Code Civ. Proc. 1085) upon the petition \"of the party beneficially interested\" (Code Civ. Proc. 1086) and will not lie to control discretion conferred upon a public officer or agency. (Lindell v. Board of Permit Appeals (1943) 23 Cal. 2d 303, 315 [144 P.2d 4]; Faulkner v. California Toll Bridge Authority (1953) 40 Cal. 2d 317, 326 [253 P.2d 659].) [2] It is also well settled, and the parties before us admit, that two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent (Faulkner v. California Toll Bridge Authority, supra; Sherman v. Quinn (1948) 31 Cal. 2d 661, 664 [192 P.2d 17]; Browning v. Dow (1923) 60 Cal. App. 680, 682 [213 P. 707]); and (2) a clear, *814 present and beneficial right in the petitioner to the performance of that duty (Parker v. Bowron (1953) 40 Cal. 2d 344, 351 [254 P.2d 6]). (See generally 3 Witkin, Cal. Procedure, pp. 2520 et seq.; 32 Cal.Jur.2d, Mandamus, 6, p. 122.)\n So far as is pertinent here, the petition for writ of mandate alleges that Benas issued the second contract proposal No. 12885 on November 20, 1961; [fn. 6] that its specifications included the \"place of manufacture\" provision above- mentioned; that in response to the proposal Allis submitted one bid in the sum of $1,308,555 and Baldwin submitted two bids, one for $1,337,036 and an \"alternative proposal\" in the sum of $1,237,036 \"based upon the furnishing of component parts procured outside the United States\"; that Allis' bid \"was the lowest responsible bid submitted in accordance with the Contract Proposal and the specifications\"; that Baldwin, in submitting its alternative bid \"committed a material deviation and variance\" from the \"place of manufacture\" specifications; that although Allis demanded of Benas that he award the contract to it as the lowest responsible bidder, the latter announced his intention to award the contract to Baldwin on the basis that its alternate bid was the lowest and best responsible bid received.\n As already set forth by us in detail, the respondents Benas and Ross filed an answer and return and Baldwin filed a complaint in intervention and demurrer to meet Allis' petition. Since Baldwin's complaint was in legal effect an answer (People v. Perris Irrigation Dist., supra, 132 Cal. 289, 291) all of the other parties actually answered the petition. Attached to Baldwin's complaint in intervention (answer) are three exhibits consisting of three opinions of Benas' counsel including the city attorney's opinion of December 29, 1961, the authenticity of which exhibits has not been disputed on this record.\n [3] In determining whether Allis' petition filed in the respondent superior court shows the two basic ingredients requisite for mandamus and therefore whether said court's intended action is in excess of its jurisdiction, we are entitled to consider the above pleadings of the opposite parties and the exhibits attached thereto. Any defects in Allis' petition may be aided or cured by averments in the above pleadings of *815 the opposite parties. (2 Witkin, Cal. Procedure, pp. 1511-1512; see 39 Cal.Jur.2d, Pleading, 355-356, pp. 482-483 and cases therein cited.)\n We note that Baldwin in its petition for a writ of prohibition filed with this court alleges, and Allis in its return and answer thereto admits, that Baldwin's demurrer, specifying insufficiency of facts and lack of jurisdiction, was argued prior to the taking of evidence but ruling thereon reserved by the court below, that Baldwin maintained throughout the subsequent hearings that the demurrer should be sustained, and that at the close of the testimony Baldwin's motion to strike all the evidence, oral and documentary, was denied and its general demurrer thereupon overruled. This is confirmed by the following statement of counsel for Baldwin found in the transcript of the proceedings below which has been lodged with this court: \"Before I commence any testimony with this witness of mine, the Court will recall that I have urged and still urge to the Court that the Court has no jurisdiction in this case, based on the pleadings filed with the Court, and I have a demurrer and I am still urging that demurrer and I am not waiving it, it is a jurisdictional question anyway. And I am calling a witness at this time.\"\n [4] On oral argument before us, counsel for Baldwin contended that in the light of the foregoing record we should not consider anything beyond Allis' petition for a writ of mandate. We do not agree. Baldwin did not stand on its demurrer. As we have already shown, it filed simultaneously with its demurrer a complaint in intervention which was in legal effect an answer. By so doing it permitted the doctrine of aider to come into play. As in the case of a complaint, if Allis' petition is defective or lacks an averment of any essential fact, it may be aided or cured by the averments of the answers filed thereto, even though a demurrer to the sufficiency of the petition, filed by one of the parties, has been erroneously overruled. (Cf. Daggett v. Gray (1895) 110 Cal. 169, 172 [42 P. 568]; Kreling v. Kreling (1897) 118 Cal. 413, 420 [50 P. 546]; Savings Bank of San Diego v. Barrett (1899) 126 Cal. 413, 418 [58 P. 914]; Bledsoe v. Stuckey (1920) 47 Cal. App. 95, 101-102 [190 P. 217]; Mann v. Mueller (1956) 140 Cal. App. 2d 481, 484 [295 P.2d 421].)\n The relief sought by Allis in the respondent court is two-fold. In the prayer of its petition Allis seeks a writ of mandate commanding Benas and Ross (1) to award the contract to *816 Allis as the lowest responsible bidder, and (2) to refrain from proceeding to award or certify the contract to Baldwin or to any person other than Allis.\n Clearly Allis' petition, even when considered with the other pleadings, does not establish any enforceable duty on the part of Benas and Ross to award the contract to Allis. True, the petition alleges that Allis' bid was the \"lowest responsible bid submitted in accordance with the Contract Proposal and specifications\" and that Allis was \"in fact the lowest and best responsible bidder.\" But these allegations are purely conclusionary, the apparent theory of the pleader being that the alternate low bid of Baldwin based on furnishing foreign components should be disregarded, despite the fact that it was accepted by Benas in the exercise of his discretion, and the acceptance of the next lowest bid--Allis' bid--be ordered by the court below quite apart from any discretion in Benas to accept or reject any bid. It is not, and of course could not be, alleged that Benas was under a duty to accept any bid submitted. On the contrary, under the Charter and Administrative Code of San Francisco, he could reject any and all bids.\n In Judson Pacific-Murphy Corp. v. Durkee (1956) 144 Cal. App. 2d 377 [301 P.2d 97], the petitioner Judson, the second lowest bidder, brought a proceeding in mandamus against the director of public works to restrain the latter from awarding a bridge contract to the lowest bidder upon the claim that such bidder was not properly qualified and licensed and to compel the director to award the contract to Judson as the next lowest, qualified and responsible bidder. In affirming the denial of such relief, this court, speaking through Mr. Justice Peters, said: \"It will be noted that appellant in its petition prays that respondent be ordered to reject intervener's bid and be ordered to award the contract to Judson. It is quite clear that neither the trial court nor this court has the power to order respondent to award the contract to Judson, even if the contract awarded to United States Steel Corporation were a nullity. This is so because the notice to contractors expressly notified prospective bidders that the Director of Public Works reserved the right to reject any or all bids. ...\"\n \"It is apparent that were the court to order respondent to award the contract to Judson as the next lowest qualified bidder (assuming, contrary to the fact, that United States Steel Corporation was not qualified), it would be substituting the court's judgment and discretion for those of respondent. *817 Clearly, the call for bids and the law confers on the director the duty of exercising his judgment as to whether it is in the best interests of the state to award the contract to the lowest bidder. The lowest qualified bidder has no legal right to compel the acceptance of his bid. (Charles L. Harney, Inc. v. Durkee, 107 Cal. App. 2d 570 [237 P.2d 561, 31 A.L.R. 2d 457]; see also Stanley-Taylor Co. v. Board of Supervisors, 135 Cal. 486 [67 P. 783]; Laurent v. City & County of San Francisco, 99 Cal. App. 2d 707 [222 P.2d 274].)\" (144 Cal.App.2d at pp. 381-382.)\n [5] So, in the case before us, the respondent superior court had no power to order Benas to award the contract to Allis, even if it is assumed that Baldwin's low bid should be disregarded. Benas had the authority to reject any and all bids and in the exercise of his discretion to decide whether to award the contract to the lowest bidder, whoever that might be. He was under no legal compulsion to award it to Allis.\n We are mindful of the fact that in the present posture of this case, the respondent superior court has not indicated an intention to compel the award of the contract to Allis and has actually indicated a contrary intention by stating in its memorandum opinion that it has denied or will deny the peremptory writ of mandate and discharge the alternative writ. Baldwin, of course, makes no plea before us to arrest such judicial action obviously favorable to it. However we have considered the foregoing question of the trial court's power to order an award of the contract to Allis because it has been presented to us by the parties and because we feel it is necessary to a full determination as to whether the proceedings below are in excess of such court's jurisdiction as that term relates to proceedings in prohibition.\n We now turn to the second aspect of the relief sought in the court below and proceed to discuss whether such court, while admittedly having no power to compel an award of the contract to Allis, has the power to restrain Benas and Ross from proceeding to award or certify the contract to Baldwin or any other person.\n The resolution of this question turns upon the legality and validity of the city's contract proposal of November 20, 1961. The pleadings establish that all three bids which generate the instant controversy were submitted to Benas in response to such proposal and that such proposal included the \"place of manufacture\" provision set out by us above. This provision *818 required that the materials, supplies and equipment furnished under the proposal \" 'be manufactured in the United States, except as otherwise provided in the Government Code of the State of California.' \" It is not disputed that the above provision was included in the proposal or bid call in order to comply with the California Buy American statute (Gov. Code, 4303 [fn. 7]). The above provision in the bid call however contained an express exception to the effect that if certain alloy steel castings for runners required by the specifications were not produced in the United States, they would be acceptable from outside the United States.\n The record shows that all of the three bids involved were presented on the basis that the so-called runners would be manufactured in Switzerland since they were not ordinarily manufactured within the United States. All bids therefore took advantage of the permissible exception created by the \"place of manufacture\" provision. It is also established by the record that Allis' bid in the sum of $1,308,555 (bid No. 1 above) and Baldwin's bid in the sum of $1,337,036 (bid No. 2 above) were both submitted on the basis that all materials and equipment would be manufactured in the United States, except of course the runners which were to be from Switzerland. Both bids were therefore responsive to the bid call in all respects including the specifications prescribed as to place of manufacture. In comparison, Allis' bid (bid No. 1) was the lower in amount. The record also establishes that Baldwin's separate bid (bid No. 3) in the amount of $1,237,036 which Benas accepted, was based on furnishing, in addition to the runners from Switzerland, certain parts such as governors, valve controls and light weldment which would be manufactured either in Japan or Canada. In this respect it is clear that such bid was not responsive to the place of manufacture provision of the bid call.\n [6a] However, it is also clear, under the authorities relied upon by the city attorney of San Francisco in his opinion rendered to Benas, adopted by the respondent superior court *819 in its memorandum opinion, recognized by Baldwin and not disputed by Allis in their arguments before us, that the California Buy American statute and the above \"place of manufacture\" clause in the bid call of November 20, 1961, are unenforceable in the situation now before us since they conflict with certain treaties and agreements and thus with the \" 'supreme law of the land.' \"\n At Geneva on October 30, 1947, the United States and 22 other nations entered into a \"General Agreement on Tariffs and Trade\" (61 Stat., part 5) which for brevity we will hereafter refer to as GATT. Canada was an original signatory thereto. Japan became a signatory thereto effective September 10, 1955. [fn. 8]\n Paragraph 2 of article III of part II of GATT (61 Stat., part 5, p. A18) provides: \"The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution, or use. ...\"\n Paragraph 5 of article III of part II (61 Stat., part 5, p. A19) provides: \"The provisions of this Article shall not apply to the procurement by governmental agencies of products purchased for governmental purposes and not for resale or use in the production of goods for sale, ...\"\n [7] Under GATT therefore the products of Canada and Japan imported into the United States must be treated no less favorably than like products of such nation of destination. The exception contained in paragraph 5, which we quote immediately above, is not operative in the instant situation since the turbines and other equipment are for use in the generation of electric power for resale and hence for \"use in the production of goods for sale.\" Electricity is a commodity which, like other goods, can be manufactured, transported and sold. (See Terrace Water Co. v. San Antonio Light & Power Co. (1905) 1 Cal. App. 511, 513 [82 P. 562].)\n The United States Constitution provides in article VI thereof that \"... Treaties made ... under the Authority *820 of the United States, shall be the supreme Law of the Land; ...\" [8] When a state statute conflicts with any such treaty, the latter will control. (Clark v. Allen (1947) 331 U.S. 503 [67 S. Ct. 1431, 91 L. Ed. 1633, 170 A.L.R. 953]; United States v. Pink (1942) 315 U.S. 203 [62 S. Ct. 552, 86 L. Ed. 796].) [9] Compacts and similar international agreements, such as GATT, which are negotiated and proclaimed by the President are \"treaties\" within the above supremacy clause of the Constitution. (United States v. Belmont (1937) 301 U.S. 324, 330-332 [57 S. Ct. 758, 81 L. Ed. 1134].)\n The written opinion of the city attorney of San Francisco to Benas under date of December 29, 1961, which we find attached as an exhibit to Baldwin's complaint in intervention, follows the above reasoning and authorities to hold that the foreign components proposed to be obtained by Baldwin from Canada and Japan were protected by GATT and that the Japanese components were also accorded \" 'most-favored-nation treatment' \" under the \" 'Treaty of Friendship, Commerce and Navigation,' \" signed at Tokyo April 2, 1953. It was in this opinion that the city attorney advised Benas that the California Buy American statute was superseded by the above treaties and that Benas was required to disregard the factor that Baldwin's low bid (bid No. 3) did not conform to the specifications set forth in the \"place of manufacture\" provision. [fn. 9]\n [6b] We agree that under the foregoing authorities the \"place of manufacture\" provision contained in the November 20, 1961, bid call has no operative effect in the instant case to restrict or preclude the furnishing of material or equipment produced in Canada or Japan. The result therefore is a nullification of the provision as effectively as if it had not been included in the bid call in the first place. It is superseded, or in other words replaced, by the treaty provisions.\n What, if any, effect therefore do the foregoing conclusions have upon the contract proposal or bid call itself which clearly prescribed that bids submitted in response thereto should comply with \"place of manufacture\" specifications now held to be superseded? Baldwin and the other parties hereto who join with it maintain that the original bid call *821 and advertising procedure are in no way affected. Baldwin urges that the treaties are the supreme law of the land which \"is by operation of law a necessary part of the terms and conditions of every contract, and hence, of any contract specifications\" issued by Benas. The city attorney in his letter of opinion to Benas referred to by us above disposes of the problem of noncompliance with the city's own specifications by taking the position that the \"treaty provisions must as a matter of law and to the extent to which applicable be read into the city's proposal as part and parcel thereof.\" In the instant proceeding before us, the city and its officials offer the explanation that, although Baldwin's low bid did not propose to furnish materials of American manufacture as the city itself specified, such bid was \"validated by the interposition (upon the 'Buy American' clause in the city's bid proposal) of the 'supremacy' clause of Article VI of the U.S. Constitution.\" In plain language, the gist of all of the foregoing arguments is this: the bid call may not mean what it says when specifying American goods, but it is still a valid proposal because the bidder can always determine for himself what has to be read into it. This is indeed a new concept in the letting of public contracts.\n [10] It is a long and well-established rule that where municipal contracts are required to be let upon public bidding, the proposals and specifications inviting such bids must be sufficiently detailed, definite and precise so as to provide a basis for full and fair competitive bidding upon a common standard and must be free of any restrictions tending to stifle competition. (43 Am.Jur., Public Works and Contracts, 36, p. 777; 63 C.J.S., Municipal Corporations, 998, p. 573; 10 McQuillin, Municipal Corporations, 29.30, p. 268.) The San Francisco Charter required such full and fair competitive bidding in the instant case.\n In conformity with the mandate of section 95 of the charter, the respondent Benas in advertising for bids incorporated in his proposal a specific requirement that (except for the castings for runners) \"[a]ll materials, supplies and equipment ... shall be manufactured in the United States, except as otherwise provided in the Government Code of the State of California.\" (Emphasis added.) The plain meaning of this language is that the bid must be based on goods of American manufacture or it will not be accepted. The bidder is apprised *822 of certain possible exceptions in the Government Code (not applicable to the problem at hand), the reference apparently being to sections 4300- 4305. Nothing contained therein or in any other part of the Government Code could in any way inform the bidder of exceptions arising because of treaty provisions. Nothing in the contract proposal states that the \"buy American\" specifications obtain except, as for example, \"as otherwise provided in certain treaties and general trade agreements of the United States.\" On the contrary, the bidder is in effect told that all materials must be of American manufacture, whether they come within favorable treatment provisions of treaties or not. Apart from the runners, the bid call requires American manufactured goods without exception.\n [11] We are of the opinion that the \"place of manufacture\" provision in the bid call of November 20, 1961, failed to afford a basis for full and fair competitive bidding upon which the contract in question could be legally awarded. It cannot be reasonably concluded that prospective bidders could infer from the specifications of the bid call that, despite its clear language to the contrary, they could submit acceptable bids covering materials of foreign manufacture. It is a reasonable assumption that the clear and certain language of the bid call would indeed have the opposite result and would deter persons from submitting bids covering goods of foreign manufacture, thus reducing the number of bidders and defeating the real objectives of competitive bidding. (See generally 43 Am. Jur., Public Works and Contracts, 26, p. 767.)\n We find no merit in Baldwin's argument that specifications which are insufficient to secure full and fair competitive bidding can be corrected or improved by importing therein by legal implication (\"reading into them\") provisions upon which the specifications are completely silent. While Calpetro Producers Syndicate v. C. M. Woods Co. (1929) 206 Cal. 246, 252 [274 P. 65], and Standard Box Co. v. Mutual Biscuit Co. (1909) 10 Cal. App. 746, 750 [103 P. 938], cited by Baldwin, state the established rule that terms implied by law become as much a part of a contract as those expressly written therein, neither case applies such principle to bidding specifications in the way here urged by Baldwin. Nor is there merit in the argument of the other respondents joined with Baldwin that the bid call is valid when made since it cannot be then known that foreign products will be involved and the conflict between the bid call and the treaties thus provoked. The simple answer *823 to this is that the bid call plainly specifies that foreign products must not be used.\n To insist, as the city and those joining with it do, that the bidder must read the treaty provisions into the bid call is absurd and unrealistic. [12] Properly conducted competitive bidding should not compel a bidder to question the clear language of the proposal and to search out, examine and construe various public documents upon the contingency that they may in some way affect it. This would require the bidder to become to a great extent a lawyer, in some degree a judge and, perhaps, in no small way a clairvoyant.\n [13] We therefore hold that the \"place of manufacture\" provision in contract proposal No. 12885 issued by Benas on November 20, 1961, is, in the instant case, illegal and invalid as being in conflict with the aforementioned treaties and trade agreements of the United States, that such provision cannot be cured or corrected by importing therein by legal implication the pertinent clauses of such treaties and agreements, and that, as a result, it can be reasonably concluded by the respondent court that such provision is further invalid as being insufficient in the instant case to provide for full and fair competitive bidding upon a common standard.\n [14, 15] The awarding of a contract by a public official pursuant to specifications which are illegal and invalid and which fail to provide for full and fair competitive bidding, is, we think an abuse of discretion. It is within the power of the respondent superior court to determine whether or not an abuse of discretion exists in the instant case. [16] While mandamus will not lie to control the discretion exercised by a public officer or board (Lindell v. Board of Permit Appeals, supra, 23 Cal. 2d 303; Faulkner v. California Toll Bridge Authority, supra, 40 Cal. 2d 317) it will lie to correct an abuse of discretion by such officer or board. (Inglin v. Hoppin (1909) 156 Cal. 483, 491 [105 P. 582]; Walker v. City of San Gabriel (1942) 20 Cal. 2d 879, 881 [129 P.2d 349, 142 A.L.R. 1383]; Roussey v. City of Burlingame (1950) 100 Cal. App. 2d 321, 326 [223 P.2d 517]; Bess v. Park (1955) 132 Cal. App. 2d 49, 55 [281 P.2d 556]; Palmer v. Fox (1953) 118 Cal. App. 2d 453, 457 [258 P.2d 30]; Naughton v. Retirement Board of San Francisco (1941) 43 Cal. App. 2d 254, 257 [110 P.2d 714]; see generally 17 McQuillin, Municipal Corporations, 51.18.) *824\n [17] The issue of the abuse of discretion on the part of Benas in awarding and on the part of Ross in certifying the contract to Baldwin on its so-called alternative bid has been properly raised in the court below. As we have pointed out, all of the essential facts bearing upon the submission of the three bids and upon the legality and validity of the place of manufacture provision are established by the pleadings and exhibits attached thereto. In addition, Allis has alleged that the sole purpose of Baldwin in submitting its alternative bid \"was to give it a competitive advantage over any and all bidders complying with the provisions of the specifications, ...\" This issue has been raised by the denials of the other parties. Finally Allis alleges that \"unless restrained\" by the respondent court Benas and Ross will proceed with the award of the contract to Baldwin \"in conflict with and in disregard of the provisions of the Charter and ordinances of the City and County of San Francisco, the provisions of the Contract Proposal and the specifications; that such action on the part of said respondents in certifying and awarding said contract would be arbitrary and capricious and an abuse of discretion, ...\" (Emphasis added.) While the last language is conclusionary, it is not fatal since the essential facts of the controversy are found in the pleadings and it does significantly point up that the issue of the legality of the bid call and of Benas' abuse of discretion in proceeding to make an award pursuant to it was before the court. Contrary to Baldwin's claim, the respondent court was not \"creating and determining issues not raised by the parties or their pleadings.\"\n [18] We therefore hold that it is within the power of the respondent court to issue a writ of mandate to correct \"an abuse of discretion\" commanding Benas and Ross according to the prayer of the petition to refrain from proceeding to award or certify said contract to Baldwin or to any other person.\n Allis was peculiarly affected by such alleged abuse of discretion. It was the only other bidder. Of the two bids which were responsive to all of the bidding specifications including those referring to place of manufacture, Allis' bid was the lower. Benas did not reject any of the bids submitted. His decision to disregard the place of manufacture provision therefore had a direct and injurious result on Allis. If relief is granted below, Allis will have the opportunity to bid on a new invitation which presumably will provide full and fair competitive bidding. Thus the granting of the writ will subserve *825 and protect Allis' interest and if a new bid call is made will be beneficial to Allis. (Parker v. Bowron, supra, 40 Cal. 2d 344, 351.) We are of the view therefore that Allis is a \"party beneficially interested\" and as such entitled to invoke the remedy of mandamus. Indeed the city and its officials admit this.\n We wish to make clear that we do not say that the remedy invoked should issue. The propriety of its issuance is not before us. Our holding is that the respondent court has the power to issue the writ and that such action on its part is not without or in excess of its jurisdiction.\n Finally, we point out that the record before us is unclear in certain important respects. While the respondent court states in its memorandum opinion that the bid call is illegal and that no contract can be awarded on it, it also states that Allis' petition for a peremptory writ of mandate compelling Benas \"to award a contract to petitioner on its bid 'A' [bid No. 1 above] is hereby denied and the alternative writ ... is hereby dissolved.\" Since the parties have not brought before us the minutes of the court below, we have no evidence that the foregoing and other language concluding the opinion are actually minute orders of the court. [19] A memorandum opinion is not itself the court's decision or judgment. (De Cou v. Howell (1923) 190 Cal. 741, 751 [214 P. 444]; Lord v. Katz (1942) 54 Cal. App. 2d 363, 367 [128 P.2d 907].) [20] The findings of fact and conclusions of law constitute the decision of the court. (Code Civ. Proc., 632; De Cou v. Howell, supra.) [21] Findings of fact are necessary in a mandamus action, unless waived. (Code Civ. Proc., 1109; Davis v. State Board of Optometry (1939) 35 Cal. App. 2d 428, 434 [95 P.2d 959].) In the instant case certain factual issues were presented to the court below. In addition, Baldwin alleges in its petition filed with us and Allis admits that special findings of fact and conclusions of law have been demanded but not as yet submitted. All of the foregoing points up the fact that although the respondent court is alleged to have proposed certain judicial action, it has not yet made its decision.\n We note that the court orders or will order that the peremptory writ compelling Benas to award the contract to Allis will be denied. This is in conformity with our views previously expressed herein. It is not clear to us whether or not the respondent will issue a peremptory writ restraining Benas *826 from awarding the contract to Baldwin or anyone else. This we have shown would be within its powers. No mention is made of this phase of the relief which is sought in Allis' petition. Instead the court indicates that it orders or will order Benas enjoined pendente lite from awarding the contract to Baldwin or any other person. The opinion does not indicate the nature of the \"lis\" that will be \"pending.\" In addition, while the court states and all parties concede that it will hold that \"[n]o contract can be awarded on Contract Proposal ... [No. 12885],\" the court's opinion does not indicate how such holding will be translated into and implemented by an enforceable judgment.\n Our foregoing observations are not intended to be and should not be construed as critical of the court below, which was prevented from completing its decision by the instant proceeding in prohibition. It may be that the court contemplated a writ of mandate consonant with our present views. On the other hand, it may be that the court intended permanent relief of an injunctive nature with the injunction pendente lite as auxiliary thereto. There is no indication in the record that the court intends to use a permanent injunction rather than mandate to enforce its ruling that no contract can be awarded on the bid call. We therefore do not feel called upon to determine whether such type of relief would be within the court's powers. [fn. 10] We assume that the court will not exceed its jurisdiction in this respect.\n The alternative writ of prohibition is discharged and the petition for a peremptory writ is denied.\n Bray, P. J., and Salsman, J., [fn. *] concurred.\n \" 'The purchaser of supplies with the approval of the chief administrative officer ... may reject any and all bids and readvertise for bids.' \"\n Section 21.9 of the Administrative Code included within chapter 21, entitled \" 'Purchasing Procedure' \" provides in relevant part as follows: \" 'The purchaser, with the approval of the chief administrative officer, may reject any and all bids and readvertise for bids.' \"\nNOTES\n[fn. 1] 1. Section 95 of said charter dealing, inter alia, with the letting of contracts by bid for the purchase of materials, supplies and equipment provided in relevant part as follows: \" '... Each such advertisement shall contain the reservation of the right to reject any and all bids. ...' \"\n[fn. 2] 2. The purchaser of supplies and the controller assert that each of the above bids should be increased by $770.\n[fn. 3] 3. The record does not disclose whether any answers or demurrers were filed to the complaint in intervention. (Code Civ. Proc., 387.)\n[fn. 4] 4. Apparently no objection was made below to the filing by Baldwin of a demurrer as well as a complaint in intervention although the order for intervention granted leave to file only the latter. Since the legal issues raised by the demurrer are also raised by the complaint in intervention, which is actually an answer to the petition, and since such legal issues can be properly raised by an answer to the petition for writ of mandate (Scott v. Superior Court (1927) 83 Cal. App. 25, 29-30 [256 P. 603]), it is not necessary for us to decide whether the demurrer was properly filed below.\n[fn. 5] 5. In the proceedings for a writ of prohibition now before us, the parties have admitted that the demurrer was argued on February 6, and taken under submission, that further hearings for the taking of testimony were held on February 7, 8, 16, 28 and March 14, 1962, and that on April 18, 1962, in chambers, the court announced its ruling on the demurrer and motion to strike. The record before us does not disclose any minute or written orders in reference to the above.\n[fn. 6] 6. We do not deem it necessary to consider the first contract proposal of July 6, 1961, since Benas, as authorized by the San Francisco Charter and Administrative Code, rejected all bids submitted in response thereto.\n[fn. 7] 7. Section 4303 provides: \"The governing body of any political subdivision, municipal corporation, or district, and any public officer or person charged with the letting of contracts for (1) the construction, alteration, or repair of public works or (2) for the purchasing of materials for public use, shall let such contracts only to persons who agree to use or supply only such unmanufactured materials as have been produced in the United States, and only such manufactured materials as have been manufactured in the United States, substantially all from materials produced in the United States.\"\n[fn. 8] 8. Pursuant to Protocol of Terms of Accession of Japan to GATT dated at Geneva June 7, 1955, and \"entered into force\" September 10, 1955. (See Vol. 6 United States Treaties and Other International Agreements, p. 5833. Publication of U.S. Printing Office, 1956.)\n[fn. 9] 9. The city attorney also relied upon the opinion found in 34 Ops. Cal. Atty. Gen. 302 which, in a generally similar situation, reaches the same conclusions with respect to the GATT agreement and the supremacy clause.\n[fn. 10] 10. As an illustration, in Cullinan v. Superior Court (1938) 24 Cal. App. 2d 468, 475 [75 P.2d 518, 77 P.2d 471], it is stated by the Supreme Court upon its denial of a hearing that \"since the superior court has jurisdiction to entertain the proceeding in mandamus pending before it, that court has the power to decide all questions properly presented to it in such a proceeding, and any limitation placed on that power in the opinion and order denying the writ of prohibition was inappropriate.\"\n[fn. *] *. Assigned by Chairman of Judicial Council.\n\n", "ocr": false, "opinion_id": 2207143 } ]

[ "538 U.S. 976" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/538/538.US.976.02-9845.html", "author_id": null, "opinion_text": "538 U.S. 976\n IN RE CALLAHAN.\n No. 02-9845.\n Supreme Court of United States.\n April 21, 2003.\n \n 1\n ON PETITION FOR WRIT OF HABEAS CORPUS.\n \n \n 2\n Petition for writ of habeas corpus denied.\n \n ", "ocr": false, "opinion_id": 128866 } ]

[ "2005 OK 75", "125 P.3d 1191" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5459, "opinion_text": "\n125 P.3d 1191 (2005)\n2005 OK 75\nSTATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,\nv.\nBarry W. BENEFIELD, Respondent.\nSCBD No. 4835.\nSupreme Court of Oklahoma.\nOctober 25, 2005.\nLoraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.\nDouglas L. Parr, Oklahoma City, OK, for Respondent.\n*1192 TAYLOR, J.\n¶ 1 The Oklahoma Bar Association (the OBA), filed a complaint against attorney Barry W. Benefield (Respondent). The OBA alleges that by his neglectful acts, Respondent violated rules 1.1,[1] 1.3,[2] 1.4,[3] 1.5(a),[4] 8.4(a), and 8.4(d)[5] of the Oklahoma Rules of Professional Conduct, 5 O.S.2001, ch. 1, app. 3-A (ORPC), and rule 1.3[6] of the Rules Governing Disciplinary Proceedings, 5 Ohio St. 2001, ch. 1, app. 1-A (RGDP),[7] and that he should be disciplined.\n¶ 2 The first issue before this Court is whether Respondent violated the ORPC's and the RGDP's rules governing attorneys' conduct. If so, the second issue is what discipline should be imposed on Respondent. We find that Respondent has violated the ORPC's and the RGDP's rules governing attorney conduct. Because Respondent's serial neglect, six counts from 1991 through the present, shows a pattern of misconduct, we determine Respondent should be suspended from the practice of law for one year. Further, Respondent shall pay the costs of these proceedings.\n\nI. BACKGROUND FACTS\n¶ 3 The record includes the parties' stipulations, a transcript of the hearing, and documentary evidence. The factual stipulations are not inconsistent with the record and are adopted by this Court. See State ex rel. Oklahoma Bar Ass'n v. Chapman, 2005 OK *1193 16, ¶¶ 11-12, 114 P.3d 414, 416. To the extent that the stipulated mitigation is inconsistent with the record or is irrelevant as discussed below, the stipulations are rejected. See id. The record shows the following facts.\n¶ 4 Respondent was admitted to the practice of law in 1967. Respondent has been disciplined two times previously. Respondent was first disciplined in April of 1991 by the Professional Responsibility Commission (the Commission). The Commission privately reprimanded Respondent for neglecting a client matter. See RGDP R. 5.3(d). Respondent had been retained to locate the birth mother and acquire an original birth certificate for a client. He located the birth mother but failed to take steps to obtain the birth certificate. The OBA notified Respondent of the grievance and of the need to respond. After he did not respond in writing as required, see RGDP R. 5.2, his response was obtained by deposition pursuant to a subpoena.\n¶ 5 In 2002, Respondent was again disciplined when this Court suspended him from the practice of law for sixty days. See State ex rel. Okla. Bar Ass'n v. Benefield, 2002 OK 37, 51 P.3d 1198 (Benefield I). In that proceeding, Respondent was disciplined for three counts of client neglect and one count of failing to respond to the OBA's request for information regarding the grievances. This Court found Respondent had been neglectful, rather than deliberate, but had a pattern of neglect. Id. at ¶ 15, 51 P.3d at 1201. Respondent was remorseful and had reimbursed the clients' fees.\n\nII. CURRENT CHARGES\n¶ 6 The first count in this proceeding involves Rowdy Baxter. The second count involves Jeffrey Hunter. The following facts are supported in the record and show Respondent violated the ORPC and the RGDP.\n\nA. COUNT I\n¶ 7 In October or November of 2002, Respondent agreed to represent Rowdy Baxter on a misdemeanor criminal charge. The case was assigned to the Honorable Russell Hall, Special Judge for Oklahoma County District Court. Had he been called as a witness, Baxter would have testified he paid Respondent $100.00 and later left $300.00 at Respondent's office with a woman claiming to be Respondent's girlfriend. Respondent contends he did not receive any payment from Baxter. Respondent recalls Baxter was to remove trash for him in exchange for $100.00 of the fee but Baxter never performed this service.\n¶ 8 Respondent lost personal and telephone contact with Baxter. Although Respondent negotiated a plea agreement for Baxter, he never informed Baxter of the agreement. Based on his assertion that he could not contact Baxter by telephone, Respondent sought and obtained at least three continuances of Baxter's hearings. Baxter appeared for several hearings only to discover Respondent had continued his case. There is no evidence Respondent ever utilized the United States mail service to inform Baxter of the continuances, to inform him of the plea agreement, or to otherwise contact him.\n¶ 9 On February 12, 2003, Respondent appeared at 8:45 a.m. in Cleveland County District Court on another matter. On the same day, Baxter appeared for his hearing which was set for 9:00 a.m. in Oklahoma County. Respondent did not appear. Respondent had not informed Judge Hall or Baxter of his scheduling conflict or of his potential lateness for the hearing. When Respondent got to Judge Hall's courtroom after 11:00 a.m., no one was there. Respondent assumed either Baxter had failed to appear or the case had been continued for at least a week. Respondent did not check the case's status before leaving the courthouse.\n¶ 10 When Respondent failed to appear at the February 12th hearing, Judge Hall rescheduled it for the next day, February the 13th. On February 13, Baxter again appeared and Respondent did not. Judge Hall appointed a public defender to represent Baxter. On the advice of the public defender, Baxter entered a guilty plea. Judge Hall reported Respondent's failure to appear to the OBA's general counsel. He wrote: \"Mr. Barry Benefield abandoned his client.... On *1194 the 8th time on my docket[,] I had the public defender do the plea.\" The OBA opened an investigation into the matter. Thereafter, Respondent wrote Judge Hall an apology and paid the cost of the public defender's services.\n\nB. COUNT II\n¶ 11 In February of 2003, Respondent was retained to represent Jeffrey Hunter in a felony case in Caddo County. Hunter's sister paid Respondent $300.00 to present her brother. Respondent agreed to negotiate for a better plea agreement than the ten years incarceration offered by the district attorney's office.\n¶ 12 Respondent asserts that he contacted Assistant District Attorney Jason Glidewell about drug offender work camp which might have reduced Hunter's incarceration time. Mr. Glidewell does not remember this discussion.\n¶ 13 Because of potential scheduling conflicts, Respondent asked Tony Burns, an attorney from Caddo County, to stand in for him at the hearing for entering a plea. Respondent informed Burns that he believed the terms of the plea agreement included a recommendation for drug offender work camp. Burns contacted the district attorney's office to confirm the agreement only to discover the work camp recommendation was not memorialized in the district attorney's file. If Burns had been called to testify, he would have stated he called Respondent's office and left a message that the Hunter case had not been concluded. Respondent contends he did not receive the message and assumed Hunter's case was concluded. Respondent admits he did not contact Burns or the court to confirm the status of the case.\n¶ 14 Hunter's case remained set for jury trial for April 7, 2003. Because Respondent did not appear in court on April the 7th, and Hunter was unwilling to accept the district attorney's plea offer of ten years incarceration, the court continued the trial until April 10, 2003. When Respondent failed to appear on April 10, 2003, the court appointed a public defender to represent Hunter. The public defender negotiated a plea, and Hunter was sentenced to eight years incarceration.\n¶ 15 The presiding judge, the Honorable David E. Powell, contacted the OBA's general counsel complaining Respondent had failed to appear for the jury trial. He included a copy of the transcript of the April 10 hearing at which Hunter entered his plea. This transcript was included in the record of these proceedings as an exhibit.\n\nIII. PROFESSIONAL RESPONSIBILITY TRIBUNAL REPORT\n¶ 16 The Professional Responsibility Tribunal (PRT) found that the current misconduct \"was not of the same nature as\" the misconduct addressed in the previous disciplinary proceedings. Finding Respondent had violated the ORPC and the RGDP, the PRT concluded that an appropriate discipline would be six-month probation and that Respondent should pay the costs of the proceedings. Although the PRT recommended a six-month probation, it did not specify any terms of the probation or consequences for violating the probation. The PRT did recommend that the OBA's law office management division be directed to assist and monitor Respondent during the six-month probation. The onus of the recommendation was directed at the OBA rather than the Respondent.\n¶ 17 The parties claim that the PRT recommended a public reprimand. In adopting this position, both parties rely on the presiding master's oral statement that Respondent should be publicly reprimanded. We cannot agree with this supposition. Rule 6.13 of the RGDP states that the PRT shall file a written report which includes a recommendation as to discipline. Since the PRT did not include a recommendation of public reprimand in its report, this Court can only conclude that the PRT reconsidered and eliminated this recommended discipline.\n\nIV. DE NOVO CONSIDERATION OF PROCEEDINGS\n¶ 18 In de novo consideration of bar disciplinary proceedings, this Court exercises its constitutional, nondelegable power to regulate *1195 the practice of law and legal practitioners. State ex rel. Okla. Bar Ass'n v. Bolton, 1994 OK 53, ¶ 15, 880 P.2d 339, 344. This Court decides whether misconduct has occurred and, if so, the appropriate discipline to be imposed. State ex rel. Oklahoma Bar Association v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 261. Accordingly, this Court is not bound by the PRT's findings of fact, its view of the evidence, its view of the credibility of witnesses, or its recommendations of discipline. Id.\n\nV. ANALYSIS\n\nA. VIOLATIONS OF THE ORPC AND THE RGDP\n¶ 19 The first issue before this Court is whether Respondent violated the ORPC's and the RGDP's ethical rules. Respondent admits he violated rules 1.1, 1.3, 1.4, 1.5, and 8.4(a) and (d) of the ORPC and rule 1.3 of the RGDP. The facts show Respondent violated the ORPC and the RGDP by his negligent representation of his clients. Exercising this Court's plenary authority, we find Respondent has violated the rules of the ORPC and RGDP and should be disciplined.\n\nB. APPROPRIATE DISCIPLINE\n¶ 20 Addressing the second issue, we must determine the appropriate discipline based on the current misconduct, the purposes of discipline, past misconduct and discipline, and the mitigating factors. Having considered the current misconduct, we turn to the other considerations.\n¶ 21 The purposes of lawyer discipline are to protect the public, to protect the court, to preserve the integrity of the bar, and to deter misconduct by both the lawyer being disciplined and other members of the bar. State ex rel. Oklahoma Bar Ass'n v. Sheridan, 2003 OK 80, ¶ 46, 84 P.3d 710, 719; State ex rel. Oklahoma Bar Ass'n v. Busch, 1993 OK 72, ¶ 16, 853 P.2d 194, 196. In Bolton, this Court articulated the essence of these purposes. 1994 OK 53 at ¶ 21, 880 P.2d at 346. \"Professional competence ... is a mandatory obligation imposed upon licensed practitioners.... It epitomizes professionalism. Anything less is a breach of a lawyer's duty to serve the client.\" Id.\n¶ 22 The purposes of discipline are best served by examining Respondent's performance over time and inquiring into his professional history. Bolton, 1994 OK 53 at ¶ 18, 880 P.2d at 345. Our examination and inquiry shows that Respondent has a history of neglect.[8] In fashioning the appropriate sanction, we must not only consider the misconduct of this current proceeding but also consider Respondent's established pattern of neglect and any mitigating or enhancing factors. Id.\n¶ 23 The parties stipulated that several factors mitigate the severity of the discipline. First, Respondent has been cooperative. Second, Respondent has acknowledged his misconduct and expressed remorse. Third, Respondent reimbursed the cost of the public defender's representation of Baxter. Fourth, Respondent apologized to Judge Hall. Fifth, no harm was caused to any client's case. Sixth, Respondent routinely represents clients who would not otherwise be able to afford an attorney and who do not have an address or telephone number.\n¶ 24 We are unimpressed by the stipulated mitigation. Remorse comes easy after being \"found out.\" Respondent was also remorseful when the charges were brought in Benefield I. This remorse did not result in Respondent changing his behavior to comply with ethical standards. In fact, the neglect in this proceeding began shortly after his suspension in Benefield I ended.\n¶ 25 We cannot acquiesce in the mitigating factor that no client's case was harmed. While no harm to a case may have resulted, it is innate that a delay in the criminal process caused by an attorney's failure to appear in court could cause stress for a person faced with a possible loss of liberty or a delay in release from jail.\n*1196 ¶ 26 Respondent focuses on his representation of indigent and low income clients. The PRT apparently took this into consideration. Competent representation of indigents is very important. However, negligent representation of indigent clients is of little value and can be worst than no representation at all. The standard for representation of indigent clients is no lower than for any other client. This claim of mitigation is without merit.\n¶ 27 Respondent's routine representation of individuals who do not have an address or telephone number making communication difficult is not a mitigating factor in this case. The record does not show that Baxter did not have an address at the time Respondent was representing him or that Respondent attempted to contact Baxter by mail. Hunter was in jail in Anadarko while Respondent was representing him. Respondent had no excuse for any failure to communicate with Hunter. This generalized stipulation is not relevant to these proceedings.\n¶ 28 We cannot agree with the PRT that Respondent's misconduct addressed in this proceeding is of a different nature than that for which he was previously disciplined even though his attitude may be different. Neglect is at the root of Respondent's misconduct, both here and previously. His responding to the charges in this case, unlike in Benefield I, does not change the nature of the underlying transgressions — neglect. Further, judges, rather than the clients, filing the grievance now before us does not distinguish Respondent's current misconduct from that of the past.\n¶ 29 In his brief, Respondent adopts reasoning similar to the PRT's. He appears to argue his present transgressions are less egregious than those of the past and this should mitigate the discipline. This is a new and disingenuous argument for mitigation. We reject this as a mitigating factor.\n¶ 30 Neglect of client matters is serious and erodes public confidence in the bar and the legal system. This Court represents that every person who holds a license to practice law is worthy of the public's confidence in carrying out professional duties. State ex rel. Okla. Bar. Ass'n v. Raskin, 1982 OK 39, ¶ 16, 642 P.2d 262, 267. When a lawyer no longer carries out professional duties in accordance with mandatory ethical rules, it is this Court's duty to impose discipline for the public's immediate protection. See id.\n¶ 31 A history showing a pattern of neglect warrants substantial sanctions. See State ex rel. Okla. Bar Ass'n v. Spadafora, 1998 OK 28, 957 P.2d 114; State ex rel. Okla. Bar Ass'n v. Downing, 1990 OK 102, 804 P.2d 1120. When previous sanctions have failed to correct errant conduct, this Court, in carrying out its duty to protect the public, has no choice but to substantially increase the severity of the sanction. Anything less and the Court would be deserting its constitutionally-vested power as overseer of the legal profession.\n¶ 32 As we stated in Benefield I, the discipline imposed for neglect has ranged from a public censure to two years. Benefield I, 2002 OK 37 at ¶ 14, 51 P.3d at 1200-1201. In State ex rel. Okla. Bar Ass'n v. Rennie, 1997 OK 108, 945 P.2d 494, the respondent attorney failed to diligently and competently represent his clients, failed to keep his clients reasonably informed, failed to respond to the bar about a grievance, and had been previously disciplined. The attorney appeared to be an honorable person, had admitted his mistakes, had taken steps to correct the problems that led to the misconduct, provided pro bono representation to clients, and filled a need by undertaking cases other lawyers avoided. This Court suspended the attorney from the practice of law for one year.\n¶ 33 As in Rennie, a one-year suspension meets the goals of attorney discipline in the present proceeding. It is evident that a sixty-day suspension was insufficient to break Respondent's pattern of neglect. Because of his pattern of neglect, we suspend Respondent from the practice of law for one year. This discipline meets the goals of fostering public confidence in the legal system, protecting the public, and deterring Respondent and other members of the bar.\n\nVII. COSTS\n¶ 34 The OBA filed a motion to assess the costs of the proceedings against Respondent. *1197 See RGDP R. 6.16. The motion and attached documentation supports an award of $594.55 in costs. Respondent acknowledges responsibility for the costs of these proceedings and does not contest the amount. Therefore, the OBA's motion is granted.\n\nVIII. CONCLUSION\n¶ 35 Respondent has violated the rules of professional conduct mandated by the ORPC and the RGDP. Respondent stands suspended from the practice of law for one year from the date this opinion becomes final. He is ordered to pay $594.55 for the costs for these proceedings.\nRESPONDENT SUSPENDED FOR ONE YEAR; ORDERED TO PAY COSTS.\n¶ 36 WATT, C.J., LAVENDER, HARGRAVE, EDMONDSON, TAYLOR, JJ., concur.\n¶ 37 WINCHESTER, V.C.J., (\"I would suspend respondent for 6 months.\"), KAUGER, COLBERT, JJ., concur in part; dissent in part.\n¶ 38 OPALA, J., not participating.\nKAUGER, J. concurring in part, dissenting in part.\n¶ 1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Barry W. Benefield, with two counts of professional misconduct regarding his representation, or rather lack of it, of two clients. The Bar Association alleged that the respondent's actions involved incompetent representation, lack of reasonable diligence, ineffective communication and consultation with clients, unreasonableness of fees, and conduct that was prejudicial to the administration of justice in violation of Rules 1.1, 1.3, 1.4, 1.5(a), and 8.4(a) and (d) of the Rules of Professional Conduct[1] and Rule 1.3 of the Rules Governing Disciplinary Proceedings.[2]\n*1198 ¶ 2 Upon a de novo review,[3] I agree that there is clear and convincing evidence of the respondent's ethical violations. However, I disagree with the discipline imposed. The nature of respondent's misconduct, coupled with his prior disciplinary history and his cooperation with the Bar Association's investigation, warrants a suspension of ninety days, rather than one year as the majority recommends.\n¶ 3 I also write separately to express my concern as to why the cause took nearly two years from the time a formal complaint was filed until the trial panel held a hearing and issued its report. Rule 6.6, of the Rules Governing Disciplinary Proceedings, 5 Ohio St. 2001 Ch. 1, App. 1-A requires the selection of a trial panel within ten days after receiving notice of the complaint.[4] Rule 6.7 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch. 1, App. 1-A requires that a hearing shall not be less than thirty to sixty days from the date of the appointment of the trial panel, unless good cause is shown.[5]\n¶ 4 There is nothing before the Court which explains the excessive delay in holding the hearing. It is unseemly to charge a lawyer with lack of reasonable diligence and conduct prejudicial to the administration of justice when it appears that the Bar Association is guilty of the same conduct. I would issue a show cause order to the Bar Association asking for an explanation for its unreasonable delay and an explanation of how the misconduct charges of lack of diligence[6] and conduct prejudicial to the administration of justice[7] comport with fairness and due process when the Bar Association appears guilty of such conduct.[8]\n\nFACTS\n¶ 5 On April 26, 1991, the respondent received a private reprimand from the professional responsibility commission admonishing him for conduct related to a client who, in an attempt to locate her birth mother, hired the respondent to secure an original birth certificate. The respondent promptly located the birth mother, but did not obtain the birth certificate until after the client filed a grievance, some ten months later. The respondent neglected to file a written response to the grievance. His response was obtained by deposition taken pursuant to a subpoena issued by the commission.\n¶ 6 In May of 2002, the respondent was before the Court in a disciplinary matter involving three counts of misconduct concerning three clients for whom he had taken a retainer to represent, but never filed their cases. Respondent also faced an additional count because he was neglectful in responding to the investigation. After the professional *1199 tribunal hearing, the respondent fully reimbursed the clients. As a result of his conduct, we suspended the respondent from the practice of law for sixty days and ordered him to pay costs.\n¶ 7 The Bar Association filed a complaint against the respondent on July 25, 2003, stemming from the representation, or lack thereof, of clients Rowdy Baxter (Baxter) and Jeffry Hunter (Hunter). In October or November of 2002, the respondent agreed to represent Baxter on a misdemeanor criminal charge of driving under the influence in Oklahoma County District Court. Baxter alleges that he paid the respondent $100.00 personally and that he left $300.00 at respondent's office with a \"hippy looking woman.\" The respondent denies receiving the $300.00 and contends that, rather than receiving $100.00 from Baxter, he traded Baxter for services to remove trash from his office, which he never performed. The respondent stipulated to misconduct involving reasonable fees, but the evidence suggests that the respondent did not receive any money or services from Baxter.\n¶ 8 Although the respondent negotiated a plea agreement for Baxter, he never communicated the proffered plea agreement to Baxter because he had lost all contact with him. Citing a lack of communication with Baxter, the respondent got the matter continued several times until February 12, 2003. However, respondent missed the February 12th hearing because of a scheduling conflict. He insists that he arrived late at the courthouse, but did not check the status of the case that day to see that the judge had delayed the matter until the next day. When the respondent was absent again the next day, the judge appointed a public defender to represent the client and filed a grievance with the bar against the respondent the next day for failure to provide legal services that he had agreed to provide. After learning of the investigation, the respondent wrote a letter of apology to the judge and made restitution to the public defender's office for their services.\n¶ 9 In February of 2003, Jeffrey Hunter (Hunter) retained the services of respondent in a felony case in the District Court of Caddo County. Hunter's sister paid respondent $300.00 and respondent agreed to attempt to negotiate a better plea agreement than proffered the ten years of incarceration. According to respondent, he discussed the possibility of a recommendation for a drug offender work camp as part of the existing plea offer with the assistant district attorney.\n¶ 10 Due to a scheduling conflict, respondent asked an Anadarko attorney to stand in for him and enter a plea. He advised the Anadarko attorney of the recommendation for a drug work camp, but when the attorney arrived the drug offender work camp offer was not memorialized in the prosecution's file. The Anadarko attorney telephoned respondent and left a message that the plea had not been concluded. Because no plea was accomplished, the case remained on the jury trial docket for April 7, 2003. Respondent denies getting the message, but admits that he never contacted the Anadarko attorney or the court to check on the case.\n¶ 11 When the respondent failed to appear for the jury trial, the court continued the trial until April 10, 2003. When the respondent failed to appear again, the judge appointed a public defender to represent Hunter. The public defender negotiated a plea of eight years incarceration, which Hunter accepted. The judge filed a grievance against the respondent on April 14, 2003, for failing to appear at the jury trial.\n¶ 12 After an investigation, the Bar Association filed a complaint against the respondent on July 25, 2003. Nearly two years later, a hearing was held on May 4, 2005. Except for a couple of requests for short extensions by the respondent, there is no showing in the record as to why it took nearly two years for the hearing to be held. At the hearing, the joint stipulations were admitted into evidence. The respondent stipulated as to misconduct on both counts and testified regarding his more than thirty years of experience in representing indigent or marginally indigent clients.\n¶ 13 On July 20, 2005, the trial panel filed its report. It found a violation of Rules 1.1, 1.3, 1.4, 1.5(a), and 8.4(a) and (d) of the Rules *1200 of Professional Conduct[9] and Rule 1.3 of the Rules Governing Disciplinary Proceedings.[10] The panel unanimously recommended that the respondent be placed on six months probation with the Bar Association law office management division assisting the respondent in creating a docket system and ensuring that he follow the system. The panel also recommended that payment for the services be spread over the six month period and that respondent pay the costs of these proceedings.\n¶ 14 THE RESPONDENT'S CONDUCT WARRANTS A NINETY DAY SUSPENSION AND THE IMPOSITION OF COSTS.\n¶ 15 The Bar Association argues that, given the respondent's prior disciplinary history and considering the mitigating factors presented, the respondent should be disciplined, at most, by a three-month suspension from the practice of law. Respondent agrees with the Bar Association that a ninety-day suspension and the imposition of costs are warranted. The trial panel unanimously recommended a six-month probation with help from the Bar Association, but it did not recommend any suspension from the practice of law.\n¶ 16 At the May 4, 2005, hearing, the trial panel explained the reasoning behind its unanimous recommendation. It recognized that: 1) the respondent fills a void left by other attorneys by representing indigent and marginally indigent people; 2) because of the clientele he represents, the respondent's income is also below the poverty level; 3) the respondent's clientele would be harmed if he were not allowed to practice law for a period of time; 4) maintaining contact with the respondent's clients is difficult due to their income level and propensity to move around; and 5) there was a big difference between the current complaints and previous complaints in that the respondent was very cooperative in this case. In fact, it was noted at the hearing that had the respondent not been so cooperative, the Bar Association would not have even been able to bring the first count of misconduct. When the Bar Association could not locate Baxter to provide information, the respondent did so.\n¶ 17 With regard to the second count, the panel also noted that the respondent did not take money without providing services, he simply did not follow through with the services. The panel also recognized that the misconduct did not harm the clients in any way and that the complaints were initiated by concerned judges, rather than by complaining clients.\n¶ 18 In disciplinary matters, this Court possesses exclusive original jurisdiction,[11] and the ultimate responsibility for imposition of professional discipline is ours alone. Discipline is administered to preserve public confidence in the bar. Our responsibility is not to punish, but to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and of the legal profession. Discipline is imposed to maintain these goals rather than as punishment for the lawyer's misconduct.[12] The discipline recommended by the majority is punitive.\n¶ 19 Disciplinary action is also administered to deter the attorney from similar future conduct and to act as a restraining vehicle on others who might consider committing similar acts.[13] Discipline is fashioned *1201 to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct.[14] Although this Court strives to be evenhanded and fair in disciplinary matters, discipline must be decided on a case-by-case basis because each situation involves unique transgressions and mitigating factors.[15]\n¶ 20 The respondent has brought discredit upon the legal profession, subjecting himself to discipline.[16] Discipline should be sufficient to persuade the attorney that such conduct will not be tolerated.[17] Mitigating circumstances may be considered in evaluating both the attorney's conduct and assessing the appropriate discipline.[18]\n¶ 21 This Court is the ultimate arbiter of appropriate sanctions in bar discipline cases.[19] We may choose to reject or to accept the trial panel's recommendations.[20] Here, the trial panel did not suggest a suspension at all and the majority's one-year suspension is not only novel, but excessive given other one year suspensions this Court has previously imposed.[21]\n*1202 ¶ 22 I share the concerns expressed by the trial panel when disciplining the respondent. Furthermore, it is unseemly to charge a lawyer with lack of reasonable diligence and conduct prejudicial to the administration of justice when it appears that the Bar Association is guilty of the same conduct.\n¶ 23 I would issue a show cause order to the Bar Association asking for an explanation as to the unreasonable delay and an explanation of how the misconduct charges of lack of diligence[22] and conduct prejudicial to the administration of justice[23] comport with fairness and due process when the Bar Association appears to be dilatory in its handling of this complaint.[24] I would also find that the attorney's misconduct cases warrant a ninety day suspension and the payment of costs.\n\nCONCLUSION\n¶ 24 The nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law is solely vested in this Court.[25] Every lawyer is presented as a person worthy of competence and honesty in the performance of professional activities. It is our difficult duty to withdraw the license to practice law when necessary to protect the interest of the public, the legal profession and this tribunal.[26] Any other approach would rightly confuse or equate a lawyer's state franchise with a license to cheat the public.[27] Upon a de novo review of the record, I would: 1) issue a show cause order to the Bar Association asking for a reasonable explanation for the nearly two-year delay in bringing this cause before the trial panel; and 2) impose a ninety-day suspension on respondent and the payment of costs.\nNOTES\n[1] Rule 1.1 of the ORPC provides:\n\nA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.\n[2] Rule 1.3 of the ORPC provides:\n\nA lawyer shall act with reasonable diligence and promptness in representing a client.\n[3] Rule 1.4 of the ORPC provides:\n\n(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.\n(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.\n[4] Rule 1.5(a) of the ORPC provides:\n\nA lawyer's fee shall be reasonable....\n[5] Rule 8.4 of the ORPC provides:\n\nIt is professional misconduct for a lawyer to:\n(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;\n...\n(d) engage in conduct that is prejudicial to the administration of justice[.]\n[6] Rule 1.3 of the RGDP provides:\n\nThe commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action....\n[7] The original complaint alleged that Respondent had violated rules 1.16(d) and 8.1(a) and (d) of the ORPC. The OBA asked to amend the complaint to allege that Respondent had violated rule 8.4(a) and (d) instead and to strike rule 1.16(d) from the complaint. Respondent has not objected. The OBA's request to amend the complaint is granted.\n[8] While not considered here for disciplinary purposes, it is illustrative of his behavior that Respondent, acting pro se, filed his answer in this proceeding one-week late after asking for and receiving an extension of time.\n[1] Rule 1.1, Rules of Professional Conduct, 5 Ohio St. 2001, Ch. 1, App. 3-A provides:\n\n\"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.\"\nRule 1.3, Rules of Professional Conduct, 5 Ohio St. 2001, Ch. 1, App. 3-A provides:\n\"A lawyer shall act with reasonable diligence and promptness in representing a client.\"\nRule 1.4, Rules of Professional Conduct, 5 Ohio St. 2001, Ch. 1, App. 3-A provides:\n\"(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.\n(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.\"\nRule 1.5(a), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A provides:\n\"A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:\n(1) the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly;\n(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;\n(3) the fee customarily charged in the locality for similar legal services;\n(4) the amount involved and the results obtained;\n(5) the time limitations imposed by the client or by the circumstances;\n(6) the nature and length of the professional relationship with the client;\n(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and\n(8) whether the fee is fixed or contingent.\"\nRule 8.4, Rules of Professional Conduct, 5 Ohio St. 2001, Ch. 1, App. 3-A provides in pertinent part:\n\"It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;\n...\n(d) engage in conduct that is prejudicial to the administration of justice....\"\nThe initial complaint also alleged a violation of Rules 1.16(d) and 8.1 of the Oklahoma Rules of Professional Conduct, 5 O.S.2001 Ch. 1 Ohio App. 3-A. At the May 4, 2005, hearing, the Bar noted that 8.1 was a typographical error and withdrew the allegations relating to the 1.16(d) violations.\n[2] Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, provides:\n\n\"The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.\"\n[3] State ex rel. Oklahoma Bar Ass'n v. Phillips, 2002 OK 86, ¶ 2, 60 P.3d 1030; State ex rel. Oklahoma Bar Ass'n v. Erickson, 2001 OK 66, ¶ 14, 29 P.3d 550; State ex rel. Oklahoma Bar Ass'n v. Israel, 2001 OK 42, ¶ 13, 25 P.3d 909; State ex rel. Oklahoma Bar Ass'n v. Smolen, 2000 OK 95, ¶ 7, 17 P.3d 456.\n[4] Rule 6.6 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch. 1, App. 1-A provides in pertinent part:\n\n\"Within ten (10) days after receiving notice of the filing of a complaint, the Chief Master (or Vice-Chief Master if the Chief Master is absent or otherwise fails to act within such period) of the Professional Responsibility Tribunal shall select three members thereof to serve as a trial panel of Masters...\"\n[5] Rule 6.7 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001 Ch. 1, App. 1-A provides:\n\n\"The Chief Master or Vice-Chief Master of the Professional Responsibility Tribunal shall notify the respondent and the General Counsel of the appointment and membership of the Trial Panel and of the time and place for hearing, which shall not be less than thirty (30) days nor more than sixty (60) days from the date of appointment of the Trial Panel. Extensions of this period may be granted by the Chief Master (Or the Vice-Chief Master, in case of the unavailability of the Chief Master) for good cause shown.\"\n[6] Rule 1.3, Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 2, supra.\n[7] Rule 8.4(d), Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 1, supra.\n[8] Fundamentals of due process are applicable to lawyer disciplinary proceedings. State ex rel. Oklahoma Bar Ass'n v. Wolfe, 1997 OK 47, ¶ 20, n. 25, 937 P.2d 988; State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, ¶ 15, 914 P.2d 644.\n[9] Rule 1.1, Rules of Professional Conduct, 5 Ohio St. 2001, Ch. 1, App. 3-A see note 1, supra; Rule 1.3, Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A see note 1, supra; Rule 1.4, Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 1, supra; Rule 1.5(a), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 1, supra; Rule 8.4, Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A see note 1, supra.\n[10] Rule 1.3, Rules Governing Disciplinary Proceedings, see note 2, supra.\n[11] Rule 1.1, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass'n v. Holden, 1995 OK 25, ¶ 10, 895 P.2d 707; State ex rel. Oklahoma Bar Ass'n v. McMillian, 1989 OK 16, ¶ 5, 770 P.2d 892.\n[12] State ex rel. Oklahoma Bar Ass'n v. Smith, 1980 OK 126, ¶ 21, 615 P.2d 1014; State ex rel. Oklahoma Bar Ass'n v. Lowe, 1982 OK 20, ¶ 19, 640 P.2d 1361.\n[13] State ex rel. Oklahoma Bar Ass'n v. Cummings, 1993 OK 127, ¶ 19, 863 P.2d 1164; State ex rel. Oklahoma Bar Ass'n v. Hall, 1977 OK 117, ¶ 12, 567 P.2d 975.\n[14] State ex rel. Oklahoma Bar Ass'n v. Patterson, 2001 OK 51, ¶ 29, 28 P.3d 551; State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, ¶ 0, 914 P.2d 644; State ex rel. Oklahoma Bar Ass'n v. Bolton, 1994 OK 53, ¶ 16, 880 P.2d 339.\n[15] State ex rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, ¶ 38, 991 P.2d 1015; State ex rel. Oklahoma Bar Ass'n v. Rozin, 1991 OK 132, ¶ 10, 824 P.2d 1127.\n[16] Rule 1.3, Rules Governing Disciplinary Proceedings, see note 2, supra.\n[17] State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 1997 OK 55, ¶ 15, 938 P.2d 744.\n[18] State ex rel. Oklahoma Bar Ass'n v. Southern, 2000 OK 88, ¶ 35, 15 P.3d 1; State ex rel. Oklahoma Bar Ass'n v. Taylor, 2000 OK 35, ¶ 33, 4 P.3d 1242.\n[19] State ex rel. Oklahoma Bar Ass'n v. Rennie, 1997 OK 108, ¶ 20, 945 P.2d 494; State ex rel. Oklahoma Bar Ass'n v. Butler, 1992 OK 150, ¶ 9, 848 P.2d 540.\n[20] State ex rel. Oklahoma Bar Ass'n v. Rennie, see note 19, supra; State ex rel. Oklahoma Bar Ass'n v. Wilkins, 1995 OK 59, ¶ 12, 898 P.2d 147.\n[21] State ex rel. Oklahoma Bar Ass'n v. Scroggs, 2003 OK 21, ¶ 61, 70 P.3d 821 [Attorney guilty of commingling client and attorney funds, failure to inform clients about status of case and failure to promptly return funds.]; State ex rel. Oklahoma Bar Ass'n v. Parsons, 2002 OK 72, ¶ 21, 57 P.3d 865 [Failure to disburse settlement check to client.]; State ex rel. Oklahoma Bar Ass'n v. Giger, 2001 OK 96, ¶ 25, 37 P.3d 856 [Attorney arrested six times for drug related vehicular crimes in three counties in over eighteen months, failure to competently represent clients, and refusal to respond to disciplinary proceedings.]; State ex rel. Oklahoma Bar Ass'n v. Stutsman, 1999 OK 62, ¶ 17, 990 P.2d 854 [Billed client on own letterhead for work done for law firm.]; State ex rel. Oklahoma Bar Ass'n v. Rennie, see note 19, supra at ¶ 23 [Failed to diligently represent, inform client, and respond to complaint after three previous disciplinary matters.]; State ex rel. Oklahoma Bar Ass'n v. Wilcox, 1997 OK 87, ¶ 29, 942 P.2d 205 [Commingled trust account funds.]; State ex rel. Oklahoma Bar Ass'n v. Eakin, see note 8, supra at ¶ 36 [Judge conducted ex parte communication with litigant.]; State ex rel. Oklahoma Bar Ass'n v. Bolton, see note 14, supra at ¶ 15 [Lied to police about knowledge of location of stolen property while negotiating for return of stolen property.]; State ex rel. Oklahoma Bar Ass'n v. Holden, see note 11, supra at ¶ 18 [Advised client to remove child from state in violation of court order.]; State ex rel. Oklahoma Bar Ass'n v. Watson, 1994 OK 32, ¶ 40, 897 P.2d 246 [Misrepresented details of settlement, charged excessive contingency fees, failed to obtain consent for settlement, failed to maintain accounts, and received compensation from non-client without disclosure.]; State ex rel. Oklahoma Bar Ass'n v. Farrant, 1994 OK 13, ¶ 17, 867 P.2d 1279 [Converted to client funds for purpose other than what attorney told client and previously disciplined two times.]; State ex rel. Oklahoma Bar Ass'n v. Cummings, see note 13, supra at ¶ 33 [Converted and commingled client funds after two prior disciplinary proceedings.]; State ex rel. Oklahoma Bar Ass'n v. English, 1993 OK 68, ¶ 68, 853 P.2d 173 [Secret purchase of creditor's claim by counsel for creditor's committee in bankruptcy case.]; State ex rel. Oklahoma Bar Ass'n v. Lacoste, 1991 OK 51, ¶ 8, 813 P.2d 501 [Represented to party that he was paying for documents with a check that he had already stopped payment on.]; State ex rel. Oklahoma Bar Ass'n v. Gasaway, 1991 OK 33, 810 P.2d 826 [Commingled and converted client funds and failed to fully respond to bar complaint.]; State ex rel. Oklahoma Bar Ass'n v. Hall, 1989 OK 119, ¶ 41, 781 P.2d 821 [Unprepared for trial, filed incorrect merger vote and filed false statement about possession of a stock certificate.]; State ex rel. Oklahoma Bar Ass'n v. Bell, 1981 OK 157, ¶ 7, 637 P.2d 1258 [Allowed default judgment by being late for trial, did not attempt to vacate default judgment, misrepresented to client reason for default and abandoned client and ceased communication.]; State ex rel. Oklahoma Bar Ass'n v. Peveto, 1980 OK 182, ¶ 21, 620 P.2d 392 [Neglected client's case and made misrepresentations to client and court.].\n[22] Rule 1.3, Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 1, supra.\n[23] Rule 8.4(d), Oklahoma Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 1, supra.\n[24] State ex rel. Oklahoma Bar Ass'n v. Wolfe, see note 8, supra; State ex rel. Oklahoma Bar Ass'n v. Eakin, see note 8, supra.\n[25] State ex rel. Oklahoma Bar Ass'n v. Holden, see note 11, supra; State ex rel. Oklahoma Bar Ass'n v. Farrant, see note 21, supra; Tweedy v. Oklahoma Bar Ass'n, 1981 OK 12, ¶ 4, 624 P.2d 1049.\n[26] State ex rel. Oklahoma Bar Ass'n v. Raskin, 1982 OK 39, at ¶ 22, 642 P.2d 262.\n[27] State ex rel. Oklahoma Bar Ass'n v. Miskovsky, see note 27 supra.\n\n", "ocr": false, "opinion_id": 2625532 } ]

[ "864 P.2d 526" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n864 P.2d 526 (1993)\nDarlene RYDWELL, Appellant,\nv.\nANCHORAGE SCHOOL DISTRICT and Scott Wetzel Services, Appellees.\nNo. S-5198.\nSupreme Court of Alaska.\nDecember 3, 1993.\nJoseph A. Kalamarides, Kalamarides & Associates, Anchorage, for appellant.\nPenny L. Zobel and Deirdre D. Ford, Staley DeLisio & Cook, Anchorage, for appellees.\nBefore MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.\n\nOPINION\nMOORE, Chief Justice.\n\nI. INTRODUCTION\nIn this workers' compensation appeal, we must decide whether AS 23.30.190(b), which requires use of the American Medical Association's Guides to the Evaluation of Permanent Impairment for determinations of permanent partial impairment compensation, also governs determinations of permanent impairment under AS 23.30.041(f)(3), a provision making an employee with no permanent impairment ineligible for vocational rehabilitation benefits. We hold that it does.\n\nII. FACTS AND PROCEEDINGS\nIn March 1990 Darlene Rydwell, a building plant operator for the Anchorage School District (District), felt chest pains *527 while shovelling snow at Oceanview Elementary School. Her treating physician, Dr. Stanley N. Smith, initially diagnosed her condition as left costochondritis with bicipital tendinitis,[1] and subsequently concluded that Rydwell had developed fibromyositis in the shoulder girdle, a result of overuse.[2] Dr. Smith took her off work and prescribed physical therapy for her. In May Rydwell requested an eligibility evaluation for vocational rehabilitation.\nBecause he did not think that she was medically stable yet, Dr. Smith did not immediately assign Rydwell a permanent impairment rating, and instead had her undergo a work capacities evaluation with Work Therapy Enterprises (WTE). The WTE therapist, Kathryn Less, found her physical capacities to be \"severely below normal for a female of her size and age,\" and recommended a four to six week work hardening program. Rydwell participated in the program from mid-July through early August, but her condition did not improve much, and Less recommended that she resume the program in September.\nOn August 13, Rydwell and Less consulted with Dr. Smith. Dr. Smith agreed that continued work hardening therapy would be beneficial, but he doubted that Rydwell would be able to return to her old job and suggested \"cross training into a field that is physically less demanding.\" The next day Rydwell saw Dr. Edward M. Voke, an orthopedic specialist, who diagnosed her condition as \"minimal degenerative disc disease\" and a strain in the left rhomboid muscle. He too recommended continued work hardening, with preparation for work less stressful than that which Rydwell had done before. He did not give a rating of permanent impairment for Rydwell.\nRydwell resumed her work hardening program in September. During this time, Dr. Smith observed that Rydwell's problems did not translate to a permanent impairment as defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (3d rev. ed. 1990) [hereinafter AMA Guides]:\nUnfortunately [the AMA Guides] define impairment ratings in very concrete terms of ankylosis and loss of function, whether it be nerve function or muscular function and [Rydwell] does not demonstrate this. Yes, we can demonstrate on this exam, a loss of 10% of supination in the left forearm, 10° of extension in the upper extremity at the shoulder girdle, a loss of 10° of abduction in the shoulder girdle and loss of 10° internal in the left upper extremity. These translate into 0 disability based on function alone.\n... .\nStrictly following the impairment ratings, mentioned above, I could not give her a rating of disability more than 5-10% just based on pain alone with no other deficits being noted.\nAfter Rydwell completed the September work hardening sessions, Dr. Smith gave her a permanent impairment rating of zero under the AMA Guides, and set August 13 as the date on which she reached medical stability. Neither the WTE therapists nor Dr. Smith believed that Rydwell was able to return to her original job.\nIn December the Reemployment Benefits Administrator (RBA) assigned Dennis Johnson, a rehabilitation specialist, to perform Rydwell's eligibility evaluation for reemployment benefits. At that time, Dr. Smith concluded that Rydwell's physical capacities were less than the physical demands of her position, and that Rydwell would be unable to return to her original job. Though Johnson agreed, he nonetheless found Rydwell ineligible for reemployment benefits, because Dr. Smith had given her a zero permanent impairment rating. The RBA accepted Johnson's conclusions and denied Rydwell reemployment benefits in February 1991.\nThe Alaska Workers' Compensation Board (Board) overturned the RBA's decision *528 in May 1991. Analyzing recent changes in the Workers' Compensation Act, see ch. 79, §§ 10, 34, SLA 1988, the Board construed legislative intent to allow vocational rehabilitation in cases like that of Rydwell:\n[O]ne purpose of the amendment to [AS 23.30.041] was to create a less expensive system with fewer participants in it. An additional purpose was to provide vocational rehabilitation services to employees who are not employable without them. Though there is a potential tension between these two purposes, it is unimaginable to us that the Legislature intended that an employee who cannot return to employment because of a work injury without reemployment benefits would be denied them.\n(Footnotes omitted). Breaking with its own precedent, the Board held that AS 23.30.190(b), which mandates the use of the AMA Guides for evaluations of permanent impairment, did not apply to AS 23.30.041. The Board concluded that if an employee has an objectively measurable permanent impairment, but that impairment would receive a zero rating under the AMA Guides, the employee is nonetheless eligible for vocational rehabilitation.\nThe superior court reversed the Board decision in May 1992. Judge Joan Katz held that the Board's reading of permanent impairment, as that term applied to AS 23.30.041, was contrary to legislative intent and inconsistent with usage of the term in AS 23.30.190. Rydwell appeals.\n\nIII. DISCUSSION\nBoth parties agree that if the superior court's decision is proper, then Rydwell is not entitled to benefits. Therefore, resolution of this question turns upon statutory interpretation, and this court reviews the Board's reading of AS 23.30 under the independent judgment standard, making its own interpretation of the statutes involved. See, e.g., Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987); Phillips v. Houston Contracting, Inc., 732 P.2d 544, 546 (Alaska 1987); Hood v. State, Workmen's Compensation Bd., 574 P.2d 811, 813 (Alaska 1978).[3] Because the superior court acted as an intermediate court of appeal, this court gives no deference to its decision. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).\nWhen construing a statute, this court endeavors to give effect to legislative intent, with due consideration for the meaning that the language of the statute conveys to others. Forest v. Safeway Stores, Inc., 830 P.2d 778, 781 (Alaska 1992). Whenever possible, this court interprets each part or section of a statute with every other part or section, so as to create a harmonious whole. Id. Under the 1988 amendments to the Workers' Compensation Act, we do not construe ambiguities in the workers' compensation laws in favor of either party. See ch. 79, § 1(b), SLA 1988.\nTwo provisions of AS 23.30.041 govern the type of injury necessary for an employee to be eligible for reemployment benefits. *529 First, an employee is eligible only if \"a physician predict[s] that the employee will have permanent physical capacities that are less than the physical demands of the employee's job as described in the United States Department of Labor's `Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles.'\" AS 23.30.041(e). Second, an employee is not eligible for benefits if \"at the time of medical stability no permanent impairment is identified or expected.\" AS 23.30.041(f)(3). This second requirement is at issue here, where a measurable physical impairment exists but translates into a zero permanent impairment rating under the AMA Guides.\nAlaska Statute 23.30.041 provides no definition of \"permanent impairment.\" No explanation of the term appears at AS 23.30.265, the list of definitions applicable to all of the Workers' Compensation Act. Instead, the use of the AMA Guides to determine permanent impairment is prescribed at AS 23.30.190, the statute governing permanent partial impairment (PPI) compensation:\nAll determinations of the existence and degree of permanent impairment shall be made strictly and solely under the whole person determination as set out in the American Medical Association Guides to the Evaluation of Permanent Impairment, except that an impairment rating may not be rounded to the next five percent.\nAS 23.30.190(b). No statutory language expressly requires the application of AS 23.30.190(b) to the rest of the Act.[4] Furthermore, though the 1988 amendments to the Act made sweeping changes to AS 23.30.041 and .190, see ch. 79, §§ 10, 34, SLA 1988, neither party shows that the legislature expressly contemplated or excluded the application of AS 23.30.190(b) to vocational rehabilitation claims.\nWe are, nonetheless, persuaded that the term \"permanent impairment\" means the same thing in AS 23.30.041 as it does in AS 23.30.190. The term was newly introduced to the workers' compensation statutes by the 1988 legislature in enacting Chapter 79, SLA 1988. Section 34 of Chapter 79 became AS 23.30.190 and Section 10 became AS 23.30.041. Those are the only sections which employ the term \"permanent impairment\" in the workers' compensation statutes. It is most logical that the legislature intended the term to mean the same thing in both sections in which the term is used. Indeed, if \"permanent impairment\" as used in Section 10 of Chapter 79 of the 1988 session laws was not intended to mean the same thing as \"permanent impairment\" in Section 34 where the term is defined, one would expect to find a separate definition in Section 10.\nIn support of this interpretation we find persuasive the District's argument analyzing the interaction of the vocational rehabilitation provisions with the provisions for disability compensation. The legislature intended that employees have an income source during the time that vocational rehabilitation keeps them out of the job market. See Sectional Analysis of Workers' Compensation Task Force SB 322 and HB 352, at 4 (1988) Part of this supplemental income is in the form of PPI compensation:\nIf an employee reaches medical stability before completion of the plan, temporary total disability benefits shall cease and permanent impairment benefits shall then be paid at the employee's temporary total disability rate. If the employee's permanent impairment benefits are exhausted before the completion or termination *530 of the reemployment plan, the employer shall provide wages equal to 60 percent of the employee's spendable weekly wages but not to exceed $525, until the completion or termination of the plan.\nAS 23.30.041(k). Accordingly, AS 23.30.190 recognizes that PPI benefits are payable as part of vocational rehabilitation, and distinguishes the payment scheme in AS 23.30.041 from the lump-sum payment allowed otherwise. See AS 23.30.190(a).\nThe District argues that the close tie between vocational rehabilitation and PPI compensation indicates that eligibility for PPI benefits is a prerequisite for obtaining reemployment benefits. If Rydwell, who presumably is ineligible for PPI benefits under AS 23.30.190, may nonetheless receive reemployment benefits, then she will have no income during the period of her vocational rehabilitation, because she has reached medical stability and therefore can no longer receive benefits for temporary total disability. See AS 23.30.041(k). Reading AS 23.30.190(b) to control the evaluation of permanent impairment under AS 23.30.041(f)(3) carries out the legislature's intent that employees must have a supplemental income source during the rehabilitation process.\nSuch a reading also meshes well with the literal language of AS 23.30.041(k), which provides a fall-back source of income if the employee's PPI benefits \"are exhausted before the completion or termination of the reemployment plan.\" This language clearly presumes that the employee has been eligible for PPI compensation, and it does not contemplate a situation in which there are no PPI benefits to exhaust. This argument indicates that the legislature did not intend that one who does not qualify for PPI benefits would be eligible for vocational rehabilitation.\nTo support its contention that AS 23.30.190(b) controls determinations under AS 23.30.041, the District also looks to broader legislative motives for the 1988 revisions:\nIt is the intent of the legislature that AS 23.30 be interpreted so as to ensure the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of AS 23.30.\nCh. 79, § 1(a), SLA 1988 (emphasis added). The District views the provisions requiring objective bases for claims, see AS 23.30.041(e), (p)(4), .190(b), as one means by which the legislature sought to reduce baseless claims and thus lower costs. We agree that the legislature's concerns with objective diagnoses and reducing costs to employers are instructive in this case. These concerns provide a logical explanation for a statutory scheme which sets rather stringent bright-line measures.\nIn this case, no impairment was found under the AMA ratings, yet the employee's doctors concluded that she could not meet the physical demands of her job. To find for the employee would create a gray area of \"permanent impairment\" for purposes of AS 23.30.041(f)(3), which could be satisfied by an impairment registering zero on the AMA Guides scale. Such a holding would greatly reduce the predictability, objectivity, and cost-reduction which the legislature imbedded within AS 23.30.190 by incorporating the AMA Guides test for impairment, and thus seems counter to legislative intent.\nFinally, reading AS 23.30.190(b) to control permanent impairment evaluations under AS 23.30.041(f)(3) gives full meaning to the latter provision. If, as the Board held, the permanent impairment requirement were satisfiable through a mere showing of \"some objectively measurable physical or mental impairment,\" made without reference to the AMA Guides, then the permanent impairment analysis under AS 23.30.041(f)(3) would be essentially identical to the physical capacities analysis under AS 23.30.041(e). The only difference between the two analyses would be that one is conducted before an employee reached medical stability and the other is conducted after medical stability occurred. We recognize a presumption that the legislature intended every word, sentence, or provision of a statute to have some purpose, *531 force, and effect, and that no words or provisions are superfluous. Alaska Transp. Comm'n v. AIRPAC, Inc., 685 P.2d 1248, 1253 (Alaska 1984). Incorporating AS 23.30.190(b) into AS 23.30.041(f)(3) satisfies this basic principle of statutory interpretation by preventing redundancy.\nThe dissent argues that our decision that Rydwell is ineligible for reemployment benefits despite her inability to return to her pre-injury job is \"anomalous.\" Dissent at 532. This argument fails to consider that an employee in Rydwell's situation is not necessarily ineligible for a permanent total disability rating under AS 23.30.180. Disability ratings, as distinct from ratings based on the recently introduced concept of permanent impairment, are based on the worker's loss of earning capacity and are not measured by any particular degree of medical impairment. See, e.g., Olson v. AIC/Martin J.V., 818 P.2d 669, 673 (Alaska 1991); Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266 (Alaska 1974). The dissent overlooks this critical distinction in citing the introductory materials to the AMA Guides. Dissent at 532. The quoted material cautions against a \"`one-to-one' translation of impairment to disability.\" Dissent at 532. Alaska's statutory scheme does not use the AMA Guides to determine disability, which requires a discretionary analysis considering incapacity in relation to employment potential. Alaska Statute 23.30.190 does, however, utilize the AMA Guides to provide a predictable standard for impairment, which measures the employee's absolute physical capacity. The impairment determination need not be made unless the Board fails to find a permanent total disability.[5]See AS 23.30.190(a) (permanent impairment determination made \"[i]n case of impairment partial in character but permanent in quality, and not resulting in permanent total disability.\") (emphasis added).\nTo summarize, under the most appropriate reading of AS 23.30.041, an employee must satisfy two tests in order to be eligible for reemployment benefits. First, before the employee has reached medical stability, a physician must predict that the employee's physical capacities will not be sufficient for the physical demands of her original job. AS 23.30.041(e). This test allows an employee to start vocational rehabilitation before she reaches medical stability, and serves the legislature's goal of encouraging early rehabilitation intervention. Second, once the employee has reached medical stability, she must have a permanent impairment, calculated pursuant to AS 23.30.190(b)'s provisions for use of the AMA Guides. See AS 23.30.041(f)(3).[6]\n\nIV. CONCLUSION\nBecause AS 23.30.190(b)'s rule for evaluating permanent impairments should control the determination of a permanent impairment under AS 23.30.041(f)(3), and because Rydwell received a rating of zero permanent impairment under the AMA Guides, the superior court correctly found her ineligible for reemployment benefits.\nAFFIRMED.\nCOMPTON, J., dissents.\n*532 COMPTON, Justice, dissenting.\nIn this case the court reaches an anomalous result. It acknowledges that Darlene Rydwell is physically unable to return to her pre-injury job; nonetheless, it denies her rehabilitation benefits.\nThe court argues that this result is not anomalous because Rydwell may be eligible for PTD benefits. At 531. The court notes that an impairment determination is made when the Board \"fails to find a permanent total disability.\" At 531; see AS 23.30.190(a). Thus, when a doctor consults the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) — at the determination of impairment — the possibility of PTD benefits has already been foreclosed; in addressing the issue of \"impairment\" the Board has necessarily answered the permanent disability question in the negative. Because Rydwell was evaluated for impairment, the court concedes that Rydwell is not eligible for PTD benefits. Thus, under the court's triple option, At 531 n. 5, Rydwell falls under category \"(3).\" Although she is incapacitated to the extent that she cannot return to her previous job, her incapacity \"does not warrant\" rehabilitation. Regardless of the court's word games, this is an anomalous and undesirable result.\nThis case involves considerations of public policy, and interpretation and application of the AMA Guides, all of which implicate Board expertise. Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 964 (Alaska 1983); Kelly v. Zamarello, 486 P.2d 906, 916-17 (Alaska 1971). Accordingly, I would defer to the Board's judgment, which in this case has a reasonable basis.\nAlaska Statute 23.30.190 provides in part: \"All determinations of the existence and degree of permanent impairment shall be made strictly and solely ... [under the AMA Guides].\" AS 23.30.190(b). The only exception is that impairment ratings may not be rounded to the nearest five percent. Id. The legislature thus intended that \"permanent impairment\" be determined by reference to specific materials that include tables and formulae as well as directions how to apply such data. Section 1.3 of the AMA Guides, entitled \"Medical Impairment and Workers' Compensation,\" provides in part:\nWhile medical information is necessary for the decision process, a critical problem arises in the use of that information. Neither in this example nor in general is there a formula under which knowledge of the medical condition may be combined with knowledge of the other factors to calculate the percentage by which the industrial use of the employee's body is impaired. Accordingly, each commissioner or hearing official must come to a conclusion based on his or her assessment of the available medical and nonmedical information.\n\nIt is evident that the Guides does not offer a solution for this problem, nor is it the intention that it do so. Each administrative or legal system that uses permanent impairment as a basis for disability rating needs to define its own process for translating knowledge of a medical condition into an estimate of the degree to which the individual's capacity to meet personal, social, or occupational demands, or to meet statutory or regulatory requirements, is limited by the impairment. We encourage each system not to make a \"one-to-one\" translation of impairment to disability, in essence creating a use of the Guides which is not intended.\n\nAMA Guides § 1.3, at 6 (emphasis added). The AMA Guides recognizes the limitations of its rating system; any empirical classification of \"permanent impairment,\" a condition resulting from multiple variables, will necessarily be imperfect. Accordingly, the AMA Guides contemplates that final decisions regarding impairment be left to a commissioner or hearing official. In this case the Board can best assess the information relevant to the impairment determination.\nBoth parties concede that even though Rydwell is not \"physically impaired\" under the AMA Guides, she is impaired in a broader sense; she is unable to return to her previous job. At 527. Certainly the AMA, cautioning against \"one-to-one\" application, *533 contemplated cases in which the application of AMA Guides results does not reflect reality. The narrow construction of \"physical impairment\" applied by this court is thus inconsistent with the intended use of the AMA Guides.\nFurthermore, under the court's reasoning, \"medical stability\" assumes an unintended legal significance. Alaska Statute 23.30.041(k) contemplates that an injured worker can enter rehabilitation prior to \"medical stability.\" It attempts to maintain benefits for workers in rehabilitation who reach medical stability and as a result lose temporary total disability (TTD) benefits. See AS 23.30.185. It maintains income by distributing PPI benefits at the TTD rate. AS 23.30.041(k). From this the court concludes that \"eligibility for PPI benefits is a prerequisite for obtaining reemployment benefits.\" At 530. However, AS 23.30.041(f)(3) provides: \"An employee is not eligible for remployment [sic] benefits if ... at the time of medical stability no permanent impairment is identified or expected.\" Id. (emphasis added). Thus, eligibility for PPI benefits only becomes a prerequisite for rehabilitation benefits only after medical stability.\nThe argument that \"medical stability\" is the point at which physical impairment should be measured is not supported by law or fact: (1) medical stability is legally linked to the determination of disability[1]; (2) AS 23.30.190, which defines \"permanent impairment,\" is not linked to medical stability; and (3) in this case Dr. Smith made a retrospective stability determination.[2] It does not appear that the legislature contemplated that rehabilitation benefits be contingent on the date of medical stability.\nIf the statute does link the physical impairment determination to medical stability, the following question immediately arises: what happens to workers who are undergoing rehabilitation at the time they reach medical stability if they then receive a zero permanent impairment rating? This court's conclusion would require the Board to terminate their rehabilitation. I cannot see how the legislature intended this result.[3] Indeed, this result undermines the intention of predictability that the court ascribes to the legislature. At 531. Employers seeking to avoid paying for rehabilitation may attempt to accelerate the medical stability determination, while workers who cannot return to their pre-injury jobs may attempt to delay.\nThe Board has the expertise to interpret and apply the necessarily discretionary AMA Guides so as to clarify the relationship between the permanent impairment rating and the date of medical stability, as well as to resolve situations not foreseen by the legislature. Accordingly, we should defer to its judgment.\nFor all of the foregoing reasons, I dissent.\nNOTES\n[1] Costochondritis is an inflammation of the junction between the ribs and the cartilage on the chest wall. Bicipital tendinitis is an inflammation of the tendons in the bicep muscle.\n[2] Fibromyositis is a chronic muscle inflammation with an overgrowth of the connective tissue. Stedman's Medical Dictionary 583 (25th ed. 1990).\n[3] Rydwell argues, and the dissent agrees, that this court should use the \"reasonable basis\" standard of review for the Board's analysis of the policy of the statute. Typically, the \"reasonable basis\" standard of review applies \"where the agency is making law by creating standards to be used in evaluating the case before it and future cases,\" or \"when a case requires resolution of policy questions which lie within the agency's area of expertise and are inseparable from the facts underlying the agency's decision.\" Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 964 (Alaska 1983); see also Hood, 574 P.2d at 813.\n\nIn this case, the Board based its reading of statutory language upon general principles of statutory construction and an analysis of legislative intent. The Board did not apply statutory provisions to complex or technical facts within its expertise. Furthermore, the Board's interpretation is not a longstanding one to which this court should give some weight. Cf. State, Dep't of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1003 n. 6 (Alaska 1980). Because \"the agency's specialized knowledge and experience would not be particularly probative as to the meaning of the statute,\" Kenai Pipe Line, 746 P.2d at 903, and because this case \"implicates analysis of legal relationships to which courts are particularly well-suited,\" Union Oil Co. v. State, 804 P.2d 62, 64 (Alaska 1990), the \"independent judgment\" standard of review is appropriate here. See, e.g., Hood, 574 P.2d at 813.\n[4] In Polk County Bd. of County Comm'rs v. Patterson, 433 So. 2d 1298 (Fla.App. 1983), the court held that even though a permanent impairment rating under the AMA Guides was required for an award of permanent impairment benefits, such a rating was not necessary for receiving vocational rehabilitation benefits, because nothing in the relevant Florida statute \"makes such a rating a condition precedent to an award of rehabilitation benefits.\" Id. at 1298; see also Jane M. Draper, Annotation, Workers' Compensation: Vocational Rehabilitation Statutes, 67 A.L.R. 4th 612, 632-33 (1989) (citing this case alone for the proposition that an AMA permanent injury rating is not a prerequisite for receiving reemployment benefits). Patterson is not helpful here, because the Florida statute at issue does not use the term \"permanent impairment.\" See Fla. Stat. Ann. § 440.49(1)(a) (West 1991).\n[5] The dissent also argues that our interpretation leads to an overemphasis on the timing of \"medical stability.\" Dissent at 3-4. While our interpretation does elevate the importance of medical stability, this result is not inconsistent with the statutory scheme. As discussed supra, AS 23.30.041(k) contemplates PPI benefits being paid if eligibility for temporary total disability benefits ceases during the course of the reemployment plan. AS 23.30.185 provides that \"[t]emporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability.\" Thus, at the time of medical stability, an employee receiving reemployment training must (1) qualify for permanent total disability benefits under AS 23.30.180 and therefore cease reemployment training because it will be fruitless; (2) qualify for PPI benefits under AS 23.30.190 and continue reemployment training; or (3) cease reemployment training because the employee's physical incapacity does not rise to the minimum level of permanent impairment which would warrant benefits under the objective criteria of AS 23.30.190. This result follows logically from the appropriate statutes.\n[6] The District also contends that the Board's decision was not based on substantial evidence. Because we hold that AS 23.30.190(b) controls permanent impairment determinations under AS 23.30.041(f)(3), we need not reach this argument.\n[1] The court correctly notes the difference between the disability and impairment determinations. At 531.\n[2] Dr. Smith rated Rydwell zero in September 1990 and at that time set medical stability at August 13, 1990.\n[3] Further issues arise as to whether such workers would have to reimburse the employer for the cost of rehabilitation, and why employers would expend resources to rehabilitate workers, only to have such rehabilitation subject to termination.\n\n", "ocr": false, "opinion_id": 1199794 }, { "author_str": "Moore", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nOPINION\n\nMOORE, Chief Justice.\nI. INTRODUCTION\nIn this workers’ compensation appeal, we must decide whether AS 23.30.190(b), which requires use of the American Medical Association’s Guides to the Evaluation of Permanent Impairment for determinations of permanent partial impairment compensation, also governs determinations of permanent impairment under AS 23.30.041(f)(3), a provision making an employee with no permanent impairment ineligible for vocational rehabilitation benefits. We hold that it does.\nII. FACTS AND PROCEEDINGS\nIn March 1990 Darlene Rydwell, a building plant operator for the Anchorage School District (District), felt chest pains *527while shovelling snow at Oceanview Elementary School. Her treating physician, Dr. Stanley N. Smith, initially diagnosed her condition as left costochondritis with bicipital tendinitis,1 and subsequently concluded that Rydwell had developed fibro-myositis in the shoulder girdle, a result of overuse.2 Dr. Smith took her off work and prescribed physical therapy for her. In May Rydwell requested an eligibility evaluation for vocational rehabilitation.\nBecause he did not think that she was medically stable yet, Dr. Smith did not immediately assign Rydwell a permanent impairment rating, and instead had her undergo a work capacities evaluation with Work Therapy Enterprises (WTE). The WTE therapist, Kathryn Less, found her physical capacities to be “severely below normal for a female of her size and age,” and recommended a four to six week work hardening program. Rydwell participated in the program from mid-July through early August, but her condition did not improve much, and Less recommended that she resume the program in September.\nOn August 13, Rydwell and Less consulted with Dr. Smith. Dr. Smith agreed that continued work hardening therapy would be beneficial, but he doubted that Rydwell would be able to return to her old job and suggested “cross training into a field that is physically less demanding.” The next day Rydwell saw Dr. Edward M. Voke, an orthopedic specialist, who diagnosed her condition as “minimal degenerative disc disease” and a strain in the left rhomboid muscle. He too recommended continued work hardening, with preparation for work less stressful than that which Rydwell had done before. He did not give a rating of permanent impairment for Rydwell.\nRydwell resumed her work hardening program in September. During this time, Dr. Smith observed that Rydwell’s problems did not translate to a permanent impairment as defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (3d rev. ed. 1990) [hereinafter AMA Guides ]:\nUnfortunately [the AMA Guides ] define impairment ratings in very concrete terms of ankylosis and loss of function, whether it be nerve function or muscular function and [Rydwell] does not demonstrate this. Yes, we can demonstrate on this exam, a loss of 10% of supination in the left forearm, 10° of extension in the upper extremity at the shoulder girdle, a loss of 10° of abduction in the shoulder girdle and loss of 10° internal in the left upper extremity. These translate into 0 disability based on function alone.\n[[Image here]]\nStrictly following the impairment ratings, mentioned above, I could not give her a rating of disability more than 5-10% just based on pain alone with no other deficits being noted.\nAfter Rydwell completed the September work hardening sessions, Dr. Smith gave her a permanent impairment rating of zero under the AMA Guides, and set August 13 as the date on which she reached medical stability. Neither the WTE therapists nor Dr. Smith believed that Rydwell was able to return to her original job.\nIn December the Reemployment Benefits Administrator (RBA) assigned Dennis Johnson, a rehabilitation specialist, to perform Rydwell’s eligibility evaluation for reemployment benefits. At that time, Dr. Smith concluded that Rydwell’s physical capacities were less than the physical demands of her position, and that Rydwell would be unable to return to her original job. Though Johnson agreed, he nonetheless found Rydwell ineligible for reemployment benefits, because Dr. Smith had given her a zero permanent impairment rating. The RBA accepted Johnson’s conclusions and denied Rydwell reemployment benefits in February 1991.\nThe Alaska Workers’ Compensation Board (Board) overturned the RBA’s deci*528sion in May 1991. Analyzing recent changes in the Workers’ Compensation Act, see ch. 79, §§ 10, 34, SLA 1988, the Board construed legislative intent to allow vocational rehabilitation in cases like that of Rydwell:\n[O]ne purpose of the amendment to [AS 23.30.041] was to create a less expensive system with fewer participants in it. An additional purpose was to provide vocational rehabilitation services to employees who are not employable without them. Though there is a potential tension between these two purposes, it is unimaginable to us that the Legislature intended that an employee who cannot return to employment because of a work injury without reemployment benefits would be denied them.\n(Footnotes omitted). Breaking with its own precedent, the Board held that AS 23.30.190(b), which mandates the use of the AMA Guides for evaluations of permanent impairment, did not apply to AS 23.30.041. The Board concluded that if an employee has an objectively measurable permanent impairment, but that impairment would receive a zero rating under the AMA Guides, the employee is nonetheless eligible for vocational rehabilitation.\nThe superior court reversed the Board decision in May 1992. Judge Joan Katz held that the Board’s reading of permanent impairment, as that term applied to AS 23.30.041, was contrary to legislative intent and inconsistent with usage of the term in AS 23.30.190. Rydwell appeals.\nIII. DISCUSSION\nBoth parties agree that if the superior court’s decision is proper, then Rydwell is not entitled to benefits. Therefore, resolution of this question turns upon statutory interpretation, and this court reviews the Board’s reading of AS 23.30 under the independent judgment standard, making its own interpretation of the statutes involved. See, e.g., Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987); Phillips v. Houston Contracting, Inc., 732 P.2d 544, 546 (Alaska 1987); Hood v. State, Workmen’s Compensation Bd., 574 P.2d 811, 813 (Alaska 1978).3 Because the superior court acted as an intermediate court of appeal, this court gives no deference to its decision. Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).\nWhen construing a statute, this court endeavors to give effect to legislative intent, with due consideration for the meaning that the language of the statute conveys to others. Forest v. Safeway Stores, Inc., 830 P.2d 778, 781 (Alaska 1992). Whenever possible, this court interprets each part or section of a statute with every other part or section, so as to create a harmonious whole. Id. Under the 1988 amendments to the Workers’ Compensation Act, we do not construe ambiguities in the workers’ compensation laws in favor of either party. See ch. 79, § 1(b), SLA 1988.\nTwo provisions of AS 23.30.041 govern the type of injury necessary for an employee to be eligible for reemployment benefits. *529First, an employee is eligible only if “a physician predict[s] that the employee will have permanent physical capacities that are less than the physical demands of the employee’s job as described in the United States Department of Labor’s ‘Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles.’ ” AS 23.30.041(e). Second, an employee is not eligible for benefits if “at the time of medical stability no permanent impairment is identified or expected.” AS 23.30.-041(f)(3). This second requirement is at issue here, where a measurable physical impairment exists but translates into a zero permanent impairment rating under the AMA Guides.\nAlaska Statute 23.30.041 provides no definition of “permanent impairment.” No explanation of the term appears at AS 23.30.-265, the list of definitions applicable to all of the Workers’ Compensation Act. Instead, the use of the AMA Guides to determine permanent impairment is prescribed at AS 23.30.190, the statute governing permanent partial impairment (PPI) compensation:\nAll determinations of the existence and degree of permanent impairment shall be made strictly and solely under the whole person determination as set out in the American Medical Association Guides to the Evaluation of Permanent Impairment, except that an impairment rating may not be rounded to the next five percent.\nAS 23.30.190(b). No statutory language expressly requires the application of AS 23.30.190(b) to the rest of the Act.4 Furthermore, though the 1988 amendments to the Act made sweeping changes to AS 23.-30.041 and .190, see ch. 79, §§ 10, 34, SLA 1988, neither party shows that the legislature expressly contemplated or excluded the application of AS 23.30.190(b) to vocational rehabilitation claims.\nWe are, nonetheless, persuaded that the term “permanent impairment” means the same thing in AS 23.30.041 as it does in AS 23.30.190. The term was newly introduced to the workers’ compensation statutes by the 1988 legislature in enacting Chapter 79, SLA 1988. Section 34 of Chapter 79 became AS 23.30.190 and Section 10 became AS 23.30.041. Those are the only sections which employ the term “permanent impairment” in the workers’ compensation statutes. It is most logical that the legislature intended the term to mean the same thing in both sections in which the term is used. Indeed, if “permanent impairment” as used in Section 10 of Chapter 79 of the 1988 session laws was not intended to mean the same thing as “permanent impairment” in Section 34 where the term is defined, one would expect to find a separate definition in Section 10.\nIn support of this interpretation we find persuasive the District’s argument analyzing the interaction of the vocational rehabilitation provisions with the provisions for disability compensation. The legislature intended that employees have an income source during the time that vocational rehabilitation keeps them out of the job market. See Sectional Analysis of Workers’ Compensation Task Force SB 322 and HB 352, at 4 (1988) Part of this supplemental income is in the form of PPI compensation:\nIf an employee reaches medical stability before completion of the plan, temporary total disability benefits shall cease and permanent impairment benefits shall then be paid at the employee’s temporary total disability rate. If the employee’s permanent impairment benefits are exhausted before the completion or termi*530nation of the reemployment plan, the employer shall provide wages equal to 60 percent of the employee’s spendable weekly wages but not to exceed $525, until the completion or termination of the plan.\nAS 23.30.041(k). Accordingly, AS 23.30.190 recognizes that PPI benefits are payable as part of vocational rehabilitation, and distinguishes the payment scheme in AS 23.30.-041 from the lump-sum payment allowed otherwise. See AS 23.30.190(a).\nThe District argues that the close tie between vocational rehabilitation and PPI compensation indicates that eligibility for PPI benefits is a prerequisite for obtaining reemployment benefits. If Ryd-well, who presumably is ineligible for PPI benefits under AS 23.30.190, may nonetheless receive reemployment benefits, then she will have no income during the period of her vocational rehabilitation, because she has reached medical stability and therefore can no longer receive benefits for temporary total disability. See AS 23.30.-041(k). Reading AS 23.30.190(b) to control the evaluation of permanent impairment under AS 23.30.041(f)(3) carries out the legislature’s intent that employees must have a supplemental income source during 'the rehabilitation process.\nSuch a reading also meshes well with the literal language of AS 23.30.041(k), which provides a fall-back source of income if the employee’s PPI benefits “are exhausted before the completion or termination of the reemployment plan.” This language clearly presumes that the employee has been eligible for PPI compensation, and it does not contemplate a situation in which there are no PPI benefits to exhaust. This argument indicates that the legislature did not intend that one who does not qualify for PPI benefits would be eligible for vocational rehabilitation.\nTo support its contention that AS 23.30.-190(b) controls determinations under AS 23.30.041, the District also looks to broader legislative motives for the 1988 revisions:\nIt is the intent of the legislature that AS 23.30 be interpreted so as to ensure the quick, efficient, fair, and predictable delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of AS 23.30.\nCh. 79, § 1(a), SLA 1988 (emphasis added). The District views the provisions requiring objective bases for claims, see AS 23.30.-041(e), (p)(4), .190(b), as one means by which the legislature sought to reduce baseless claims and thus lower costs. We agree that the legislature’s concerns with objective diagnoses and reducing costs to employers are instructive in this case. These concerns provide a logical explanation for a statutory scheme which sets rather stringent bright-line measures.\nIn this case, no impairment was found under the AMA ratings, yet the employee’s doctors concluded that she could not meet the physical demands of her job. To find for the employee would create a gray area of “permanent impairment” for purposes of AS 23.30.041(f)(3), which could be satisfied by an impairment registering zero on the AMA Guides scale. Such a holding would greatly reduce the predictability, objectivity, and cost-reduction which the legislature imbedded within AS 23.30.190 by incorporating the AMA Guides test for impairment, and thus seems counter to legislative intent.\nFinally, reading AS 23.30.190(b) to control permanent impairment evaluations under AS 23.30.041(f)(3) gives full meaning to the latter provision. If, as the Board held, the permanent impairment requirement were satisfiable through a mere showing of “some objectively measurable physical or mental impairment,” made without reference to the AMA Guides, then the permanent impairment analysis under AS 23.30.041(f)(3) would be essentially identical to the physical capacities analysis under AS 23.30.041(e). The only difference between the two analyses would be that one is conducted before an employee reached medical stability and the other is conducted after medical stability occurred. We recognize a presumption that the legislature intended every word, sentence, or provision of a statute to have some pur*531pose, force, and effect, and that no words or provisions are superfluous. Alaska Transp. Comm’n v. AIRPAC, Inc., 685 P.2d 1248, 1253 (Alaska 1984). Incorporating AS 23.30.190(b) into AS 23.30.041(f)(3) satisfies this basic principle of statutory interpretation by preventing redundancy.\nThe dissent argues that our decision that Rydwell is ineligible for reemployment benefits despite her inability to return to her pre-injury job is “anomalous.” Dissent at 532. This argument fails to consider that an employee in Rydwell’s situation is not necessarily ineligible for a permanent total disability rating under AS 23.30.180. Disability ratings, as distinct from ratings based on the recently introduced concept of permanent impairment, are based on the worker’s loss of earning capacity and are not measured by any particular degree of medical impairment. See, e.g., Olson v. AIC/Martin J.V., 818 P.2d 669, 673 (Alaska 1991); Vetter v. Alaska Workmen’s Compensation Board, 524 P.2d 264, 266 (Alaska 1974). The dissent overlooks this critical distinction in citing the introductory materials to the AMA Guides. Dissent at 532. The quoted material cautions against a “ ‘one-to-one’ translation of impairment to disability.” Dissent at 532. Alaska’s statutory scheme does not use the AMA Guides to determine disability, which requires a discretionary analysis considering incapacity in relation to employment potential. Alaska Statute 23.30.190 does, however, utilize the AMA Guides to provide a predictable standard for impairment, which measures the employee’s absolute physical capacity. The impairment determination need not be made unless the Board fails to find a permanent total disability.5 See AS 23.30.190(a) (permanent impairment determination made “[i]n case of impairment partial in character but permanent in quality, and not resulting in permanent total disability.\") (emphasis added).\nTo summarize, under the most appropriate reading of AS 23.30.041, an employee must satisfy two tests in order to be eligible for reemployment benefits. First, before the employee has reached medical stability, a physician must predict that the employee’s physical capacities will not be sufficient for the physical demands of her original job. AS 23.30.041(e). This test allows an employee to start vocational rehabilitation before she reaches medical stability, and serves the legislature’s goal of encouraging early rehabilitation intervention. Second, once the employee has reached medical stability, she must have a permanent impairment, calculated pursuant to AS 23.30.190(b)’s provisions for use of the AMA Guides. See AS 23.30.041(f)(3).6\nIY. CONCLUSION\nBecause AS 23.30.190(b)’s rule for evaluating permanent impairments should control the determination of a permanent impairment under AS 23.30.041(f)(3), and because Rydwell received a rating of zero permanent impairment under the AMA Guides, the superior court correctly found her ineligible for reemployment benefits.\nAFFIRMED.\nCOMPTON, J., dissents.\n\n. Costochondritis is an inflammation of the junction between the ribs and the cartilage on the chest wall. Bicipital tendinitis is an inflammation of the tendons in the bicep muscle.\n\n\n. Fibromyositis is a chronic muscle inflammation with an overgrowth of the connective tissue. Stedman’s Medical Dictionary 583 (25th ed. 1990).\n\n\n. Rydwell argues, and the dissent agrees, that this court should use the \"reasonable basis” standard of review for the Board's analysis of the policy of the statute. Typically, the “reasonable basis\" standard of review applies \"where the agency is making law by creating standards to be used in evaluating the case before it and future cases,” or \"when a case requires resolution of policy questions which lie within the agency’s area of expertise and are inseparable from the facts underlying the agency’s decision.” Earth Resources Co. v. State, Dep’t of Revenue, 665 P.2d 960, 964 (Alaska 1983); see also Hood, 574 P.2d at 813.\nIn this case, the Board based its reading of statutory language upon general principles of statutory construction and an analysis of legislative intent. The Board did not apply statutory provisions to complex or technical facts within its expertise. Furthermore, the Board’s interpretation is not a longstanding one to which this court should give some weight. Cf. State, Dep’t of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1003 n. 6 (Alaska 1980). Because \"the agency’s specialized knowledge and experience would not be particularly probative as to the meaning of the statute,” Kenai Pipe Line, 746 P.2d at 903, and because this case \"implicates analysis of legal relationships to which courts are particularly well-suited,” Union Oil Co. v. State, 804 P.2d 62, 64 (Alaska 1990), the \"independent judgment\" standard of review is appropriate here. See, e.g., Hood, 574 P.2d at 813.\n\n\n. In Polk County Bd. of County Comm’rs v. Patterson, 433 So.2d 1298 (Fla.App.1983), the court held that even though a permanent impairment rating under the AMA Guides was required for an award of permanent impairment benefits, such a rating was not necessary for receiving vocational rehabilitation benefits, because nothing in the relevant Florida statute \"makes such a rating a condition precedent to an award of rehabilitation benefits.\" Id. at 1298; see also Jane M. Draper, Annotation, Workers' Compensation: Vocational Rehabilitation Statutes, 67 A.L.R.4th 612, 632-33 (1989) (citing this case alone for the proposition that an AMA permanent injury rating is not a prerequisite for receiving reemployment benefits). Patterson is not helpful here, because the Florida statute at issue does not use the term “permanent impairment.” See Fla.Stat.Ann. § 440.49(l)(a) (West 1991).\n\n\n. The dissent also argues that our interpretation leads to an overemphasis on the timing of \"medical stability.” Dissent at 3-4. While our interpretation does elevate the importance of medical stability, this result is not inconsistent with the statutory scheme. As discussed supra, AS 23.30.041(k) contemplates PPI benefits being paid if eligibility for temporary total disability benefits ceases during the course of the reemployment plan. AS 23.30.185 provides that \"[t]emporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability.\" Thus, at the time of medical stability, an employee receiving reemployment training must (1) qualify for permanent total disability benefits under AS 23.30.-180 and therefore cease reemployment training because it will be fruitless; (2) qualify for PPI benefits under AS 23.30.190 and continue reemployment training; or (3) cease reemployment training because the employee’s physical incapacity does not rise to the minimum level of permanent impairment which would warrant benefits under the objective criteria of AS 23.-30.190. This result follows logically from the appropriate statutes.\n\n\n. The District also contends that the Board’s decision was not based on substantial evidence. Because we hold that AS 23.30.190(b) controls permanent impairment determinations under AS 23.30.041(f)(3), we need not reach this argument.\n\n", "ocr": false, "opinion_id": 9559906 }, { "author_str": "Compton", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*532COMPTON, Justice,\ndissenting.\nIn this case the court reaches an anomalous result. It acknowledges that Darlene Rydwell is physically unable to return to her pre-injury job; nonetheless, it denies her rehabilitation benefits.\nThe court argues that this result is not anomalous because Rydwell may be eligible for PTD benefits. At 531. The court notes that an impairment determination is made when the Board “fails to find a permanent total disability.” At 531; see AS 23.30.190(a). Thus, when a doctor consults the American Medical Association Guides to the Evaluation of Permanent Impairment (.AMA Guides) — at the determination of impairment — the possibility of PTD benefits has already been foreclosed; in addressing the issue of “impairment” the Board has necessarily answered the permanent disability question in the negative. Because Rydwell was evaluated for impairment, the court concedes that Rydwell is not eligible for PTD benefits. Thus, under the court’s triple option, At 531 n. 5, Ryd-well falls under category “(3).” Although she is incapacitated to the extent that she cannot return to her previous job, her incapacity “does not warrant” rehabilitation. Regardless of the court’s word games, this is an anomalous and undesirable result.\nThis case involves considerations of public policy, and interpretation and application of the AMA Guides, all of which implicate Board expertise. Earth Resources Co. v. State, Dep’t of Revenue, 665 P.2d 960, 964 (Alaska 1983); Kelly v. Zamarello, 486 P.2d 906, 916-17 (Alaska 1971). Accordingly, I would defer to the Board’s judgment, which in this case has a reasonable basis.\nAlaska Statute 23.30.190 provides in part: “All determinations of the existence and degree of permanent impairment shall be made strictly and solely ... [under the AMA Guides].” AS 23.30.190(b). The only exception is that impairment ratings may not be rounded to the nearest five percent. Id. The legislature thus intended that “permanent impairment” be determined by reference to specific materials that include tables and formulae as well as directions how to apply such data. Section 1.3 of the AMA Guides, entitled “Medical Impairment and Workers’ Compensation,” provides in part:\nWhile medical information is necessary for the decision process, a critical problem arises in the use of that information. Neither in this example nor in general is there a formula under which knowledge of the medical condition may be combined with knowledge of the other factors to calculate the percentage by which the industrial use of the employee’s body is impaired. Accordingly, each commissioner or hearing official must come to a conclusion based on his or her assessment of the available medical and nonmedical information.\nIt is evident that the Guides does not offer a solution for this problem, nor is it the intention that it do so. Each administrative or legal system that uses permanent impairment as a basis for disability rating needs to define its own process for translating knowledge of a medical condition into an estimate of the degree to which the individual’s capacity to meet personal, social, or occupational demands, or to meet statutory or regulatory requirements, is limited by the impairment. We encourage each system not to make a “one-to-one” translation of impairment to disability, in essence creating a use of the Guides which is not intended.\nAMA Guides § 1.3, at 6 (emphasis added). The AMA Guides recognizes the limitations of its rating system; any empirical classification of “permanent impairment,” a condition resulting from multiple variables, will necessarily be imperfect. Accordingly, the AMA Guides contemplates that final decisions regarding impairment be left to a commissioner or hearing official. In this case the Board can best assess the information relevant to the impairment determination.\nBoth parties concede that even though Rydwell is not “physically impaired” under the AMA Guides, she is impaired in a broader sense; she is unable to return to her previous job. At 527. Certainly the AMA, cautioning against “one-to-one” ap*533plication, contemplated cases in which the application of AMA Guides results does not reflect reality. The narrow construction of “physical impairment” applied by this court is thus inconsistent with the intended use of the AMA Guides.\nFurthermore, under the court’s reasoning, “medical stability” assumes an unintended legal significance. Alaska Statute 23.30.041(k) contemplates that an injured worker can enter rehabilitation prior to “medical stability.” It attempts to maintain benefits for workers in rehabilitation who reach medical stability and as a result lose temporary total disability (TTD) benefits. See AS 23.30.185. It maintains income by distributing PPI benefits at the TTD rate. AS 23.30.041(k). From this the court concludes that “eligibility for PPI benefits is a prerequisite for obtaining reemployment benefits.” At 530. However, AS 23.30.041(f)(3) provides: “An employee is not eligible for remployment [sic] benefits if ... at the time of medical stability no permanent impairment is identified or expected.” Id. (emphasis added). Thus, eligibility for PPI benefits only becomes a prerequisite for rehabilitation benefits only after medical stability.\nThe argument that “medical stability” is the point at which physical impairment should be measured is not supported by law or fact: (1) medical stability is legally linked to the determination of disability1; (2) AS 23.30.190, which defines “permanent impairment,” is not linked to medical stability; and (3) in this case Dr. Smith made a retrospective stability determination.2 It does not appear that the legislature contemplated that rehabilitation benefits be contingent on the date of medical stability.\nIf the statute does link the physical impairment determination to medical stability, the following question immediately arises: what happens to workers who are undergoing rehabilitation at the time they reach medical stability if they then receive a zero permanent impairment rating? This court’s conclusion would require the Board to terminate their rehabilitation. I cannot see how the legislature intended this result.3 Indeed, this result undermines the intention of predictability that the court ascribes to the legislature. At 531. Employers seeking to avoid paying for rehabilitation may attempt to accelerate the medical stability determination, while workers who cannot return to their pre-injury jobs may attempt to delay.\nThe Board has the expertise to interpret and apply the necessarily discretionary AMA Guides so as to clarify the relationship between the permanent impairment rating and the date of medical stability, as well as to resolve situations not foreseen by the legislature. Accordingly, we should defer to its judgment.\nFor all of the foregoing reasons, I dissent.\n\n. The court correctly notes the difference between the disability and impairment determinations. At 531.\n\n\n. Dr. Smith rated Rydwell zero in September 1990 and at that time set medical stability at August 13, 1990.\n\n\n.Further issues arise as to whether such workers would have to reimburse the employer for the cost of rehabilitation, and why employers would expend resources to rehabilitate workers, only to have such rehabilitation subject to termination.\n\n", "ocr": false, "opinion_id": 9559907 } ]

[ "125 P.3d 202" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 8446, "opinion_text": "\n125 P.3d 202 (2005)\n130 Wash.App. 829\nJimmy LYNN, Appellant,\nv.\nWASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.\nNo. 55251-1-I.\nCourt of Appeals of Washington, Division One.\nDecember 19, 2005.\n*203 Donna L. Mack, Seattle, WA, for Appellant.\nPortia Therese C. Guerrero, Office of the Attorney General, Scott Kinney & Fjelstad, Seattle, WA, for Respondent.\nELLINGTON, J.\n¶ 1 In 1999, the Department of Labor and Industries entered a final order calculating Jimmy Lynn's compensation benefits. Lynn did not appeal. In 2001, in Cockle v. Department of Labor and Industries,[1] the Washington Supreme Court ruled that the value of health care benefits must be included in calculating workers' compensation. Lynn contends that under RCW 51.28.040, Cockle constituted a change of circumstances justifying recalculation of his benefits. We must disagree, and we therefore affirm summary judgment for L & I.\n\nBACKGROUND\n¶ 2 Until he was injured in 1994, Jimmy Lynn worked at Einar Johanson Insulation and Glass, Inc., receiving wages of approximately $125 daily. The company also paid Lynn's monthly health insurance premium of $181.69. Lynn was awarded workers' compensation benefits by the Department of Labor and Industries (L & I).\n¶ 3 L & I calculates a time-loss compensation rate based upon the claimant's monthly cash wages, which include \"the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer as part of the contract of hire\" at \"the time of the injury.\"[2] L & I uses a questionnaire to gain the relevant information from the claimant. Before the decision in Cockle, L & I did not consider employer-paid health benefit premiums to be wages and did not factor the value of the premiums into the compensation rate. The questionnaire Lynn filled out, which was the standard form in use at the time, did not ask about employer-provided health insurance.\n¶ 4 On December 29, 1995, Lynn's employer stopped paying Lynn's medical insurance premiums. Lynn did not notify L & I that premium payments ceased.\n¶ 5 On March 22, 1999, L & I issued a permanent order setting Lynn's time-loss compensation rate and stating its basis (Lynn's wages, marital status, and dependent status). The order made no reference to health care benefits. The order instructed Lynn to notify his claim manager within 60 days \"[i]f marital or dependent status, wage information, or date of injury or disease manifestation *204 is incorrect.\"[3] The order also included the standard notice of legal rights and instructions for pursuing an appeal: \"This order will become final 60 days after you receive it unless you file a written request for reconsideration or an appeal within that time.\"[4] Lynn did not appeal the order.\n¶ 6 In June 1999, Division Two of this court decided Cockle v. Department of Labor and Industries,[5] holding that an injured worker's time-loss benefit rate should take into account the value of health insurance the worker was receiving when injured. In January 2001, the Washington Supreme Court affirmed, holding that health care coverage is \"consideration of like nature\" and is therefore wages.[6] The Cockle ruling increased benefits for many workers whose claims arose thereafter.\n¶ 7 On March 11, 2002, Lynn was declared totally and permanently disabled and was moved to L & I's pension rolls. L & I established Lynn's pension rate based upon the 1999 order.\n¶ 8 On May 29, 2002, almost three years after this court's decision and more than one year after the Supreme Court's decision, Lynn requested that L & I adjust both his time-loss compensation rate and his newly established pension rate in light of Cockle. L & I denied the request, and the Board of Industrial Insurance Appeals (BIIA) affirmed. Lynn appealed to King County Superior Court, which granted summary judgment to L & I on three grounds: (1) the change in circumstances statute, RCW 51.28.040, does not apply, (2) res judicata bars Lynn's claim, and (3) equitable estoppel does not overcome res judicata. This appeal followed. The usual standard of review on summary judgment applies.[7]\n\nANALYSIS\n¶ 9 RCW 58.28.040: Change of Circumstances. A recipient's benefit rate is ordinarily final and permanent when the claim is closed by L & I. However, the Industrial Insurance Act provides for adjustment of a closed claim in limited situations:\nIf change of circumstances warrants an increase or rearrangement of compensation, like application shall be made therefor. Where the application has been granted, compensation and other benefits if in order shall be allowed for periods of time up to sixty days prior to the receipt of such application.[[8]]\n¶ 10 Lynn contends his benefit rate should be adjusted under this statute, and proffers two events as changes in circumstances: first, cancellation of his medical benefits after he completed L & I's questionnaire; and second, issuance of the Cockle decision. Essentially this is one argument, raising a single issue: whether judicial interpretation of the governing statute constitutes a change of circumstances under RCW 51.28.040.\n¶ 11 RCW 51.28.040 has been applied only where the claimant's situation is altered by events unique to the claimant. For example, In re Margo Schmitz involved a claimant whose benefit rate was adjusted because of a retroactive change in the wages upon which the benefit had been calculated.[9] In In re Charles Stewart, free rent was a part of the claimant's compensation.[10] He continued to receive free rent even after his claim was *205 closed. He later lost the rent-free apartment, and his benefit rate was adjusted under the statute.\n¶ 12 In both of these cases, an event changed the claimant's personal circumstances, and the event occurred after the benefits claim was closed. Lynn's health care premiums were terminated before the final order issued. Lynn's position was thus identical to that of the claimant in Cockle; like her, he could have challenged the final order within the 60-day appeal period. He did not do so.\n¶ 13 BIIA decisions have consistently held that a change in circumstances under RCW 51.28. 040 \"encompasses a change of facts personal to the claimant, not a change in the judicial interpretation in the law.\"[11] In four decisions since Cockle, the BIIA ruled that res judicata barred recalculation of benefits, noting in each instance that where the claimant was not receiving health care benefits at the time the final order issued, the claimant, \"like the claimant in Cockle, could easily have appealed, but did not do so.\"[12]\n¶ 14 Decisions of the BIIA are not binding precedent for this court, but we may give appropriate weight to an agency's interpretation of the laws it is charged to enforce,[13] and we find the decisions of the BIIA sound.\n¶ 15 The res judicata effect of final decisions already rendered is not affected by subsequent judicial decisions giving new interpretations to existing law.[14] As the Washington Supreme Court has observed: \"If prior judgments could be modified to conform with subsequent changes in judicial interpretations, we might never see the end of litigation.\"[15] We have no reason to believe the legislature intended the change of circumstances statute to be a means to avoid longstanding rules of finality. Rather, we are persuaded the legislature intended the statute to apply to changes in a claimant's individual circumstances, not to changes in judicial interpretation of the applicable law.\n¶ 16 Lynn's claim is thus barred by res judicata unless the doctrine does not apply. As discussed below, it does.\n¶ 17 Res Judicata. Res judicata, or claim preclusion, applies where a prior final judgment is identical to the challenged action in \"`(1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made.'\"[16] The doctrine applies to final L & I orders.[17] However, \"[f]undamental fairness requires that a claimant must be clearly advised of the issue\" before the issue is barred by res judicata.[18] Whether res judicata bars a party pursuing an action is a matter of law reviewed de novo.[19]\n*206 ¶ 18 Here, the requirements for res judicata are met. Lynn's appeal involves the same parties, subject matter (calculating his time-loss rate) and cause of action (his benefits claim) as the 1999 order. An L & I decision becomes binding when it is not appealed.[20]\n¶ 19 Lynn contends, however, that the March 1999 order should not be binding because it did not clearly set forth the basis for the time-loss calculation, and thus denied him adequate notice of his need to appeal the order for failure to include the value of medical benefits. Lynn relies upon Somsak v. Criton Technologies/Heath Tecna, Inc.[21] Somsak received four orders regarding her time-loss benefits. She did not appeal the first three, and L & I closed her claim. After the claim was closed, a fourth order issued, which for the first time explained the basis of Somsak's rate calculation. Somsak appealed the fourth order, and we held her claim not barred by res judicata because the first three orders \"failed to clearly advise her of her time-loss compensation's underlying factual basis.\"[22]\n¶ 20 By contrast, in Chavez v. Department of Labor & Industries,[23] involving facts nearly identical to those here, Division Two ruled that a statement of marital and dependent status and money wages was sufficient information to advise the claimant of his rate basis.[24]\n¶ 21 Lynn's situation is like Chavez's, not Somsak's. Lynn was advised from the beginning that his time-loss benefits were based on his status on the date of his injury as \"married with 2 dependent(s), wages of $2,878.52 per month.\"[25] Although the March 1999 order did not explicitly state that the calculation did not include employer-paid health insurance, that fact was readily discernable from the statement of what was included. Unlike Somsak, Lynn was not left to guess how the time-loss rate had been calculated.[26] The 1999 order did not fail to advise Lynn of the factual basis for the award. Res judicata bars Lynn's challenge to his 1999 wage rate order.\n¶ 22 Pension Rate. Lynn contends that even if res judicata bars readjustment of his original time-loss compensation rate, the 2002 order setting his pension rate was timely appealed, and we should order adjustment of his pension rate in light of Cockle.[27]\n¶ 23 The problem with this argument is that pension rates, like time-loss compensation rates, are calculated using a formula based on monthly wages at the time of the injury,[28] and both computations use the same definition of wages—to wit, the definition clarified in Cockle.[29] In Lynn's case, both calculations were based on the wage determination set forth in the March 1999 order. As we conclude above, that order meets the four elements of res judicata. The order also gave Lynn notice that \"any future compensation *207 orders\"[30] would be based on the status outlined in the order. Once that order became final, therefore, res judicata barred relitigation of the determination of wages.\n¶ 24 Equitable Estoppel. The Washington Constitution grants courts \"a very narrow equitable power ... to set aside actions of the Department [of Labor & Industries].\"[31] However, this power is only \"rarely exercised.\"[32] Courts have granted this extraordinary relief in only two cases, Ames v. Department of Labor & Industries[33] and Rodriguez v. Department of Labor & Industries.[34] In each case, two elements were present: (1) the claimant was unable to understand the order and the appellate process, and (2) L & I committed some misconduct in communicating the order.\n¶ 25 Lynn first seeks the protection of equity by declaring that he is illiterate and that his wife assisted him in completing his benefits application form. Lynn does not contend, however, that L & I was aware of his illiteracy, or that he did not understand his time-loss award, its basis, or the deadlines for appeals. Unlike the claimants in Ames and Rodriguez, it appears Lynn understood the process for application and appeal, and understood the orders entered by L & I.\n¶ 26 Lynn also contends that L & I's application form, which failed to inquire about Lynn's employer-provided healthcare benefits, was a \"statement\" upon which Lynn based his belief that he need not report such benefits to L & I, and that the March 1999 order instructing him to notify a claim manager within 60 days \"[i]f marital or dependent status, wage information, or date of injury or disease manifestation is incorrect\"[35] denied him notice and an opportunity to report the health care benefits.\n¶ 27 But nothing in L & I's communications was misleading. L & I's use of a standardized form and formula does not constitute misconduct, much less misconduct meriting exceptional relief. The form and formula reflected L & I's understanding of the law. And because L & I was unaware of any reading deficiency on Lynn's part, it could not have committed misconduct in its communications in that regard.\n¶ 28 Nor is Lynn entitled to relief on a theory of L & I's alleged breach of its fiduciary responsibility as trustee of the Industrial Insurance Fund. \"To prevail on a breach of fiduciary duty claim, [the claimant] must show that L & I formulated its interpretation of RCW 51.08.178 without using the judgment and care which persons of prudence, discretion, and intelligence exercise in the management of their own affairs.\"[36] There is no evidence in the record that L & I's pre-Cockle interpretation of the statute was arrived at without prudent, intelligent consideration. Indeed, three justices in Cockle dissented and agreed with L & I's interpretation of RCW 51.08.178, which alone suggests that L & I's interpretation was supportable by reasoned judgment.[37]\n¶ 29 In sum, under the circumstances here, equity cannot overcome the legal consequences of an unappealed final order. We affirm the superior court.\nWE CONCUR: COX, C.J., and BAKER, J.\nNOTES\n[1] 142 Wash.2d 801, 16 P.3d 583 (2001).\n[2] RCW 51.08.178.\n[3] Certified Appeals Board Record (CABR) at 28.\n[4] Id.\n[5] 96 Wash.App. 69, 977 P.2d 668 (1999).\n[6] 142 Wash.2d 801, 805, 16 P.3d 583 (2001).\n[7] We review a grant of summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Overton v. Consol. Ins. Co., 145 Wash.2d 417, 429, 38 P.3d 322 (2002). Summary judgment is appropriate where \"there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.\" CR 56(c).\n[8] RCW 51.28.040.\n[9] Margo Schmitz, No. 97 5627, Bd. of Ind. Ins. Appeals (Nov. 3, 1999) (state personnel resources board ordered retroactive adjustment in wages pursuant to a grievance pending when L & I claim was closed).\n[10] Charles Stewart, No. 96 3019, Bd. of Ind. Ins. Appeals (Apr. 8, 1998).\n[11] Rosalie A. Hyatt, No. 02 13243, Bd. of Ind. Ins. Appeals (Aug. 28, 2003) (appeal pending); see also Linda S. Ragsdale, No. 02 18814, Bd. of Ind. Ins. Appeals (Feb. 23, 2004) (\"change in the law alone is insufficient\" to trigger RCW 51.28.040; no changed circumstances where health care benefits terminated five days before unappealed order issued; reinstatement of benefits after final order irrelevant since benefits determined as of date of injury); Douglas W. McCowan, No. 02 23395, Bd. of Indus. Ins. Appeals (Dec. 3, 2003) (Cockle not a change in circumstances under the statute; no changed circumstances where health care benefits terminated before final unappealed order issued) (appeal pending); Clement J. McLaughlin, No. 02 18933 & 02 18934 (Nov. 5, 2003) (\"publication of the Cockle decision is not a change of circumstances as contemplated by RCW 51.28.040\"; no changed circumstances where benefits denied six weeks before final order issued).\n[12] Rosalie A. Hyatt, No. 02 13243, Bd. of Ind. Ins. Appeals (Aug. 28, 2003).\n[13] Jensen v. Dep't of Ecology, 102 Wash.2d 109, 113, 685 P.2d 1068 (1984) (reviewing court gives substantial weight to an administrative agency's view of the law).\n[14] Columbia Rentals, Inc. v. State, 89 Wash.2d 819, 823, 576 P.2d 62 (1978).\n[15] Id.\n[16] Id. (quoting Loveridge v. Fred Meyer, Inc., 125 Wash.2d 759, 763, 887 P.2d 898 (1995)).\n[17] Marley v. Dep't of Labor & Indus., 125 Wash.2d 533, 537, 886 P.2d 189 (1994).\n[18] Somsak v. Criton Technologies/Heath Tecna, Inc., 113 Wash.App. 84, 92, 52 P.3d 43 (2002)\n[19] Kuhlman v. Thomas, 78 Wash.App. 115, 119-20, 897 P.2d 365 (1995).\n[20] RCW 51.52.060(1)(a). See Marley v. Dep't of Labor & Indus., 125 Wash.2d 533, 538, 886 P.2d 189 (1994) (\"failure to appeal an order, even one containing a clear error of law, turns the order into a final adjudication, precluding any reargument of the same claim.\").\n[21] 113 Wash.App. 84, 52 P.3d 43 (2002).\n[22] Id. at 92-93, 52 P.3d 43.\n[23] 129 Wash.App. 236, 118 P.3d 392 (2005).\n[24] Id. at 241, 118 P.3d 392; cf. Louise J. Scheeler, No. 89 0609 (Nov. 13, 1990) (appeal not barred by res judicata where unappealed order did not apprise claimant of the underlying basis for her benefit rate).\n[25] CABR at 28.\n[26] Nor is this a case where multiple issues were raised in the claim but the order definitively addressed only a single issue, leaving the claimant to wonder whether the order represented L & I's final adjudication of all issues. See Daniel A. Gilbertson, No. 89 2865, Bd. of Ind. Ins. Appeals (Nov. 7, 1990); Gary G. Johnson, No. 86 3681, Bd. of Ind. Ins. Appeals (Jul. 13, 1987).\n[27] Lynn makes no assignment of error on this ground, and there appears to be no superior court ruling on the issue. L & I does not, however, contend this argument was not preserved. We therefore review it. See State v. Olson, 126 Wash.2d 315, 323, 893 P.2d 629 (1995).\n[28] RCW 51.32.060; Cena v. Dep't of Labor & Indus., 121 Wash.App. 915, 924 n. 22, 91 P.3d 903 (2004), review denied, 153 Wash.2d 1015, 111 P.3d 1190 (2005).\n[29] RCW 51.08.178; Cena, 121 Wash.App. at 924 n. 22, 91 P.3d 903.\n[30] CABR at 28.\n[31] Kingery v. Dep't of Labor & Indus., 132 Wash.2d 162, 173, 937 P.2d 565 (1997).\n[32] Id.\n[33] 176 Wash. 509, 30 P.2d 239 (1934) (claimant declared insane, L & I sent order to claimant's home address while claimant committed to state asylum).\n[34] 85 Wash.2d 949, 540 P.2d 1359 (1975) (claimant spoke only Spanish but was sent order in English; L & I had constructive notice of illiteracy from medical reports).\n[35] CABR at 28.\n[36] Chavez, 129 Wash.App. at 241, ¶ 8, 118 P.3d 392.\n[37] See id.\n\n", "ocr": false, "opinion_id": 2625589 } ]

[ "12 N.Y.3d 763" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n12 N.Y.3d 763 (2009)\nPEOPLE\nv.\nTUCKER.\nCourt of Appeals of New York.\nFebruary 5, 2009.\nApplication in criminal case for leave to appeal denied. (Ciparick, J.)\n", "ocr": false, "opinion_id": 2555071 } ]

[ "723 P.2d 298", "301 Or. 358" ]

[ { "author_str": "Linde", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n723 P.2d 298 (1986)\n301 Or. 358\nJanet COOPER, Respondent on Review,\nv.\nEUGENE SCHOOL DISTRICT NO. 4J, Petitioner on Review, and\nVerne A. Duncan, Superintendent of Public Instruction for the State of Oregon, Petitioner on Review.\nCA A31423; SC S32472; S32469.\nSupreme Court of Oregon.\nArgued and Submitted April 1, 1986.\nDecided July 29, 1986.\n*300 Margaret E. Rabin, Asst. Atty. Gen., Salem, argued the cause for petitioner on review, Verne A. Duncan, Superintendent of Public Instruction for the State of Oregon. With her on the petition were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.\nBruce E. Smith, Eugene, argued the cause for petitioner on review, Eugene School Dist. No. 4J. With him on the petition were Jackquelyn Romm and Cass, Scott, Woods and Smith, Eugene.\nRohn M. Roberts, Eugene, argued the cause for respondent on review.\nLeslie M. Swanson, Jr., Swanson & Walters, Eugene, filed an amicus curiae brief for American Civil Liberties Union of Oregon.\nBefore PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.\nLINDE, Justice.\nWhen Janet Cooper, a special education teacher in the Eugene public schools, became a Sikh, she donned white clothes and a white turban and wore them while teaching her sixth and eighth grade classes. In a letter to the staff of the school where she taught, she wrote that she would wear the turban and often wear white clothing as part of her religious practice, and that she had explained this and other changes in her life to her students.[1] She continued to wear her white garb after being warned that she faced suspension if she violated a law against wearing religious dress at her work. The law provides, in ORS 342.650:\n\"No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher.\"\nand, in ORS 342.655:\n\"Any teacher violating the provisions of ORS 342.650 shall be suspended from employment by the district school board. The board shall report its action to the Superintendent of Public Instruction who shall revoke the teacher's teaching certificate.\"\nPursuant to these statutes, the school superintendent, acting for the school board, suspended Cooper from teaching and reported this action to the Superintendent of Public Instruction, who, after a hearing, revoked Cooper's teaching certificate. This order was challenged on constitutional grounds in the Court of Appeals, which set *301 aside the revocation of the teaching certificate as an excessive sanction under the court's understanding of federal First Amendment doctrine. Cooper v. Eugene Sch. Dist. No. 4J, 76 Or.App. 146, 708 P.2d 1161 (1985). On petitions by the school district and the Superintendent of Public Instruction, we allowed review.\n\nI. THE AGENCY ORDER\nAt the outset, we must work our way through a number of problems that the parties and the Court of Appeals passed over in silence. The school district and the Superintendent of Public Instruction (hereafter \"Superintendent\" in distinction from the district's superintendent) seek a decision on the constitutionality of ORS 342.650 and 342.655, and this may also be the chief remaining objective of the teacher, who has moved to New Mexico and whose Oregon teaching certificate has been reinstated conditional upon compliance with the law. Nonetheless, this case like others is, and if possible should remain, a case of ordinary administrative and statutory law before becoming a constitutional case.[2] The case came before the Court of Appeals on judicial review of an order in a contested administrative proceeding to revoke a license, and it cannot be converted into a declaratory proceeding on the constitutionality of a statute to accommodate the parties.\nThe problems passed over in silence are, first, why the school district is a party to this proceeding; second, what was before the Superintendent for decision in a contested case; and third, whether the case is moot. A reading of the statutes makes evident how these problems are interrelated.\nStanding in the revocation procedure. ORS 342.650 forbids a teacher to \"wear any religious dress while engaged in the performance of his duties as a teacher.\" ORS 342.655 directs the district school board to suspend the employment of any teacher who violates this proscription and to report its action to the Superintendent, \"who shall revoke the teacher's teaching certificate.\" Obviously disputes may arise over exactly how a teacher was dressed, whether what she wore was \"religious dress,\" what the teacher's \"duties as a teacher\" were, and whether she wore the \"religious dress\" while \"engaged in the performance\" of those duties. The agency that makes those determinations is the district school board. ORS 342.655 does not direct the Superintendent to reexamine the school board's findings and \"action\" and its underlying findings and conclusions before revoking the teacher's certificate. We do not foreclose an argument that could be made to the contrary, possibly under the Administrative Procedure Act, ORS 183.310(2)(a)(C), but none was made here.\nThe present version of ORS 342.650 and 342.655 was enacted in 1965 in a major revision of public education laws that included extensive provisions governing the certification, employment, and discharge of teachers. Or.Laws 1965, ch 100. These provisions were further amended during the same session by the Teacher Tenure Law, Or.Laws 1965, ch. 608. The Teacher Tenure Law entitled a permanent teacher to have a district superintendent's recommendation of dismissal reviewed by a panel of a Professional Review Committee and to a hearing by the school board before the board acted on the recommendation. In 1971, the law again was amended to provide review of a teacher's dismissal by a panel of the Fair Dismissal Appeals Board. Or.Laws 1971, ch. 570. These statutes are now found in ORS 342.805 to 342.930.[3]*302 None of the parties nor the Court of Appeals addressed the question what substantive or procedural effects various provisions of the Teacher Tenure Law might have on a teacher's suspension and a resulting revocation of the teacher's certificate under ORS 342.650 and 342.655.\nThe teacher obviously has standing to challenge the state Superintendent's revocation of her teaching certificate, and a demand for a hearing before that official is a logical first step, despite doubts whether the law leaves anything for him to decide. But the school district's stake in the revocation of the teacher's certificate is far from obvious. The district need not request revocation and is not otherwise a necessary party to the revocation proceeding. Again, possible arguments for allowing the district to intervene in the revocation proceeding can be imagined, but none were made here.[4] The record contains no motion to intervene or order allowing intervention. The district simply appeared before the Superintendent's hearing officer without stating any reasons for its appearance and was allowed to participate without objection.\nThe Superintendent's responsibility. What the parties wanted the Superintendent to decide was the constitutional validity of the law forbidding a teacher to wear religious dress while on duty. The Superintendent, adopting the hearing officer's memorandum of law, concluded that he had no power to decide the constitutional question. The memorandum stated:\n\"Judicial decisions are not completely in accord, but the clear consensus seems to be that in a proceeding such as this the administrative agency has no authority to declare an act of the legislature to be contrary to the federal and state constitutions. That decision is to be made by a court. The Attorney General takes a contrary position.\"\nThe memorandum quoted Professor K.C. Davis's distinction between applying a statute constitutionally, which is the agency's duty, and determining the constitutional validity of a statute, which Davis considers to be beyond an agency's power.[5]\nEnough judicial opinions have said that agencies cannot pass on the constitutionality of the laws entrusted to them to support the cautious conclusion of the hearing officer's memorandum, at least as to federal agencies; but more recently the proposition has been questioned.[6] It deserves examination.\nAgency power to consider constitutional challenges to a statute generally has been discussed in opinions on exhaustion of administrative remedies. The issue has been, not whether an agency erred in considering such a challenge, but whether a litigant could take the challenge to court without first asking the agency to pass upon it. Both the Davis treatise and Jaffe, Judicial Control of Administrative Action 438 (1965), place the question under the \"exhaustion\" heading.\nThis is not such a case. Opinions denying agency power in constitutional cases *303 only as an explanation for dispensing with the normal exhaustion requirement are weak authority for holding that an agency should not consider a constitutional claim when a party chooses to exhaust that process, or that the agency errs if it doesdecide the issue. If an agency decides a constitutional issue, though needlessly, the only result is that it will be affirmed on judicial review if the decision was right and reversed if the decision was wrong. It would be pointless to reverse an agency for correctly deciding a legal question on the ground that the agency should have waited for the reviewing court to decide the question.\nLong familiarity with the institution of judicial review sometimes leads to the misconception that constitutional law is exclusively a matter for the courts. To the contrary, when a court sets aside government action on constitutional grounds, it necessarily holds that legislators or officials attentive to a proper understanding of the constitution would or should have acted differently.[7] Doubt of an agency's obligation to decide constitutional challenges to its governing statute is itself a question of interpreting the agency's statutory duties. The agency's duty to decide such challenges would not be doubted if the legislature provided for it expressly rather than doing so implicitly under the general term \"law\" in the Administrative Procedure Act provisions that require a final order in a contested case to include the agency's conclusions of law, ORS 183.470(2), and subject the order to reversal if it violates a constitutional provision, ORS 183.482(8)(b)(C), see also ORS 183.484(4)(b)(C).\nAn agency ordinarily can interpret a statute so as to exclude unconstitutional applications before it is forced to question the statute's validity. An agency also should consider whether anyone can obtain higher executive or judicial review if the agency erroneously concludes that the statute contravenes the constitution. In the present case, as we next discuss, there is no obvious party that could obtain review if the Superintendent held ORS 342.650 or 342.655 unconstitutional.\nThe parties' standing in the Court of Appeals. As already noted, the school district's legal interest in the Superintendent's revocation of Cooper's teaching certificate under ORS 342.655 is doubtful. The district maintains, and in the absence of any objection the Court of Appeals could accept, that the district's unopposed appearance before the hearing officer effectively made it an intervening party. Cf. *304 Marbet v. Portland Gen. Elect., 277 Or. 447, 561, P.2d 154 (1977). But the district's role became even more dubious after the Superintendent ordered revocation of the certificate, when the district filed a petition to review that order in the Court of Appeals, naming Cooper as the respondent and seeking to have the order affirmed. At this point, the Court of Appeals should have dismissed the district's petition for judicial review.\nThe court quoted ORS 183.480(1), which allows \"any party to an agency proceeding\" to seek judicial review of a final order in a contested case, and it wrote that the statute \"does not require that the petitioning party attack the validity of the order.\" 76 Or.App. at 148 n. 2, 708 P.2d 1161. That is an improbable reading of the judicial review provisions of the Administrative Procedure Act. It assumes that the legislature entitled a party that won everything it asked from the agency to seek judicial review solely in order to win once more in the Court of Appeals. The court's theory would entitle an agency, as a party to its own proceedings, to seek a judicial imprimatur for its acts when no one has challenged their legality and when the agency neither needs nor seeks a court's aid to enforce them. Such an innovation in judicial review would require a clear legislative directive, if indeed it would remain within the judicial power at all. We find no such clear directive.\nTwo of the judicial review sections point toward the contrary, conventional assumption. ORS 183.480(1) has provided judicial review separately for any \"person adversely affected or aggrieved\" and for \"any party to an agency proceeding\" (emphasis added) since the section was amended in 1971 to extend judicial review to adversely affected or aggrieved persons who were not \"parties\" to any proceeding. See Marbet v. Portland Gen. Elect., supra, 277 Or. at 457, 561 P.2d 154; cf. Jefferson Landfill Comm. v. Marion Co., 297 Or. 280, 686 P.2d 310 (1984). The subsection continues by expressly dispensing with the prerequisite of a petition for reconsideration by the agency. This provision reflects the normal assumption that a petitioner for judicial review finds some fault with the agency's order.\nORS 183.482, prescribing judicial review of orders in contested cases, does not expressly require the petition for review to state the grounds why the order should be reversed or remanded, but ORS 183.484(3) makes this clear with respect to agency orders outside contested cases.[8] That a party wishes an agency to explain its order by different or further reasons, as the school district requested in this case, is not a demand for modification of the order.\nThe school district requested the Court of Appeals to affirm the Superintendent's order revoking Cooper's teaching certificate. The district's only stated disappointment with the Superintendent's order is that his reasons for it did not expressly declare ORS 342.650 and 342.655 to be constitutional, an issue that he held to be beyond his authority. He did, however, apply the law and revoke the certificate, and the school district's petition for judicial review asked the court to affirm that order without modification. For the reasons we have stated, the Court of Appeals should have dismissed that petition.\nFifteen days after the school district's petition, Cooper also petitioned for judicial review of the Superintendent's revocation of her teaching certificate. If Cooper's petition properly brought the order *305 before the Court of Appeals, could the school district appear before the Court of Appeals to defend the order? Again, the record contains no motion or order to allow intervention, and no discussion whether, under ORS 183.482(2), a person may become a party for the first time on judicial review to defend rather than attack an administrative order. In the absence of an objection, however, we see no jurisdictional obstacle that the Court of Appeals had to raise on its own initiative. The district could remain in the case as a respondent to Cooper's attack on the Superintendent's order.\nFinally, we must consider whether the case became moot on its way to this court. Cooper's petition for judicial review asserted that ORS 342.650, and therefore the revocation of her teaching certificate under ORS 342.655, contravene the guarantees of religious freedom under the state and federal constitutions as well as the provisions of Title VII of the federal Civil Rights Act of 1964, 42 USC § 2000e to 2000e-16 (1981 & Supp 1986). The Court of Appeals noted that subsequently the Superintendent reinstated Cooper's teaching certificate on condition that she not wear religious dress while on duty, and it held that the condition saved Cooper's appeal from being moot.[9] Eventually the court held that revocation of a teaching certificate was an excessive sanction under the First Amendment and reversed the order under review. The Superintendent for the first time became a losing party and as such entitled to seek review in this court of the invalidation of his order and ORS 342.655. So did the school district, once it was accepted as an intervenor in support of the Superintendent's order.\nThe foregoing procedural problems should have been dealt with below, which might have obviated any need for further review. Despite the dubious status of the parties and proceedings below, however, the holding of the Court of Appeals left the case in a posture in which the Superintendent now is entitled a decision from this court.\n\nII. OREGON'S GUARANTEES OF RELIGIOUS FREEDOM\nCooper's case is not one of declining to comply with an otherwise valid law on grounds of personal religious belief. The law here at issue is not a general regulation, neutral toward religion on its face and in its policy, like the unemployment benefits standards that we sustained against attack under the Oregon Constitution (though not under the First Amendment) by claimants who had been discharged for religiously motivated conduct in Smith v. Employment Division, 301 Or. 209, 721 P.2d 445 (1986) and Black v. Employment Division, 301 Or. 221, 721 P.2d 451 (1986). The cases would be comparable if a school regulation prescribed how teachers should dress while on duty without taking account of religious considerations. Then we would have only an issue of statutory authority to make such a regulation, see Hysong v. Gallitzin School Dist., 164 Pa. 629, 30 A. 482 (1894); Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973), and an individual claim to exemption on religious grounds. See, e.g., Goldman v. Weinberger, 475 *306 U.S. ___, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (military regulation prohibiting headgear indoors applied to Jewish servicemen's yarmulkes); Menora v. Illinois High School Ass'n, 683 F.2d 1030 (7th Cir.1982) (rule forbidding headwear while playing basketball applied to yarmulkes). But ORS 342.650 is not neutral toward religion. On the contrary, the religious significance of the teacher's dress is the specific target of this law. The law singles out a teacher's religious dress because it is religious and to the extent that its religious significance is apparent when the wearer is engaged in teaching. The issue therefore is whether the law infringes the right guaranteed to \"all men\"[10] by Article I, section 2, of the Oregon Constitution \"to worship Almighty God according to the dictates of their own consciences,\" or \"control[s] the free exercise, and enjoyment of religeous opinions, or interfere[s] with the rights of conscience\" contrary to Article I, section 3.\nThis court sometimes has treated these guarantees and the First Amendment's ban on laws prohibiting the free exercise of religion[11] as \"identical in meaning,\" City of Portland v. Thornton, 174 Or. 508, 512, 149 P.2d 972 (1942); but identity of \"meaning\" or even of text does not imply that the state's laws will not be tested against the state's own constitutional guarantees before reaching the federal constraints imposed by the Fourtenth Amendment, or that verbal formulas developed by the United States Supreme Court in applying the federal text also govern application of the state's comparable clauses. See, e.g., State v. Brown, 301 Or. 268, 721 P.2d 1357 (1986) (searches and seizures), State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) (double jeopardy); Hewitt v. SAIF, 294 Or. 33, 653 P.2d 970 (1982) (sex discrimination)[12]. What is at issue in a constitutional dispute rarely is what a constitutional text \"means\" but how to effectuate that meaning in the disputed setting. Judicial formulas or \"factors\" are not themselves the law but aids to analysis that a court from time to time may employ, rephrase, or replace *307 with a better interpretation of their constitutional source.\nThe guarantees of religious freedom in Article I provide:\n\"Section 2. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.\n\"Section 3. No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions or interfere with the rights of conscience.\n\"Section 4. No religious test shall be required as a qualification for any office of trust or profit.\n\"Section 5. No money shall be drawn from the Treasury for the benefit of any religeous (sic), or theological institution, nor shall any money be appropriated for the payment of any religeous (sic) services in either house of the Legislative Assembly.\n\"Section 6. No person shall be rendered incompetent as a witness, or juror in consequence of his opinions on matters of religeon (sic); nor be questioned in any Court of Justice touching his religeous (sic) belief to affect the weight of his testimony.\n\"Section 7. The mode of administering an oath, or affirmation shall be such as may be most consistent with, and binding upon the conscience of the person to whom such oath or affirmation may be administered.\"\nThis court in fact has interpreted the meaning of these guarantees independently, sometimes with results contrary to those reached by the United States Supreme Court. See, e.g., Smith v. Employment Division, supra; Salem College & Academy, Inc. v. Employment Division, 298 Or. 471, 695 P.2d 25 (1985); Dickman v. School Dist. 62C, 232 Or. 238, 366 P.2d 533 (1961), cert. den. 371 U.S. 823, 83 S.Ct. 41, 9 L.Ed.2d 62 (1962).\nThe religion clauses of Oregon's Bill of Rights, Article I, sections 2, 3, 4, 5, 6 and 7, are more than a code. They are specifications of a larger vision of freedom for a diversity of religious beliefs and modes of worship and freedom from state-supported official faiths or modes of worship. The cumulation of guarantees, more numerous and more concrete than the opening clause of the First Amendment, reinforces the significance of the separate guarantees. Article I, section 4, for instance, forbids religious tests specifically \"as a qualification for any office of trust or profit\"; but in the total context of sections 2, 3, 6 and 7 it would be difficult to argue that the government could impose a religious test on employment in a position that technically is not an \"office of trust or profit,\" for instance in the public schools, on the grounds that such employment is a mere privilege.\nLikewise, the present law cannot be sustained simply on grounds that it does not interfere with the free exercise of religion because it regulates conduct rather than religious beliefs or verbal expression of opinion and worship. On that theory, the law could equally ban wearing religious dress while teaching in private schools, or for that matter in public generally, without infringing the free exercise of religion. Such a theory would deny the importance of dress and other external symbols of individual and communal commitment to one's faith that certainly were widely understood to represent (in the literal sense of that word) the practice of one's religion when the constitutional guarantees were adopted. In some branches of Judaism and Christianity particular modes of dress, although voluntary, may be essential to an adherent's sense of religious identity; in Islamic and other more encompassing religious communities, departure from prescribed dress may mean self-excommunication or lead to actual communal punishment.\nThus, a law restricting dress specifically for being \"religious dress\" cannot stand as a regulation of \"conduct\" rather than \"belief\" or \"worship.\" If such a law is to be valid, it must be justified by a determination that religious dress necessarily contravenes the wearer's role or function at the time and place beyond any realistic means of accommodation.\n*308 The compatibility of religious dress with the role of public school teachers is an old issue under state laws and constitutions. Generally it involved teaching by nuns while wearing the habits of their orders. It is, of course, a different question whether a constitution itself is claimed to forbid the display of the teacher's religious commitment in the public school or whether a ban on religious dress adopted by law or properly delegated rule contravenes the teacher's religious freedom. In two often cited cases, the Supreme Court of Pennsylvania first held that wearing religious dress did not constitute sectarian teaching, Hysong v. Gallitzin School Dist., supra; but after the legislature enacted a law much like ORS 342.650, the court sustained the act. Commonwealth v. Herr, 229 Pa. 132, 78 A. 68 (1910). Similar regulations were sustained in New York, O'Connor v. Hendrick, 184 N.Y. 421, 77 N.E. 612 (1906), and in New Mexico, Zellers v. Huff, 55 N.M. 501, 236 P.2d 949 (1951); challenges to tolerating religious dress in the classroom rather than to rules forbidding such dress were rejected in North Dakota, Gerhardt v. Heid, 66 N.D. 444, 267 N.W. 127 (1936); Indiana, State ex rel Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256 (1940); Connecticut, New Haven v. Torrington, 132 Conn. 194, 43 A.2d 455 (1945); Kentucky, Rawlings v. Butler, 290 S.W.2d 801 (Ky.1956); and Ohio, Moore v. Board of Ed., 4 Ohio Misc. 257, 212 N.E.2d 833 (1965).\nThe bare citations do not reveal their historic and embattled settings. In the Indiana case, the school trustees of the City of Vincennes took over parochial school buildings and paid the salaries of Roman Catholic teachers when those schools could not open during the depression year of 1933-34, confronting the trustees with \"an emergency to provide school facilities for more than 800 additional school children\" that the court found might well be temporary. State ex rel. Johnson v. Boyd, supra, 217 Ind. at 367, 28 N.E.2d 256. Decisions tolerating nuns' garb in the public schools were superseded by a popular referendum in North Dakota as well as by the legislature in Pennsylvania. Pfeffer, Church, State, and Freedom 413 (1953). Oregon's 1923 predecessor to ORS 342.650 dates from the period of anti-Catholic intolerance that also gave us the initiative measure against private schools struck down in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).\nThe courts' tolerance of overt religious symbolism in public schools has differed over time and perhaps with the religious composition of different communities. Looking beyond the specific facts of the cases, however, the decisions generally have been that more than a teacher's religious dress is needed to show a forbidden sectarian influence in the classroom, but that a rule against such religious dress is permissible to avoid the appearance of sectarian influence, favoritism, or official approval in the public school. The policy choice must be made in the first instance by those with lawmaking or delegated authority to make rules for the schools. The courts' role is to see whether the rule stays within that authority and within the constitution and, if necessary, to give the rule a constitutional interpretation.\n\nIII. RELIGIOUS NEUTRALITY IN PUBLIC SCHOOLS\nHere the policy choice was made by the legislature. There is no reason to believe that when the Legislative Assembly enacted ORS 342.650 in its present form in 1965, it had any aim other than to maintain the religious neutrality of the public schools, to avoid giving children or their parents the impression that the school, through its teacher, approves and shares the religious commitment of one group and perhaps finds that of others less worthy.\nIt would be easy to show that this aim has equal constitutional standing with the teacher's religious self-expression if Oregon, like many states, had adopted an explicit constitutional guarantee against sectarian *309 influence in the public schools.[13] Such a provision was omitted from the education article, Article VIII, of the Oregon Constitution.\nCarey's compilation of the proceedings of the constitutional convention shows that the version of present Article VIII of the constitution, as reported on August 26, 1857, by the Committee on Education and School Lands, included a provision that instruction in state colleges and the common schools \"shall be free from party or sectarian bias.\" On September 2, a minority of the committee presented a version that would have forbidden religious standards criteria for schools and teachers in greater detail. Carey, The Oregon Constitution 179, 231 (1926).[14] The source of Oregon's Article VIII, section 3, is reported to have been Article IX, section 3, of the Iowa Constitution of 1846, which contained no such provision, so the point seems to have had independent importance to the anti-sectarian members of the committee. The minority report was rejected by the convention, sitting in committee of the whole, on September 9. On September 12, the committee of the whole voted to strike the final words of the section, including the provision on \"sectarian bias,\" id. at 338, and this was done at the third reading of the education article on September 15, when the journal briefly reports:\n\"On motion of Mr. Kelly, the president was authorized to erase all of the latter part of section 3, line four, after the word schools in said line, in the article on education and school lands.\"\nId. at 354. There is no evidence of any explanation or debate of the deletion, and we have found no reference to it in the contemporaneous press accounts of the convention reprinted in Carey or in any other source. Because the stricken portion also specified that schooling between ages four and twenty-one should be free, the motion possibly focused more on cost than on the nonsectarian provision.\nNonetheless, the aim of maintaining the religious neutrality of the public schools furthers a constitutional obligation beyond an ordinary policy preference of the legislature. It is the obligation stated in Article VIII, section 3, to provide for \"a uniform, and general system of Common Schools,\" which must be done without imposing on the religious freedom under Article I, sections 2 and 3, of the children who attend those schools. It is not necessary to debate how far the ban on fiscal support for religion stated in Article I, section 5, goes beyond narrow financial concerns to imply a larger principle against having government drawn into sponsorship of one or another religion. See Lowe v. City of Eugene, 254 Or. 518, 547-48, 451 P.2d 117, 463 P.2d 360 (1970). Government neutrality also serves to protect the \"free exercise, and enjoyment of religeous opinions,\" under Article I, section 3, of those whose opinions differ from what a majority might uncritically accept as the community's \"official\" religion.\n*310 Recognition that freedom of religion for all implies official sponsorship of none has grown with the growing diversity of the nation itself. Two hundred years ago religious toleration could mean toleration merely among Protestant denominations. See, e.g., Massachusetts Declaration of Rights, Art III (1780).[15] Even after Catholics, Jews, other minority faiths, and nonbelievers were accorded the right to follow their own views, toleration did not imply that their views were as good as the community's dominant religion. For those to whom religion is a matter of truth or error rather than \"opinion,\" as the constitution says, to tolerate error did not mean that those in a position to speak for the community should not officially proclaim what they firmly believe to be the truth. Those whose faiths thereby would be relegated to second-class status of course might see freedom of religion differently.\nThe main battleground has been the public schools, as the cases under the constitutional proscriptions of \"sectarian influence\" and later under the First Amendment show.[16] Parents and lawmakers may and do assume that the hours, days, and years spent in school are the time and the place when a young person is most impressionable by the expressed and implicit orthodoxies of the adult community and most sensitive to being perceived as different from the majority of his or her peers; famous constitutional cases have involved this socializing rather than intellectual function of the schools.[17] In excluding teachers whose dress is a constant and inescapable visual reminder of their religious commitment, laws like ORS 342.650 respect and contribute to the child's right to the free exercise and enjoyment of its religious opinions or heritage, untroubled by being out of step with those of the teacher.\nThe principle is most obvious when the teacher represents the community's dominant religion, but it cannot be limited to that situation. From the \"Know-Nothing\" nativism of the mid-19th century, through the battle over the \"Blaine Amendment,\"[18] to recent times, contention centered on the role of Catholicism in public schools, symbolized by the dress of priests and nuns, as distinct from mainstream Protestantism, represented by school prayers and the King James translation of the Bible. See Pfeffer, supra, 374-82. It may *311 be a far cry from these historic conflicts to perceive any threat of sectarian influence in the dress of a sect that, in this country, may seem an exotic curiosity. But we are examining the validity of the law against a charge that it denies teachers the freedom to adopt the dress of their respective religions. Neither their religious freedom nor that of their students can depend on calculations which faiths are more likely than others to snatch a young soul from a rival creed. The tides of immigration and of homegrown religions have changed before and are changing again, and what is exotic today may tomorrow gain many thousands of adherents and potential majority status in some communities.[19]\nIn other contexts we have held that expression that could not constitutionally be prohibited outright may nevertheless be found incompatible with the performance of an official professional role. In Burt v. Blumenauer, 299 Or. 55, 74, 699 P.2d 168 (1985), we recognized that public advocacy of a vote for or against a disputed ballot measure, normally the essence of individual free speech, may under narrowly defined circumstances be incompatible with an individual's public duties. In re Lasswell, 296 Or. 121, 673 P.2d 855 (1983), held that a disciplinary rule prohibiting a prosecutor's extrajudicial comments on a pending trial is not an unconstitutional infringement of free speech if it is narrowly limited to actual incompatibility between the speech and the prosecutor's official function.[20] Interestingly enough, the issue of religious dress has arisen in trial courtrooms as well as in classrooms when a Catholic priest who was a member of the bar asserted the right to appear in his religious garb. See La Rocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606 (1975), cert. den. 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 (1976); People v. Rodriguez, 101 Misc.2d 536, 424 N.Y.S.2d 600 (1979); Gold v. McShane, 74 A.D.2d 860, 426 N.Y. S.2d 504 (1980), in which the New York courts apparently left the issue to the discretion of individual trial courts.\nWe conclude that ORS 342.650 does not impose an impermissible requirement for teaching in the public schools if it is properly limited to actual incompatibility with the teaching function.\n\nIV. THE PERMISSIBLE REACH OF ORS 342.650\nA court's obligation before invalidating a textually overbroad statute is to see whether it can be interpreted so as to save the legislative purpose as far as the constitution permits, leaving only marginal instances of potentially unconstitutional application *312 to case-by-case decision. State v. Moyle, 299 Or. 691, 702, 705 P.2d 740 (1985). The Court of Appeals recognized the need to limit the potential reach of ORS 342.650. Compliance with the statute demands some sacrifice of religious self-expression by a teacher. The statute, of course, does not forbid the wearing of religious dress outright, but it does forbid doing so while teaching. The law could be described either as denying a teacher's right to practice her religion or as denying a person demonstratively committed to a religious vocation the opportunity to teach in the public schools. The two descriptions may invite different responses, but the issue should not hinge on semantics.\nTo forbid a teacher to disclose personal views that are identified as such and not attributed to the school, including religious views, involves issues of free speech as well as religion. A program hermetically sealed to exclude all controversy and potentially offensive ideas can hardly be defended as education for the world beyond the classroom. Teachers as well as students have been held free to express their objection to national policy symbolically by their dress.[21] A distinction between privileged personal expression and forbidden \"indoctrination\" or \"proselytizing\" is easier to assert than to apply; one teacher's personal views and acts can carry more unintended persuasion than another's most determined teaching efforts. Yet if Janet Cooper on December 6, 1983, only had told her class that she had changed her name because she became a Sikh and what this meant, the school district could hardly have discharged her in order to protect her pupils against religious proselytizing. To disqualify her from teaching under ORS 342.650 for dressing as a Sikh one must find greater significance in the forbidden religious dress than in the verbal religious self-identification.\nThe Court of Appeals stated this greater significance as follows:\n\"We therefore construe the term `religious dress' to mean clothing that is associated with, and symbolic of, religion. To be symbolic, the clothes must communicate the wearer's adherence to a particular religion. We construe `while in the performance of his duties as a teacher' to include only those duties which systematically bring the teacher, as a teacher, into contact with students.\" (Footnote omitted).\n76 Or.App. at 150-51, 708 P.2d 1161. We agree with this interpretation as far as it goes, but more needs to be added. The quoted paragraph correctly recognizes that \"religious dress\" must be judged from the perspective both of the wearer and of the observer, that it is dress which is worn by reason of its religious importance to the teacher and also conveys to children of the age, background, and sophistication typical of students in the teacher's class a degree of religious commitment beyond the choice to wear common decorations that a person might draw from a religious heritage, such as a necklace with a small cross or Star of David. A teacher does not violate the statute by wearing a garment or a color that unintentionally happens to imply membership in some religious group, nor, for instance, by dressing in clerical garb to assume a role in a classroom historical exercise or a performance of, say, George Bernard Shaw's Saint Joan.\nThe quoted formulation also recognizes that the \"performance of his duties as a teacher\" does not include everything that a teacher is paid to do and every hour during which he does it. Under the principles already discussed, the phrase must be confined to those circumstances when a teacher's dressing in accordance with the standards of his or her religion is truly incompatible with the school's commitment to maintaining for its students the atmosphere of religious freedom and neutrality that is the objective of ORS 342.650. This means appearing in religious dress while *313 dealing directly with children in a teaching or counseling role.\nThe additional element not stated in the opinion of the Court of Appeals is the continual or frequent repetition of a teacher's appearance in specifically religious (not merely ethnic) dress. The religious influence on children while in the public school that laws like ORS 342.650, in their concern with the employment of nuns wearing their special garb as public school teachers, legitimately seek to prevent is not the mere knowledge that a teacher is an adherent of a particular religion. Their concern is that the teacher's appearance in religious garb may leave a conscious or unconscious impression among young people and their parents that the school endorses the particular religious commitment of the person whom it has assigned the public role of teacher. This is what makes the otherwise privileged display of a teacher's religious commitment by her dress incompatible with the atmosphere of religious neutrality that ORS 342.650 aims to preserve, or so the school authorities may decide. The statute therefore would not be violated whenever a teacher makes an occasional appearance in religious dress, for instance on her way to or from a seasonal ceremony. It is the same distinction as that between an occasional religious meeting, parade or brief display in a public park or building and the permanent erection of a religious symbol, as in Lowe v. City of Eugene, supra. Only wearing religious dress as a regular or frequently repeated practice while teaching is grounds for disqualification.\n\nV. CONCLUSION\nWe conclude that, when correctly interpreted and applied, ORS 342.650 survives challenge under Oregon's guarantees of religious freedom. As interpreted in this opinion, we believe it also does not violate the federal First Amendment.\nThe Court of Appeals thought that revocation of a teaching certificate was an excessive \"sanction\" discouraging even privileged exercise of First Amendment rights more than is necessary to achieve the law's purpose of maintaining religious freedom and neutrality in the public schools. We do not disagree with the court's general proposition that First Amendment decisions have required limitations on the exercise of First Amendment rights to be no more restrictive than necessary, although we note, as the district argues, that the decisions deal with the coverage of such limitations rather than with the consequence of violating a valid rule.\nORS 342.650 might indeed restrict a teacher's First Amendment rights to the \"free exercise\" of religion more than necessary if it were applied literally, but where ORS 342.650 can validly be applied, the revocation of a teaching certificate under ORS 342.655 is not a penalty. It is not a withdrawal of a privilege by reason of hostility to a religious or political belief, as when some states disqualified Communists from driving or practicing pharmacy or from living in public housing. See Lawson v. Housing Authority of City of Milwaukee, 270 Wis. 269, 70 N.W.2d 605 (1955); 1 Emerson & Haber, Political and Civil Rights in the United States 547-552 (2d ed 1958). It is a disqualification from teaching in public schools based on one's doing so in a manner incompatible with that function.[22] We doubt that the First Amendment draws a line between a law that disqualifies a public school teacher by compelling her discharge and another law that disqualifies her by revoking her certificate to teach in the public schools. ORS *314 342.655 does not forbid requalifying for a certificate.\nInsofar as the decision of the Court of Appeals strikes down ORS 342.655 on that premise, it must be reversed. As already noted, on the record in this proceeding the question whether Cooper's conduct would disqualify her is not before us. The determination that a teacher has violated ORS 342.650 is made by the school district. No argument has been presented to us why that determination is reviewable by the Superintendent. Because ORS 342.650 and 342.655 can be interpreted to remain within constitutional limits and can be constitutionally administered, the Superintendent's order pursuant to ORS 342.655 is not unlawful for being based on an invalid statute. ORS 183.482(8)(a). The Superintendent's subsequent conditional reinstatement of Janet Cooper's teaching certificate also is not before us in this proceeding. Whatever hypothetical legal issues might arise should she choose to resume teaching in Oregon will have to await the event; perhaps no one would call her certification to do so into question.\nThe decision of the Court of Appeals is reversed.\nNOTES\n[1] Cooper also had married and had changed her name to Karta Kaur Khalsa.\n[2] See, e.g., Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 687 P.2d 785 (1984). In Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939 (1973), the Court of Appeals found it unnecessary to enter the then raging dispute over the constitutionality of school hair length rules because the authority of school boards was limited to enacting rules related to the educational process.\n[3] The 1971 statute allows \"suspension\" only for some of the causes that justify dismissal, and the suspension must be followed within five days by dismissal proceedings or reinstatements. ORS 342.865, 342.875. Violation of ORS 342.650 is not one of the grounds listed in ORS 342.865. The effect of the 1971 statute on ORS 342.655, and the duration of a \"suspension\" under that section, have not been briefed or discussed by the parties or by the Court of Appeals.\n[4] For instance, a district might want to reinstate a teacher who has been \"suspended\" and therefore object to the statutory revocation of the teacher's certificate that prevents reinstatement, or it might fear civil liability if ORS 342.650, under which it suspended the teacher, were to be invalidated in a revocation proceeding in which the district failed to appear.\n[5] \" * * * When a tribunal passes upon constitutional applicability, it is carrying out the legislative intent, either express or implied or presumed. When a tribunal passes upon constitutionality of the legislation, the question is whether it shall take action which runs counter to the legislative intent. We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation. Only the courts have authority to take action which runs counter to the expressed will of the legislative body.\" (Footnote omitted.)\n\n3 Davis, Administrative Law Treatise 74, § 20.04 (1958).\n[6] See, e.g., Note, The Authority of Administrative Agencies to Consider the Constitutionality of Statutes, 90 Harv.L.Rev. 1682 (1977).\n[7] Article IV, section 31 of the Oregon Constitution provides:\n\n\"The members of the Legislative Assembly shall before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation;—I do solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Oregon, * * *.\"\nArticle XV, section 3 of the Oregon Constitution provides:\n\"Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation to support the Constitution of the United States and of this State, and also an oath of office.\"\nAs these provisions show, the constitution does not contemplate that legislators and officials will act as they think best and leave the constitutionality of their acts to the courts. Courts may have the last word in interpreting the constitution, but Chief Justice Marshall's defense of \"the province and duty of the judicial department to say what the law is,\" Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), did not imply that constitutional law is the province and duty only of the judicial department, leaving Congress and executive officials unconstrained to pursue their ends subject only to judicial review. See Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 Stan.L.Rev. 585 (1975); Mikva & Lundy, The 91st Congress and the Constitution, 38 U.Chi.L.Rev. 449 (1971); Morgan, Congress and the Constitution 10 (1966). The Superintendent of Public Instruction himself holds a constitutional office, Or.Const., Art. VIII, § 1, and must satisfy himself that he conducts it in accordance with the constitution.\nOur recent decision in OEA v. Roberts, 301 Or. 228, 721 P.2d 833 (1986) involved a somewhat different example of an official's responsibility to apply a constitutional test, because there the Secretary of State was held responsible for applying the constitutional \"single subject rule,\" Or Const. Art. IV, § 1(2)(d), not the constitutionality of a statute assigning that duty to her.\n[8] ORS 183.484(3) provides:\n\n\"The petition shall state the nature of the petitioner's interest, the facts showing how the petitioner is adversely affected or aggrieved by the agency order and the ground or grounds upon which the petitioner contends the order should be reversed or remanded. The review shall proceed and be conducted by the court without a jury.\"\nThe appellate courts' rules assume that a petitioner objects to the agency's order when they require that the petition \"be accompanied by a copy of the order, rule or ruling from which the appeal is taken.\" ORAP 5.10(4) (Emphasis added.) An \"appeal\" from an order does not encompass a petition to a court to affirm an order.\n[9] Again, the record does not show and neither the parties nor the Court of Appeals discuss on what basis the Superintendent believed that he had authority to reinstate a certificate revoked under ORS 342.655 for a violation of ORS 342.650.\n\nThe district relies on Perry v. Oregon Liquor Commission, 180 Or. 495, 499, 177 P.2d 406 (1947) for the proposition that a court will decide a moot case \"for the guidance of an official administrative agency\" in a matter of public welfare that is likely to arise again. More recent decisions have not followed Perry; see, e.g., Hay v. Dept. of Transportation, 301 Or. 129, 134, 719 P.2d 860 (1986); State ex rel Oregonian Publishing Co. v. Sams, 298 Or. 329, 332, 692 P.2d 116 (1984). Legal advice or \"guidance\" to agencies is the Attorney General's assignment. ORS 180.060(2).\nWe do not in this opinion pursue Cooper's contention in the Court of Appeals with respect to the compatibility of ORS 342.650 and 342.655 with Title VII, because the conditional reinstatement of her teaching certificate and the narrowing construction that we give to ORS 342.650 substantially change the character of her possible argument under that statute.\n[10] Even the most committed strict constructionist of the constitutional text doubtless would fail the challenge to read \"men\" to exclude \"women,\" at least unless there were a clear record of such an intention. See State v. Chase, 106 Or. 263, 271, 211 P. 920 (1922) (women became \"freemen\" and the \"peers\" of men for jury service upon gaining political rights).\n[11] Amendment I to the United States Constitution provides:\n\n\"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *.\"\n[12] In determining whether to reach a federal constitutional claim without first disposing of all issues of state law, including the state's constitution, one must distinguish three questions: (1) whether an issue has been raised at all; (2) whether any state source has been cited in connection with the issue; (3) whether an argument has been made in support of the state claim.\n\nAn issue that is not raised at all, even on a generous reading, presents nothing to be decided (although an appellate opinion may note that the issue was not raised so as to make clear that the case is not a precedent on the question).\nIf the issue has been raised in general terms, for instance, that a defendant claims a right to \"equal protection\" or to counsel, or against self-incrimination or double jeopardy, the claim could refer to several statutory or constitutional rules. We have emphasized that parties should specify the statutory or constitutional sources of their claims, see Sterling v. Cupp, 290 Or. 611, 613 n. 1, 625 P.2d 123 (1981) (citing cases), but also that a party cannot, by omitting a state-based claim, force an Oregon court to hold that this state \"has fallen below a nationwide constitutional standard, when in fact the state's law, when properly invoked, meets or exceeds that standard.\" State v. Kennedy; 295 Or. 260, 267, 666 P.2d 1316 (1983). When only the disposition of a single case is involved, a court \"may request counsel either to explain the claim under the state law or to abandon it,\" and \"if it is abandoned the court can note that fact so that the decision at least will not be a precedent on that issue.\" Id. at 268, 666 P.2d 1316.\nA court, however, is not confined to choosing only among the arguments and authorities cited by counsel for or against a properly identified claim. See, e.g., State v. Bennett, 301 Or. 299, 721 P.2d 1375 (1986) (Jones, J., concurring). Courts can avoid taking parties by surprise by inviting additional memoranda on inadequately briefed questions, as this court frequently does. That course should be followed whenever a litigant asks a court to invalidate a state statute or rule under the federal constitution without briefing its validity, or a possible valid interpretation, under applicable state law. See, e.g., Planned Parenthood Assn. v. Dept. of Human Res., supra, n. 2.\n[13] Many state constitutions expressly forbid sectarian influence in the public schools. Characteristic phrases are found in California's Art. 9, § 8 (\"nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in and of the common schools of this State\"); Nevada's Article 11, § 9 (\"No sectarian instruction shall be imparted or tolerated\" in the public schools); Washington's Article 9, § 4 (Public schools \"shall be forever free from sectarian control or influence\"). See generally, Antieau, Carroll & Burke, Religion Under the State Constitutions (1965).\n[14] The minority report, located in the files of the Oregon Historical Society, would have provided:\n\n\"No division of the common school fund, or of any annual apportionment, shall ever be made at the instance of, or for the use and benefit of, any religious sect or persuasion.\n\"No distinction in the selection of incumbents for office in any department of the common school system, or in the eligibility of instructors, or in the privileges of patrons and pupils shall ever be made on account of religious opinion, provided such religious opinion be not against the police, peace, and dignity of the state.\n\"No sectarian influence in behalf of or against any religious tenet or persuasion shall be inculcated in any common school in this state.\"\n[15] At the time of Oregon's constitutional convention, United States Supreme Court Justice Story still could write that the purpose of the First Amendment was \"not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects.\" 2 J. Story, Commentaries on the Constitution of the United States 594, § 1877 (1851).\n[16] Abington School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); McCollum v. Bd. of Ed., 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948).\n[17] See, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (compulsory high school attendance); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (flag salute), overruling Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940); cf. Chief Justice Burger's plurality opinion in Tilton v. Richardson, 403 U.S. 672, 686, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), distinguishing between government aid to church-related schools and colleges:\n\n\" * * * There is substance to the contention that college students are less impressionable and less susceptible to religious indoctrination. * * *\" (Footnote omitted.)\n[18] The \"Blaine Amendment\" embodied a proposal by President Grant in 1875, quoted in McCollum v. Board of Education, supra, 333 U.S. at 218, 68 S.Ct. at 468 (Frankfurter, J., concurring). Introduced in Congress by Rep. James G. Blaine, it would have provided:\n\n\"`No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of publicschools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect or denomination nor shall any money so raised or lands so devoted be divided between religious sects or denominations.'\"\nPfeffer, Church, State & Freedom 131 (1953). Passed by the House of Representatives, the proposal failed to get the necessary two-thirds majority in the Senate. Id. at 131.\n[19] From 1900 to 1980 Roman Catholics increased from 17 percent to 30 percent of the population while Protestants declined from 65 percent to about 41 percent. The approximate numbers of Buddhists in the United States increased from 30,000 to 180,000, Muslims from 10,000 to about 1,600,000, Hindus from 1,000 to about 400,000. World Christian Encyclopedia 711 (D.B. Barrett, ed. 1982). Among specifically American denominations that have evolved since Oregon became a state, Mormon church membership grew from a few thousand in 1840 to about 200,000 in 1900 and 1,500,000 in 1960. Christian Science churches and societies, which did not exist before 1879, numbered about 2,300 in 1960. Gaustad, Historical Atlas of Religion in America 87, 132 (1962).\n[20] \"The point of the disciplinary rule, therefore, is not restraint of free expression by lawyers because they are lawyers. That could not survive the constitutional principles we reviewed in In re Richmond, 285 Or. 469, 474-75, 591 P.2d 728 (1979). Rather, the rule addresses the incompatibility between a prosecutor's official function, including his responsibility to preserve the conditions for a fair trial, and speech that, though privileged against other than professional sanctions, vitiates the proper performance of that function under the circumstances of the specific case. In short, a lawyer is not denied freedom to speak, write, or publish; but when one exercises official responsibility for conducting a prosecution according to constitutional standards, one also undertakes the professional responsibility to protect those standards in what he or she says or writes. We conclude that DR 7-107(B) survives the accused's constitutional challenge if it is narrowly interpreted so as to limit its coverage, in the words of article I, section 8, to a prosecutor's `abuse' of the right `to speak, write, or print freely on any subject whatever.'\"\n\nIn re Lasswell, 296 Or. 121, 125, 673 P.2d 855 (1983).\n[21] Tinker v. Des Moines Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); James v. Board of Education of Central Dist. No. 1, 461 F.2d 566 (2nd Cir.), cert. den. 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972).\n[22] We realize that this further narrowing of the statutory coverage does not (and in the posture of this case cannot) relieve teachers and administrators of all doubts about the proper application of the statute by school districts in diverse factual situations. Similar issues arise in other contexts and call for refinement of standards by administrative rules or by reasoned decisions, see Ross v. Springfield School District, 300 Or. 507, 716 P.2d 724 (1986), and we assume that a district will not discharge a teacher under ORS 342.650 without prior warning that her conduct may require it. Of course, it is also possible that the concerned groups will relieve the remaining doubts by pursuing legislative amendment or repeal of the two statutes.\n\n", "ocr": false, "opinion_id": 1318757 } ]

[ "787 S.W.2d 942" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION\nHIGHTOWER, Justice.\nThe issue presented by this case is whether the trial court’s findings of fact were sufficient to allow Vortt Exploration Company, Inc. (Vortt) to recover under quantum meruit for seismic information provided by Vortt to Chevron U.S.A., Inc. (Chevron). The trial court rendered judgment in favor of Vortt. The court of appeals reversed. We reverse the judgment of the court of appeals and remand the cause to that court for the consideration of points which it did not reach.\nThe subject of this dispute is a 160 acre tract of land located in Young County. Both Chevron and Vortt acquired mineral rights to various portions of the tract. In 1978 Vortt contacted Chevron requesting that they enter a farm-out agreement concerning a particular portion of the tract owned by Chevron. Chevron rejected the request to enter a farm-out agreement. Soon thereafter Vortt proposed that the *944two companies enter a joint operating agreement. Chevron informed Vortt that it might be interested in such an arrangement and requested that Vortt submit a proposal. Chevron and Vortt negotiated the specifics of the arrangement until 1983 without reaching an agreement. During this time, they corresponded frequently in an attempt to come to an agreement.\nDuring the negotiations, Vortt provided Chevron with confidential seismic services, graphics, and maps in an attempt to reach a joint operating agreement. After receiving the information, Chevron drilled a producing well at the location identified in the information. Chevron then brought suit to invalidate certain leases held by Vortt. Vortt counterclaimed asserting the validity of the leases, or alternatively to recover under quantum meruit for the seismic services which were provided to Chevron. The trial court rendered judgment in favor of Vortt on its quantum meruit claim. The court of appeals reversed the trial court’s judgment and rendered judgment in favor of Chevron. In rendering judgment, the court of appeals held that there was not a factual finding that Vortt furnished this information under such circumstances as to “reasonably notify Chevron that Vortt expected to be paid for the services and assistance” which were provided. Also, the court of appeals held that there was no evidence to support an implied finding of the omitted fact pursuant to Rule 299 of the Texas Rules of Civil Procedure.\nQuantum meruit is an equitable remedy which does not arise out of a contract, but is independent of it. Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031, 1034 (1937). Generally, a party may recover under quantum meruit only when there is no express contract covering the services or materials furnished. Truly v. Austin, 744 S.W.2d 934, 936 (Tex.1988). This remedy “is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted.” Id. See Campbell v. Northwestern National Life Insurance Co., 573 S.W.2d 496, 498 (Tex.1978). Recovery in quantum meruit will be had when non payment for the services rendered would “result in an unjust enrichment to the party benefited by the work.” City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.Civ.App.—Corpus Christi 1977, writ ref'd n.r. e.). Recognizing that quantum meruit is founded on unjust enrichment, this court set out the elements of a quantum meruit claim in Bashara v. Baptist Memorial Hospital System, 685 S.W.2d 307, 310 (Tex.1985). To recover under quantum me-ruit a claimant must prove that:\n1) valuable services were rendered or materials furnished;\n2) for the person sought to be charged;\n3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him;\n4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged.\nId. (quoting City of Ingleside, 554 S.W.2d at 943).\nVortt argues that the findings of fact made by the trial court were sufficient to satisfy Bashara. We agree. The trial court made several findings of fact. Those pertinent to the court of appeals’ holding are as follows:\n9) Vortt provided the aforesaid services and assistance to Chevron in the belief that Chevron and Vortt would jointly develop the subject 160 acres for the production of oil and gas, and but for such belief would not have provided such services and assistance to Chevron, which were undertaken for both Chevron and Vortt.\n13) Chevron was reasonably notified that Vortt in performing such services and assistance for Chevron, expected to join with Chevron in a mutually satisfactory agreement for their joint production of oil and gas from the subject 160 acres.\n*945Findings nine and thirteen reflect, as stated by the court of appeals, that “Chevron was on notice that Vortt, in performing the services and assistance, expected to join with Chevron in a mutually satisfactory agreement for production of the well and would not have provided such services and assistance except for such belief.” The court of appeals stated that this notification did not rise to the level of notification required by the fourth element in Basham, i.e., that such services were rendered under circumstances that would reasonably notify Chevron that Vortt expected to be paid for the seismic information. Basham at 310 (emphasis added).\nThe expected payment does not have to be monetary; it may be any form of compensation. In Campbell the payment which was bargained for was an option to purchase an apartment complex. 573 S.W.2d at 497. When the contract was breached, this court upheld the quantum meruit claim and awarded damages for the reasonable value of services rendered. Id. Accordingly, quantum meruit recovery has been allowed when the original payment sought was an interest in land, Miller v. Graves, 185 S.W.2d 745 (Tex.Civ.App.—Fort Worth 1945, writ ref'd), and the devise of a residence. Scott v. Walker, 141 Tex. 181, 170 S.W.2d 718 (Tex.Comm’n App.1943).\nChevron knew that Vortt furnished the information with the expectation that a joint operating agreement would be reached. The parties had negotiated for over four years trying to achieve this end. At trial, Vortt’s president testified that he shared the confidential seismic services, graphics, maps and other seismic information in the spirit of cooperation and that he would not have done so if he had not believed that a joint operating agreement would be reached. We hold that the trial court’s findings of fact reflect that Chevron was reasonably notified that Vortt expected to be paid for the services and assistance which were rendered.\nChevron advanced several other points of error in the court of appeals. We have the option of either examining the points of error not considered by the court of appeals to determine if any of those points will support the court of appeal’s judgment or, we may remand the cause to that court. Roark v. Allen, 633 S.W.2d 804 (Tex.1982). Because the points which were not reached include insufficient evidence points, we remand the cause to the court of appeals to consider the unaddressed points.\nFor the reasons stated, we reverse the judgment of the court of appeals and remand the cause to that court to consider the points of error which it did not reach.\nHECHT, J., files a dissenting opinion in which PHILLIPS, C.J., and GONZALEZ, J., join.\n", "ocr": false, "opinion_id": 9662909 }, { "author_str": "Hecht", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHECHT, Justice,\ndissenting.\nI dissent. I agree with the Court that the only issue presented to us in this quantum meruit case is whether there is any evidence that Vortt Exploration Company, Inc. gave Chevron U.S.A., Inc. seismic information under circumstances as reasonably notified Chevron that Vortt expected to be paid for the information. See Bash-am v. Baptist Memorial Hosp. Sys., 685 S.W.2d 307, 310 (Tex.1985). I disagree with the Court’s conclusion that there is such evidence in this record.\nThe pertinent evidence is essentially undisputed. Vortt tried for years to persuade Chevron to agree to develop jointly certain mineral interests, but Chevron refused to make such an agreement. At one point in the negotiations, Vortt decided to “share” seismic information with Chevron “in the spirit of cooperation”, in hopes that Chevron would agree to jointly develop the mineral interests. Chevron’s representatives never asked to see the information. Vortt’s representative never told Chevron that Vortt expected anything in return for the information. Indeed, Vortt’s representative never expected Vortt to be paid for the information, and absolutely the only *946thing Vortt expected to gain by giving the information to Chevron was favorable consideration of the proposed agreement. Under these circumstances, the Court says, Chevron should reasonably have expected to pay Vortt for the information. The information cost Vortt roughly $18,000. The trial court ordered Chevron to pay Vortt $178,750 for it.\nWas ever fainter hope more richly rewarded? For not refusing to look at Vortt’s information, Chevron must pay ten times its cost. The Court’s ruling today should be a tremendous encouragement to benefaction. A frustrated negotiator should never overlook this tactic in attempting to induce agreement. The recipient of such charity, however, should beware.\nI would hold that Chevron could not reasonably have expected to pay when Vortt did not expect to be paid. Accordingly, I would affirm the judgment of the court of appeals.\nPHILLIPS, C.J., and GONZALEZ, J., join in this dissenting opinion.\n", "ocr": false, "opinion_id": 9662910 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5813, "opinion_text": "\n787 S.W.2d 942 (1990)\nVORTT EXPLORATION COMPANY, INC., Petitioner,\nv.\nCHEVRON U.S.A., INC., Respondent.\nNo. C-8462.\nSupreme Court of Texas.\nApril 18, 1990.\nRehearing Overruled May 23, 1990.\n*943 Duncan Gault, Mineral Wells, for petitioner.\nHarris E. Kerr, Midland, for respondent.\n\nOPINION\nHIGHTOWER, Justice.\nThe issue presented by this case is whether the trial court's findings of fact were sufficient to allow Vortt Exploration Company, Inc. (Vortt) to recover under quantum meruit for seismic information provided by Vortt to Chevron U.S.A., Inc. (Chevron). The trial court rendered judgment in favor of Vortt. The court of appeals reversed. We reverse the judgment of the court of appeals and remand the cause to that court for the consideration of points which it did not reach.\nThe subject of this dispute is a 160 acre tract of land located in Young County. Both Chevron and Vortt acquired mineral rights to various portions of the tract. In 1978 Vortt contacted Chevron requesting that they enter a farm-out agreement concerning a particular portion of the tract owned by Chevron. Chevron rejected the request to enter a farm-out agreement. Soon thereafter Vortt proposed that the *944 two companies enter a joint operating agreement. Chevron informed Vortt that it might be interested in such an arrangement and requested that Vortt submit a proposal. Chevron and Vortt negotiated the specifics of the arrangement until 1983 without reaching an agreement. During this time, they corresponded frequently in an attempt to come to an agreement.\nDuring the negotiations, Vortt provided Chevron with confidential seismic services, graphics, and maps in an attempt to reach a joint operating agreement. After receiving the information, Chevron drilled a producing well at the location identified in the information. Chevron then brought suit to invalidate certain leases held by Vortt. Vortt counterclaimed asserting the validity of the leases, or alternatively to recover under quantum meruit for the seismic services which were provided to Chevron. The trial court rendered judgment in favor of Vortt on its quantum meruit claim. The court of appeals reversed the trial court's judgment and rendered judgment in favor of Chevron. In rendering judgment, the court of appeals held that there was not a factual finding that Vortt furnished this information under such circumstances as to \"reasonably notify Chevron that Vortt expected to be paid for the services and assistance\" which were provided. Also, the court of appeals held that there was no evidence to support an implied finding of the omitted fact pursuant to Rule 299 of the Texas Rules of Civil Procedure.\nQuantum meruit is an equitable remedy which does not arise out of a contract, but is independent of it. Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031, 1034 (1937). Generally, a party may recover under quantum meruit only when there is no express contract covering the services or materials furnished. Truly v. Austin, 744 S.W.2d 934, 936 (Tex.1988). This remedy \"is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted.\" Id. See Campbell v. Northwestern National Life Insurance Co., 573 S.W.2d 496, 498 (Tex.1978). Recovery in quantum meruit will be had when non payment for the services rendered would \"result in an unjust enrichment to the party benefited by the work.\" City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.Civ. App.—Corpus Christi 1977, writ ref'd n.r. e.). Recognizing that quantum meruit is founded on unjust enrichment, this court set out the elements of a quantum meruit claim in Bashara v. Baptist Memorial Hospital System, 685 S.W.2d 307, 310 (Tex.1985). To recover under quantum meruit a claimant must prove that:\n1) valuable services were rendered or materials furnished;\n2) for the person sought to be charged;\n3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him;\n4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged.\nId. (quoting City of Ingleside, 554 S.W.2d at 943).\nVortt argues that the findings of fact made by the trial court were sufficient to satisfy Bashara. We agree. The trial court made several findings of fact. Those pertinent to the court of appeals' holding are as follows:\n9) Vortt provided the aforesaid services and assistance to Chevron in the belief that Chevron and Vortt would jointly develop the subject 160 acres for the production of oil and gas, and but for such belief would not have provided such services and assistance to Chevron, which were undertaken for both Chevron and Vortt.\n13) Chevron was reasonably notified that Vortt in performing such services and assistance for Chevron, expected to join with Chevron in a mutually satisfactory agreement for their joint production of oil and gas from the subject 160 acres.\n*945 Findings nine and thirteen reflect, as stated by the court of appeals, that \"Chevron was on notice that Vortt, in performing the services and assistance, expected to join with Chevron in a mutually satisfactory agreement for production of the well and would not have provided such services and assistance except for such belief.\" The court of appeals stated that this notification did not rise to the level of notification required by the fourth element in Bashara, i.e., that such services were rendered under circumstances that would reasonably notify Chevron that Vortt expected to be paid for the seismic information. Bashara at 310 (emphasis added).\nThe expected payment does not have to be monetary; it may be any form of compensation. In Campbell the payment which was bargained for was an option to purchase an apartment complex. 573 S.W.2d at 497. When the contract was breached, this court upheld the quantum meruit claim and awarded damages for the reasonable value of services rendered. Id. Accordingly, quantum meruit recovery has been allowed when the original payment sought was an interest in land, Miller v. Graves, 185 S.W.2d 745 (Tex.Civ.App.— Fort Worth 1945, writ ref'd), and the devise of a residence. Scott v. Walker, 141 Tex. 181, 170 S.W.2d 718 (Tex.Comm'n App. 1943).\nChevron knew that Vortt furnished the information with the expectation that a joint operating agreement would be reached. The parties had negotiated for over four years trying to achieve this end. At trial, Vortt's president testified that he shared the confidential seismic services, graphics, maps and other seismic information in the spirit of cooperation and that he would not have done so if he had not believed that a joint operating agreement would be reached. We hold that the trial court's findings of fact reflect that Chevron was reasonably notified that Vortt expected to be paid for the services and assistance which were rendered.\nChevron advanced several other points of error in the court of appeals. We have the option of either examining the points of error not considered by the court of appeals to determine if any of those points will support the court of appeal's judgment or, we may remand the cause to that court. Roark v. Allen, 633 S.W.2d 804 (Tex.1982). Because the points which were not reached include insufficient evidence points, we remand the cause to the court of appeals to consider the unaddressed points.\nFor the reasons stated, we reverse the judgment of the court of appeals and remand the cause to that court to consider the points of error which it did not reach.\nHECHT, J., files a dissenting opinion in which PHILLIPS, C.J., and GONZALEZ, J., join.\nHECHT, Justice, dissenting.\nI dissent. I agree with the Court that the only issue presented to us in this quantum meruit case is whether there is any evidence that Vortt Exploration Company, Inc. gave Chevron U.S.A., Inc. seismic information under circumstances as reasonably notified Chevron that Vortt expected to be paid for the information. See Bashara v. Baptist Memorial Hosp. Sys., 685 S.W.2d 307, 310 (Tex.1985). I disagree with the Court's conclusion that there is such evidence in this record.\nThe pertinent evidence is essentially undisputed. Vortt tried for years to persuade Chevron to agree to develop jointly certain mineral interests, but Chevron refused to make such an agreement. At one point in the negotiations, Vortt decided to \"share\" seismic information with Chevron \"in the spirit of cooperation\", in hopes that Chevron would agree to jointly develop the mineral interests. Chevron's representatives never asked to see the information. Vortt's representative never told Chevron that Vortt expected anything in return for the information. Indeed, Vortt's representative never expected Vortt to be paid for the information, and absolutely the only *946 thing Vortt expected to gain by giving the information to Chevron was favorable consideration of the proposed agreement. Under these circumstances, the Court says, Chevron should reasonably have expected to pay Vortt for the information. The information cost Vortt roughly $18,000. The trial court ordered Chevron to pay Vortt $178,750 for it.\nWas ever fainter hope more richly rewarded? For not refusing to look at Vortt's information, Chevron must pay ten times its cost. The Court's ruling today should be a tremendous encouragement to benefaction. A frustrated negotiator should never overlook this tactic in attempting to induce agreement. The recipient of such charity, however, should beware.\nI would hold that Chevron could not reasonably have expected to pay when Vortt did not expect to be paid. Accordingly, I would affirm the judgment of the court of appeals.\nPHILLIPS, C.J., and GONZALEZ, J., join in this dissenting opinion.\n", "ocr": false, "opinion_id": 1639253 } ]

[ "209 P.3d 764" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n209 P.3d 764 (2009)\nSTATE\nv.\nGREEN.\nNo. 99944.\nCourt of Appeals of Kansas.\nJune 26, 2009.\nDecision without published opinion. Affirmed.\n", "ocr": false, "opinion_id": 2625652 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/052/andersonljpn.pdf", "author_id": 8290, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT NASHVILLE\n Assigned on Briefs January 26, 2005\n\n STATE OF TENNESSEE v. LEON JAMES ANDERSON\n\n Appeal from the Criminal Court for Williamson County\n No. II-010-103 Timothy L. Easter, Judge\n\n\n\n No. M2004-00965-CCA-R3-CD - Filed April 29, 2005\n\n\nThe appellant, Leon James Anderson, was indicted by the Williamson County Grand Jury for driving\nunder the influence (“DUI”), speeding, driving with a revoked license, and fourth offense DUI. The\nappellant was convicted by a jury on the first three counts, and waived his right to a jury for the\nfourth offense DUI charge. The trial court found the appellant guilty of fourth offense DUI. The\nappellant was sentenced by the trial court to two (2) years for the driving under the influence fourth\noffense, thirty days for speeding, and six months for driving on a revoked license, all to be served\nconcurrently. After the denial of a motion for new trial, this appeal ensued. On appeal, the appellant\nchallenges the sufficiency of the evidence and contends his sentence is excessive. Because the\nevidence is sufficient to support the convictions and the sentence is not excessive, we affirm the\njudgment of the trial court. However, we remand the matter to the trial court for the limited purpose\nof correcting errors in some of the judgments.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed and\n Remanded.\n\nJERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.\nWEDEMEYER, JJ., joined.\n\nG. Kline Preston, IV, Nashville, Tennessee, for the appellant, Leon James Anderson.\n\nPaul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; Ron\nDavis, District Attorney General, and Georgia Felner, Assistant District Attorney General, for the\nappellee, State of Tennessee.\n\f OPINION\n\n Factual Background\n\n\n On September 28, 2002, at approximately 5:30 a.m., Officer Jackie Attkisson of the\nTennessee Highway Patrol was working stationary radar on I-65 South in Williamson County at mile\nmarker 73.3 when he clocked the appellant traveling eighty-seven (87) miles per hour in a seventy\n(70) mile per hour speed zone. Officer Attkisson observed the appellant cross the fog line as he\nrounded a curve where he was parked in his patrol car. Officer Attkisson pulled onto the interstate\nbehind the appellant, started his monitoring camera, and followed the appellant off the exit ramp at\nConcord Road. At this time, Officer Attkisson activated his blue lights. The appellant crossed the\nfog line to the left as he traveled up the exit ramp, and came to a stop at the red light at the\nintersection of Concord Road and the exit ramp. Officer Attkisson did not immediately exit his\nvehicle because he expected the appellant to drive through the intersection and pull his vehicle off\nthe road on the right shoulder. When he realized that the appellant was not going to move his\nvehicle from the middle of the road, Officer Attkisson exited his vehicle and walked up to the\nappellant’s driver’s side window. Officer Attkisson detected the odor of alcohol coming from within\nthe vehicle. The appellant admitted to Officer Attkisson at that time that he had been working earlier\nin the evening for Budweiser, and he admitted to drinking a couple of beers prior to being pulled\nover.\n\n The appellant produced a Michigan driver’s license to Officer Attkisson. When Officer\nAttkisson radioed the driver’s license in to dispatch, it came back as revoked. Officer Attkisson then\nrequested that the appellant exit the vehicle to perform several field sobriety tasks. Officer Attkisson\nasked the appellant to pace ten (10) steps heel to toe, turn around and then take ten (10) steps back\nto his original position. When attempting to complete the task, Officer Attkisson noticed that the\nappellant could not touch his heel to his toe, and was unsure about himself when he turned on the\ntenth step. Officer Attkisson then asked the appellant to stand on one leg with his foot extended in\nfront of him and count from one to thirty. Officer Attkisson was mainly interested in whether the\nappellant could count from one to thirty. The appellant was unable to count from one to thirty,\npausing and restarting several times, and was unable to keep his foot elevated as instructed. Lastly,\nOfficer Attkisson asked the appellant to touch his finger to his nose. The appellant was successful\nin performing the final task as instructed.\n\n At that time, Officer Attkisson arrested the appellant on suspicion of DUI, based on the\nresults of the field sobriety tasks. The appellant refused to submit to a blood-alcohol test.\n\n In January of 2003, the appellant was indicted by the Williamson County Grand Jury for DUI,\nspeeding, driving with a revoked driver’s license, and DUI fourth offense. The indictment indicated\nthat the appellant had three prior DUI convictions - two on July 1, 1997 and one on August 24, 1999.\n\n\n -2-\n\f At the jury trial, the State introduced the testimony of Officer Attkisson. During his\ntestimony, Officer Attkisson opined that the appellant’s driving ability was impaired due to the fact\nthat he had too much to drink. Officer Attkisson admitted on cross-examination that he was unaware\nof the guidelines established by the National Highway Traffic Safety Administration for driving\nunder the influence and that he failed to ask the appellant if he had any physical impairments prior\nto administering the field sobriety tasks. Further, Officer Attkisson admitted that he did not fully\ndemonstrate the one-legged-stand test by holding his own foot off of the ground for thirty (30)\nseconds. However, Officer Attkisson maintained that he arrested the appellant for DUI based on his\nperformance on the field sobriety tasks.\n\n The jury found the appellant guilty of DUI, speeding and driving on a revoked license. The\nappellant waived his right to a jury on the count of fourth offense DUI and, at the conclusion of the\njury trial, that count was submitted to the trial court. The trial court found the appellant guilty of\nfourth offense DUI.\n\n At the sentencing hearing, the presentence report listed the appellant’s three prior DUI\noffenses in addition to a prior conviction for misdemeanor vandalism which involved an automobile\naccident. David Pratt of the Tennessee Department of Probation and Parole testified that he\ninterviewed the appellant for the purposes of completing the presentence report and that the appellant\ndid not show remorse for his actions or show an appreciation of the risk of driving under the\ninfluence. According to the transcript, the trial court sentenced the appellant as follows:\n\n The appropriate sentence then for Count I [DUI] and Count IV [fourth offense\n DUI] will be two years and a $3,000 fine.1\n The misdemeanor offense of speeding, the appropriate sentence is 20 days.\n Approve the jury’s fine of $50.\n And the appropriate sentence for Count III of driving on a revoked license is\n six months; approve the jury’s fine of $375.\n ....\n [T]he Court will suspend the two-year sentence in Count I after the service\n of 180 days in the Williamson County Jail. By statute, the first 150 of those days\n must be day for day.\n\n 1\n Although not noted by either party, we acknowledge that the judgment forms reflect that in Count I the\nappellant was convicted of “DUI - 4th offense,” a “Class A misdemeanor” and sentenced to serve eleven (11) months\nand twenty-nine (29) days and that in Count IV the appellant was also convicted of “DUI - 4th offense,” a “Class E\nfelony” and sentenced to serve eleven (11) months and twenty-nine (29) days. Obviously, this is in conflict with the trial\ncourt’s statements at the sentencing hearing, sentencing the appellant to two (2) years for fourth offense DUI and\nsuspending the remainder of the sentence after the service of 180 days. As a general rule, when there is a conflict\nbetween the judgment of conviction and the transcript of the proceedings, the transcript controls. State v. Clark, 67\nS.W .3d 73, 79 (Tenn. Crim. App. 2001) (citing State v. Moore, 814 S .W .2d 381, 383 (Tenn. Crim. App. 1991)). We\ndetermine that in this case there is no reason to believe that the judgments reflect anything other than a clerical error and,\nas a result, we have indeed relied on the sentence found in the transcript, and our opinion reflects that reliance. On\nremand, the trial court should correct the judgments to reflect the proper sentence.\n\n\n\n -3-\n\f The Court will order that the 30 days be served on the speeding.\n Six months will be on the driving on a revoked will be suspended after the\n service of 30 days.\n All sentences will run currently; one with the other.\n As a condition of your probation, [appellant], after you’ve served your 180\n days in the Williamson County Jail, you are required as a condition of probation to\n seek alcohol treatment.\n\n After the denial of a motion for new trial, this appeal ensued. On appeal, the appellant\nchallenges the sufficiency of the evidence and his sentence.\n\n Sufficiency of the Evidence\n\n The appellant argues that the evidence is insufficient to support a conviction for driving\nunder the influence. Specifically, the appellant argues that the only proof offered at trial was the\n“circumstantial evidence provided by Tennessee State Trooper Jackie Attkisson.” The State counters\nthat the evidence was sufficient to support the conviction.\n\n When a defendant challenges the sufficiency of the evidence, this Court is obliged to review\nthat claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and\n“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all\nconflicts in the testimony in favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);\nState v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked\nwith a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces\nit with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the\nburden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.\nId. The relevant question the reviewing court must answer is whether any rational trier of fact could\nhave found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.\nR. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the\nstrongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may\nbe drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-\nweighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929\nS.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.\nApp. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of\nfact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning\nthe credibility of the witnesses and the weight and value to be given to evidence, as well as all factual\nissues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State\nv. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).\n\n A person commits the offense of DUI when he is in physical control of an automobile and\nis under the influence of an intoxicant. Tenn. Code Ann. § 55-10-401. Viewing the evidence in a\nlight most favorable to the State, the testimony of the officer regarding the odor of alcohol in the\nappellant’s car, the appellant’s own admission that he drank a “couple of beers” prior to leaving\n\n\n -4-\n\fwork, as well as the videotape of the stop and the appellant’s performance on the subsequent field\nsobriety tasks all support a finding of guilt on the charge of DUI. We have determined that the\nevidence fully supports the jury verdict. This issue is without merit.\n\n Sentencing\n\n Next, the appellant challenges his sentences as excessive. Specifically, the appellant argues\nthat the trial court erred in applying enhancement factor (2) of Tennessee Code Annotated section\n40-35-114, that the appellant had “a previous history of criminal convictions or criminal behavior\nin addition to those necessary to establish the appropriate range” when the appellant had only a single\nconviction for vandalism. The State contends that the trial court did not err in sentencing the\nappellant to two (2) years for fourth offense DUI.\n\n The appellant has failed to cite any authority except to quote the language of Tennessee Code\nAnnotated section 40-35-114(2) and has failed to support his contention with any argument other\nthan a one sentence conclusory statement that his “one conviction for vandalism is not enough to\nestablish a so-called history for purposes of sentencing.” This issue is waived. Tenn. Crim. App.\nR. 10(b).\n\n Regardless of the waiver, this issue has no merit. “When reviewing sentencing issues . . .\n, the appellate court shall conduct a de novo review on the record of such issues. Such review shall\nbe conducted with a presumption that the determinations made by the court from which the appeal\nis taken are correct.” Tenn. Code Ann. § 40-35-401(d). “However, the presumption of correctness\nwhich accompanies the trial court’s action is conditioned upon the affirmative showing in the record\nthat the trial court considered the sentencing principles and all relevant facts and circumstances.”\nState v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider the\ndefendant’s potential for rehabilitation, the trial and sentencing hearing evidence, the pre-sentence\nreport, the sentencing principles, sentencing alternative arguments, the nature and character of the\noffense, the enhancing and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§\n40-35-103(5), -210(b); Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears\n“the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.\n\n Turning more specifically to the facts of this case, the defendant was convicted of fourth\noffense DUI. According to Tennessee Code Annotated section 55-10-403(a)(1), the fourth or\nsubsequent conviction for DUI is a Class E felony,\n\n punishable by a fine of not less than three thousand dollars ($3,000) nor more than\n fifteen thousand dollars ($15,000); by confinement for not less than one hundred fifty\n (150) consecutive days, to be served day for day, nor more than the maximum\n punishment authorized for the appropriate range of a Class E felony; and the court\n shall prohibit the person from driving a motor vehicle for a period of five (5) years.\n\n\n\n\n -5-\n\fIn calculating the sentence for a Class E felony conviction, the presumptive sentence is the minimum\nin the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c).\nIf there are enhancing but no mitigating factors, the trial court may set the sentence above the\nminimum, but still within the range. Tenn. Code Ann. § 40-35-210(d).2 If both enhancing and\nmitigating factors are present, the trial court must start at the presumptive minimum, enhance the\nsentence within the range as appropriate for the enhancing factors, and then reduce the sentence as\nappropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). Undisputably, the appellant\nwas a Range I offender; thus, one year was the minimum sentence against which the trial court was\nto balance any mitigating and enhancement factors.\n\n No particular weight for each factor is prescribed by the statute. See State v. Santiago, 914\nS.W.2d 116, 125 (Tenn. Crim. App. 1995). The weight given to each factor is left to the discretion\nof the trial court as long as it comports with the sentencing principles and purposes of our code and\nas long as its findings are supported by the record. Id.\n\n The trial court found the existence of enhancement factor (2), “the defendant has a previous\nhistory of criminal convictions or criminal behavior in addition to those necessary to establish the\nappropriate range.” Tenn. Code Ann. § 40-35-114. According to the presentence report, the\nappellant had a conviction for vandalism involving an automobile accident. As a result, the trial\ncourt enhanced the sentence from one (1) year to two (2) years. The trial court made it clear that it\nwas not enhancing the appellant’s sentence on the basis of the three prior DUI’s, but on the\nvandalism conviction. This Court has recognized that a single prior misdemeanor conviction may\nsupport an enhancement of the defendant’s sentence, even when unrelated in nature to the current\ncharge. See e.g., State v. Willie Givens, No. M2000-02883-CCA-R3-CD, 2002 WL 1400049 (Tenn.\nCrim. App., at Nashville, June 28, 2002). The appellant has failed to prove that the sentence was\nimproper. This issue is without merit.\n\n\n\n\n 2\n W e note that the Tennessee Supreme Court has determined that despite the ability of trial judges to set\nsentences above the presumptive sentence based on the finding of enhancement factors neither found by a jury or\nadmitted by a defendant, Tennessee’s sentencing structure does not violate the Sixth Amendment and does not conflict\nwith the holdings of Blakely v. W ashington,___ U.S. ___ , 124 S. Ct. 2531 (2004), United States v. Booker, ___ U.S.\n___, 125 S. Ct. 738 (2005), or United States v. FanFan, the case consolidated with Booker, because “the Reform Act\n[of Tennessee] authorizes a discretionary, non-mandatory sentencing procedure and requires trial judges to consider the\nprinciples of sentencing and to engage in a qualitative analysis of enhancement and mitigating factors . . . all of which\nserve to guide trial judges in exercising their discretion to select an appropriate sentence within the range set by the\nLegislature.” State v. Gomez, No. M2002-01209-SC-R11-CD, 2005 W L 856848, at *27 (Tenn. Apr. 15, 2005).\n\n -6-\n\f Conclusion\n\n For the foregoing reasons, we affirm the judgment of the trial court and remand the case to\nthe trial court for the limited purpose of correcting the judgments.\n\n\n\n\n ___________________________________\n JERRY L. SMITH, JUDGE\n\n\n\n\n -7-\n\f", "ocr": false, "opinion_id": 1056273 } ]

[ "875 F.2d 268" ]

[ { "author_str": "Logan", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/875/875.F2d.268.87-2475.html", "author_id": null, "opinion_text": "875 F.2d 268\n UNITED STATES of America, Plaintiff-Appellee,v.James Ray ERWIN, Defendant-Appellant.\n No. 87-2475.\n United States Court of Appeals,Tenth Circuit.\n May 16, 1989.\n \n Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.\n Paula G. Burnett, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with her on the brief), D.N.M., Albuquerque, N.M., for plaintiff-appellee.\n Before LOGAN and SEYMOUR, Circuit Judges, and ANDERSON, District Judge.*\n LOGAN, Circuit Judge.\n \n \n 1\n Defendant James Ray Erwin was charged with possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and with aiding and abetting in violation of 18 U.S.C. Sec. 2. He pleaded guilty to both charges, reserving the right to appeal the district court's denial of his motion to suppress the marijuana seized during his arrest. On appeal, defendant asserts that (1) the district court erroneously held that he lacked standing to challenge the stop and search of a car in which he was a passenger, (2) the traffic stop was a pretext to conduct an otherwise illegal search for drugs, and (3) his consent to the search was involuntarily elicited. We find it necessary only to address defendant's first two contentions, and we affirm the district court's denial of the motion to suppress.1\n \n \n 2\n Defendant was a passenger in a station wagon automobile driven by co-defendant Robert Clevenger that was stopped by New Mexico State Police Officer Forrest Smith for traveling sixty-seven miles per hour in a fifty-five mile per hour zone. While requesting Clevenger's drivers' license and registration, Officer Smith noticed a strong scent of air freshener and observed that Clevenger was very nervous. Clevenger displayed a valid license but was unable to produce the automobile's registration. After informing Clevenger that he was going to issue a citation, Smith asked Clevenger what he was carrying in the back of the station wagon, and Clevenger responded that there were some clothes and baby items. Smith then asked if he could take a look, and Clevenger acceded.\n \n \n 3\n Defendant, who was sleeping in the back seat, had awakened by this time. Both he and Clevenger got out of the vehicle, and defendant opened the rear door of the station wagon with a key from his pocket. Officer Smith felt some handbags lying in the back, and lifted up the edge of a carpet that covered the entire rear section of the vehicle. Smith then observed a sheet of glass partially covering what appeared to be doors leading to the tire well. The doors were sealed shut by four silver screws that did not appear congruous with the rest of the car's interior. Smith detected the odor of raw marijuana emanating from a crack in the doors not covered by the glass. Smith returned to his vehicle and radioed for assistance.\n \n \n 4\n Smith subsequently discovered twelve plastic-wrapped packages of marijuana in the tire well and placed Clevenger and defendant under arrest. Both moved the court to suppress the marijuana seized from the car. After a hearing, the district court ruled that neither defendant had legitimate expectations of privacy in the car sufficient to confer standing to challenge the search. The court also found that the stop by Smith was not a pretext to conduct an illegal search for drugs and that the defendants had consented to the search.\n \n \n 5\n * Defendant Erwin initially argues that the district court erred in finding he lacked standing to challenge the stop and subsequent search of the car. We believe that standing to challenge a stop presents issues separate and distinct from standing to challenge a search. Thus, defendant's challenge to the stop and search must be examined separately.2\n \n \n 6\n * The Supreme Court has recognized that questions of \"standing\" to challenge a search and seizure are \"more properly subsumed under substantive Fourth Amendment doctrine.\" Rakas v. Illinois, 439 U.S. 128, 139, 99 S. Ct. 421, 428, 58 L. Ed. 2d 387 (1978); see United States v. Leary, 846 F.2d 592, 595 (10th Cir.1988). The proper inquiry is whether a challenged stop and search violated the Fourth Amendment rights of a criminal defendant making the challenge. See Rakas, 439 U.S. at 140, 99 S.Ct. at 429. This inquiry requires a determination of whether the Fourth Amendment was designed to protect an interest of the defendant that was violated by the stop and search. See id. Thus, the question presented here is whether a passenger of a vehicle has sufficient Fourth Amendment interests to challenge a traffic stop of that vehicle.\n \n \n 7\n We believe the traffic stop in this case implicates an interest of defendant that the Fourth Amendment was designed to protect. In challenging the stop, defendant is objecting to the seizure of his person, and the \"Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of arrest.\" United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2578, 45 L. Ed. 2d 607 (1975). It is beyond dispute that a vehicle's driver may challenge his traffic stop, and we see no reason why a person's Fourth Amendment interests in challenging his own seizure should be diminished merely because he was a passenger, and not the driver, when the stop occurred. Drivers and passengers have similar interests in seeing that their persons remain free from unreasonable seizure. Accord State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984); see also United States v. Hensley, 469 U.S. 221, 226, 105 S. Ct. 675, 679, 83 L. Ed. 2d 604 (1985) (\"stopping a car and detaining its occupants constitute a 'seizure' within the meaning of the Fourth Amendment\"); Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979) (same). Furthermore, we reject any notion that a vehicular stop detains for Fourth Amendment purposes only the driver simply because the passenger may be free to depart. See Berkemer v. McCarty, 468 U.S. 420, 436, 104 S. Ct. 3138, 3148, 82 L. Ed. 2d 317 (1984) (\"It must be acknowledged at the outset that a traffic stop significantly curtails the 'freedom of action' of the driver and the passengers, if any, of the detained vehicle.... Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.\") (citation and footnote omitted). Thus, we conclude that defendant may challenge the legality of the traffic stop in this case.\n \n B\n \n 8\n Before discussing the legality of the stop, we first consider whether defendant has standing to challenge the subsequent search by Officer Smith. Whether defendant can challenge the search requires a consideration of two primary factors: whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as objectively reasonable. See California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 1628, 100 L. Ed. 2d 30 (1988); Leary, 846 F.2d at 595; United States v. Paulino, 850 F.2d 93, 97 (2d Cir.1988). In conducting this analysis, we must remember that Fourth Amendment rights are personal and a defendant cannot claim a violation of his Fourth Amendment rights based only on the introduction of evidence procured through an illegal search and seizure of a third person's property or premises. Rakas, 439 U.S. at 134, 99 S.Ct. at 425; United States v. Skowronski, 827 F.2d 1414, 1418 (10th Cir.1987). We conclude that defendant has not met his \"burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search.\" Id. at 1417-18 (footnote omitted) (citing Rakas, 439 U.S. at 131 n. 1, 99 S. Ct. at 424 n. 1).\n \n \n 9\n First, defendant does not claim that he owned the marijuana or secreted it away in the hidden compartment. Although ownership of the item seized is not determinative, it is an important consideration in determining the existence and extent of a defendant's Fourth Amendment interests. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 105-06, 100 S. Ct. 2556, 2561-62, 65 L. Ed. 2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 91 & n. 6, 100 S. Ct. 2547, 2552 & n. 6, 65 L. Ed. 2d 619 (1980); Rakas, 439 U.S. at 130 n. 1, 148, 99 S. Ct. at 424 n. 1, 433.3 Defendant, however, contends that since he was charged with a possessory crime he must have an interest sufficient to challenge the search that uncovered it. This claim of \"automatic standing\" was rejected by the Supreme Court in Salvucci, when the Court \"decline[d] to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area search.\" 448 U.S. at 92, 100 S.Ct. at 2553.\n \n \n 10\n Second, defendant, who did not testify at the suppression hearing, failed to introduce any evidence to show legitimate ownership or possession of the automobile, which might establish a legitimate expectation of privacy in the particular area searched. See Rakas, 349 U.S. at 148-49, 99 S.Ct. at 433-34; Skowronski, 827 F.2d at 1418; United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir.1984); United States v. Erickson, 732 F.2d 788, 790 (10th Cir.1984). Neither defendant nor Clevenger owned the car. At best, Clevenger's unclear testimony at the hearing4 raises the inference that he obtained possession or control of the vehicle from defendant. But there was no evidence concerning where or from whom defendant obtained the vehicle or whether his apparent possession was lawful. The mere fact that defendant apparently transferred control of the vehicle to Clevenger is not sufficient to establish defendant's legitimate possession of the car or that he had a reasonable expectation of privacy in the area searched.\n \n \n 11\n Finally, defendant stresses that he produced the rear door key for Smith, the investigating officer. Defendant's assertion, even if true, does not alter the fact that he failed to establish legitimate possession of the car. See, e.g., United States v. Sanchez, 635 F.2d 47, 64 (2d Cir.1980) (mere possession of keys did not confer privacy interest where neither ownership of car nor permission from owner shown). At the most, possession of the key indicates that defendant carried the key to the rear door. In the absence of other evidence, possession of a key does not establish a passenger's legitimate expectation of privacy in a vehicle. We hold that defendant failed to establish a legitimate expectation of privacy in the automobile, and thus his Fourth Amendment rights could not have been violated by the search.\n \n II\n \n 12\n Having determined that defendant has sufficient Fourth Amendment interests to challenge the stop, but not the subsequent search, we now must consider whether the stop was lawful. If it was unlawful, the \"fruit of the poisonous tree\" doctrine might dictate exclusion of the evidence discovered during the search. See ante n. 2. Defendant challenges the constitutionality of the stop for speeding on the ground that it merely was a pretext to conduct an illegal search for drugs.5 The district court found that \"the stop was not a pretext ... it was a legitimate stop at 67 miles an hour.\" II R. 79. The court, however, was without the benefit of our opinion in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988). In Guzman we held that a stop for the violation of a traffic regulation may still violate the Fourth Amendment if, under identical circumstances, a reasonable officer would not have made the stop but for the existence of an impermissible purpose. Id. at 1517. We are unable to determine whether the district court in the instant case applied the objective reasonableness standard of Guzman to find no pretext, or whether it applied a subjective standard based on Smith's testimony. Regardless of which standard it applied, we believe that \"overwhelming objective evidence\" exists in this case to conclude that the stop was reasonable.6 See Smith v. United States, 799 F.2d 704, 710 (11th Cir.1986). In our view, under the circumstances presented here, a reasonable New Mexico patrol officer routinely would have stopped a vehicle traveling twelve miles over the speed limit even in the absence of the alleged illicit motive, and nothing in the record is to the contrary.7 See Guzman, 864 F.2d at 1517, 1518; cf. Smith, 799 F.2d at 710-11. Because the stop was legal and not pretextual, and because defendant has no Fourth Amendment rights implicated by the subsequent search, we have no occasion to address whether the consent to the search was voluntary.\n \n \n 13\n AFFIRMED.\n \n \n \n *\n The Honorable Aldon J. Anderson, Senior United States District Judge for the District of Utah, sitting by designation\n \n \n 1\n We note that this court originally questioned whether the notice of appeal was filed within ten days of the district court's judgment as required by Fed.R.App.P. 4(b). On June 11, 1987, the district court sentenced defendant to five years followed by a special parole term of two years, pending a study of the sentence under 18 U.S.C. Sec. 4205(c) (repealed effective Nov. 1, 1987). After a study under Sec. 4205(c) was conducted, the district court on September 23, 1987, affirmed the original sentence. Defendant filed a notice of appeal on October 1, 1987, within ten days of the resentencing\n Both the government and defendant argue that the appeal was filed timely. We agree. In Corey v. United States, 375 U.S. 169, 84 S. Ct. 298, 11 L. Ed. 2d 229 (1963), the Court held that under old 18 U.S.C. Sec. 4208(b), the statutory precursor to Sec. 4205(c) which contained virtually identical language, a defendant lawfully could file a notice of appeal either after the original sentencing or after the post-review sentencing, provided the filing was within ten days of either date. Id. at 174-76, 84 S.Ct. at 302-03. The legislative history of Sec. 4205(c) indicates a congressional intent to preserve Sec. 4208(b) in pertinent part. See S.Rep. No. 369, 94th Cong., 2d Sess. 22, and H.R.Conf.Rep. No. 838, 94th Cong., 2d Sess. 25, reprinted in 1976 U.S.Code Cong. & Admin.News 335, 344, 351, 357. We see no reason why Corey should not control our reading of Sec. 4205(c). See United States v. Meyer, 802 F.2d 348, 350 (9th Cir.1986), cert. denied, --- U.S. ----, 108 S. Ct. 71, 98 L. Ed. 2d 35 (1987) (finding Corey's holding applicable to Sec. 4205(c)).\n \n \n 2\n Even if defendant lacks standing to challenge the search of the car, if the initial stop was illegal, the seized contraband is subject to exclusion under the \"fruit of the poison tree\" doctrine. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415, 9 L. Ed. 2d 441 (1963); United States v. Hill, 855 F.2d 664, 666 (10th Cir.1988) (evidence found as fruit of an illegal arrest should be excluded); United States v. Gonzalez, 763 F.2d 1127, 1133 (10th Cir.1985) (illegal Terry stop results in suppression of \"fruit of the unlawful detention\"); United States v. Durant, 730 F.2d 1180, 1182 (8th Cir.) (\"evidence obtained as a direct result of an illegal stop would be inadmissible under the 'fruit of the poisonous tree doctrine' \"), certs. denied, 469 U.S. 843, 105 S. Ct. 149, 83 L. Ed. 2d 87, 469 U.S. 845, 105 S. Ct. 154, 83 L. Ed. 2d 91 (1984); United States v. Williams, 589 F.2d 210, 214 (5th Cir.1979) (same), aff'd en banc, 617 F.2d 1063 (1980)\n \n \n 3\n There is no possibility of self-incrimination from admitting ownership of seized goods or otherwise testifying to establish an expectation of privacy in support of a motion to suppress since such testimony may not be admitted as evidence of guilt at trial. See Salvucci, 448 U.S. at 89-90, 100 S.Ct. at 2551-52; Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976, 19 L. Ed. 2d 1247 (1968)\n \n \n 4\n On direct examination, Clevenger was asked whether he had permission to use the station wagon, to which he replied in the affirmative. II R. 62. On cross-examination by the government, Clevenger testified as follows:\n \"Q. Did you tell Officer Smith that, after he asked you who owned the car, [sic] told him that it was somebody by the name of Parmet, P-A-R-M-E-T?\n A. No, I didn't say that.\n Q. Who did own the car?\n A. I don't know who owns the car.\n Q. How did you get the key to the car?\n A. It was loaned to us.\n Q. By whom?\n A. By Mr. Erwin [defendant].\n Q. You got the key from whom?\n A. From my friend Jim Erwin.\n Q. And when did you get the car?\n A. I don't know that either, the exact time.\n Q. What day?\n A. That, I can't answer either.\n Q. Was it on January 11?\n A. I don't know.\n Q. Where did you get the car?\n A. I don't know. I didn't receive it. I don't have that information.\n Q. Where was it you first got in the car, Mr. Clevenger?\n A. In Phoenix.\n Id. at 66-67. Officer Smith testified on direct examination that he had asked Clevenger who owned the car and Clevenger replied that it was owned by a friend with a name that sounded like \"Parmet.\" Id. at 10. According to the uncontradicted testimony of a DEA agent, the vehicle was registered to Leonard Parmet of Phoenix. Id. at 57. Before the incident in question, the car was sold to Donald Turley of Glendale, Arizona. When asked if Turley had mentioned anything about the vehicle being used by or loaned to defendant or Clevenger, the agent responded, \"Not to my knowledge.\" Id. at 59.\n \n \n 5\n Defendant alleges that Smith stopped the car only because the circumstances were consistent with a so-called \"drug courier profile.\" If this were true, and a reasonable officer would not have otherwise stopped the car, the stop would not necessarily be illegal. Rather, we would examine whether Smith had a reasonable suspicion, based on specific and articulable facts, that drugs were being transported in that particular vehicle. See United States v. Sokolow, --- U.S. ----, ----, 109 S. Ct. 1581, 1587, --- L.Ed.2d ---- (1989) (\"A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a 'profile' does not somehow detract from their evidentiary significance as seen by a trained agent.\")\n \n \n 6\n We believe that the suppression hearing \"resulted in a record of amply sufficient detail and depth from which the determination of [objective reasonableness] may be made.\" Brown v. Illinois, 422 U.S. 590, 604, 95 S. Ct. 2254, 2262, 45 L. Ed. 2d 416 (1975). Now that Guzman has been decided, hereafter we expect the parties to produce at a suppression hearing the sort of objective evidence suggested in that opinion. See 864 F.2d at 1518\n \n \n 7\n Defendant argues that pretext was demonstrated primarily by the alleged existence of a drug training program by the New Mexico State Police entitled \"Operation Pipeline,\" Officer Smith's log showing that a majority of Smith's traffic citations were issued to out-of-state vehicles, Smith's testimony that he did not stop every vehicle he observed speeding, and the fact that Smith did not issue the speeding citation until he had already arrested the defendants and transported them to the station\n As to the last of these contentions, it would be ludicrous to demand that Smith write the ticket on the side of the highway when he had two people under arrest for felony drug charges. The remaining contentions do not impress us. Officer Smith testified that he was traveling in the opposite direction of the vehicle occupied by Clevenger and defendant when he caught it on radar, and that he really could not make out the vehicle, its occupants, or the fact that it was from out-of-state until he had turned around and come up behind the car to pull it over. Smith also testified that he simply had stopped the car for speeding, and was not suspicious of anything else until he began speaking to Clevenger.\n \n \n ", "ocr": false, "opinion_id": 523285 } ]

[ "731 P.2d 1281", "240 Kan. 611" ]

[ { "author_str": "McFarland", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4480, "opinion_text": "\n240 Kan. 611 (1987)\n731 P.2d 1281\nSTATE OF KANSAS, Appellant,\nv.\nMICHAEL R. ROMAN, Appellee.\nNo. 59,377\nSupreme Court of Kansas.\nOpinion filed January 16, 1987.\nGeary N. Gorup, assistant district attorney, argued the cause, and Clark V. Owens, district attorney, and Robert T. Stephan, attorney general, were with him on the brief for appellant.\nMichael D. Wilson, of Wilson, Warner and Skinner, of Wichita, argued the cause and was on the brief for appellee.\nThe opinion of the court was delivered by\nMcFARLAND, J.:\nThe district court dismissed charges against defendant Michael R. Roman for the offenses of possession of cocaine after a previous conviction (K.S.A. 65-4127a) and possession of marijuana after a previous conviction (K.S.A. 65-4127b[a][3]) on the ground defendant's statutory right to a speedy trial (K.S.A. 22-3402[2]) had been violated. The State appeals this dismissal as a matter of right pursuant to K.S.A. 22-3602(b)(1).\nK.S.A. 22-3402(2) provides:\n\"If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).\"\nThe following chart summarizes the pertinent events chronologically and focuses on the area of dispute:\n\n\n*612\n NO.OF CHARGEABLE TO:\n DATE(S) EVENT DAYS STATE DEFENDANT DISPUTED\n 1. 2/7/84 Arraignment; case set for 55 55 0 No\n to jury trial calendar of\n 4/2/84 4/2/84.\n 2. 4/2/84 On day of scheduled jury 74 0 74 No\n to trial, defendant waives a\n 6/15/84 jury. Trial continued to\n 6/22/84 for bench trial.\n Defendant's motion to\n suppress evidence filed\n 6/7/84 and set for hearing\n 6/15/84.\n 3. 6/15/84 Motion heard by Judge Keith 7 0 7 No\n to Sanborn and taken under\n 6/22/84 advisement until trial date\n (6/22/84).\n 4. 6/22/84 Judge Sanborn hears further 179 ? ? 179\n to oral argument (6/22/84) on\n 12/18/84 motion to suppress; directs\n parties to file briefs (no\n briefing schedule set and\n trial not rescheduled).\n Decision granting\n suppression motion\n sustained 12/18/84.\n 5. 12/18/84 Delay in State filing 3 3 0 No\n to interlocutory appeal.\n 12/21/84\n 6. 12/21/84 Interlocutory appeal N/A N/A\n to through receipt of mandate\n 1/30/86 which reversed district\n court's sustaining of\n motion to dismiss.\n 7. 1/30/86 Upon receipt of mandate, 43 43 0 No\n to trial set for 3/14/86.\n 3/14/86 Motion to dismiss for\n violation of statutory\n right of speedy trial\n sustained 3/14/86.\n _____ _____ _____ _____\n TOTALS 361 101 81 179\n\nIt is agreed 361 days of \"chargeable\" time elapsed between date of arraignment (February 7, 1984) and date of dismissal (March 14, 1986). This figure excluded the period of time the Court of Appeals had jurisdiction of the case during the interlocutory appeal. The 101 days chargeable to the State and 81 days chargeable to defendant are not in any serious dispute herein. The bone of contention is the 179 days Judge Keith Sanborn had the motion to suppress under advisement following the June 22, 1984, scheduled trial date. The district court (Judge Watson) held the entire 179 days was chargeable to the State, making the total time charged to the State 279 days — well over the 180-day limit contained in K.S.A. 22-3402(2). The State argues this was improper as: (1) it was defendant's motion that triggered this delay; and (2) judicial delay in deciding a motion is not the fault of the State within the purview of K.S.A. 22-3402(2). We do not agree.\n*613 At the close of the June 15, 1984, hearing on the suppression motion, Judge Sanborn indicated he was aware of the June 22, 1984, trial date and would decide the motion prior to trial. On June 22, 1984, there was no trial. Instead, Judge Sanborn heard further oral arguments on the motion. He directed counsel to submit briefs with no fixed briefing schedule and an indication counsel should take all the time they needed for this. No new trial date was set. For almost six months the case floated in the system. From time to time the court would contact counsel and request the submission of additional briefs on questions raised by the court with no hint of a briefing schedule or of a future trial date. K.S.A. 22-3402(2) grants the right to a defendant on bond to be brought to trial within 180 days unless a delay is chargeable to the application or fault of the defendant. Procrastination, whether it be prosecutorial or judicial, is not the fault of a defendant and should not be charged to him or her. It is true that the State, in exasperation, finally complained to the administrative judge of the Eighteenth Judicial District on December 6, 1984, and this action resulted in the December 18, 1984, decision. But this can hardly be said to absolve the State, collectively speaking, and transfer all fault for the 179-day delay to the defendant. The fact that it was the defendant's motion that the judge was incubating rather than the State's has no bearing on the issue before us. Any party filing a motion has a right to assume it will be acted upon expeditiously after submission. The judge herein had the matter under advisement seven days before the 179-day period began. If the motion to suppress had been filed at the end of the 180-day statutory speedy trial period, a reasonable time (at most two or three weeks) for decision might well be charged to a defendant under appropriate circumstances. In this case, we need not determine what a reasonable time for decision would have been. In order to bring the case within the 180-day provision, 100 days of the delay in making the decision would have to be charged to the defendant. This we cannot do.\nWe conclude the district court (Judge Watson) did not err in dismissing the charges herein for failure to bring the defendant to trial within the 180-day limit of K.S.A. 22-3402(2).\nThe judgment is affirmed.\nALLEGRUCCI, J., not participating.\n", "ocr": false, "opinion_id": 1424629 } ]

[ "12 So. 3d 181" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n12 So.3d 181 (2007)\nGEORGE FRANKLIN DICKINSON, AS CO-TRUSTEE AND INDIVIDUALLY\nv.\nESTATE OF FRANCIS DICKINSON THOMPSON, BASIL WEBSTER THOMPSON, ET AL.\nNo. 2060796.\nCourt of Civil Appeals of Alabama.\nJune 12, 2007.\nDecision of the Alabama Court of Civil Appeal Without Published Opinion. Transferred to Sup. Ct. for lack of subject-matter jurisdiction.\n", "ocr": false, "opinion_id": 1580149 } ]

[ "574 So. 2d 330" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4573, "opinion_text": "\n574 So. 2d 330 (1990)\nSTATE of Louisiana\nv.\nAntonio A. ROMERO and Jesusa N. Romero.\nNos. 89-K-0037, 89-K-0038.\nSupreme Court of Louisiana.\nApril 6, 1990.\nRehearing Denied September 13, 1990.\n*331 William J. Guste, Jr., Atty. Gen., Cynthia Killingsworth, Glen Petersen, Asst. Attys. Gen., for the State.\nThomas Lorenzi, Godwin, Roddy, Lorenzi, Watson & Sanchez, Clifford Newman, Newman, Thibodeaux & Marshall, Lake Charles, Skipper Drost, Sulphur, for Antonio and Jesusa Romero.\n*332 DIXON, Chief Justice.\nDefendant physicians, Dr. Antonio Romero and Dr. Jesusa Romero, were charged with sixty-seven and thirty-three counts of Medicaid fraud under R.S. 14:70.1, respectively.[1] After a complicated and protracted jury trial, Dr. Antonio Romero was convicted on sixty counts and Dr. Jesusa Romero on twenty-eight counts. Defendants were convicted of making false claims totaling $1863.68. Each defendant was sentenced to five years at hard labor on each count, to run concurrently, but each was given a suspended sentence and placed on probation. On appeal, thirty-one of Dr. Antonio's sixty convictions were reversed.[2]State of Louisiana v. Romero, 533 So. 2d 1264 (La.App. 3d Cir.1988). The remaining twenty-nine counts were affirmed, as were all of Dr. Jesusa's convictions. Both the state and the defendants are before this court on writs. State of Louisiana v. Romero, 541 So.2d 879-80 (La.1989).\nThe Romeros, husband and wife, originally from the Philippines, were practicing medicine in Akron, Ohio, when DeQuincy Memorial Hospital contacted them in 1980 and asked that they relocate in Louisiana. Inducements included staff positions at the hospital and assistance in setting up their practice. In return, the Romeros were required to enroll in the Louisiana Medical Assistance Program (Medicaid) and to accept Medicaid recipients as patients. Enrollment consists of a contract between the medical provider, such as defendants, and the state, whereby the provider agrees to abide by all state and federal regulations, including billing procedures.\nUpon enrollment, a physician is issued a provider manual which contains the rules and regulations of the program, provides details on what is and is not covered by the program, and contains instructions on completing and submitting claims forms.[3] The provider manual directs physicians to use certain codes found in Current Procedural Terminology (CPT) books printed by the American Medical Association. CPTs are used for billing purposes and provide the codes used in making a claim, such as billing procedure codes, diagnosis codes, service codes, and unit codes.[4] Not all of the codes listed in the CPT books have been adopted by the Medicaid system and the provider manuals do not indicate which CPT codes are used in Medicaid, but provide only a broad description of what is covered.\nMedicaid neither covers all medical services and treatment, nor does it interact directly with providers. Instead, Louisiana contracts with private companies to act as its fiscal intermediary for claims processing, disbursement and direct contact with providers.[5] Medical providers submit *333 claims for payment to the fiscal intermediary and, if approved, the intermediary issues a check to the provider. The provider must use the appropriate codes and information from the identification cards presented by eligible Medicaid recipients. The claims form is first submitted to the recipient's primary health insurer, if any, and then the claim is transferred, or \"crossed over,\" to Medicaid's fiscal intermediary. Each claim is assigned an internal control number (ICN). The status of each claim form submitted is reflected in remittance advice statements sent to providers. On these statements appear the patient's name, the date of service, the procedure code for the service rendered, the ICN and information advising whether the claim is approved, rejected or held. Payment checks are accompanied by remittance advice statements, which in addition to the information above, include date of payment, the amount paid and the check number.\nIt is the state's contention that the defendants committed acts of Medicaid fraud in 1983, 1984 and 1985, through the following billing schemes: (1) over billing office visits by billing for a comprehensive visit when a lesser level of service was rendered; (2) billing for follow-up visits for patients released from the hospital, although the services were never rendered; (3) billing for visits to patients at Greenhill Nursing Home, which were never made; (4) billing for emergency room visits when telephone orders had been given; and (5) billing telephone calls as consultation.\n\nGreenhill Documents\nIn their first assignment of error, both the state and defendants address the admissibility of medical records obtained from the Greenhill Nursing Home. The state introduced these documents at trial to prove Dr. Antonio committed Medicaid fraud by submitting claims for medical services to Greenhill residents which he never provided. The documents were charts compiled to record the progress of Greenhill patients and consisted of nurses' notes, progress notes, physician order sheets and doctors' orders sheets. The state called Theresa Decker, the custodian of the documents, to testify; she maintained that all pertinent information concerning a patient was contained in these documents, including entries documenting all doctor visits. The state asserted that the absence of such an entry would establish that Dr. Antonio did not make patient visits for which he billed Medicaid.\nThe admissibility of the documents is governed by the hearsay rule and exceptions to that rule. At the time of trial, hearsay was defined jurisprudentially.\n\"`Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. C. McCormick, Evidence, § 246 (Cleary ed. 1972).'\" State v. Shoemaker, 500 So. 2d 385, 388 (La.1987); State v. Martin, 356 So. 2d 1370, 1373-74 (La.1978).\nThe defense objected to the introduction of these documents as hearsay, while the state maintained they fell under exceptions to that rule and were therefore admissible. The extent of the confusion and controversy surrounding these documents is illustrated in the lower court rulings with respect to this evidence.\nInitially, the trial court excluded these documents, stating that they were unreliable and untrustworthy. The state applied for writs and the court of appeal reversed and set aside the trial court ruling, stating that defendants' objections were more properly addressed to the weight to be accorded the evidence. State v. Romero, 533 So. 2d 1264 (La.App. 3d Cir.1988). This court subsequently denied defendants' writs, reserving to defendants the right to raise the issue if convicted. State v. Romero, 514 So. 2d 467 (La.1987). The trial court then permitted the introduction of these documents under the business records exception to the hearsay rule.[6] On *334 appeal, the court of appeal held that the admission of this evidence under the business records exception was improper. To establish a foundation for the admission of the Greenhill documents as business records, the state was required to show that the persons who made these records were genuinely unable to testify. State v. Monroe, 345 So. 2d 1185 (La. 1977). The court of appeal concluded that the state failed to show this, thereby failing to establish the proper foundation for the admission of this evidence. As a result, many of the Greenhill convictions were reversed. The court of appeal further held that although these documents were not admissible as business records, they could have been admitted under the hospital records exception to the hearsay rule, R.S. 13:3714 and 13:3715.1.\nThe state now contends that the appellate court erred because prosecutors satisfied all foundation requirements for admissibility under both the business records and the hospital records exception to the hearsay rule. It is the unreliability and untrustworthiness of the Greenhill documents which render them inadmissible, thus the distinction between hospital and business records is irrelevant.\nHearsay evidence is inadmissible except under one of the statutory or well recognized exceptions. State v. Broussard, 391 So. 2d 1167 (La. 1980); State v. Sheppard, 350 So. 2d 615 (La. 1977); R.S. 15:434. Policy considerations underlying the traditional exclusion of hearsay at criminal trial relate to the reliability of the unsworn statement and potential prejudice to the accused in permitting a damaging out-of-court statement which cannot be tested for its basis in fact. State v. Arnold, 367 So. 2d 324, 326 (La. 1979); State v. Ford, 336 So. 2d 817 (La. 1976). Reliability and trustworthiness of hearsay evidence must be established before it may be admitted into evidence. \"In all conceivable exceptions to the hearsay rule, the trustworthiness of the evidence is the primary criterion for admissibility.\" State v. Trull, 382 So. 2d 960, 962 (La.1980). (Emphasis added).\nVarious factual findings lead to the conclusion that the Greenhill documents are untrustworthy. The foundation for the admission of these documents into evidence was established by Theresa Decker, the custodian of the documents and director of nursing at Greenhill Nursing Home. Decker, testifying for the state, recounted that the nursing staff was instructed and required to document in nurses' notes all pertinent information about a patient, including when a patient left on pass and returned, and when a patient was visited by a doctor. The nurses' notes were attached to a patient's charts and these charts were kept in the nurses' station. Decker testified that she had standing instructions with the staff to notify her whenever a doctor made rounds. She was on twenty-four hour call to the nursing home. Further testimony from Decker and other Greenhill nurses revealed glaring deficiencies in these documents.\nThe most critical deficiency in this documentation is evident in the manner by which the patient files were compiled. Under cross-examination, Decker acknowledged that she routinely removed patient charts to her office and occasionally took them home overnight so that they might be \"thinned.\" By this she meant that pages of nurses notes, progress notes, physician order sheets, and doctors' orders sheets were regularly culled from patient charts when those charts became too thick. The documents were removed and placed in separate files which the state failed to present at trial. Decker also testified that other *335 reports, patient plans, medication orders and monthly summary sheets were not provided at trial. The state thus attempted to prove a physician's absence with incomplete documentation.\nThe method of recordation of medical information used at Greenhill also renders these documents unreliable. During testimony from eight licensed practical nurses (LPNs), all current or former employees of Greenhill, inconsistencies and contradictions were exposed concerning the patient records which undermined the integrity and reliability of these records.\nLPN Bonnie Cryer acknowledged that patient charts were missing occasionally from the nurses' station. Her practice was to take notes, record patient information in \"jot books,\" and later transcribe that information to the patient charts when found.[7] LPN Eva McQeen stated the charts would be missing for no more than a couple of weeks and would often turn up in another patient's charts. Her practice was to begin a new page of nurses' notes, patient's chart, or whatever was required. LPN Peggy Bell never received instructions as to what should be recorded in nurses notes. In direct contradiction to Decker, she stated that there was neither procedure nor requirement to notify Decker when a doctor made rounds. She used \"jot books\" when patient charts could not be found. LPN Bernice McCoy testified that nurses' notes were not kept with the patient charts, but in a cardex at the nurses' station. LPN Judith Littlejohn stated that patient charts were not carried on rounds with doctors, but that she would take notes on a separate piece of paper and later transfer them to the nurses' notes. LPN Lisa Bushnell testified that no one was responsible for the \"sign out\" book that patients were to fill in when they left or returned to the premises. LPN Elsie Ramos stated that missing charts were usually found in Decker's office. Ramos' practice was to take notes in the \"jot book\" or in a pocket notebook she carried. Finally, LPN Shirley Myers testified that charts were missing at times; that sometimes they could be found in Decker's office; and that sometimes they could not be found at all. When this happened, it was her practice to begin with a new page of nurses' notes.\nThese documents have striking shortcomings, as established through nurses' testimony and on the face of the documents themselves. The staff had wide discretion with respect to entries made in nurses' notes. The notes bore numerous strike overs and errors as to times, dates, even years. Some notes, which were introduced to prove that Dr. Antonio was absent on a given day, would cover up to a five and one-half month time period on one side of a sheet of paper, with an entire month separating entries.\nWhen combined with the disappearance of patient charts for extended periods of time, this evidence casts grave doubt upon the reliability of the notes and clearly establishes them as untrustworthy.\nIn determining whether erroneous admission of evidence requires reversal of a defendant's conviction, the proper standard is whether there is a reasonable possibility that the evidence might have contributed to the verdict, and whether the reviewing court is prepared to state beyond a reasonable doubt that it did not. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); State v. Walters, 523 So. 2d 811 (La.1988); State v. Green, 493 So. 2d 1178 (La. 1986); State v. Gibson, 391 So. 2d 421 (La.1980).\nIn counts involving the Greenhill documents, the state relied on the correlation of dates and entries in these documents to establish that Dr. Antonio did not make the nursing home visits claimed. These records and testimony from its authors were the only evidence introduced on these counts. It is clear that without the Greenhill documents, there is insufficient evidence to support convictions on these counts. Accordingly, and for reasons stated above, all counts involving the introduction *336 of Greenhill documents are dismissed: Counts 6, 7, 22-27, 35-47, 49, 51-55 and 57-78.\nDefendants would have us extend this ruling and reverse all convictions, arguing that the admission of these documents was so prejudicial as to require reversal on all counts. The state has presented independent evidence on the remaining counts sufficient to support those convictions. Dr. Jesusa was never linked to the Greenhill documents, nor did the state attempt to use those documents in any of the counts against her. None of the remaining counts against Dr. Antonio involved these records, nor were they introduced to support any conviction other than those already dismissed. There is no reasonable possibility that the introduction of the Greenhill documents contributed to the convictions on the remaining counts against Drs. Antonio or Jesusa Romero.\n\nOther Crimes\nDefendants assert that the trial court erred in admitting evidence of \"other crimes\" at trial. In an attempt to prove specific intent, the state introduced evidence of billing improprieties, or other crimes, by the Romeros with non-Medicaid patients. The state introduced this evidence under the authority of R.S. 15:445 and 15:446.\n\"In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.\" R.S. 15:445.\n\"When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.\" R.S. 15:446.\nBefore evidence of other crimes is admitted as proof of intent, three prerequisites must be satisfied: (1) the prior acts must be similar, (2) there must be a real genuine contested issue of intent at trial, and (3) the probative value of the evidence must outweigh its prejudicial effect. State v. Kahey, 436 So. 2d 475, 488 (La.1988).\nBy introducing evidence of similar billing improprieties with non-Medicaid patients, the state demonstrated a systematic practice followed by the Romeros which was highly relevant to the question of intent to defraud, a material issue at trial. The state advised defendants before trial of its intent to show knowledge, system and intent in connection with specified patients of defendants. The defendants requested and received jury instruction on the purpose for which this evidence could be received, thus minimizing the prejudicial effect of such evidence. The trial court did not err in allowing the introduction of this evidence into the record.\n\nRebuttal Witnesses\nDefendants contend that the state's failure to call rebuttal witnesses deprived them of their right to confrontation, cross-examination, due process and a fair trial. Amy Fontenot was called as a witness by the defense. She testified that Dr. Antonio had treated her non-ambulatory daughter in the parking lot of their offices, rather than require that she be brought inside. She stated that she was visited at home by one of the state's attorneys but that she ordered him to leave and threatened to call the police after he called her a liar. She was then cross-examined by Glen Petersen, the same state's attorney complained of. He sought to impeach her by demonstrating that she had lied on direct examination and that her ability to recall details of her conversation with state investigators was poor. The state requested that all investigators with whom Fontenot had contact be sequestered so they could later be called on rebuttal, if needed. The state did not call any witness to rebut her testimony. Defendants now contest the state's failure to do so.\n*337 The prosecution has the right to rebut evidence adduced by the defendant at trial. State v. Williams, 445 So. 2d 1171 (La. 1984); R.S. 15:282. In a criminal prosecution the state does not and cannot know what evidence the defendant will use until it is presented at the trial of the case. It is for this reason that the state is given the right of rebuttal. State v. Monroe, 205 La. 285, 17 So. 2d 331 (1944). The presentation of rebuttal witnesses is the state's right. The prosecution is under no obligation to call rebuttal witnesses. This argument is without merit.\n\nImproper Cross-Examination\nDefendants allege that the scope of the state's cross-examination was improper and, more particularly, that Petersen should not have conducted the cross-examination of Fontenot, for by doing so he cast her credibility in direct conflict with his. Although care should be exercised not to exceed the proper bounds by impeaching a witness as to collateral facts or irrelevant matters under R.S. 15:494, mere doubts as to the propriety of the extent of the cross-examination are always resolved in favor of the cross-examination. State v. Weathers, 320 So. 2d 895, 898 (La. 1975), citing State v. Bertrand, 167 La. 373, 119 So. 261 (La.1928). Although it would have been preferable for the state to cross-examine Fontenot with someone other than Petersen, the defendants fail to show, nor is there any indication from the record, that this caused any prejudice whatsoever. Fontenot's testimony went uncontradicted and was accepted as being truthful and credible. This assignment is without merit.\n\nEvidence of Specific Intent\nIn their final assignment of error, defendants contend that the prosecution failed to prove guilt beyond a reasonable doubt, particularly the requirement of specific intent.\nMedicaid fraud is a specific intent crime. Specific intent is a state of mind, and, as such, need not be proved as fact, but may be inferred from the circumstances of the transaction and actions of the accused. State v. McDermitt, 406 So. 2d 195 (La.1985); State v. Williams, 383 So. 2d 369 (La.1980).\nThe federal constitutional standard of appellate review for a sufficiency of evidence claim is whether, after viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).\nTo prove that defendants billed for comprehensive office visits when lesser services were rendered, the state presented a qualified expert, Dr. Henry Rothchild, a professor of medicine at Louisiana State University Medical School with a private practice in internal medicine and geriatrics, who testified about notes taken by the Romeros during each questioned visit. It was his expert opinion that the notes were clearly deficient and did not reflect a comprehensive office visit. Further testimony from nurses at the Romeros' office established that they were instructed by the Romeros to always bill office visits as comprehensive office visits, regardless of the services actually rendered. This was true even after the nurses told the doctors that this procedure was improper. One comprehensive visit charge was established independently of Dr. Rothchild's testimony. This involved a comprehensive office visit billed to Zenia Dove. The state proved through testimony of office nurses and Dove's caretaker that Dove never visited their office because she was bedridden. The caretaker also stated that Dove was never visited by either doctor. Viewing the evidence in a light most favorable to the prosecution, the jury could have found the defendants guilty beyond a reasonable doubt on the counts involving comprehensive office visits.\nThe state also proved that defendants billed Medicaid for follow-up office visits after a patient's release from the hospital, although the follow-up visit never occurred. One count against Dr. Antonio and two counts against Dr. Jesusa involved alleged follow-up visits provided to Dove. *338 Again the state introduced testimony by Dove's caretaker and nurses to prove that these services were never provided. To prove a final follow-up visit count against Dr. Jesusa, the state introduced into evidence records from Humana Hospital of Lake Charles and DeQuincy Memorial Hospital. Dr. Jesusa billed Medicaid for a follow-up office visit of a patient who was still hospitalized, according to those records. On this evidence the jury could have found specific intent beyond a reasonable doubt.\nTo prove that the defendants billed for emergency room visits which they never made, the state produced testimony from emergency room nurses who testified from their notes. All testified that their notes would have indicated a visit from the doctor, yet no notation of such a visit existed. The state also established, through emergency room nurses' testimony, that both doctors made a practice of calling in phone orders to the emergency room and billing those calls as emergency room visits. A reasonable person would know that a telephone call would not be a proper substitute for an emergency room visit, and therefore should not be billed as one. On this evidence, in a light most favorable to the state, the jury could have found specific intent beyond a reasonable doubt.\nFinally, we address the question of specific intent with respect to the counts in which the state proved the defendants improperly billed telephone calls as consultations. The state had Department of Health and Human Resources Assistant Director for Medicaid, Carolyn Maggio, testify. She stated that providers were required to become familiar with their provider manual. This manual contains the rules, regulations and definitions of the program; provides details on what is and is not covered; and contains instructions on completing and submitting forms. Maggio testified that this manual prohibits billing of telephone calls and that a consultation requires \"hands on\" contact by the provider/doctor, or at least, \"face to face interaction.\" The state introduced a looseleaf binder seized from the Romero clinic, although it was never determined to be a complete provider manual. This manual provides that all coding used in claim forms was to be taken from Current Procedural Terminology (CPT) books. Having reviewed the provider manual in the record, we find nothing in it that supports the assertion that phone calls may not be billed as consultations. On the contrary, the CPT books tend to support the defendants' position. We found that all of the CPT books provided procedure codes for telephone consultations.[8] Therefore, a provider, relying on the provider manual and the CPT books, could reasonably conclude that telephone consultations could be billed to Medicaid. The state did, however, establish through testimony and through the provider manual, that providers could not \"consult\" their own patients. The following definition of consultation is found in the provider manual:\n\"The Medical Assistance Program defined a consultation when a physician's opinion or advice is requested by another physician or other appropriate source in order to aid the referring source in evaluating or managing the patient.\nThe consulting physician must enter the referring physician's name in Item 19 of the claim form when billing for a consultation service.\nPhysician visits should not be billed as a consultation when:\nThe physician has already seen the patient on a recent consultation for the same condition.\n\n*339 The physician has recently provided medical care to the patient as treating physician.\nThe physician intends to follow the patient and will be billing as a treating physician for subsequent medical care.\" (S-118, p. 4-20).\nThe medical records of all telephone consultation patients were entered into the record by the state. These clearly establish that Dr. Jesusa and Dr. Antonio had recently provided medical care to each of these patients as treating physician, and that they intended to follow each patient as a treating physician for subsequent medical care at the time of the consultation. Viewed in a light most favorable to the prosecution, this evidence establishes that the jury could have found beyond a reasonable doubt that the doctors had the requisite intent to defraud Medicaid.\n\nCosts\nThe state contends that the appellate court erred in proportionately reducing costs assessed against defendants as to the convictions reversed on appeal. This issue is now moot since those convictions, and others, have been dismissed. A defendant who is convicted of an offense is liable for all costs of the prosecution or proceedings, but a defendant is not liable for costs if he is acquitted or if the prosecution or proceeding is dismissed. C.Cr.P. 887 A. Accordingly, no costs will be assessed to defendants on any convictions dismissed on appeal or by this court.\nFor reasons assigned, the following counts against Dr. Antonio Romero are dismissed: Counts 6, 7, 22-27, 35-47, 49, 51-55 and 57-78. The convictions and sentences on his remaining counts are affirmed: Counts 1, 2, 3, 4, 5, 8, 21, 28, 29, 30 and 33. Dr. Jesusa Romero's convictions and sentences are affirmed.\nCALOGERO, J., dissents for reasons assigned by WATSON, J.\nWATSON and LEMMON, JJ., dissent and assign reasons.\nWATSON, Justice, dissenting.\nThe majority errs in applying the harmless error test to the facts in this case. When the court of appeal ruled that the unreliable Greenhill documents could be presented to the jury, it opened the door to impermissible other crimes evidence in violation of LSA-C.Cr.P. art. 770(2).\nThe harmless error standard applies when the prosecution presents inadmissible evidence in support of a criminal charge. In order to uphold a guilty verdict, the appellate court must determine that there is no reasonable possibility that the erroneous introduction of the evidence contributed to the conviction of the defendant. State v. Gibson, 391 So. 2d 421 (La.1980)[1]; State v. Green, 493 So. 2d 1178 (La.1986).[2]\nThe harmless error standard does not apply to other crimes evidence. When a judge, district attorney or court official refers directly or indirectly to \"another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible,\" a mistrial is mandatory. LSA-C.Cr.P. art. 770(2). Denial of a requested mistrial after an allusion to other crimes is per se a substantial violation of a statutory right. State v. Green, 315 So. 2d 763 (La.1975); State v. Andrews, 527 So. 2d 411 (La.App. 4th Cir.), writ denied, 532 So. 2d 176 (La.1988). See also State v. Perry, 420 So. 2d 139 (La.1982); State v. Nuccio, 454 So. 2d 93 (La.1984).[3]\n*340 In the trial of Dr. Antonio Romero and Dr. Jesusa Romero, the state presented evidence of 100 counts of alleged medicaid fraud; evidence on 52 of the counts, those related to improper practices at the Greenhill Nursing Home by Dr. Antonio, was inadmissible for lack of trustworthiness. The defendants objected to this evidence.[4] Notwithstanding these objections, the jury heard extensive discussion of 52 other crimes that the Romeros were alleged to have committed. Reference to even one other crime would be unfairly prejudicial, suggesting that the Romeros were of bad character and likely to have the intent necessary to cheat the Medicaid system. The cumulative effect of 52 other crimes is an extreme example of the harm reprobated by LSA-C.Cr.P. art. 770(2). The fact that Dr. Jesusa was not involved in the Greenhill allegations is immaterial. As the co-defendant and spouse of Dr. Antonio, Dr. Jesusa was prejudiced by implications of an all-pervasive family scheme.\nEven if the harmless error test were the appropriate standard in this case, the majority errs in concluding that there is no reasonable possibility that the introduction of the Greenhill documents contributed to the convictions of Dr. Antonio and Dr. Jesusa on the other counts. The problem here is not one leather jacket or one gun that is not needed to prove any essential element of an alleged crime but an enormous amount of untrustworthy information that goes to the central issue of criminal intent. As Judge King explained in his dissent:\nThe improperly introduced evidence was used by the State to prove specific intent to defraud. The improper admission of such a large amount of unreliable evidence in over half of the charges against one of the defendants was, in my opinion, not harmless error but error of such magnitude as to taint the entire trial and deprive both defendants of a fair trial with due process of law.[5]\nOther crimes evidence is not the only disturbing aspect of this trial. A criminal statute is unconstitutionally vague if it does not give adequate notice that certain conduct is proscribed and punishable by law; it must describe the unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Azar, 539 So. 2d 1222 (La.1989); State v. Pierre, 500 So. 2d 382 (La.1987).\nThe crime of medicaid fraud is defined very generally by LSA-R.S. 14.70.1. Doctors violate the statute when \"with intent to defraud,\" they make \"any false or fraudulent claim for furnishing services or merchandise.\" To know what constitutes an improper or fraudulent claim, doctors must consult the \"Provider Manual.\" The Department of Health and Human Resources (DHHR) writes the provider manual. A private company acts as a fiscal intermediary between DHHR and the health care providers.[6] The fiscal intermediary is responsible for distributing the manuals, as well as processing claims and disbursing payments. There was mass confusion in the offices of the fiscal intermediary. Doctors waited months for provider manuals. Dr. Antonio said that he and his wife did not have a manual until 1985; they used the one they brought from Ohio.[7] Calvin Payne, a supervisor for the fiscal intermediary, thought the Romeros had more than one manual. He conceded, however, that he frequently had calls from people who said they did not receive their manuals. Lynn Anderson, a field representative *341 for the fiscal intermediary, thought she left two provider manuals at the Romero clinic, but explained under cross-examination that she left them if she had them with her. If not, she called the Baton Rouge office and asked to have one mailed.[8]\nThe provider manual was frequently updated or changed, presenting an additional distribution problem.[9] The state seized a provider manual from the Romeros' office. However, DHHR officials involved in supervision of the Medicaid program were unable to testify whether this manual was complete. Similarly, they were unable to show a complete and up-to-date manual or state what such a manual would contain.\nDoctors were advised by the provider manual to consult the AMA's publication on Current Procedural Terminology for billing codes and levels of service. For example, the 1986 CPT lists codes for 11 different levels of office visit. Carolyn Maggio, DHHR's assistant director for Medicaid, admitted that the provider manual neither indicates which CPT codes are used by Medicaid nor provides more than the broadest definition of what is covered. It does not define visit, much less comprehensive office visit, emergency room visit, or nursing home visit. Notwithstanding Maggio's contrary assertion, the provider manual does not prohibit billing for telephone services. While the state alleged \"fraudulent practices,\"[10] the Romeros could not determine from the provider manual, the CPTs or the Medicaid Fraud Statute that they were in violation of the rules.\nThere is no rule in the provider manual forbidding billing for telephone calls. The CPT, on the other hand, lists codes for several levels of telephone services.[11] The Romeros' conduct conforms to the CPTs. They did not bill for simple telephone calls to check up on patients; they submitted claims only if a call was prolonged and involved decisions or instructions about medical treatment. Carolyn Maggio attempted to overcome the lacuna in the written regulations, asserting that everyone knew there was a hands-on requirement for billing purposes and that a telephone call would not suffice.[12] Due process, however, requires a written notice. \"A crime is that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.\" LSA-R.S. 14:7.\nThe telephone may have created the Romeros' problems with emergency room billings as well. The state charged that Antonio and Jesusa Romero billed for emergency room visits at DeQuincy Memorial Hospital which they did not make. The records of most of the ER patients were marked \"PO,\" indicating that the doctors had given their initial orders over the phone rather than in person. Antonio Romero explained that these patients arrived while he was working in another part of the hospital. The ER staff paged him; he listened to the problem and gave immediate instructions over the phone. As soon as he finished his task, he visited the patient. He never changed the \"PO\" indication because he did not think it mattered. He took responsibility for his patients' treatment. He ordered appropriate tests or treatment and saw them as soon as possible or as soon as necessary.[13] The prosecutors called 6 ER patients to substantiate this charge. To their surprise, 3 of these witnesses corroborated Romero's *342 story. They said he did visit them after the initial report was filled in. A fourth patient, Pat Foshee, was \"not sure\" whether Antonio Romero visited her after the ER called him; she said he had failed to do so on other occasions, however.[14] Pam Sparks said that Antonio Romero visited her on the following day.[15]\nThe state called Dr. Henry Rothchild to prove that the Romeros did not provide enough service to qualify for the level of payment afforded \"comprehensive office visits.\" Rothchild estimated that such a visit should take 30 minutes and produce a large quantity of notes. He observed that the Romeros' notes were cursory. The 1986 CPT definition of COV does not specify a length of time or a quantity of notes. It explains that this category of service \"provide[s] an in-depth evaluation of a patient with a new or existing problem\" and \"includes the recording of a chief complaint or complaints and present illness, family history, system review, a complete physical examination, and an ordering of appropriate diagnostic tests and procedures.\"\nAlthough the CPT lists 11 different levels for office visit, even Dr. Rothchild did not make use of all the distinctions. He testified that he routinely used only 3 different levels (minimal, extended, brief) in making Medicaid claims.[16] Rothchild admitted that he had never practiced in a rural community. Romero asserted that in DeQuincy (population 3,966 in 1980 Census), he saw patients regularly and knew a great deal about their personal and family histories. Due to personal preference and the nature of his practice, he talked with patients extensively each time he saw them. He was not a big note-taker.\nAnother layer of confusion was added by the system of computer edits. The fiscal intermediary ran each Medicaid claim through a computer to check for repetitive claims, unauthorized services, and ineligible participants. There were 300 to 400 edits in the computer; DHHR changed them constantly. One week a CPT could be payable and the following week it could be disallowed.[17]\nThe Medicaid claim rejection slip contains procedure codes, diagnosis codes, 11-digit codes identifying the patient, codes indicating that the claim has been rejected or adjusted, and codes explaining the reason for the rejection. The Romeros accumulated hundreds of these rejection slips; there were stacks in their business office. They frequently asked DHHR and the fiscal intermediary for help, but as late as 1985, they were still trying to sort out problems from 1982.[18]\nThe Romeros were not the only doctors who experienced difficulty with the system. Carolyn Maggio admitted that the Medicaid System was a nightmare from 1981 to 1983.[19] Milton Bellard, managing director of the Bayou Comprehensive Medical System in Lake Charles, testified that it took him 3 to 6 months to get a provider manual. He made repeated requests, but each time the fiscal intermediary claimed that one had already been sent. From 1981 to 1985, 50% to 70% of the BCMC claims were denied.[20]\nCarolyn Maggio claimed that DHHR corrects misunderstandings about the regulations before seeking a criminal indictment against a health care provider.[21] In the case of the Romeros, no Medicaid representatives testified that they had warned the Romeros against billing for telephone services, giving phone orders for emergency room patients, or using the comprehensive *343 level for all office visits. On the contrary, the testimony established that the Romeros had enormous problems with the billing system, that their office personnel were uncertain how to handle some of the \"gray areas,\"[22] that they did not know the proper way to bill for follow-up visits until November 1985 or for consultations until April 1986, the month when the criminal investigation began.[23]\nNor do the Romeros seem to have been willfully ignorant. They frequently sent their staff to billing seminars and asked representatives to come to their office to help resolve their problems. Agnes Holloman, a field representative for the fiscal intermediary, went to the Romero clinic unannounced in March 1984. She found them appreciative and cooperative; they freely showed her their records. She acknowledged that they were confused and that phone calls to the fiscal intermediary would have been of absolutely no help given the scope of their problems.[24] Dr. Antonio denied trying to abuse the system: \"Nobody told me about anything that was illegal. I tried my best ... to find out what was wrong but nobody came down [who could ever] ... point it out to me.\"[25]\nBecause of the confusion in the billing system, doctors and/or the fiscal intermediary could easily make mistakes in the claims. Indeed, it seems likely that in the period from 1981 to 1985 the Romeros lost more in unpaid claims than they are alleged to have misappropriated.[26] Under these circumstances, it cannot be said that the laws described unlawful conduct with such particularity and clarity that ordinary men of reasonable intelligence would be capable of understanding and avoiding this conduct. Criminal convictions based upon such laws violate due process of law.\nConstitutional violations deprived these two defendants of a fair trial. I respectfully dissent.\nLEMMON, Justice, dissenting in part.\nThe clear insufficiency of the evidence requires discharge of defendant Antonio Romero on the Greenhill Nursing Home counts. Vast amounts of this evidence (introduced under an order of the court of appeal after the trial judge found the evidence to be untrustworthy) were presented to the jury, along with evidence of other payments in large amounts which were not relevant to any charges in this case.[1] Under these circumstances I cannot say that these arbitrary factors did not influence the jury's decision on the problematical evidence of intent to defraud on the remaining counts.\nI therefore dissent from the court's refusal to grant a new trial on Counts 1, 2, 3, 4, 5, 8, 21, 28, 29, 30 and 31 against defendant Antonio Romero and on all counts against defendant Jesusa Romero.\nNOTES\n[1] \"A. The crime of Medicaid fraud is the act of any person, who, with intent to defraud the state through any medical assistance program created under the federal Social Security Act and administered by the Department of Health and Hospitals:\n\n(1) Presents for allowance or payment any false or fraudulent claim for furnishing services or merchandise; or\n(2) Knowingly submits false information for the purpose of obtaining greater compensation than that to which he is legally entitled for furnishing services or merchandise; or\n(3) Knowingly submits false information for the purpose of obtaining authorization for furnishing services or merchandise.\nB. Whoever commits the crime of Medicaid fraud shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than ten thousand dollars, or both.\" R.S. 14:70.1.\n[2] The court of appeal reversed the conviction and ordered a retrial on Count 50; however, according to the verdict order form, the jurors acquitted Dr. Antonio on that count.\n[3] While it is unclear from the record when the Romeros received their provider manual or whether they ever possessed an updated provider manual, it is clear that they had significant problems in obtaining one and had to make numerous requests to the fiscal intermediary before receiving one.\n[4] Each different service and diagnosis rendered must be itemized in code on the claim. For example, there are eleven gradations of \"office visit\" listed in the CPT (1986), with five levels of service for new patients and six for established patients. There are also hundreds of diagnosis codes.\n[5] Although written by the Department of Health and Human Resources, the fiscal intermediary has the responsibility to print and distribute provider manuals, as well as updates and revisions.\n[6] This court has fashioned the following formula for the admission of business records:\n\n\"A permanent record made in the ordinary course of business, by a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by one having a business duty to observe and report the facts, ...\" State v. Monroe, supra at 1188.\nThe Monroe court cautioned that business records could be admitted as proof of their assertions only if the state proved \"that the person who made the record is genuinely unavailable for testimony, that he has no strong motive to misrepresent, and that in all probability the evidence is trustworthy.\" State v. Monroe, supra at 1190.\n[7] \"Jot books\" were used by nurses as a supplement to shift reports to convey information omitted in reports. Decker stated that these notebooks were used as ancillaries to nurses' notes.\n[8] The following codes were found in CPT (1985) at Medicine, p. 41:\n\n\"99013 Telephone call for consultation or medical management; simple or brief (eg, to report on test and/or laboratory results; to clarify or alter previous instructions; to adjust therapy)\n99014 intermediate (eg, to provide advice to an established patient on a new problem; to initiate therapy that can be handled by telephone; to discuss results of tests in detail)\n99015 lenthy or complex (eg, lengthy counseling session with anxious or distraught patient; detailed or prolonged discussion with family member regarding seriously ill patient)\"\n[1] The Gibson court determined that a nondescript leather jacket obtained through illegal search and seizure did not taint the trial because the other evidence connecting defendant to the armed robbery was incontrovertible.\n[2] In Green, a trial court erred in forcing an attorney to authenticate a gun, in violation of the attorney-client privilege. However, the defendant admitted that he shot the victim. \"The gun in no way was necessary to link Green to the shooting nor was it necessary for proof of any element of the crime of attempted manslaughter. There is no reasonable possibility the introduction of the gun in any way contributed to the conviction.\" Id. at 1186.\n[3] Green was granted a new trial because the prosecution said to a witness, \"Was that before or after he [Green] got out of the penitentiary?\" Green, 315 So.2d at 764. In Andrews, the DA \"prejudiced [the defendant] by leaving the jury to speculate upon other crimes or deplorable misdeeds [he] might have committed.\" Andrews, 527 So.2d at 414.\n[4] The trial court sustained the objection, but the court of appeal overruled the trial court. This court denied writs, 524 So. 2d 467 (La.1987). In this procedural posture, it was not necessary that the Romeros actually seek a mistrial. Instead they appealed the convictions.\n[5] State v. Romero, 533 So. 2d 1264, 1279 (La. App. 3d Cir.1988).\n[6] From January 1981 to December 1983, the fiscal intermediary was The Computer Company. After January 1984, Systems Development Corporation took over. The name of SDC was later changed to Burroughs and then to Unisys.\n[7] Tr. 3194-98.\n[8] Tr. 3396-3409.\n[9] Payne testified that the manual was revised 7 times in 1984, 4 times in 1986, and 2 times in 1987; he could not say how many times it was revised before 1984.\n[10] The alleged fraudulent practices included the following: (1) billing telephone calls as consultations; (2) billing for emergency room visits when orders were given by telephone; (3) billing surgery patients for follow-up office visits whether they came or not; (4) billing for \"comprehensive office visits\" when a lower level of service was rendered.\n[11] For example, 1986 CPT at p. 41 provides: \"Code 99013: Telephone call for consultation or medical management; simple or brief (e.g. to report on test and/or laboratory results; to clarify or alter previous instructions; to adjust therapy.\"\n[12] Tr. 788-90.\n[13] Tr. 3201-3207.\n[14] Tr. 1959-66.\n[15] Tr. 2225-27.\n[16] Tr. 1174.\n[17] Tr. 976-77, 986.\n[18] Testimony of Janet Jordy, Tr. 1600, 1664, 1681-83, 1723.\n[19] Tr. 865-73; 920-22.\n[20] Tr. 3372-74.\n[21] Tr. 927-28. Cf. State v. Cargille, 507 So. 2d 1254 (La. 3rd Cir.1987), writ denied, 512 So. 2d 1175 (La.1987). Five different Medicaid representatives explained to the defendant that he could not bill by the minute; criminal charges were filed only after he refused to follow a procedure of which he had ample notice.\n[22] Tr. 1576-79.\n[23] Tr. 1638-39; 1670-76.\n[24] Tr. 3424-50.\n[25] Tr. 3226. The state attempted to show that office personnel had \"confronted\" the Romeros about illegal billing prior to their indictment. However, the trial testimony of these women is contradicted by the statements they made to state investigators in April 1986. Janie Hollie, for example, told an investigator that to her knowledge she had never submitted a false claim to the Medicaid Program and she had never heard any of the office workers confront or explain that both doctors were billing incorrectly. Tr. 289-98. Only after talking with investigator Betty Yarborough did the office workers refer to \"false claims.\" See Tr. 1484-92; 1507.\n[26] The 39 remaining counts represent alleged misappropriation of less than $1000 over a 3-year period on a total of 11,000 claims made by the Romeros. There is no requirement that the state actually be defrauded or lose money for a person to be in violation of the statute; the crime consists of the knowing presentation of false or fraudulent claims. State v. Griffon, 448 So. 2d 1287 (La.1984). However, the minimal amounts involved in this case are a factor to be considered in determining whether the Romeros had the requisite intent.\n[1] The charges alleged fraudulent claims ranging from $2.08 to $40.00. The total amount in the eighty-eight counts on which defendants were convicted by the jury was less than $1,900.00 over a three-year period.\n\n", "ocr": false, "opinion_id": 1834869 } ]

[ "785 F.2d 304" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/785/785.F2d.304.85-1073.html", "author_id": null, "opinion_text": "785 F.2d 304\n 121 L.R.R.M. (BNA) 3104\n Ducane Heating Corp.v.N.L.R.B.\n 85-1073\n United States Court of Appeals,Fourth Circuit.\n 2/6/86\n \n 1\n N.L.R.B.\n \n ORDER ENFORCED\n ", "ocr": false, "opinion_id": 465497 } ]

[ "2005 UT 48", "122 P.3d 571" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5851, "opinion_text": "\n122 P.3d 571 (2005)\n2005 UT 48\nSTATE of Utah, Plaintiff and Respondent,\nv.\nAlex MONTIEL, Defendant and Petitioner.\nNo. 20040780.\nSupreme Court of Utah.\nAugust 5, 2005.\n*573 Mark L. Shurtleff, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., Byron F. Burmester, Asst. Att'y Gen., Salt Lake City, for plaintiff.\nLori Seppi, Heidi Buchi, Salt Lake City, for defendant.\n\nOn Certiorari to the Utah Court of Appeals\nDURHAM, Chief Justice:\n¶ 1 Defendant Alex Montiel appealed his conviction for aggravated robbery, arguing that the trial court abused its discretion in rejecting a pretrial plea agreement based on a stated policy of rejecting pleas that waive penalty enhancements for use of a firearm. The court of appeals affirmed Montiel's conviction. We granted certiorari to consider the scope of judicial discretion vis-à-vis plea agreements. We hold that trial courts retain broad—though not unlimited—discretion in accepting or rejecting plea agreements, and that, under the circumstances of this case, the trial court did not abuse its discretion. We therefore affirm the court of appeals.\n\nBACKGROUND\n¶ 2 Montiel was charged with aggravated robbery, a first-degree felony, in violation of Utah Code section 76-6-302. If convicted, Montiel was also subject to an enhanced penalty pursuant to Utah Code section 76-3-203.1 because the crime was committed in concert with two or more persons. Under Utah Code section 76-3-203,[1] Montiel was arguably subject to a further enhanced penalty for use of a dangerous weapon in the commission of the underlying offense.[2]\n¶ 3 During the pretrial conference the prosecutor informed the trial court that the State and Montiel had reached a plea agreement, *574 in which the State agreed to reduce the aggravated robbery charge to a third-degree felony in exchange for a guilty plea.[3] The prosecutor explained that there were \"some facts that [made] the story not as presentable to the jury and [he] would rather accept the ... lesser plea than run the risk of (inaudible).\"\n¶ 4 The trial court responded by noting that Montiel had been charged with a first-degree felony, which was further subject to enhanced penalties because Montiel had \"used a firearm [and] committed a crime with four other persons.\" The court questioned why \"the State want[ed] to drop this down to a third-degree felony\" and then stated, \"Well, I don't waive firearms enhancements, folks. You plead them, they're stuck unless I'm convinced that there was some mistake in pleading.\"\n¶ 5 Defense counsel then offered judicial economy as an additional reason for the plea agreement. The trial court responded:\nI don't care about judicial economy when people are alleged to have used firearms in the commission of a crime. I'll take whatever time is necessary to resolve the issue properly. I'm not going to waive the firearms enhancement[][u]nless you can tell me you don't have any evidence that [defendant had] a firearm or there wasn't a firearm or your witness is lying.\nThe prosecutor then commented that it was \"just a matter of weighing ... the case\" and that \"sometimes it's better to have the ... verdict in hand than ... two in the bush.\" He further explained that the objective of the agreement was to ensure that \"a dangerous person\" was locked up. The court responded by saying, \"Lock him up for zero to five, what kind of a deal is that?\" The prosecutor replied, \"It's better than zero to zero.\"\n¶ 6 The court then inquired about the victim's response to the plea agreement. The prosecutor stated that he had \"not talked to the victim about this particular one, although [he had] talked to the victim previously about offering a second (inaudible).\" The trial court expressed reservations about accepting a plea when the State had not \"even told the person who claims all these things occurred as to what [the State was] going to do.\" The court declared that the victim was \"entitled to know.\"\n¶ 7 Following this exchange, the trial court announced its ruling: \"I'm not going to allow the filing of [the] amended Information [sic] at this point and I'm not going to accept any plea to a third-degree felony on the basis of what I've heard.\" Thereafter Montiel was tried and convicted of aggravated robbery, with sentencing subject to penalty enhancements both for committing the crime in concert with two or more persons and for using a dangerous weapon. Montiel appealed his conviction, arguing that the trial court's comments at the pretrial hearing demonstrated a fixed policy of refusing to accept plea bargains in cases involving firearms, and that rejecting Montiel's plea on the basis of such a policy constituted an abuse of the court's discretion.\n¶ 8 The court of appeals affirmed Montiel's conviction, reasoning that,\n[a]lthough not crystal clear, the record in this case is sufficient to support the State's argument that the trial court rejected the plea agreement, not only because the underlying charge involved the use of a firearm, but also because the court was concerned that Defendant would receive too lenient a sentence under the terms of the agreement and because the victim had not been informed of the agreement.\nState v. Montiel, 2004 UT App 242, ¶ 17, 95 P.3d 1216. We granted Montiel's petition for a writ of certiorari as to the following issue: whether the trial court's stated policy of refusing to allow plea reductions in cases where a firearm had been used constituted a refusal to properly exercise its discretion in assessing the appropriateness of the plea agreement.\n\nSTANDARD OF REVIEW\n¶ 9 \"On certiorari, we review the decision of the court of appeals and not that *575 of the district court.\" State v. Brake, 2004 UT 95, ¶ 11, 103 P.3d 699. \"We conduct that review for correctness, ceding no deference to the court of appeals.\" Id. \"The correctness of the court of appeals' decision turns on whether that court accurately reviewed the trial court's decision under the appropriate standard of review.\" State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d 1242. The standard of review in assessing the appropriateness of a trial court's acceptance or rejection of a plea agreement is abuse of discretion. State v. Turner, 980 P.2d 1188, 1189-90 (Utah Ct. App.1998). A failure to exercise discretion is generally encompassed within the meaning of abuse of discretion. See United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983) (\"[A]s a general rule, the existence of discretion requires its exercise.\"); People v. Darlington, 105 P.3d 230, 232 (Colo.2005) (\"[F]ailure to exercise discretion is itself an abuse of discretion.\"). Therefore, we must determine whether the court of appeals correctly decided that the trial court properly exercised its discretion in rejecting the plea agreement.\n\nANALYSIS\n¶ 10 Montiel contends that the court of appeals erred in affirming his conviction because the trial court (1) failed to consider all legally relevant factors; (2) exceeded the scope of its authority; and (3) acted arbitrarily in its rejection of the plea agreement. We first outline the scope of judicial discretion in rejecting plea agreements. We then address each of Montiel's arguments in turn.\n\nI. JUDICIAL DISCRETION REGARDING PLEA AGREEMENTS\n¶ 11 We begin by noting that there is no constitutional principle that obliges a trial court to accept a defendant's guilty plea. See Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (\"There is, of course, no absolute right to have a guilty plea accepted.\"); North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (\"A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court....\"). Indeed, \"[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.\" Mabry v. Johnson, 467 U.S. 504, 507, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984).\n¶ 12 We generally adhere to the proposition that, subject to constitutional constraints, \"[t]he Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively best judge of whether a pending prosecution should be terminated.\" United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975); see United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996). Plea bargains, however, implicate not only the ordinarily plenary executive power to indict or dismiss; they also \"go to the traditionally judicial function of determining what penalty to impose.\" United States v. Escobar Noble, 653 F.2d 34, 37 (1st Cir.1981); see also United States v. Torres-Echavarria, 129 F.3d 692, 696 (2d Cir.1997) (\"[W]hen the dismissal of charges or agreement not to pursue potential charges is conditioned on acceptance of a plea agreement, the court's authority to adjudicate guilt and impose sentence is implicated.\"). Thus, after initial charges have been filed, the vast majority of courts permit, encourage, or require some degree of judicial discretion in accepting or rejecting such arrangements.\n¶ 13 Moreover, it is well established under Utah law that trial courts are not required to accept plea agreements. This principle is based on the plain language of rule 11 of the Utah Rules of Criminal Procedure, which explicitly provides that \"[t]he court may refuse to accept a plea of guilty.\" Utah R.Crim. P. 11(e) (emphasis added).[4] This discretion extends to guilty *576 pleas that are tendered as part of a plea bargain. See State v. Stringham, 2001 UT App 13, ¶ 14, 17 P.3d 1153; Turner, 980 P.2d at 1190; State v. Mane, 783 P.2d 61, 66 (Utah Ct.App.1989).\n¶ 14 The foregoing, however, does not imply that a trial court may reject a guilty plea arbitrarily. We acknowledge that the state is usually in a better position than the court to determine whether a plea agreement is in the public interest, and we do not take lightly the role of prosecutorial discretion in this regard. We affirm that, generally speaking, \"courts should be wary of second-guessing prosecutorial choices.\" Miller, 722 F.2d at 565. Even as we acknowledge prosecutorial prerogatives regarding plea agreements, however, we also recognize that unfettered discretion invites abuse. Thus, some oversight from the bench is necessary both to \"protect a defendant from the power of coercion and abuse of the state, [and] also [to] protect the interests of other members of our society in living in a peaceful, orderly atmosphere.\" Daniels v. State, 453 N.E.2d 160, 165 (Ind.1983). The trial court has an important role to play in assessing the appropriateness of a proffered plea agreement—especially where there is evidence of either an overzealous or a lackadaisical prosecution—and \"may reject a plea in the exercise of sound judicial discretion.\"[5]Santobello, 404 U.S. at 262, 92 S. Ct. 495.\n\nII. SCOPE OF DISCRETION\n¶ 15 Having established that the exercise of judicial discretion in such matters is both necessary and proper, we now must define the extent of that discretion. Because Utah case law is not fully developed on this issue, we look to \"the case law from other jurisdictions for guidance.\" Arndt v. First Interstate Bank of Utah, N.A., 1999 UT 91, ¶ 17, 991 P.2d 584.\n¶ 16 In regard to accepting or rejecting plea agreements, jurisdictions vary, as to precisely what degree of discretion is appropriate and the manner in which that discretion must be exercised. The numerous approaches, each with its own particular nuances, do not lend themselves to easy categorization. However, we are able to extract principles common to the majority of jurisdictional approaches that inform our analysis. Those principles are: (1) that trial courts retain broad discretion to reject plea agreements, but may not do so arbitrarily; (2) that courts need not methodically consider a list of mandatory factors before rejecting a plea agreement; and (3) that courts must state their reasoning for rejecting a proposed plea agreement on the record.\n\nA. Court Cannot Arbitrarily Reject a Proposed Plea Agreement\n¶ 17 With a few notable exceptions,[6] the vast majority of jurisdictions require some affirmative exercise of discretion on the part of the trial court before rejecting a plea agreement; that is, courts are not permitted to categorically reject all plea bargains.[7]*577 See, e.g., Darlington, 105 P.3d at 232 (holding that \"trial courts cannot reject a plea on an arbitrary basis\" but must \"give the plea agreement due consideration before reaching a decision on whether to grant [it]\").[8] This rule against arbitrary or blanket rejections of plea agreements makes sense in light of the fact that plea bargaining is \"an essential component of the administration of justice,\" and that, when \"properly administered, it is to be encouraged.\" Santobello, 404 U.S. at 260, 92 S. Ct. 495. We therefore adopt the majority rule in requiring an affirmative exercise of discretion on the part of the trial court prior to rejecting a plea agreement.\n\nB. Court Need Not Apply a Specific List of Factors in Rejecting a Plea Agreement\n¶ 18 Even while recognizing the need to exercise discretion, few jurisdictions have imposed rigid boundaries on a trial court's exercise of this discretion. See, e.g., State v. Hager, 630 N.W.2d 828, 834 (Iowa 2001) (noting that in the context of plea bargains, \"there are no established criteria or standards to consider in the exercise of discretion\"); State v. Brown, 268 Neb. 943, 689 N.W.2d 347, 351 (2004) (noting that, judicial discretion to reject plea bargains \"is not unlimited\" but \"declin[ing] to adopt specific limitations\"). Similarly in the federal courts, the rules of procedure \"do[] not purport to establish criteria for the acceptance or rejection of a plea agreement.\" United States v. Severino, 800 F.2d 42, 45 (2d Cir.1986).[9] Indeed, \"[j]ust how much `consideration' should be given to the disposition agreed to by the prosecutor and just how `independent' the judge should be in these circumstances is a most difficult issue, seldom addressed in the cases.\"[10] 5 Wayne R. LaFave et al., Criminal Procedure § 21.3(e) (2d ed.1999).\n*578 ¶ 19 Given the absence of clear guidelines, the prevailing approach among those courts that have considered this issue is decidedly ad hoc. Courts generally limit their investigation of what constitutes a valid reason for rejecting a plea agreement to the individual circumstances of the case at hand. We likewise decline to set forth a specific list of mandatory factors that a judge must consider before rejecting a plea agreement. Rather, the trial court must simply demonstrate that it gave sufficient consideration to the plea prior to rejecting it such that the decision to reject was not arbitrary.\n\nC. Court Must State Its Reasons for Rejecting a Plea on the Record\n¶ 20 As a means of demonstrating that the trial court gave all due consideration to the plea, the majority of jurisdictions require that judges make their reasoning for rejecting a proposed plea agreement a matter of record. See, e.g., Darlington, 105 P.3d at 232 (\"The trial court must ... articulate the reasons for rejecting an agreement on the record.\").[11] We agree that \"requiring district courts to articulate a sound reason for rejecting a plea is the surest way to foster the sound exercise of judicial discretion.\" Moore, 916 F.2d at 1136. By adopting this rule, we \"facilitate[] appellate review when the defendant contends that the district court abused its discretion in rejecting a plea.\" United States v. Kraus, 137 F.3d 447, 453 (7th Cir.1998); see also Robertson, 45 F.3d at 1438 (\"Requiring district courts to articulate the reasons for rejecting a plea agreement not only helps insure the court is aware of and gives adequate deference to prosecutorial discretion, it is the surest, indeed the only way to facilitate appellate review of rejected plea bargains.\").\n¶ 21 To summarize, the weight of authority stands for the following propositions: (1) while a trial court retains broad discretion to reject a proposed plea agreement, it may not do so arbitrarily; (2) a court need not apply a list of mandatory factors in rejecting a plea; but (3) it must state its general reasoning for rejecting the plea on the record. We adopt these principles for review of plea agreements in Utah.\n\nIII. TRIAL COURT'S EXERCISE OF DISCRETION\n¶ 22 Having outlined the principles governing judicial rejection of plea agreements, we now determine whether the trial court's action here was in accord with them. We conclude that the trial court was well within its discretion in rejecting the plea agreement in this case and consequently reject each of Montiel's three arguments, listed above.\n\nA. \"Legally Relevant Factors\"\n¶ 23 Montiel first argues that the trial court abused its discretion by failing to consider \"all legally relevant factors\" before rejecting the proposed plea agreement. In support of this claim, Montiel cites this court's statement, made in the context of sentencing review, that a trial court abuses its discretion if it \"fails to consider all legally relevant factors.\" State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990). He then cites certain cases from other jurisdictions that have sought to identify what factors are legally relevant in the context of plea bargaining.[12] As we noted above, however, most *579 jurisdictions decline to specify all those factors that are legally relevant in rejecting plea agreements, and for good reason. First, it would be quite difficult—if not impossible—to anticipate the myriad potential legitimate bases for rejecting plea agreements. Second, to adopt stringent guidelines would undermine our stated goal of vesting trial courts with broad discretion in this area.\n¶ 24 Because we have elected not to set forth any mandatory list of factors that must be considered when rejecting a plea agreement, we cannot import the definition of abuse of discretion in the context of sentencing (where mandatory factors are indeed defined[13]) for use in the context of plea bargaining. More appropriate language defining the abuse of discretion standard for this context is found in our decision in State v. Arguelles, 2003 UT 1, 63 P.3d 731, in which we held that \"a trial court has abused its discretion only if the trial court's decision [is] beyond the limits of reasonability,\" or, in other words, that an abuse of discretion has occurred \"if the trial court's actions are inherently unfair or if ... no reasonable person would take the view adopted by the trial court.\" Id. at ¶ 101, 63 P.3d 731 (internal quotation omitted). So long as the trial court carefully considers a proffered plea agreement and states its reasons for rejecting the plea in the record, it will not be overturned on appeal unless it can be said that the trial court's decision was \"beyond the limits of reasonability.\" Id. Other jurisdictions have adopted a similar standard. See, e.g., United States v. Greener, 979 F.2d 517, 519 (7th Cir.1992) (\"[W]e will not reverse the district court's decision [to reject a plea agreement] if any reasonable person could agree with the district court.\"); Darlington, 105 P.3d at 232 (\"Where the trial court clearly exercises independent judgment in rejecting the plea agreement and sets forth on the record its reasons for doing so, its ruling will not be set aside on appeal.\").\n¶ 25 Because we decline to adopt the unnecessarily burdensome standard Montiel proposes, Montiel's first argument fails.\n\nB. Scope of Judicial Authority\n¶ 26 Montiel next argues that the trial court abused its discretion because its rejection of the plea agreement \"exceed[ed] the limits [of judicial authority] prescribed by law.\" State v. Bluff, 2002 UT 66, ¶ 66, 52 P.3d 1210. In support of what is essentially a separation of powers argument, Montiel cites cases from two jurisdictions that place great emphasis on prosecutorial discretion to enter into plea agreements and therefore require a trial court to show abuse of that discretion or other similarly extreme circumstances before it is permitted to reject a plea agreement.[14] As we noted above, however, *580 in the vast majority of jurisdictions such a stringent restriction on judicial discretion is limited to the inherently executive powers of indictment and dismissal, and not to plea bargains, in which both executive and judicial functions are involved. The simple fact that a plea bargain may contain an agreement to dismiss one or more charges does not limit judicial discretion in considering the plea. Even though a \"plea bargain [may be] cast in the form of a dismissal of [a] count, [its] effect [is] to limit the sentence available;\" thus, \"the district judge [may] properly exercise[] reasonable discretion in rejecting the plea bargain.\" United States v. Carrigan, 778 F.2d 1454, 1463 (10th Cir.1985) (internal quotation omitted); see also Torres-Echavarria, 129 F.3d at 697 (\"[A] prosecutor's proposal to dismiss a claim ... in consideration of a plea of guilty to some other offense... implicates core judicial functions. In such a case, the court's adjudicatory and sentencing responsibilities justify active scrutiny of the plea agreement....\").\n¶ 27 We thus do not believe that any separation of powers concerns are implicated in this case. Indeed, our discussion above distinguishes this case from those in which such concerns might arise. Here, it is clear that the trial court was well within its authority to review and reject the proposed plea agreement. Thus, Montiel's second argument also fails.\n\nC. Arbitrariness\n¶ 28 Lastly, Montiel argues that the trial court was arbitrary in its decision to reject the proposed plea agreement and therefore abused its discretion. As noted above, we agree that a trial court may not \"reject pleas on an arbitrary basis.\" Moore, 916 F.2d at 1136. We disagree, however, that the trial court in this case acted arbitrarily.\n¶ 29 Montiel insists that the trial court refused to consider the proffered plea agreement solely because the court had a fixed policy never to waive firearm enhancements. We agree with the court of appeals that the record instead supports the conclusion that the trial court considered at least three different factors before rejecting the proposed plea agreement: (1) the violent nature of the offense (a robbery committed with a firearm), (2) the effective reduction in felony level that the plea would produce and the corresponding reduction in the possible term of imprisonment, and (3) the fact that the victim had not been informed of the specific plea agreement reached between the prosecution and defendant. Either of these two latter criteria, on their own, would likely have provided a legitimate basis for the trial court to reject the plea agreement,[15] and when combined that is certainly the case. We are confident, based on the exchange in the record, that all of these factors, in combination with the violent nature of the crime, led the trial court to reject the plea agreement.\n¶ 30 While the trial court used language signaling finality in his references to firearm enhancements at the outset of the presentation of the plea agreement, it did not reject the plea at that juncture. Rather, it was only after further discussion of the available sentence and of the status of notice to the victim that the trial court reached and announced a decision. Identifying a predilection against a certain type of plea agreement is a far cry from refusing to even consider a plea. Indeed, if the trial court had arbitrarily applied an unwavering policy as Montiel suggests, one would have expected the court to terminate discussion and reject the plea at the outset. Instead, the court entertained an *581 ensuing dialogue at some length, and even furthered this discussion on its own by raising—unprompted by either party—the issue of whether the victim had been informed of the plea. Thus, we cannot say that the court's decision to reject the plea in this case was arbitrary. Consequently, Montiel's third argument also fails.\n\nCONCLUSION\n¶ 31 A trial court must affirmatively exercise its discretion prior to rejecting a plea agreement by giving due consideration to the proffered plea. The court need not apply a list of mandatory factors, but it must state its reasons for rejecting the plea on the record so as to demonstrate that the court did not reject the plea arbitrarily. If the record reflects such reasoning, the trial court will not be overturned on appeal unless the appellate court determines that the trial court's rejection of the plea agreement was \"beyond the limits of reasonability.\" Arguelles, 2003 UT 1 at ¶ 101, 63 P.3d 731. Under the circumstances of this case, we hold that the trial court adequately stated its reasons for rejecting the plea on the record and that its determination was well within the bounds of reason. Therefore, the court did not abuse its discretion. Accordingly, the judgment of the court of appeals is affirmed.\n¶ 32 Associate Chief Justice WILKINS, Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Chief Justice DURHAM's opinion.\nNOTES\n[1] Effective May 5, 2003, the legislature amended section 76-3-203, moving the dangerous weapon enhancement to section 76-3-203.8, which was further amended in 2004. See Utah Code Ann. § 76-3-203.8 (Supp.2004). All citations herein are to the law in effect at the time Montiel was tried and convicted.\n[2] While use of a dangerous weapon is an element of aggravated robbery, a number of cases support the proposition that a defendant charged with a crime for which use of a dangerous weapon is an element may still be subject to an enhanced penalty when that weapon is a firearm. See State v. Speer, 750 P.2d 186, 192 (Utah 1988); State v. Angus, 581 P.2d 992, 995 (Utah 1978); State v. Webb, 790 P.2d 65, 85-87 (Utah Ct.App. 1990). All of these cases, however, were decided prior to 1995, when the legislature amended the enhanced penalty statute to encompass all \"dangerous weapons\" rather than singling out firearms. See ch. 244, § 52, 1995 Utah Laws 813. This court has not addressed whether, under the broader statutory language, the penalty for aggravated robbery may still be enhanced for use of a dangerous weapon even though use of a dangerous weapon is an element of the substantive offense. Since this issue is immaterial to the disposition of the case before us, we leave resolution of this question for another day.\n[3] The record does not reflect the specific third-degree felony to which Montiel agreed to plead guilty.\n[4] Contrary to the court of appeals' understanding, rule 11(g)(1) does not conflict with this statement. That rule provides that, \"[i]f it appears that the prosecuting attorney or any other party has agreed to request or recommend the acceptance of a plea to a lesser included offense, or the dismissal of other charges, the agreement shall be approved by the court.\" Utah R.Crim. P. 11(g)(1). This is not to be interpreted as an affirmative obligation on the part of the court to accept a plea agreement. Rather, it is merely a statement of procedure, indicating that the court's approval is necessary in order to effectuate the plea agreement.\n[5] Of course, under the Utah Rules of Criminal Procedure there are also specific circumstances in which a trial court is compelled to reject a guilty plea. The remainder of rule 11(e) delineates such circumstances, none of which is applicable here.\n[6] See United States v. Moore, 637 F.2d 1194, 1196 (8th Cir.1981) (holding that \"a district court is under no duty to consider a negotiated plea agreement\"); United States v. Stamey, 569 F.2d 805 (4th Cir.1978) (similar); United States v. Jackson, 563 F.2d 1145, 1148 (4th Cir.1977) (\"In our opinion each individual judge is free to decide whether, and to what degree, he will entertain plea bargains, and his refusal to consider any plea bargaining whatsoever will not vitiate a guilty plea which has otherwise been knowingly and voluntarily entered.\"). These exceptions to the general rule appear to be limited to the Fourth and Eighth Circuits. We can find no other cases that directly stand for the proposition that a court may categorically refuse to consider all plea agreements.\n[7] This is not necessarily true regarding plea agreements that involve only sentencing recommendations, i.e., those in which the prosecutor agrees to recommend a more lenient sentence (or not to seek a harsher one) in exchange for a guilty plea to the original crime charged. Such \"sentence bargains\" directly implicate the judicial authority to affix punishment and in many jurisdictions—particularly in the federal courts—a judge retains the prerogative to reject all such plea agreements. See, e.g., United States v. Robertson, 45 F.3d 1423, 1437 (10th Cir.1995); Miller, 722 F.2d at 564; Hoskins v. Maricle, 150 S.W.3d 1, 24 (Ky.2004); Sandy v. Fifth Judicial Dist. Court, 113 Nev. 435, 935 P.2d 1148, 1151 n. 1 (1997). Because the case before us does not involve a plea agreement of this type, our analysis is limited to \"charge bargains,\" or those in which the prosecutor agrees to reduce or dismiss the original charge(s) in exchange for a guilty plea on some other charge(s).\n[8] See also United States v. Maddox, 48 F.3d 555, 558 (D.C.Cir.1995) (\"[T]he rule in this circuit and others is that `the trial judge must provide a reasoned exercise of discretion in order to justify a departure from the course agreed on by the prosecution and defense.'\" (quoting United States v. Ammidown, 497 F.2d 615, 622 (D.C.Cir. 1973))); United States v. Moore, 916 F.2d 1131, 1136 (6th Cir.1990) (\"By leaving the decision whether to accept or reject a plea to the `exercise of sound judicial discretion,' the Supreme Court did not intend to allow district courts to reject pleas on an arbitrary basis.\" (quoting Santobello, 404 U.S. at 262, 92 S. Ct. 495)); Miller, 722 F.2d at 566 (holding that \"courts must review individually every charge bargain placed before them\"); United States v. Delegal, 678 F.2d 47, 50 (7th Cir.1982) (\"While a defendant has no absolute right to have a guilty plea accepted, a court must exercise sound discretion in determining whether or not to reject a plea. Thus, a defendant is entitled to plead guilty unless the district court can articulate a sound reason for rejecting the plea.\"); Hoskins, 150 S.W.3d at 24 (holding that a court \"may not adopt a categorical policy to reject all charge ... bargains\" and must \"independently review each bargain placed before it\"); Sandy, 935 P.2d at 1150 (holding that, while a trial court has discretion to reject a guilty plea, the court is nonetheless \"obligated to consider seriously the proffered plea\"); State v. Hunt, 145 Vt. 34, 485 A.2d 109, 114 (1984) (noting that a \"plea should not be refused without good reason\").\n[9] See also Robertson, 45 F.3d at 1437 (\"While Rule 11 vests district courts with the discretion to accept or reject plea agreements, the rule does not define the criteria to be applied in doing so.\"); United States v. Bean, 564 F.2d 700, 703 (5th Cir.1977) (\"The plea agreement procedure does not attempt to define criteria for the acceptance or rejection of a plea agreement.... While appellate courts have reviewed the refusals of plea bargains, little attention has been given to the formulation of a standard for the district court's exercise of discretion.\").\n[10] A few have tried, however. See, e.g., Hunt, 485 A.2d at 114-15 (listing the American Bar Association's Minimum Standards on Pleas of Guilty as \"considerations appropriate for application by the trial court in determining whether it should accept or reject a plea bargain agreement\" but also affirming that judges exercise \"independent judgment, based upon heritage, environment, education and a myriad of other influences\"); State v. Sears, 208 W.Va. 700, 542 S.E.2d 863, 867 (2000) (enunciating a \"primary test to determine whether a plea bargain should be accepted or rejected\").\n[11] See also Maddox, 48 F.3d at 558 (citing with approval the rule that judges must set forth on the record their reasons for rejecting a plea); Robertson, 45 F.3d at 1438 (requiring district courts to \"set forth, on the record, the prosecution's reasons for framing the bargain and the court's justification for rejecting it\"); Miller, 722 F.2d at 566 (similar); Delegal, 678 F.2d at 50 (holding that a court must \"articulate a sound reason for rejecting the plea\"); Hoskins, 150 S.W.3d at 24 (holding that \"the trial court must articulate [its] reasons for rejecting [a plea bargain]\"); Sandy, 935 P.2d at 1150 (\"If the judge rejects a plea bargain, he or she ... must state reasons for the disapproval.\"); State v. Daniels, 276 N.J.Super. 483, 648 A.2d 266, 268 (Ct.App. Div.1994) (agreeing that \"a judge's reasons for rejection of a plea should be made known\"); Hunt, 485 A.2d at 114-15 (similar).\n[12] Of all the cases cited by Montiel, however, only one comes even marginally close to establishing firm criteria for rejecting plea agreements. That case notes that\n\n[a] primary test to determine whether a plea bargain should be accepted or rejected is in light of the entire criminal event and given the defendant's prior criminal record whether the plea bargain enables the court to dispose of the case in a manner commensurate with the seriousness of the criminal charges and the character and background of the defendant.\nSears, 542 S.E.2d at 867 (internal quotation omitted). In other words, West Virginia apparently requires that a court collect much of the information typically included in a presentence report prior to rejecting a plea agreement. Montiel has offered us no compelling reason to follow this minority approach, which seems to us unnecessary and burdensome.\n[13] See, e.g., Utah Code Ann. § 76-3-401(2) (2003) (enumerating factors for the court to consider \"[i]n determining whether state offenses are to run concurrently or consecutively,\" including \"the gravity and circumstances of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant\"); id. § 76-3-201(7)(e) (requiring the court to consider \"sentencing guidelines regarding aggravating and mitigating circumstances promulgated by the Sentencing Commission\" when \"determining a just sentence\").\n[14] Montiel principally relies on United States v. Ammidown, 497 F.2d 615, 622 (D.C.Cir.1973) (holding that a trial judge may not reject a plea bargain unless \"he can say that the action of the prosecuting attorney is such a departure from sound prosecutorial principle as to mark it an abuse of prosecutorial discretion\"); Sparks v. State, 104 Nev. 316, 759 P.2d 180, 185 (1988) (same); and their progeny. Other than these two jurisdictions, we can find no others that have adopted so draconian a limitation on judicial discretion. Indeed, many courts have explicitly repudiated the rule in Ammidown. See, e.g., Moore, 637 F.2d at 1196 n. 3 (\"The precedential value of Ammidown has been considerably diminished since the adoption of the 1974 amendments to Rule 11 that were intended to increase the discretionary authority of the district court in dealing with guilty pleas.\"); Bean, 564 F.2d at 703 n. 4 (noting that \"[t]o our knowledge no other circuit has followed the District of Columbia in so drastically limiting the discretion of a judge in regard to plea bargains\"); Brown, 689 N.W.2d at 351 (\"specifically declin[ing]\" to follow Ammidown's \"attempt[] to define the scope of a judge's discretion to reject a guilty plea\").\n[15] This proposition, at least in regard to excessive leniency as a basis for rejecting a plea, finds support among most federal appellate courts and a large number of state courts. See, e.g., United States v. Jeter, 315 F.3d 445, 447 (5th Cir.2002); United States v. Gamboa, 166 F.3d 1327, 1330-31 (11th Cir.1999); Torres-Echavarria, 129 F.3d at 696; Robertson, 45 F.3d at 1439; United States v. Skidmore, 998 F.2d 372, 376 (6th Cir.1993); Carrigan, 778 F.2d at 1462; Miller, 722 F.2d at 563; Bean, 564 F.2d at 704; Hoskins, 150 S.W.3d at 25; State v. Southworth, 132 N.M. 615, 52 P.3d 987, 997 (Ct.App.2002); Hunt, 485 A.2d at 112-13. In regard to a failure to inform the victim of a plea agreement as a basis for rejecting the plea, see Hoskins, 150 S.W.3d at 25-26; State v. Boatfield, 2001 WL 1635447, at *8 (Tenn.Ct.App. Dec. 20, 2001).\n\n", "ocr": false, "opinion_id": 2623268 } ]

[ "368 F. App'x 124" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.cafc.uscourts.gov/opinions/08-3202.pdf", "author_id": null, "opinion_text": " NOTE: This disposition is nonprecedential.\n\n United States Court of Appeals for the Federal Circuit\n 2008-3202\n\n\n DONALD A. DAVIS,\n\n Petitioner,\n\n v.\n\n DEPARTMENT OF JUSTICE,\n\n Respondent.\n\n\n Donald A. Davis, of Jamaica, New York, pro se.\n\n Vincent D. Phillips, Trial Attorney, Commercial Litigation Branch, Civil Division,\nUnited States Department of Justice, of Washington, DC, for respondent. With him on\nthe brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,\nand Martin F. Hockey, Assistant Director. Of counsel were Dawn S. Conrad and\nElizabeth A. Holt, Trial Attorneys.\n\nAppealed from: Merit Systems Protection Board\n\f NOTE: This disposition is nonprecedential.\n\n United States Court of Appeals for the Federal Circuit\n\n 2008-3202\n\n DONALD A. DAVIS,\n\n Petitioner,\n\n v.\n\n DEPARTMENT OF JUSTICE,\n\n Respondent.\n\n Petition for review of the Merit Systems Protection Board in NY0752070114-I-1.\n\n ___________________________\n\n DECIDED: March 3, 2010\n ___________________________\n\n\nBefore NEWMAN, FRIEDMAN, and DYK, Circuit Judges.\n\nPER CURIAM.\n\n Donald A. Davis (“Davis”) appeals a final order of the Merit Systems Protection\n\nBoard (“Board”) sustaining the decision of the Department of Justice removing Davis\n\nfrom his position as a correctional officer. See Davis v. Dep’t of Justice, No. NY-0752-\n\n07-0114-I-1 (M.S.P.B. Jan. 16, 2008) (“Final Order”). We affirm.\n\n BACKGROUND\n\n On November 29, 2006, Davis was removed from his position as a correctional\n\nofficer at the Metropolitan Correctional Center (“MCC”) in New York, New York. The\n\nremoval notice contained five charges: (1) misuse of Davis’s Bureau of Prisons\n\n(“agency”) credential, (2) possession of an altered government credential, (3) failure to\n\nreport an outside contact between Davis and an associate of an inmate, (4) carrying a\n\fconcealed weapon under the Law Enforcement Officer Safety Act of 2004 without the\n\nagency’s acknowledgment, and (5) engaging in outside employment without the\n\nagency’s approval. The warden of the MCC sustained all five charges against Davis.\n\n Davis appealed to the Board challenging his removal. The Administrative Judge\n\n(“AJ”) sustained only one of the five charges against Davis: the failure to report an\n\noutside contact. See Davis v. Dep’t of Justice, No. NY-0752-07-0114-I-1, slip op. at 20\n\n(M.S.P.B. Sept. 14, 2007) (“Initial Decision”). The circumstances relating to this charge\n\ninvolve a second job that Davis held providing security for recording artists at a\n\ncompany called Koch Entertainment (“Koch”). An MCC inmate, Barry Williams (a.k.a.\n\n“Strobe”), who worked in the music industry and with people at Koch, sought Davis out\n\nafter hearing of their mutual connection to Koch. Another correctional officer at the\n\nprison introduced the two, in the process warning Davis to be careful because the\n\ninmate and Davis knew some of the same people. On June 2, 2006, Strobe called an\n\nintern at Koch, Chris, and asked him to give Davis a package of t-shirts and compact\n\ndiscs. Chris then called Davis and told him that Strobe wanted him to have a package,\n\nthough Chris did not tell Davis what was in the package.\n\n It is undisputed that Davis did not report this telephone call from Chris about an\n\nunknown package from an inmate to his supervisors, despite the requirement in the\n\nagency’s Standards of Employee Conduct that\n\n [a]n employee who becomes involved in . . . any situation that might give\n the appearance of improper involvement with inmates . . . must report the\n contact, in writing, to the CEO as soon as practicable. This includes, but\n is not limited to, telephone calls or written communications with such\n persons outside the normal scope of employment.\n\n\n\n\n2008-3202 2\n\fFed. Bureau of Prisons, U.S. Dep’t of Justice, Program Statement No. 3420.09,\n\nStandards of Employee Conduct 9 (1999). This requirement was also covered in the\n\nagency’s annual training. In the days following the call, Davis did not attempt to inform\n\nanyone that he had been told about an unknown package from an inmate, even though\n\nhe could have talked to a duty officer or left a note. Davis testified at his Board hearing\n\nthat he saw the matter as “no big deal,” and he thought, “Maybe I’ll get around to\n\n[reporting] it, maybe I won’t. We’ll see what happens when I get to work.” Initial\n\nDecision, slip op. at 9.\n\n In affirming the penalty of removal for the failure to report charge, the AJ noted\n\nthat the warden had testified that he would have removed Davis for the failure to report\n\ncharge alone. Id. at 20. The AJ also gave great significance to the training Davis had\n\nreceived, the higher standard of conduct expected of correctional officers, and the\n\nwarning by the other officer about the inmate. See id. at 20–21. Thus, the AJ found\n\nthat the penalty was “within the limits of reasonableness.” Id. at 21.\n\n Davis filed a petition for review with the full Board, which was denied, making the\n\ninitial decision of the AJ the final decision of the Board. See Final Order, slip op. at 2.\n\nDavis timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).\n\n DISCUSSION\n\n The scope of our review in an appeal from a Board decision is limited. We can\n\nonly set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of\n\ndiscretion, or otherwise not in accordance with law; (2) obtained without procedures\n\nrequired by law, rule, or regulation having been followed; or (3) unsupported by\n\nsubstantial evidence.” 5 U.S.C. § 7703(c).\n\n\n\n\n2008-3202 3\n\f On appeal, Davis does not challenge the failure to report charge; he argues only\n\nthat the penalty imposed against him is disproportionately harsh as compared to his\n\noffense. We will only overturn an agency’s penalty determination if it is “so harsh and\n\nunconscionably disproportionate to the offense that it amounts to an abuse of\n\ndiscretion.” O’Neill v. Dep’t of Housing & Urban Dev., 220 F.3d 1354, 1365 (Fed. Cir.\n\n2000) (quoting Villela v. Dep’t of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984))\n\n(quotation marks omitted). To earn that deference, selection of the penalty must have\n\nbeen based upon a responsible balancing of the relevant factors set forth in Douglas v.\n\nVeterans Administration, 5 M.S.P.R. 280, 305–06 (1981). Under the circumstances of\n\nthis case, the Board did not err in sustaining the agency’s decision to remove Davis. As\n\nnoted by the Board, the MCC’s warden considered Davis’s solid record at the agency,\n\nbut nevertheless felt that other factors—the seriousness of the offense, the repeated\n\ntraining, the warning from the other officer, his status as a law enforcement officer, and\n\nthe effect of his conduct on his supervisor’s confidence in his performance abilities—\n\nsupported Davis’s removal.\n\n As for the fact that the Board affirmed the removal despite sustaining only one of\n\nthe five charges against Davis, remand on the penalty issue may be appropriate in\n\nsome such cases where the nexus between the charges brought by the agency and the\n\npenalty imposed is severed. Lachance v. Devall, 178 F.3d 1246, 1259 (Fed. Cir. 1999).\n\nHowever, “when the agency makes . . . clear before the Board” that “the agency itself\n\nwould have imposed the same penalty on the basis of the sustained charges that it\n\nchose on the basis of the combined charges,” the nexus is not severed and the\n\nagency’s chosen penalty is entitled to deference. Id. Here, the MCC’s warden testified\n\n\n\n\n2008-3202 4\n\fthat “[w]ith respect to the charge [of] failure to report as alleged against . . . Davis,” he\n\n“would . . . have terminated [Davis] for that charge alone” because it was “very serious”\n\nand affected “the safety and security of all the people in the institution.” Hearing\n\nTranscript at 124–25, Davis v. Dep’t of Justice, No. NY-0752-07-0114-I-1 (M.S.P.B.\n\nJune 4, 2007). Thus, the Board’s decision to sustain the removal was supported by\n\nsubstantial evidence and was not arbitrary, capricious, or an abuse of discretion.\n\n For the aforementioned reasons, we affirm.\n\n AFFIRMED\n\n COSTS\n\n No costs.\n\n\n\n\n2008-3202 5\n\f", "ocr": false, "opinion_id": 767 } ]

[ "357 F. App'x 566" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\08/08-30891.0.wpd.pdf", "author_id": null, "opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n December 15, 2009\n No. 08-30891\n Conference Calendar Charles R. Fulbruge III\n Clerk\n\nWILLIAM M BRYSON, JR.,\n\n Petitioner-Appellant\n\nv.\n\nJOE KEFFER; UNITED STATES ATTORNEY EXECUTIVE OFFICE; UNITED\nSTATES DEPARTMENT OF JUSTICE,\n\n Respondents-Appellees\n\n\n Appeal from the United States District Court\n for the Western District of Louisiana\n USDC No. 1:08-CV-960\n\n\nBefore KING, JOLLY, and SOUTHWICK, Circuit Judges.\nPER CURIAM:*\n William M. Bryson, Jr., federal prisoner # 95662-071, appeals the striking\nof his pleadings for failure to comply with the sanction order issued in Bryson v.\nUnited States, No. 1:08-CV-0142 (W.D. La. Mar. 25, 2008). Bryson argues that\nthe district court abused its discretion in construing his pleadings as a request\nfor 28 U.S.C. § 2241 relief and, as such, abused its discretion in enforcing the\nearlier-imposed sanctions.\n\n\n *\n Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not\nbe published and is not precedent except under the limited circumstances set forth in 5TH CIR .\nR. 47.5.4.\n\f No. 08-30891\n\n The sanction order in Bryson v. United States, No. 1:08-CV-0142, specified\nthat, on account of his filing numerous frivolous collateral challenges to his\nsentence, Bryson was required to pay a $100 fine and seek written authorization\nfrom a district judge before filing “any pleading.” The district court’s\nconstruction of Bryson’s pleadings was therefore not germane to its order\nstriking them. Bryson made no attempt to comply with this order, and his\nappeal from the sanction order was dismissed. The record discloses no abuse of\ndiscretion on the part of the district court. See Gelabert v. Lynaugh, 894 F.2d\n746, 747-48 (5th Cir. 1990).\n AFFIRMED.\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 69871 } ]

[ "959 F.2d 551" ]

[ { "author_str": "Jolly", "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\91/91-3593.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Fifth Circuit.\n\n No. 91–3593.\n\n Bruce HEINHUIS, et al., Plaintiffs,\n\n v.\n\n VENTURE ASSOCIATES, INC., et al., Defendants.\n\n NORMAN OFFSHORE PIPELINES, INC., Defendant–Third Party Plaintiff–Appellee,\n\n v.\n\n John Kevett SPICER, Individually, Etc., et al., Third Party Defendants–Appellants.\n\n April 29, 1992.\n\nAppeal from the United States District Court for the Eastern District of Louisiana.\n\nBefore REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.\n\n E. GRADY JOLLY, Circuit Judge:\n\n This maritime insurance case requires us to determine whether the parties to an excess\n\ninsurance policy would be bound—by simple reference to an underlying policy—to the arbitration\n\nclause in that underlying policy. For the reaso ns below, we find that the policy would require\n\narbitration. The threshold determination, however, of whether the parties in this appeal are in fact\n\nparties to the contract must still be resolved. We will therefore remand the case to determine whether\n\nthe parties were bound by the contract at all, in which case, issues of coverage under the contract will\n\nbe subject to arbitration.\n\n\n\n I\n\n Certain underwriters and companies at Lloyds of London (\"Lloyds\") subscribed to an excess\n\ninsurance policy for Norman Offshore Pipeline Contractors, Inc. (\"NOPC\"), effective September 9,\n\n1988. The policy was amended by endorsement on January 17, 1989, to include Norman Offshore\n\nPipelines, Inc. (\"NOPI\") as a named insured from January 13, 1989. The policy is an excess\n\nprotection and indemnity (\"P & I\") policy, which provides a limit of liability of $750,000 in excess\n\fof primary liability coverage of $250,000. The policy specifies, in the CONDITIONS paragraph of\n\nthe declaration page, \"All terms, clauses and conditions as per Underlying policy(ies) as far as\n\napplicable.\" The underlying policy was issued by Ocean Marine Mutual Protection and Indemnity\n\nAssociation (USA) Ltd. (\"OMMPIA\") and provided P & I coverage of $250,000. The terms of the\n\nOMMPIA policy are contained in the association's rulebook. Rule 34 of that book specifies that all\n\ndisputes between a member insured and the association shall be arbitrated in London.1\n\n\n\n On September 9, 1988, Bruce Heinhuis was injured while employed by Venture Associates,\n\nInc. (Venture) and working aboard the Delta I, a pipeline-laying barge owned by NOPC and under\n\ncharter to NOPI. Heinhuis sued both NOPI and Venture in Louisiana state court, seeking damages\n\nunder maritime law and the Jones Act.\n\n\n\n Lloyds refused to defend NOPI in Heinhuis' suit, and NOPI filed a third-party complaint\n\nagainst Lloyds on May 7, 1990. On May 9, NOPI and Venture settled Heinhuis' claims against them.\n\n\n\n On June 13, 1990, Lloyds removed this case to federal court. In April 1991, Lloyds moved\n\n\n 1\n Rule 34 specifies:\n\n If any differences or disputes shall arise between a Member and the Association\n out of or in connection with these Rules or any contract between them as to the\n rights and obligations of the Association or the Member thereunder or in\n connection therewith, such differences or disputes shall in the first instance be\n referred to and adjudicated upon by the Directors.\n\n If the Member concerned in such differences or disputes does not accept the\n decision of the Directors or if the Directors shall fail to make any decision within\n three months of the reference to them of the difference or the dispute, it shall be\n referred to the arbitration in London of an arbitrator agreed by the parties or, if\n they cannot agree upon a sole arbitrator, to the decision of two arbitrators (one to\n be appointed by each of the parties)....\n\n No member shall be entitled to maintain any action, suit, or other legal proceedings\n against the Association otherwise than in accordance with the procedures laid\n down in this Rule and they may only commence proceedings, other than the\n arbitration above, so as to force an award, under such arbitration and then only for\n such sum, if any, as the award may direct to be paid by the Association.\n\fto stay litigation pending arbitration. The district court denied the motion. In doing so, however, the\n\ncourt considered the issues raised without expressly deciding the nature of the relationship between\n\nthe parties, noting instead that Lloyds had not unequivocally denied the existence of the contract.\n\nThe court then held that the motion to stay should be denied even if a contractual relationship exists\n\nbetween the parties. Finding an ambiguity, and construing the ambiguous terms against the interests\n\nof the insurer, the court determined that the arbitration clause of OMMPIA Rule 34 was not a part\n\nof the insurance contract, and, consequently, denied the stay. The court also denied Lloyds'\n\nsubsequent motion to amend its order. Lloyds appeals, seeking to compel arbitration.\n\n\n\n II\n\n The way t his case comes before us, the primary issue is whether the district court erred in\n\ndenying arbitration under the contract. The district court's holding was predicated on a finding that\n\nthe reference of the excess policy incorporating the arbitration clause of the underlying policy was\n\nambiguous because\n\n\n\n the excess policy provide[d] no guidelines for determining which provisions of the underlying\n policy [were] applicable to the excess policy.... [W]here an insurance policy is uncertain, it\n should be construed against the insurer who wrote it. [citation omitted]. Thus, the terms of\n the excess policy must be construed against the insurer.... [T]he applicability of ... provisions\n of the underlying policy, ... must be more clearly evident than is the case here.\n\n We review the district court's interpretation of the policy de novo. McDermott Int'l, Inc. v.\n\nLloyds Underwriters of London, 944 F.2d 1199, 1204 (5th Cir.1991) (citing USX Corp. v.\n\nTanenbaum, 868 F.2d 1455, 1457 (5th Cir.1989)).\n\n\n\n A\n\n Lloyds' excess P & I policy provided that the terms and conditions of the underlying policy\n\nwould govern. Lloyds' policy noted specifically that the underlying policy was that issued to NOPC\n\nby OMMPIA.\n\f This court has held that wording similar to that used in this excess policy to incorporate by\n\nreference the provisions of the underlying policy is adequate to do so as a matter of Louisiana law.\n\nInsurance Co. of North America v. Board of Comrs., 733 F.2d 1161, 1167 (5th Cir.1984). In that\n\ncase, the excess policy used the wording \"as per primary policies.\" In this case, the excess policy\n\nused the wording \"as per Underlying policy(ies) as far as applicable.\" Clearly, Lloyds' policy\n\nadequately referenced the terms of the OMMPIA policy.\n\n\n\n The district court found, however, that the phrase \"as far as applicable\" created an ambiguity\n\nbecause \"[t]he excess policy provide[d] no guidelines for determining which provisions of the\n\nunderlying policy [were] applicable to the excess policy.\"2 The court then concluded: \"To allow the\n\nthird part y defendants to avail themselves of one isolated step in the OMMPIA dispute resolution\n\nprocess would be a strained interpretation of the excess policy agreement.\" Having declared the\n\npresence of an ambiguity, the district court construed the ambiguous terms of the policy against the\n\ninsurers and denied Lloyds' motion to enforce the arbitration clause.\n\n\n\n The district court erred in finding that the arbitration clause was ambiguous and in not\n\ninterpreting it neutrally. We have often held that a court applying Louisiana law should interpret a\n\npolicy according to its plain meaning and not distort its meaning to introduce an ambiguity. See, e.g.,\n\nTrinity Industries, Inc. v. Ins. Co. of North America, 916 F.2d 267, 269 (5th Cir.1990). Instead, the\n\ncourts are to interpret the policy so as to give effect to the intent of the parties; if the purpose of an\n\nexcess policy is obviously to be an extension of the primary policy, the parties' intent to be bound by\n\nthe terms of the primary policy should be respected. Insurance Co. of North America, 733 F.2d at\n\n1167.\n\n\n 2\n Specifically, the district court pointed out that OMMPIA Rule 34's first paragraph requires\nsubmission of disputes to OMMPIA's Board of Directors before arbitration. Lloyds agreed that\nthe step is not applicable. The court found that such selectivity rendered the whole rulebook\nambiguous. \"The third party defendants admit ... this first step in the dispute resolution process of\nRule 34 is not applicable to the excess policy. [They], however, offer no reasoned explanation\nwhy the arbitration provision is any more applicable than the rest of Rule 34.\"\n\f Admittedly, some language in Rule 34 was clearly inapplicable to a dispute between Lloyds\n\nand NOPI because it required disputes between members of OMMPIA and OMMPIA to first be\n\nsubmitted to OMMPIA's board of directors. Such partial inapplicability of the rule, however, is no\n\nreason to reject the unambiguous \"as applicable\" instruction in the excess policy in adopting (reading)\n\nthe terms of the underlying policy.\n\n\n\n B\n\n We have found that Lloyds' excess policy clearly and adequately referred to the terms of\n\nOMMPIA's underlying policy, and that the terms govern the relationship between Lloyds and its\n\ninsured so far as the terms are applicable to the parties to the excess coverage policy. Given the\n\nframework of the OMMPIA membership rules, the proper way to apply these terms is to place Lloyds\n\nin the position of the Association and the insured in the position of the Member. We thus both read\n\nthe word \"insurer\" for \"Association\" and read the word \"insured\" for \"Member.\" We also omit\n\nlanguage that pertains solely to members of OMMPIA. Thus read, the pertinent segments of Rule\n\n34 state:\n\n\n\n If any differences or disputes shall arise between the insured and the insurer out of or in\n connection with the these Rules or any contract between them ... it shall be referred to the\n arbitration in London of an arbitrator agreed by the parties or, if they cannot agree upon a\n sole arbitrator, to the decision of two arbitrators (one to be appointed by each of the parties).\n ....\n\n No insured shall be entitled to maintain any action, suit, or other legal proceedings against\n the insurer otherwise than in accordance with the procedures laid down in this Rule and the\n insured may only commence proceedings, other than the arbitration above, so as to force an\n award, under such arbitration and then only for such sum, if any, as the award may direct to\n be paid by the insurer.\n\nAny doubt that this reading of the policy to find a duty to arbitrate is appropriate should be resolved\n\nin favor of the federal policy of encouraging arbitration. Dean Witter Reynolds, Inc. v. Byrd, 470\n\nU.S. 213, 218, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985). In this case, moreover, the language\n\nis susceptible to a simple construction clearly requiring arbitration. Thus, according to the language\n\nof Rule 34 there is a duty to arbitrate. If the excess P & I policy covers NOPI, then the terms of the\n\funderlying OMMPIA policy, including the duty to arbitrate in Rule 34, are binding upon NOPI in this\n\ndispute.\n\n\n\n III\n\n Our holding that the contract (including the terms of both the excess P & I policy and the\n\nunderlying OMMPIA policy) requires arbitration does not, however, resolve this appeal. Lloyds\n\nseeks to compel NOPI to arbitrate this dispute, but the contract is the only source of a duty upon\n\nNOPI to arbitrate its claim. Unless NOPI is bound by the contract, it may not be compelled to submit\n\nto arbitration.\n\n\n\n The district court pretermitted the question of whether there is a contract between Lloyds\n\nand NOPI. Essentially, the court found it unnecessary to address the question of coverage, because\n\narbitration would not be required even if there was a contract between NOPI and Lloyds. We have\n\nheld that the contract requires arbitration. Whether there is a contract, therefore, is an issue central\n\nto the case, which must now be determined.3\n\n\n\n We will therefore remand the case for the district court to determine whether NOPI was in\n\nfact a party to Lloyds' excess coverage policy at the time of Heinhuis' injuries. Should the district\n\ncourt find that NOPI was insured by the policy, then the dispute over coverage related to Heinhuis'\n\nsuit will be subject to arbitration.\n\n\n\n IV\n\n 3\n It is difficult to determine from the record the degree to which the parties truly dispute\napplicability of the excess policy. Simply, each party is attempting to bind its opponent to one\nclause of the contract without being bound by another. They, therefore, have each been\nambiguous in their respective positions concerning their obligations. Certainly, the party resisting\narbitration must put the existence of an agreement to arbitrate in issue. T & R Enterprises, Inc. v.\nContinental Grain Co., 613 F.2d 1272, 1277–78 (5th Cir.1980). Because of the posture of\ncounsel at oral argument and because the district court's opinion addressed the issue as if it were\nraised, we consider it to have been put in issue, either by Lloyds' denial of coverage or by NOPI's\nresistance to arbitration.\n\f We, therefore, REVERSE the order of the district court and REMAND this case for the court\n\nto determine whether NOPI was covered by Lloyds' excess P & I policy, and if so, to stay this action\n\npending arbitration pursuant to OMMPIA Rule 34.\n\n\n\n REVERSED and REMANDED.\n\f", "ocr": false, "opinion_id": 4835 } ]