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https://www.courtlistener.com/api/rest/v3/opinions/2898439/
NO. 07-09-0115-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D NOVEMBER 25, 2009 ______________________________ JAMES WARREN BRIGHT, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 16,336; HONORABLE KELLY G. MOORE, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. ON MOTION TO DISMISS           Pending before this court is appellant’s motion to dismiss the appeal of his underlying case brought under Chapter 64 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. articles 64.01-64.05 (Vernon 2006 & Supp. 2009). Appellant, appearing pro se, signed the motion. Tex. R. App. P. 42.2(a). No decision of this court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.                                                                            James T. Campbell                                                                                   Justice Do not publish. "false" Name="Table Grid"/> NO. 07-10-00073-CR   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL D   APRIL 20, 2010     TEDRICK WATTERS, APPELLANT   v.   THE STATE OF TEXAS, APPELLEE      FROM THE 242ND DISTRICT COURT OF HALE COUNTY;   NO. A17719-0808; HONORABLE EDWARD LEE SELF, JUDGE     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.     ORDER OF ABATEMENT AND REMAND                 Appellant Tedrick Watters appeals the revocation of his community supervision.  We will abate the appeal and remand the case to the trial court for proceedings consistent with this order.             The following facts drawn from the clerk’s record and our record are pertinent to this order.  Trial counsel was appointed for appellant on a finding of indigence on January 20, 2010.  Counsel filed a notice of appearance on January 29.  Appellant’s sentence was imposed February 12, 2010.  The trial court certified the case was a plea bargain and appellant had no right of appeal except as to the revocation order.  The record contains no order relieving counsel of her duties.[1]  Appellant filed a pro se notice of appeal on March 1.  According to the trial court clerk’s information form, appellant is “unable to pay costs on appeal” but the form further indicates appellant appears pro se.[2]  The clerk’s record was filed April 14.  We note from our record that appellant has not filed the docketing statement required by Rule of Appellate Procedure 32.2 despite notice from the clerk of this court.  On April 12, the reporter filed a request for extension of time to file the reporter’s record on the grounds that appellant has not submitted a request for preparation or written designation for the record and has not made arrangements to pay for the record.              We now abate the appeal and remand the case to the trial court for further proceedings. On remand, the trial court is directed to immediately notice and conduct a hearing to determine: 1.    whether good cause exists to relieve appointed counsel of her duties; 2.    whether appellant still wishes to pursue this appeal; 3.    whether appellant is indigent; 4.    whether appellant has retained counsel to prosecute this appeal; and 5.    if appellant is indigent, whether he is entitled to appointed counsel on appeal    and a free appellate record.               We further direct the trial court to issue findings of fact and conclusions of law addressing the subjects numerically itemized above.  If, on a finding of good cause, the trial court relieves counsel of her duties, finds appellant desires to pursue his appeal, finds appellant is without legal representation, and finds appellant is indigent, then we direct the trial court to appoint counsel to assist in the prosecution of the appeal and to order a record of the trial court proceedings be provided to appellant free of charge.  The name, address, telephone number, telefax number, and state bar number of the counsel who will represent appellant on appeal must also be included in the trial court’s findings of fact and conclusions of law.  Furthermore, the trial court shall cause to be developed 1) a supplemental clerk’s record containing the findings of fact and conclusions of law and all orders of the trial court issued as a result of its hearing on this matter and 2) a reporter’s record transcribing the evidence and argument presented at the hearing on this matter.  Additionally, the trial court shall cause the supplemental record to be filed with the clerk of this court on or before May 21, 2010.  Should additional time be needed to perform these tasks, the trial court may request same on or before May 21, 2010. If the trial court finds appellant desires to pursue his appeal and is entitled to a free record on appeal, the reporter’s record shall be filed with the clerk of this court within thirty days of the date the supplemental record directed by this order is filed.  Should the trial court find appellant desires to pursue his appeal but is not entitled to a free record, the reporter’s record shall be filed with the clerk of this court within thirty days of the date the supplemental record directed by this order is filed, subject, however, to appellant’s compliance with the requirements of Rule of Appellate Procedure 35.3.  Tex. R. App. P. 35.3.  Additional deadlines shall fall in accordance with the appellate rules.  See Tex. R. App. P. 38.6. It is so ordered.   Per Curiam Do not publish. [1] By accepting appointment to represent an indigent defendant, counsel undertakes the duty to represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or counsel is relieved of her duties by the court or replaced by other counsel after a finding of good cause is entered on the record.  Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2009).   [2] The form does not indicate whether the inability to pay costs was a finding of the trial court or an assertion of appellant.
01-03-2023
09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2406802/
26 F. Supp. 2d 740 (1998) TEMPTATIONS, INC., Plaintiff, v. Carol WAGER and Matthew Wager, Defendants. No. CIV. 98-2080(WHW). United States District Court, D. New Jersey. December 2, 1998. *741 Ralph Mayo, Mayo & McCutcheon, New Brunswick, NJ, for Plaintiff. Lionel Jerome Frank, Hill Wallack, Princeton, NJ, for Defendants. OPINION WALLS, District Judge. This matter comes before the Court on an appeal by defendants Carol and Matthew Wager from the magistrate judge's order to remand the case to New Jersey state court, and/or in the alternative, a motion for the enforcement of the final judgment and settlement agreement in Civ. No. 97-4540. Under Fed.R.Civ.P. 78, the Court decides these matters without oral argument. The order of the magistrate judge is vacated, the case is remanded to the Superior Court of New Jersey, and defendants' motion for the enforcement of the final judgment and settlement agreement in Civ. No. 97-4540 is denied. FACTS Plaintiff Temptations, Inc. ("Temptations"), a New Jersey corporation engaged in the sale of women's fashion accessories, sued defendants Carol and Matthew Wager in New Jersey state court alleging three causes: defamation, interference with prospective economic advantage, and interference with contract. Plaintiff alleged that defendants falsely communicated to others that it was "selling merchandise that duplicated exactly a design which defendants stated was copyrighted by another." (Compl.ś 3.) Plaintiff complained that this statement was defamatory, and that through this statement, defendants *742 interfered with plaintiff's economic advantage and caused a breach or termination of plaintiff's contractual relations with its customers and/or suppliers. (Compl.śś 7, 11.) Defendant Carol Wager is a marketing consultant and her defendant husband, Matthew Wager, a financial consultant. Both are familiar with the costume jewelry industry and were retained by Barry Kieselstein-Cord and Barry Kieselstein Enterprises, Inc. ("BKE") "to investigate the unauthorized sale and distribution of jewelry accessories infringing upon those manufactured and sold by BKE [and] protected by its copyrights and trademarks." (C. Wager Aff. ś 1.) Defendants claim that in May, 1997 they were engaged to investigate the activities of Temptations, Inc. and informed Barry Kieselstein-Cord and BKE of their findings-that jewelry items sold by Temptations were replicas or "knock-offs" of BKE jewelry. (M. Wager Aff. ś 11.) In September, 1997, Barry Kieselstein-Cord and BKE filed a copyright and trademark infringement suit in this Court against Temptations, and two other defendants, Annette Mayo, president of Temptations and Diane Levy, a Temptations employee. See Civ. No. 97-4540. Later, in November, 1997, the parties entered into a settlement agreement wherein defendants admitted no intentional wrongdoing, denied the allegations of the complaint, and agreed to pay plaintiffs $2,140 in damages, profits, costs and attorneys' fees. (Settlement Agreement ś 3.) Plaintiffs released the defendants from any and all claims of the complaint. (Settlement Agreement ś 5.) Defendants released the plaintiffs, "their officers, agents, directors, shareholders and employees from any and all claims or possible claims or future claims which could have been made or asserted against plaintiffs." (Settlement Agreement ś 5.) On December 12, 1997, the District Court entered a Final Judgment Upon Consent ("Final Judgment"), which enjoined Temptations, Annette Mayo, Diane Levy, "their agents, servants, employees, and attorneys-in-fact and all persons in active concert and participation with them" from using plaintiffs' trademark and from infringing upon plaintiffs' copyrights. (Final Judgment ś 4.) The defendants agreed to pay plaintiffs an amount in settlement for damages, profits, costs, disbursements and attorneys' fees. (Final Judgment ś 5.) This Court retained jurisdiction over that case, Civ. No. 97-4540 for the purpose of making any further orders necessary or proper for the construction or modification of the final judgment. (Final Judgment ś 6.) In February, 1998, Temptations filed its complaint against Carol and Matthew Wager in the Superior Court of New Jersey, Middlesex County. Defendants removed the case to federal court in May, 1998. Shortly afterward, plaintiff moved to remand the case to state court and sought sanctions against defendants. Defendants cross moved to consolidate the case with Civ. No. 97-4540, which was closed, and to enforce the settlement agreement in that case. On July 14, 1998, the magistrate judge remanded the case to the Superior Court of New Jersey, denied plaintiff's motion for sanctions, and denied without prejudice defendants' cross motion to enforce the settlement agreement of Civ. No. 97-4540. Defendants now appeal the magistrate's decision and move to enforce the final judgment and settlement agreement for Civ. No. 97-4540 against plaintiffs. DISCUSSION A. Whether the Magistrate Judge Had Jurisdiction to Issue an Order of Remand The Federal Magistrates Act provides that magistrate judges may, without the consent of the parties, hear nondispositive pretrial motions and enter orders on those motions. 28 U.S.C. § 636(b)(1)(A)-(B). With regard to a dispositive motion, without the consent of the parties, a magistrate judge may submit to a district court judge proposed findings of fact and recommendations as to its disposition. 28 U.S.C. § 636(b)(1)(A)-(B). DeCastro v. AWACS, 940 F. Supp. 692 (D.N.J.1996) held that a magistrate judge may enter an order remanding a case as a nondispositive order and that a district court may hear an appeal of that order. Afterwards, the District *743 of New Jersey adopted Local Rule 72.1(c)(1)(C) which codified that decision. Recently, the Third Circuit rejected the conclusion of DeCastro and Local Rule 72.1(c)(1)(C) and ruled that a motion to remand a case to state court is dispositive. In re U.S. Healthcare, 159 F.3d 142 (3d Cir. 1998). Judge Greenberg wrote that "because a remand order is dispositive insofar as proceedings in the federal court are concerned, the order is the functional equivalent of an order of dismissal for purposes of [28 U.S.C. § 636(b)(1)(A)]." 159 F.3d 142, 144. Because an order to remand a case to state court is dispositive, a magistrate judge does not have jurisdiction to enter it without the consent of the parties. 159 F.3d 142, 144. The magistrate judge, may however, submit findings of fact and recommendations for consideration by the district court. Here, the magistrate judge entered an order remanding the case to New Jersey Superior Court for lack of federal subject matter jurisdiction. Because the magistrate judge did not have jurisdiction to enter such an order, the order is vacated. This Court will treat his order as a report and recommendation and will review de novo whether there is subject matter jurisdiction in this case. B. Analysis a. Whether Plaintiff's Action Arises under Federal Law Section 1441(a) of 28 U.S.C. permits removal by a defendant of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." There is no diversity jurisdiction in this case. Defendants maintain that this Court has subject matter jurisdiction because this case is predicated on a federal cause of action. Defendants assert that to determine whether there is federal jurisdiction, the Court must not end its inquiry with an examination of the complaint on its face. (Defs.' Mem. in Supp. of Appeal at 4.) They argue that the complaint itself does not provide a basis for federal jurisdiction because plaintiffs sought to avoid the federal forum by artfully pleading a federal claim as a state law claim. (Defs.' Mem. in Supp. of Appeal at 4-5.) They further contend that the three claims in the complaint-defamation, interference with economic expectancy or advantage, and interference with contract-all relate to federal copyright law. (Defs.' Mem. in Supp. of Appeal at 6-7.) Under the "artful pleading" doctrine, "a court will not allow a plaintiff to deny a defendant a federal forum when the plaintiff's complaint contains a federal claim `artfully pled' as a state law claim." United Jersey Banks v. Parell, 783 F.2d 360, 367 (3d Cir.1986)(citing 14A Charles A. Wright & Arthur R. Miller § 3722 at 270; Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359, 365 (5th Cir.), cert. denied, 469 U.S. 1018, 105 S. Ct. 433, 83 L. Ed. 2d 359 (1984)). Our Supreme Court has advised that there may be federal jurisdiction even though a plaintiff bases its claim in state court on state law: (1) when "it appears that some substantial disputed question of federal law is a necessary element of one of the well-pleaded state claims," or (2) when it appears that the plaintiff's claim is `really' one of federal law. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 13, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983). To determine whether federal jurisdiction exists, a court must focus "on the underlying cause of action as set forth in the well-pleaded complaint." United Jersey Banks, 783 F.2d at 366. "[A] suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby." Gully v. First National Bank, 299 U.S. 109, 116, 57 S. Ct. 96, 99, 81 L. Ed. 70 (1936), quoted in Franchise Tax Board, 463 U.S. at 12, 103 S. Ct. at 2848. A federal claim is artfully pled as a state law claim when the suit in actuality arises under a federal law which gives the plaintiff the right to pursue the relief sought in the complaint. See Franchise Tax Board, 463 U.S. at 23, 103 S. Ct. at 2853 (finding no basis for federal jurisdiction where the suit filed by the Franchise Tax Board did not "arise under" ERISA since that statute gave the state no right to seek the relief it requested). *744 The paradigmatic case of "artful pleading" is Federated Department Stores Inc. v. Moitie, 452 U.S. 394, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981). The plaintiff had brought a federal antitrust action which had been dismissed for failure to state a claim. The plaintiff then initiated an action in state court with essentially the same claims against the same defendants which was removed by the defendant to federal court. The Supreme Court opined that the claims in that case had "sufficient federal character to support removal," and endorsed the "artful pleading" doctrine as a "settled principle." 452 U.S. at 397 n. 2, 101 S. Ct. at 2427 n. 2 (quoting 14A Charles A. Wright & Arthur R. Miller § 3722 at 564-66 (1976)). This is not such a case. The state law claims in this case do not track or parallel the federal claims in Civ. No. 97-4540. Temptations does not attempt to relitigate the same copyright and trademark claims that were the subject of Civ. No. 97-4540. Rather, Temptations seeks the resolution of distinctly state law claims of defamation, interference with economic expectancy or advantage, and interference with contract. None of these claims relies upon or arises from the copyright and trademark laws disputed in Civ. No. 97-4540. Defendants rely on four cases for the proposition that a court should look beyond the words of the complaint to decide whether there is federal jurisdiction. In each, the complaint did not express a federal cause of action, the defendants relied upon the artful pleading doctrine to establish jurisdiction, and the court concluded that there was no federal jurisdiction. See Goepel v. National Postal Mail Handlers, 36 F.3d 306 (3d Cir. 1994), United Jersey Banks, 783 F.2d 360; Gateway 2000, Inc. v. Cyrix Corp., 942 F. Supp. 985 (D.N.J.1996); Rozzell v. Security Servs., Inc., 38 F.3d 819 (5th Cir.1994). The Third Circuit, by United Jersey Banks, 783 F.2d 360, the case to which defendants refer most frequently, concluded that there was no federal jurisdiction for removal where the plaintiffs relied on state law in their complaint and defendants sought to remove the case based on an anticipated defense of federal preemption. 783 F.2d at 365. In reversing the district court's decision that there was federal jurisdiction based on the artful pleading doctrine, the circuit court cautioned: Unless applied with circumscription, the artful pleading doctrine may raise difficult issues of federal-state relations. An expansive application of the doctrine could effectively abrogate the rule that a plaintiff is master of his or her complaint. Hunter v. United Van Lines, 746 F.2d 635, 640 (9th Cir.1984), cert. denied, 474 U.S. 863, 106 S. Ct. 180, 88 L. Ed. 2d 150 (1985). Those courts of appeal that have applied the doctrine have done so primarily in the context of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, not only because the extent of federal primacy is well established, see Hillard v. Dobelman, 774 F.2d 886, 887 (8th Cir.1985); Mitchell v. Pepsi-Cola Bottlers, Inc., 772 F.2d 342, 344 (7th Cir.1985), but because all state law is displaced. 783 F.2d at 368. Heeding that advice, this Court finds that there is no federal jurisdiction here. Plaintiffs have stated three causes of action under state law: defamation, interference with prospective economic advantage, and interference with contract. None of these claims arises from a federal action. Defendants argue that plaintiff cannot maintain a defamation claim without a determination of whether defendants' statement was true or false. Because defendants' alleged defamatory statement was that plaintiff had infringed a copyright, defendants claim that a substantial disputed question of federal copyright law is a necessary element of the defamation claim. (Defs.' Mem. in Supp. of Appeal at 7.) Similarly, they argue that because the interference with economic advantage and contract claims are based on that alleged false statement, a necessary element of these claims is also copyright law. (Defs.' Mem. in Supp. of Appeal at 8.) Defendants, however, misinterpret the requirements of the artful pleading doctrine. A substantial, disputed question of federal law must be a necessary element of the well-pleaded claim. Here, plaintiff's claim does not arise under the copyright laws. The copyright laws do not give plaintiff the right to pursue the desired relief-they do not support a cause of action for defamation. Instead, *745 the copyright laws may be a defense to plaintiff's claims. Truth is a defense to a claim of defamation, and defendants argue that if their statements that plaintiff had been infringing a copyright are true, there is no basis for plaintiff's claims interference with contractual and economic advantage claims. Plaintiff's claims do not spring from the copyright laws. As the Supreme Court noted in Gully and repeated in Franchise Tax Board, "a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby." Gully, 299 U.S. at 116, 57 S. Ct. at 99, quoted in Franchise Tax Board, 463 U.S. at 12, 103 S. Ct. at 2848. And an anticipated defense which relies on federal law is not a basis for removal. The Supreme Court addressed this issue more than eighty years ago in American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S. Ct. 585, 60 L. Ed. 987 (1916). There, in a state court, a manufacturer sued another manufacturer in libel or slander for statements to others that plaintiff was infringing defendant's product patent. Defendant removed the case to federal court on the ground that the cause of action arose under the patent laws of the United States. Writing for the Court, Justice Holmes declared that there was no federal jurisdiction because the suit arose under the law of the state rather than under the patent laws: What makes the defendants' act a wrong is its manifest tendency to injure the plaintiff's business.... But whether it is a wrong or not depends upon the law of the state where the act is done, not upon the patent law, and therefore the suit arises under the law of the state. A suit arises under the law that creates the cause of action. The fact that the justification may involve the validity and infringement of a patent is no more material to the question under what law the suit is brought than it would be in an action of contract. 241 U.S. at 260, 36 S.Ct. at 586. As in American Well Works Co., that a federal law may be a defense to plaintiff's claims is of no legal consequence to whether plaintiff's claim arises under a federal law. Because plaintiff's causes of action arise under state law, this Court has no jurisdiction. b. Whether This Court Has Ancillary Jurisdiction over This Action Defendants argue that this Court has ancillary jurisdiction over this case by virtue of the final judgment and settlement agreement in Civ. No. 97-4540. Defendants maintain that "BKE's claims of copyright infringement and unfair competition ... are inextricably tied to the state law claims advanced by Temptations in the instant suit." (Defs.' Mem. in Supp. of Appeal at 15.) This action "cannot be resolved without resolution of the copyright infringement suit which was the subject of [Civ. No. 97-4540]." (Defs. Mem. in Supp. of Appeal at 15.) According to them, the final judgment resolved those issues and because this Court retained jurisdiction over Civ. No. 97-4540 for the enforcement of that judgment, the Court now has ancillary jurisdiction over this action. (Defs.' Mem. in Supp. of Appeal at 15.) The settlement agreement of Civ. No. 4540 was incorporated into the final judgment and that Temptations' release of BKE there releases as well Carol and Matthew Wager here as BKE's agents from liability, so goes the defendants' argument. (Defs.' Mem. in Supp. of Appeal at 17.) That argument is faulty on several grounds, only two of which this Court need address for the disposition of this motion. First, as stated, this action does not arise under the copyright laws; nor is this action based upon issues of copyright infringement, the subject of Civ. No. 97-4540 dealt. Hence, the final judgment rendered in Civ. No. 97-4540 does not give the Court ancillary jurisdiction over this action. Second, the final judgment in Civ. No. 97-4540 entered by this Court on December 12, 1997 does not incorporate the full settlement agreement between the plaintiffs and defendants: The parties having agreed that Defendants shall pay to Plaintiffs an amount in settlement of Plaintiffs' demand for damages, profits, costs, disbursements and attorneys' fees, Defendants' warranties and representations *746 and obligations to make such payment are incorporated herein and no other award for damages, profits, costs, disbursements and attorneys' fees is made herein. (Final Judgment ś 5.) As written, it incorporates only those portions of the settlement agreement which involve Temptations', Mayo's, and Levy's "warranties and representations and obligations to make such payments" to Barry Kieselstein-Cord and BKE. Absent are those provisions wherein the parties agreed to release each other from liability. The final judgment does not treat Temptations' release of BKE, its officers, agents, directors, shareholders and employees from liability. This Court did not reserve jurisdiction to enforce the earlier settlement agreement. As the Supreme Court explained in Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 380, 114 S. Ct. 1673, 1676, 128 L. Ed. 2d 391 (1994), "[a] judge's mere awareness and approval of the terms of the settlement agreement do not suffice to make them part of his order" so as to retain ancillary jurisdiction over an action arising out of the settlement agreement. Because of this, the Court's jurisdiction to enforce the final judgment does not give it jurisdiction to effect the release in the settlement agreement. This Court does not have ancillary jurisdiction over the present controversy. C. Defendants' Motion to Consolidate This Action with Civ. No. 97-4540 Defendants argue that the Court should consolidate this action with Civ. No. 97-4540 pursuant to Fed.R.Civ.P. 42(a), because the two actions involve common issues of law and fact. However, the two actions do not involve common questions of law. Here the claims arise from state laws of defamation, interference with economic advantage, and interference with contract. Civ. No. 97-4540 involved federal issues of copyright and trademark law. Although the two actions may have a common factual background, that alone does not provide the basis for consolidation. Significantly, Civ. No. 97-4540 is closed. For this reason alone, common sense and logic preclude the consolidation of this action with Civ. No. 97-4540, the living with the dead. Defendants' motion to consolidate this action with Civ. No. 97-4540 is denied. D. Defendants' Motion to Enforce the Final Judgment and Settlement Agreement of Civ. No. 97-4540 Although the release in the settlement agreement in Civ. No. 97-4540 may be relevant, it was not incorporated into the final judgment. The Court did not retain jurisdiction in Civ. No. 97-97-4540 to enforce that release provision. Defendants' motion to enforce the final judgment and settlement agreement of Civ. No. 97-4540 is denied. CONCLUSION The magistrate judge's order remanding the case is vacated. The Court concludes that it does not have subject matter jurisdiction to hear this case. Defendants' motions to consolidate this action with Civ. No. 97-4540 and to enforce the final judgment and settlement agreement are denied. This action is ordered to be remanded to the Superior Court of New Jersey, Middlesex County, for whatever action it may deem necessary. SO ORDERED. ORDER This matter comes before the Court on an appeal by defendants Carol and Matthew Wager seeking reversal of magistrate judge's order remanding the case, and/or in the alternative, a motion for the enforcement of the final judgment and settlement agreement in Civ. No. 97-4540. Upon consideration of the submissions of the parties and for the reasons stated in the accompanying opinion, it is on November, 1998: ORDERED that the magistrate judge's order is vacated; ORDERED that this case is remanded to the Superior Court of New Jersey, Middlesex County; ORDERED that defendants' motion for the enforcement of the final judgment and *747 settlement agreement in Civ. No. 97-4540 is denied.
01-03-2023
10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4003815/
Frank Bermawitz was tried at the June term, 1923, of the circuit court of Preston county, under an indictment charging ownership, operation, etc., of a moonshine still. The jury found him guilty, and the court fined him $300.00 and sentenced him to the penitentiary for a period of three years. He prosecutes error here. The Attorney-General, admitting error, files no brief on behalf of the state. *Page 638 The indictment in this case was made at the June term, 1923, and is as follows: "The Grand Jury of the State of West Virginia, in and for the body of the county of Preston and now attending upon the Circuit Court thereof, upon their oaths present that Frank Bermawitz and Mrs. Frank Bermawitz, on the __________ day of __________, A.D. 19__ in the said county of Preston, did unlawfully and feloniously own, operate, maintain, possess, and have an interest in a certain apparatus, mechanism and device for the manufacture of intoxicating liquors, commonly known as a "moonshine still," against the peace and dignity of the State. ____________________, Prosecuting Attorney." It will be noted therefrom that the date of the commission of the alleged offense is not fixed by the indictment. At common law, it was necessary to set out the date of an alleged offense in an indictment. Section 10, chapter 158, Code of West Virginia, modifies the common law to this extent: "No indictment * * * shall be quashed or deemed invalid * * * for omitting to state, or stating imperfectly the time at which the offense was committed when time is not of the essence of the offense." The requirement of the common law is therefore changed by the statute only in cases where time is not of the essence of theoffense. In order to determine whether or not time is of the essence of this offense, it is necessary to revert briefly to our statutes thereon. The crime charged in the indictment is not a common law offense. Prior to the date section 3 of chapter 13 of the Acts of 1913 became effective, the operation of a still was permissible under a state license. It was not a crime to own or possess a still, but operation of a still without a state license was then a misdemeanor. By the Act of 1913, which became effective July 1st, 1914, the manufacture of intoxicating liquors was made a misdemeanor. It was no violation of the law under this act to *Page 639 own or possess or have an interest in a still. There was no change in the law in this respect until the Act of 1919 became effective, whereby it became a felony to own, operate, etc., a moonshine still. From all which it appears that time is necessarily of the essence of this offense. Within ten years prior to the time the indictment was returned, such acts as are charged in the indictment have been subject to three separate statutes. Under one statute, the indictment charges no crime; under another statute, it charges a misdemeanor, and under a third, it charges a felony. The defendant was entitled to know from the indictment under which statute the state sought conviction. The indictment should have specified the date of the commission of the alleged offense. Failure to do so renders it bad. "Where time is a material ingredient in the offense, and the extent of the punishment for the offense alleged, has been enlarged, (as in cases of horse stealing,) then time becomes material, and a failure to state it in the indictment, is fatal." Bolton v. The State, 45 Tenn. 650. "Where there are two statutes and the one of subsequent date changes the nature of the offense, or the punishment of the same, the indictment must by proper averment refer to the statute under which it was found so that the court may see the exact character of the offense, and the nature and measure of the punishment to be imposed." State v. Wise, 66 N.C. 120. "An indictment for breaking and entering a "mill-house" with intent to commit larceny therein, must charge the time at which the alleged breaking and entering took place, for if done between February 12, 1894, and January 9, 1896, the offense was not a felony, while if done before the first date or after the latter, the offense is a felony. Time is of the essence of the offense." Cool v. Commonwealth, 94 Va. 799. *Page 640 When the demurrer to an indictment is sustained in this Court, it is not customary to refer to other errors alleged. As the defendant can be again indicted and again tried, we deem it advisable to call attention to instruction number 1 given by the State, which is as follows: "The jury are instructed, that if they believe from the evidence, beyond all reasonable doubt, that the defendant Frank Bermawitz had in his home at the time the search warrant offered in evidence by the State, apparatus capable of being used to manufacture moonshine liquor, they shall find the defendant guilty." An instruction very similar to this one was held bad in the case of State v. Moore, 95 W. Va. 604, because "it withdraws from the jury's consideration the question of the defendant's intent and practically directs the jury to find the defendant guilty." The judgment of the lower court will therefore be reversed, the verdict of the jury set aside, and the demurrer to the indictment herein sustained. Judgment reversed; verdict set aside; demurrer sustained.
01-03-2023
07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/8540626/
Opinión disidente emitida por la Jueza Asociada Señora Fiol Matta, a la cual se une la Juez Asociada Señora Rodríguez Rodríguez. Escribo esta opinión con gran preocupación ante la idea del “poder del silencio” que ha acogido una mayoría de este Tribunal, especialmente cuando se trata de interpretar asuntos de suma importancia en nuestro derecho constitu-cional, en este caso, el proceso mismo para enmendar nues-tra Ley Suprema. Nunca podemos olvidar que, en nuestro ordenamiento constitucional democrático, todo poder tiene límites. (1) En ese sentido y para preservar nuestras profun-das raíces democráticas, no debemos alejarnos de la idea de que “[p]or encima del Poder [está] el derecho”.(2) Estoy de acuerdo con las conclusiones de la opinión ma-yoritaria en cuanto a que nos encontramos ante una con-*78troversia justiciable, que el Partido Independentista Puer-torriqueño (PIP) tiene legitimación para presentar este caso y que no incurrió en incuria. También comparto el criterio de que la Resolución Concurrente Número 35, que propuso celebrar un referéndum para enmendar la Consti-tución de Puerto Rico alterando la composición de la Legis-latura, no contó con los votos que el texto constitucional requiere para su aprobación. Sin embargo, difiero del aná-lisis que emplea la mayoría para resolver que el aval legis-lativo a la Resolución Concurrente Número 60, que pro-puso consultarle al Pueblo en un referéndum si consiente restringir el derecho a la fianza, tuvo el efecto de aprobar la Resolución 35 con solo mencionarla. En este aspecto, coincido con la opinión disidente emitida por el Juez Pre-sidente Hernández Denton. Ciertamente, las deficiencias serias e irremediables en el proceso llevado a cabo por la Asamblea Legislativa para dar paso al referéndum que permitiría enmendar la Constitución y la falta de rigurosi-dad demostrada por ese cuerpo en el desempeño de sus facultades requieren que el Tribunal Supremo, en el ejer-cicio de su responsabilidad constitucional, invalide la ac-tuación legislativa por apartarse de las exigencias conteni-das en nuestra Ley Suprema y en los reglamentos legislativos. Más allá de esas determinaciones y sus fundamentos, entiendo necesario expresarme separadamente sobre el pe-ligroso razonamiento que exhibe, en múltiples ocasiones y con certeza de convicción, la opinión que hoy emite una mayoría del Tribunal. La frase “nada impide” que ésta re-pite constantemente es una señal de alarma. La opinión mayoritaria presenta una visión preocupante sobre la inte-racción entre el poder gubernamental y las protecciones constitucionales al concluir que, si la Constitución no pro-híbe una acción particular de manera expresa, no hay lími-tes al ejercicio del poder. *79En esta ocasión, esa visión toma forma en la conclusión del Tribunal de que basta con que la Asamblea Legislativa cumpla parcialmente con el riguroso proceso para enmen-dar nuestra Constitución, sin importar cuán accidentado, escabroso, torpe o irresponsable haya sido, para que sea validado por los tribunales. La mayoría está profunda-mente equivocada: en lo que concierne a la Constitución, no basta con llegar al destino; igual de importante es revi-sar cómo se llegó. Es cierto que el proceso para enmendar la Constitución, como lo describe la opinión mayoritaria, es "particularmen-te detallado y definido’.(3) Pero no por eso la ausencia de algún detalle es sinónimo de una carta blanca. La falta de definición de cierto aspecto del proceso no equivale a un consentimiento para delinear ese punto como mejor con-venga en una situación particular. Y es aquí que encontra-mos dos fallas fundamentales de la Opinión del Tribunal. En primer lugar, concluye erróneamente que ese detalle y esa definición relevan al Tribunal de su rol interpretativo como si se tratara únicamente de la aplicación mecánica de un proceso totalmente particularizado. En segundo lugar, justifica su metodología de buscar únicamente lo prohibido expresamente. Con toda honestidad, ninguna de estas con-clusiones me parece válida. Nuestra Constitución no es un mapa exacto. Por el contrario, ofrece coordenadas. La opi-nión mayoritaria ignora esto. Por eso, utiliza la inclusión de mandatos específicos en el texto constitucional como una excusa para concluir que este Tribunal no tiene nada que interpretar, cancelando así nuestro rol constitucional, y que la ausencia de una prohibición expresa equivale a una autorización. La opinión mayoritaria revela la noción de que la Cons-titución supone solamente los límites del poder *80gubernamental. Nada más lejos de la verdad. La Constitu-ción, además de establecer límites, es la fuente del poder gubernamental.(4) Por lo tanto, no debemos recurrir a la Constitución únicamente para encontrar lo que no se puede hacer. La Constitución permite el ejercicio del poder y, en ciertas ocasiones, como la de autos, establece cómo debe ejercerse ese poder, cuál será el proceso. Es especial-mente preocupante la insistencia de la opinión mayoritaria en que no existen prohibiciones expresas y detalladas en la Constitución que se violen por el proceso accidentado lle-vado a cabo por la Asamblea Legislativa y en que eso es suficiente para validarlo. Parecería que, si la Constitución no lo prohíbe expresamente, “anything goes”.(5) Esto es *81particularmente alarmante cuando se trata de posibles al-teraciones al texto constitucional. Precisamente, en Berríos Martínez v. Gobernador II, rechazamos esa visión en el contexto específico de las enmiendas a la Constitución: “También partimos de la premisa que, en el ejercicio de su poder soberano, el pueblo incluyó en el Art. VII de la Constitución, supra, unos límites expresos e implícitos sobre el alcance de las enmiendas que se podrán incorporar”.(6) Es nuestro deber, como intérpretes de la Constitución, encontrarlos. La mayoría del Tribunal hace lo contrario. La opinión mayoritaria indica que “nada impide que el Senado de Puerto Rico, mediante una Resolución Concu-rrente posterior, reitere lo hecho en una [Resolución Concurrente] anterior”.(7) Esto, para resolver que la Resolución 60, a través de la frase en la que alude a lo dicho en la Resolución 35, incluyó todo el contenido de la Resolución 35 y se le presentó a la Legislatura para que avalara el referéndum sobre la reforma legislativa que no había obte-nido los votos necesarios anteriormente. Asimismo, señala que su interpretación es cónsona con la Constitución por el simple hecho de que la Constitución “guarda silencio en cuanto a la definición de las Resoluciones Concurrentes”.(8) Ello le parece suficiente para concluir que una resolución concurrente que propone enmendar la Constitución se puede aprobar a través de otra resolución concurrente aprobada con un propósito totalmente desvinculado solo porque la segunda menciona la primera. Su argumento es que “[l]os padres de la Constitución no impusieron ese re-quisito [de seguir el mismo trámite y diseño temático que los proyectos de ley] a la resolución concurrente, por lo cual no debe imponerlo este Tribunal...”.(9) Aprovechar la *82ausencia de una expresión para construir un significado que resulta poco probable y acomodaticio no me parece el mejor método de análisis que este Tribunal podría emplear.(10) Este recurso a los “silencios” de la Constitución socava otras determinaciones significativas de la opinión. Así, con el fin de concluir que la publicación de la propuesta de enmienda constitucional se hizo correctamente, la opinión del Tribunal alude a que el historial de la Convención Constituyente “guarda silencio” en cuanto a cómo debe ser la publicación requerida.(11) De igual manera, para decidir que la naturaleza temporera de la Junta Constitucional Revisora de Distritos Senatoriales y Representativos y su disolución después de cada división decenal no es un impe-dimento para que se pueda convocar a la Junta fuera de los plazos fijados, la opinión mayoritaria señala que “[n]o he-mos encontrado nada en el texto de la Constitución ni en el *83historial de la Convención Constituyente que prohíba el que la Junta Constitucional Revisora de Distritos Legisla-tivos sea convocada en más de una ocasión en una década” y, “[p]or ende, no existe prohibición constitucional alguna que impida que la Junta sea convocada para realizar una revisión de los distritos legislativos en medio de una dé-cada ...”.(12) Nuevamente, en lugar de fijarse en los límites que conlleva lo que la Constitución expresa, busca autori-zaciones en el silencio. Por otro lado, la opinión mayoritaria indica que le pa-rece simplista el argumento del PIP de que cada compo-nente de la reforma legislativa conlleva enmendar una parte de la Constitución. A pesar de que reconoce que “[u]n referéndum que propone al Pueblo una serie de enmiendas a su [ley superior] es un evento complejo, sensitivo y alta-mente regulado” que, además, conlleva un desembolso sus-tancial de fondos públicos,(13) la opinión mayoritaria pro-pone un análisis mecánico de los requisitos de separabilidad y cantidad de las propuestas de enmienda constitucional.(14) A partir de éste, determina que no es ne-cesario que los legisladores hagan sus propuestas de ma-nera que los electores puedan entender por qué están vo-tando, porque la Constitución no contiene un requisito expreso en cuanto a esto.(15) Según la mayoría del Tribunal, exigirle a la Legislatura más responsabilidad que la esta-blecida expresamente en la Constitución sería una “burla” a nuestro sistema constitucional democrático, pero no lo sería proponer urna consulta al Pueblo para enmendar su constitución a través de un proceso plagado de errores.(16) Constantemente, la opinión mayoritaria enfatiza la au-sencia de limitaciones expresas a lo hecho por la Asamblea *84Legislativa. Sin embargo, no atiende otro asunto fundamental: si lo que hizo la Asamblea Legislativa estaba au-torizado constitucionalmente.(17) Este enfoque es alta-mente preocupante, pues revela una falta de entendi-miento sobre el rol de nuestra Constitución en el ordena-miento democrático puertorriqueño. Tal parece que la ma-yoría ve en nuestra Ley Suprema una lista de obstáculos molestosos al poder de las ramas políticas que deben ser aplicados únicamente cuando ha habido una violación se-vera de sus disposiciones. Pero nuestra Constitución no es un estorbo. Por el contrario, es lo que permite nuestra vida en sociedad, garantiza nuestras libertades y establece una dirección colectiva hacia el país que queremos: más justo, más democrático, más social, más humano. En ese sentido, a veces son las propias ramas políticas las que obstaculi-zan el diseño constitucional y por eso existe la revisión judicial, para reivindicar el mandato constitucional cuando las demás ramas violan, ignoran o minimizan sus disposiciones.(18) Como resolvimos en Silva v. Hernández *85Agosto, “[njuestra estructura de gobierno no permite que las ramas políticas del Gobierno se conviertan en árbitros de sus propios actos”.(19) Cabe preguntarse qué quedaría del rol interpretativo de este Tribunal si lo único que importa es averiguar si la Constitución contiene una prohibición expresa a alguna ac-tuación gubernamental en particular. De ser ese el están-dar, no habría nada que interpretar; solo habría que apli-car lo dispuesto expresamente. En ese caso, quedarían seriamente debilitados los conceptos revisión judicial e in-terpretación constitucional y la facultad de esta curia para determinar que una actuación de otra rama de gobierno es inconstitucional. (20) Sin revisión judicial, la observancia de los mandatos de la Constitución quedaría al arbitrio y la conveniencia de las ramas políticas. De igual forma, si los tribunales abdi-can su responsabilidad de exigir que las demás ramas ac-túen en conformidad rigurosa con la Constitución, corre-mos el riesgo de que las ramas políticas concluyan que su poder cada vez tiene menos límites. Así no se enmiendan las constituciones. Así no cumplimos con nuestra función judicial. Al contrario, nos alejamos de la función constitu-cional que la opinión mayoritaria identifica como la razón principal por la cual este Tribunal fue creado. (21) *86Lo anterior cobra mayor relevancia cuando la Constitu-ción que garantiza los derechos individuales y colectivos del Pueblo es la que requiere nuestra protección. Típica-mente, la víctima del abuso del poder gubernamental es un individuo o un grupo social marginado. Ya sea cuando a un acusado se le prohíbe tener un abogado, a un obrero se le castiga por participar en alguna actividad concertada, a un ciudadano se le multa por poner un pasquín en un poste o a una minoría religiosa se le intimida en su culto, la Cons-titución interviene como escudo para proteger los derechos que ella misma reconoce. Ahora bien, ¿qué ocurre cuando la víctima del abuso de poder gubernamental no es un in-dividuo o un grupo sino la propia Constitución? En esos casos, la Constitución no puede protegerse sola; requiere la intervención de los tribunales. La opinión señala que “ante la trascendental importan-cia de un documento constitucional, [es necesario que] el procedimiento para enmendarlo sea particularmente deta-llado y definido”,(22) que limite el proceso de tal manera que no sea tan fácil aprobar enmiendas constantemente para que se pueda mantener la coherencia del texto constitucio-nal y protegerlo de los caprichos momentáneos de las mayorías.(23) Esas premisas son correctas y coincido con la mayoría en que esos principios propician que nuestra cons-titución sea fuerte y estable. Por eso, me sorprende tanto que la Jueza y los Jueces que suscriben la opinión del Tribunal recurran al planteamiento de que las acciones que se validan en esta resolución están permitidas porque la Constitución no las prohíbe expresamente. Llama la atención que, por un lado, la opinión mayori-taria afirma que, “por su evidente importancia, las Consti-*87tuciones no pueden ser enmendadas como si fueran cual-quier otro estatuto”(24) pero, por otro lado, recurre al hecho de que no hay requisitos expresos sobre la manera de tra-mitar una resolución concurrente para concluir que tene-mos que ser más laxos con el proceso de aprobación de las resoluciones concurrentes que sientan las bases para en-mendar la Constitución(25) Así, manifiesta que los tribuna-les deben ser flexibles al estudiar si la Legislatura ha cum-plido con las exigencias del procedimiento constitucional para aprobar leyes; esto con el fin de no convertirse en un obstáculo o un impedimento para el proceso legislativo. Luego, expresa que se debe ser aún más permisivo cuando se trata de la aprobación de resoluciones concurrentes, pues la Constitución no dispuso limitaciones para ello. Al hacerlo, olvida que el camino para enmendar la Constitu-ción requiere mayor rigor en cada uno de sus pasos(26) La opinión mayoritaria asevera que, cuando se trata de reso-luciones concurrentes, no estamos ante leyes ordinarias. Cierto es. Precisamente por lo extraordinaria que es la Re-solución 35 es que este Tribunal tiene que ser más estricto al velar por que los cuerpos legislativos hayan llevado a cabo sus procesos responsablemente. La opinión mayoritaria describe el proceso legislativo como “complejo, frustrante y, francamente, difícil de *88comprender .. ,”.(27) Acto seguido, indica que ello “no nece-sariamente se traduce a que con cada traspié legislativo se incurra en fallas constitucionales’’(28) Me preocupa seria-mente que se describan violaciones al proceso constitucio-nal para enmendar la Ley Suprema como un mero “traspié”. De esa forma, se trivializa el proceso constitucio-nal, excusando la falta de rigurosidad legislativa, con la consecuencia de que la Constitución se debilita. No es de-ber de este Tribunal justificar los errores constitucionales de las demás ramas de gobierno. Por el contrario, nuestro deber es identificarlos, atenderlos y resolverlos de manera que la Constitución salga fortalecida. Cuando se inicia un procedimiento para enmendar la Constitución es cuando ésta es más vulnerable. Por lo tanto, debemos ser más exigentes con el proceso empleado. Si no respetamos y fortalecemos los requisitos procesales adoptados para enmendar la Ley Suprema, dando signifi-cado y contenido real a su diseño de forma que no pueda ser alterada como resultado de un conjunto de sucesos torpe, viciado y desordenado como el de autos, la Constitu-ción se convierte en un documento frágil, pasivo y maleable de acuerdo con las pasiones momentáneas. Así no se forta-lece la democracia. El contexto en el que surge este caso ilustra lo peligroso que es encontrar en el silencio el fundamento para no ser rigurosos. Por eso, hay una expresión de la opinión mayo-ritaria de la que tengo que hacerme eco, mas la pronuncio con una intención diferente: “Nuestro documento constitu-cional merece mayor respeto”. (29) *89— O — (1) Ya me había expresado en esa dirección en cuanto a los poderes de este Tribunal. Hoy lo hago nuevamente en cuanto a los poderes de la Asamblea Legisla-tiva: “Todo poder, incluyendo el del Tribunal Supremo, tiene límites”. In re Aprob. Rs. y Com. Esp. Ind., 184 D.P.R. 575, 635 (2012), opinión disidente de la Jueza Asociada Señora Fiol Matta. En ese sentido, se trata de una divergencia fundamental de visión sobre el origen y el uso del poder en nuestro ordenamiento constitucional. La necesidad de limitar el poder aplica con igual fuerza a todas las ramas de gobierno. Hoy nos corresponde identificar las fronteras del Poder Legislativo para iniciar un proceso que alteraría nuestra Ley Suprema teniendo en mente que “[c]uando a la autoridad representativa no se le imponen límites, los representantes del pueblo no son ya defensores de la libertad, sino candidatos a la tiranía”. B. de Jouvenel, El poder: historia natural de su crecimiento, Madrid, Ed. Nacional, 1956, pág. 335, citando a Benjamin Constant. (2) íd., pág. 332, citando a Cicerón en La República, III, XVII. (3) Opinión del Tribunal, pág. 17. (4) Según González Casanon, una constitución, “inevitablemente, condiciona la acción de los gobernantes, limita su poder y expresa los poderes o derechos de los miembros de la comunidad”. J.A. González Casanon, Teoría del Estado y derecho constitucional, 2da ed., Barcelona, Ed. Vivens, pág. 193. Según el autor, la función de la constitución es “regular la organización de las diversas instituciones u órganos del Estado, asignando a cada una las competencias pertinentes y fijando tanto las rela-ciones fundamentales que deben producirse entre ellas como el procedimiento que éstas normalmente han de seguir en las mismas”. Id., págs. 217-218. Como mani-festamos en Fuster v. Buso, 102 D.P.R. 327, 345 (1974): “En la Edad Media cobra preeminencia la noción del constitucionalismo. Aunque, desde luego, el contenido de ese concepto se ha desarrollado considerablemente a través de los siglos, su idea central sigue siendo la misma. Esta es que el gobernante, o el gobierno, no son absolutos, sino que su poder tiene límites, está limitado”. De forma semejante, González Casanon expresa que “el Derecho Constitucional [es] el conjunto de normas jurídicas, fundamentales y principales, organizadoras de la sociedad estatal, siste-matizadoras de sus instituciones, limitadoras de la discrecionalidad y arbitrariedad de los gobernantes, garantizadoras de los derechos y libertades de los ciudadanos y orientadoras y directoras de la Política del Estado’’. (Enfasis suplido). González Casanon, op. cit., pág. 193. Véase, además, C.H. McIlwain, Constitutionalism: Ancient & Modern, Cornell University Press, 1947, pág. 9: “That it defines the authority which the people commits to its government, and in doing so thereby limits it. That any exercise of authority beyond these limits by any government is an exercise of power without right”. (5) No podemos perder de perspectiva que no estamos ante el ejercicio de la Asamblea Legislativa de una facultad dentro de su poder de razón de Estado. De ser ese el caso, nuestra intervención se limitaría a revisar si se vulneró algún derecho constitucional de la ciudadanía. Pero, incluso en esas circunstancias, el poder guber-namental tiene límites inherentes. Culebra Enterprises Corp. v. E.L.A., 143 D.P.R. 935, 970-971 (1997), opinión concurrente y disidente del Juez Asociado Señor Hernández Denton. Por otro lado, en Pueblo v. Díaz, 160 D.P.R. 1 (2003), resolvimos e interpretamos que el principio de legalidad, como manifestación del debido proceso de ley constitucional, a pesar de no estar expresamente en el texto constitucional, era un “ideal adoptado por nuestra sociedad como parte de nuestros valores democráti-cos”, por lo que “constituye un límite al Poder Legislativo en la formulación de polí-tica pública al aprobar estatutos penales”. (Énfasis suplido). íd., pág. 27. (6) (Énfasis suplido). 137 D.P.R. 195, 201 (1994). (7) Opinión del Tribunal, pág. 31. (8) Íd. (9) (Énfasis suprimido). íd., págs. 31-32. A propósito de la expresión “padres de la Constitución”, no debemos olvidar que nuestra Ley Suprema también tuvo una madre, la delegada María Libertad Gómez. Por otro lado, para una argumentación *82sobre la existencia del requisito de tramitar las resoluciones concurrentes de la misma forma que los proyectos de ley, en la Constitución y el Reglamento del Senado, véase la Opinión disidente del Juez Presidente Señor Hernández Denton, págs. 62-66. (10) Aunque me uno a la opinión disidente del Juez Presidente Hernández Den-ton en cuanto al aspecto de la aprobación de la Resolución 35 mediante la votación por la Resolución 60, entiendo meritorio mencionar en esta ponencia que la supuesta voluntad de dos terceras partes de los miembros de la Asamblea Legislativa de apro-bar el contenido de la Resolución 35 cuando votaron por la Resolución 60 viene del mismo lugar que la opinión mayoritaria dice que vendrían los requisitos de trámite para aprobación de una resolución concurrente: “de la nada”. Véase Opinión del Tribunal, pág. 34. Reiterar en una resolución posterior lo que se expresó en una resolución que no fue aprobada válidamente- no puede tener el efecto de aprobar retroactivamente la resolución que no obtuvo los votos, menos aun cuando, al votar por la segunda resolución, se estaba considerando un proyecto desvinculado del primero. Votar por la Resolución 60 no conllevó volver a votar por la Resolución 35. La única frase de toda la Resolución 60 que mencionó la Resolución 35 constituye tan solo una expresión, no la voluntad de la Asamblea Legislativa debidamente aprobada. La opinión mayoritaria concluye lo contrario y se refiere a su interpreta-ción como un “hecho” que “{n]ingún juez de este Tribunal puede controvertir ...”. (Énfasis en el original). Opinión del Tribunal, pág. 30. ¡Claro que hay hechos que son incontrovertibles! Uno es que la Resolución 60 obtuvo los votos requeridos y la Re-solución 35 no. Sin embargo, no hay tal certeza sobre si la Resolución 35 fue apro-bada por referencia a través de la votación de la Resolución 60. Si no hubiese habido duda sobre esta controversia, este Tribunal no habría expedido el presente recurso, no lo habría atendido mediante una certificación intrajurisdiccional y no habría ce-lebrado una vista oral para analizar a fondo los argumentos a favor y en contra. (11) Opinión del Tribunal, pág. 41. (12) (Énfasis en el original). Íd., págs. 40 y 41. (13) Íd., pág. 15. (14) Íd., págs. 38-39. (15) Íd., págs. 42—43. (16) Íd., pág. 43. (17) A diferencia de los poderes de razón de Estado, el poder de la Asamblea Legislativa para iniciar un proceso de enmienda constitucional no es inherente. Por el contrario, es el producto de una autorización expresa de la propia Constitución. Por lo tanto, es fundamental que la Asamblea Legislativa cumpla cabalmente con las exigencias procesales y sustantivas que la Constitución exige como parte de un pro-ceso de enmiendas. Según González Casanon, “[l]as constituciones ... tienen un ori-gen; un contenido; un procedimiento de elaboración; aprobación y puesta en vigor; una aplicación y práctica; unos mecanismos de conservación y defensa', unas muta-ciones y un sistema de reforma y derogación”. (Énfasis suplido). González Casanon, op. cit., pág. 209. En ese sentido, “[a]sí como la Constitución prevé su propia reforma ... también la Constitución suele prever su defensa jurídica". (Énfasis suplido). Id., pág. 226. Como manifestación de esos mecanismos de conservación y defensa, “la reforma constitucional desborda el mero trámite procedimentaf para convertirse en un problema básico de poder constituyente y de soberanía”. (Énfasis suplido). Id., pág. 218. Como explica Colón-Ríos, “[e]s un principio básico de todo ordenamiento jurídico que el poder de enmendar una constitución se encuentra sujeto a diversos tipos de límites. (Los más comunes, por supuesto, son de tipo procesal)”. J. Colón-Ríos, ¿Pueden haber enmiendas constitucionales inconstitucionales?, 42 Rev. Jur. U.I.P.R. 207, 209 (2008). (18) “gn nuestro sistema constitucional de gobierno compuesto por tres (3) po-deres igualmente subordinados a la soberanía del Pueblo, el Poder Judicial es el llamado a administrar la justicia, es decir, a obtener que las normas jurídicas se cumplan en aquellos casos en que han sido violadas o menoscabadas. En virtud de esa función, es al Poder Judicial a quien le corresponde definir los límites del ejerci-cio de los demás poderes. Por ello, es obligación exclusiva del Tribunal Supremo ser *85el intérprete final de la Constitución”. (Énfasis suplido). Berríos Martínez v. Gobernador II, 137 D.P.R. 195, 240 (1994), opinión de conformidad del Juez Presidente Señor Andréu García. (19) 118 D.P.R. 45, 55 (1986). (20) En ese sentido, el deber de este Tribunal de interpretar la Constitución, como parte de la revisión judicial, tiene su génesis en la separación de poderes, nuevamente, como contrapeso al exceso por parte de las ramas políticas. “La sepa-ración de poderes sirve para mantener el equilibrio entre las tres ramas de Gobierno con el fin de evitar que se ponga en peligro el sistema democrático, concentrando demasiadas facultades en una de éstas.... El desequilibrio se produce tanto cuando una rama le arrebata facultades a otra como cuando una de ellas cede sus poderes a otra. Cuando eso sucede, se rompe el balance y es difícil volver a estabilizarlo”. (Escolios omitidos). In re Aprob. y Com. Esp. Ind., supra, pág. 647, opinión disidente de la Jueza Asociada Señora Fiol Matta. (21) Opinión del Tribunal, págs. 5 y 9. Ante un aparente silencio constitucional, no sigue automáticamente que la actuación gubernamental está permitida. De eso consiste, precisamente, nuestra labor interpretativa. “Al interpretar una disposición *86constitucionalno podemos caer en la tentación de limitar nuestros esfuerzos a un análisis superficial. Los conceptos constitucionales no son palabras adoptadas ca-sualmente; son parte de un diseño delicado, cuyo fin es evitar lo que hoy se ha materializado: la concentración del poder”. In re Aprob. y Com. Esp. Ind., supra, pág. 638, opinión disidente de la Jueza Asociada Señor Fiol Matta. (22) Opinión del Tribunal, pág. 17. (23) Íd„ pág. 18. (24) Íd. (25) Íd., págs. 32-34. Existe un amplio consenso en que el proceso para enmen-dar una Constitución debe ser más exigente que el utilizado para aprobar una ley ordinaria: “La gran mayoría de las constituciones escritas establecen una serie de requisitos que hacen la modificación de la constitución más difícil que la adopción de leyes ordinarias”. (Énfasis suplido). Colón-Ríos, supra, pág. 209. “Los llamados pro-cedimientos agravados constituyen el conjunto de trámites, más o menos complejos o difíciles, con los que se pretende que el poder legislativo ordinario lleve a cabo una tarea, parcial o totalmente constituyente, como es la revisión de la Constitución mediante reforma. Tales procedimientos son de lo más variado y todos ellos buscan, como decimos, el máximo consenso, expresado comúnmente por: la mayoría cualifi-cada de votos favorables a la reforma; la participación de ambas cámaras (en los sistemas bicamerales) [entre otros]”. (Énfasis suplido). González Castanon, op. cit, pág. 220. (26) Es norma universal en el constitucionalismo moderno que no debe ser fácil enmendar una Constitución. Por lo tanto, se debe cumplir rigurosamente con el proceso para enmendarla. (27) Opinión del Tribunal, pág. 47. (28) (Énfasis suplido). íd. (29) Íd., pág. 16.
01-03-2023
11-23-2022
https://www.courtlistener.com/api/rest/v3/opinions/3811433/
Plaintiff in error, Richard Boydston, was convicted in the county court of Bryan county on a charge that he did unlawfully transport, carry, and convey from one place in Bryan county, the exact location of which is unknown, to another place in Bryan county, in the town of Caddo, near the mail crane on the Missouri, Kansas Texas Railway, and in accordance with the verdict *Page 695 of the jury he was sentenced to be confined for 30 days in the county jail and pay a fine of $50. The sole question presented is the sufficiency of the evidence to support the verdict. Emmit Boydston, the complaining witness, testified that he was standing just south of the depot at Caddo when the train from the south arrived about 10 o'clock at night, and saw the defendant in the door of a coach with a suit case in his hand. When the train stopped the defendant got off and walked about 20 steps and laid the suit case down and walked back and commenced talking to some men that were standing there, and witness picked up the suit case and came back to where the defendant was, and asked him if it was his suit case, and he said it was not. The suit case contained 24 pints of whisky, and he delivered it to the sheriff. The defendant testified that he had been to Durant and returned to Caddo on the train. When the train stopped he got off at the depot. When the train pulled out Emmit Boydston came to where he was talking to some men with the grip, and asked him if it was his grip, and he told him he had no suit case that night, and knew nothing of the suit case. This was all the evidence in the case. We think upon this evidence it was purely a question of fact for the jury to determine as to whether defendant had a suit case when he left the train. In cases of this kind this court will not settle the conflict and reverse the judgment upon the weight of the evidence. The judgment of the lower court is therefore affirmed.
01-03-2023
07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/127214/
537 U.S. 1196 REID ET UX.v.UNITED STATES. No. 02-7462. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 2 C. A. 9th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 564.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3810900/
In this case substantially the *Page 274 same state of facts is pleaded as in En-le-te-ke et al. v. W. A. Beasley et al., No. 19939, this day decided, 148 Okla. 255,298 P. 611, with which this case, together with others, was consolidated. The judgment is accordingly affirmed. LESTER, C. J., and HEFNER, CULLISON, SWINDALL, ANDREWS, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., not participating.
01-03-2023
07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4539893/
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 79674-7-I Respondent, DIVISION ONE v. JOSHUA ALEXANDER O’CONNOR, UNPUBLISHED OPINION Appellant. CHUN, J. — The State charged Joshua O’Connor with attempted first degree murder, first degree robbery with a firearm allegation, and possession of an explosive device with intent to use for an illegal purpose. O’Connor pleaded guilty as charged. The trial court denied O’Connor’s request for an exceptional downward sentence based on his youth and imposed 210.75 months, followed by a 60-month firearm enhancement. O’Connor appeals. We affirm. I. BACKGROUND O’Connor lived with his grandparents. One night, while he was away, his grandmother discovered and read a notebook in his room. The notebook detailed O’Connor’s plans to shoot and kill fellow students and teachers at his school, and then commit suicide. O’Connor’s grandmother left the notebook in his room and planned to contact the police the next day. The same night, O’Connor and an accomplice robbed a convenience store at gunpoint. Citations and pin cites are based on the Westlaw online version of the cited material. No. 79674-7-I/2 The next day, while O’Connor was at school, his grandmother discovered a gun and what looked like two grenades in his room. She contacted the police. The police searched his room and found the gun and two grenades. They also found a nitrous oxide canister filled with gunpowder and sealed with duct tape. The State charged O’Connor with attempted first degree murder, first degree robbery with a firearm allegation, and possession of an explosive device with intent to use for an illegal purpose. The standard range, not including a 60-month firearm enhancement, spanned from 210.75 months to 280.5 months. O’Connor pleaded guilty as charged but requested an exceptional downward sentence of 144 months based on his youthfulness. He was 18 years old at the time of the crimes. At sentencing, a psychologist, O’Connor’s former foster mother, O’Connor’s sister, and his grandmother testified. They detailed the abuse and neglect O’Connor had suffered as a child at the hands of his biological mother and shared that he acted as a parental figure for his two younger sisters. The psychologist expressed hopefulness about O’Connor’s potential for rehabilitation, since he had no history of violence, expressed genuine remorse for his actions, expressed happiness that he did not follow through with his plans, and blamed no one else for his actions. When asked whether he was suggesting any of O’Connor’s adverse childhood experiences affected his ability to appreciate that killing was wrong, the psychologist responded as follows: There’s no causal line of any sort between those terrible experiences he went through for years and his deciding or deciding to or deciding not to go through with the shooting. He did and would have and I 2 No. 79674-7-I/3 think did understand all along that such a thing would be wrong and legally wrong. However, the psychologist stated that O’Connor’s overall level of maturity was poor and nowhere near normal for his age at the time of the offenses. His former foster mother, sister, grandmother, and aunt also provided the court with letters in support of an exceptional mitigated sentence. Before issuing its decision, the sentencing court stated: Case law establishes, and the parties have agreed, that because of issues related to brain development that in appropriate cases the court can conclude that youth impaired the youth’s ability to appreciate the wrongfulness of their conduct or diminish the ability to conform to the requirements of the law, thereby providing the basis for an exceptional sentence below the standard sentencing range. It then reasoned that, while O’Connor had a “horrific upbringing,” he understood the consequences of his crimes, did not act impulsively, did not show other antisocial behaviors, and did not commit his crimes under the influence of peer pressure. It concluded that his actions were not consistent with adolescent brain development and denied his request for an exceptional downward sentence. The court imposed a 210.75-month sentence with a 60-month firearm enhancement. O’Connor appeals. II. ANALYSIS O’Connor argues the trial court erred in concluding that it could not impose an exceptional mitigated sentence. The State argues that the court recognized that, under changes in the law of youth sentencing, it had discretion to consider an exceptional sentence, but declined to do so. We agree with the State. 3 No. 79674-7-I/4 A court “may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of [the Sentencing Reform Act], that there are substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.535. Such reasons may include a significant impairment to defendant’s capacity to appreciate the wrongfulness of their conduct, or to conform their conduct to the requirements of the law. RCW 9.94A.535(1)(e). On appeal, a defendant may challenge the legal determinations underlying the trial court’s decision to deny an exceptional downward sentence. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). The trial court errs if it categorically refuses to grant an exceptional downward sentence or if it operates under the mistaken belief that it had no discretion to do so. McFarland, 189 Wn.2d at 56. But a court “that has considered the facts and concluded that there is no basis for an exceptional sentence has exercised its discretion, and the defendant may not appeal that ruling.” State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). Because youthful offenders may lack the capacity to appreciate the wrongfulness of their conduct or to conform their conduct to the law, even a non- juvenile’s youthfulness may constitute a mitigating factor supporting an exceptional downward sentence. State v. O’Dell, 183 Wn.2d 680, 696, 358 P.3d 359 (2015); RCW 9.9A.535(1)(e). The failure to exercise discretion constitutes abuse of discretion. O’Dell, 183 Wn.2d at 697. A court abuses its discretion if it fails to consider evidence of defendant’s youthfulness as a possible ground for 4 No. 79674-7-I/5 an exceptional mitigated sentence. O’Dell, 183 Wn.2d at 696–97. When considering a defendant’s youthfulness, the court must weigh: [The defendant’s] age and its hallmark features, such as [their] immaturity, impetuosity, and failure to appreciate risks and consequences. It must also consider factors like the nature of [their] surrounding environment and family circumstances, the extent of [their] participation in the crime, and the way familial and peer pressures may have affected [them]. And it must consider how youth impacted any legal defense, along with any factors suggesting that the [defendant] might be successfully rehabilitated. State v. Houston-Sconiers, 188 Wn.2d 1, 23, 391 P.3d 409 (2017) (internal quotation marks and citation omitted) (citing Miller v. Alabama, 567 U.S. 460, 477–78, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (internal quotation marks and citations omitted)). We may not reweigh the youthfulness factors considered by the sentencing court. State v. Ramos, 187 Wn.2d 420, 453, 387 P.3d 650 (2017). O’Connor claims that the trial court failed to recognize its discretion to impose an exceptional downward sentence based on his youthfulness. He bases his claim on following statement made by the court: “Frankly, I wish in this case I could find a legal and proper basis to grant the request for an exceptional sentence below the standard range. But, based on my interpretation of the law and the facts of this case, I cannot find it’s legally warranted.” But the record shows that, unlike in O’Dell, the sentencing court explicitly recognized that it could, when appropriate, impose an exceptional mitigated sentence based on a defendant’s youthfulness. The court said that “in appropriate cases the court can conclude that youth impaired the youth’s ability 5 No. 79674-7-I/6 to appreciate the wrongfulness of their conduct . . . thereby providing the basis for an exceptional sentence below the standard sentencing range.” The court analyzed whether, based on O’Connor’s youthfulness, it should impose such a sentence but decided in the negative. The trial court, referring to entries in O’Connor’s journal—in which he stated that he wanted to “kill some peers,” teachers, and police officers, and that “murder is running through my mind more than ever”—concluded that he understood the consequences of his plan. The court also concluded that, because O’Connor made his detailed plans months before the date he planned to commit the shooting, he did not act impulsively. The court acknowledged that while O’Connor’s journal showed antisocial thoughts, none of his letters of support showed any significant antisocial behavior and that he had no criminal record. It also acknowledged that while a friend may have given him the idea to commit a school shooting, O’Connor was not in contact with that friend during the time he developed his plan. Thus, it concluded that he made his decisions outside the influence of peer pressure. And while the court recognized that O’Connor had a “horrific upbringing,” it noted that other young people who faced similar challenges do not typically take substantial steps towards committing mass murder. The court also noted that O’Connor’s psychologist claimed there was no causal link between his upbringing and his crimes. When it denied his request, the court did not explicitly consider O’Connor’s potential for rehabilitation, but the court did hear testimony about his rehabilitation potential 6 No. 79674-7-I/7 and elicited questions from the psychologist about such potential.1 While the court did not explicitly consider his age as it related to his crime, it was aware of his age and considered how the crime related to the hallmark features of youth. Thus, the sentencing court did not fail to recognize its discretion; instead, it considered the facts and concluded there was no basis for an exceptional downward sentence.2 Statement of Additional Grounds In his Statement of Additional Grounds (SAG), O’Connor argues that the sentencing court failed to consider his age, the hallmark features of youth, and the retirement age and that it focused only on the severity of his non-homicide crimes. As discussed above, and contrary to O’Connor’s assertion, the court properly considered his age and the hallmark features of youth as related to his crime. O’Connor cites only non-applicable federal law in support of his assertion that a sentencing court must consider the national age of retirement before sentencing a juvenile; we also note that such law apparently applies only to juveniles. Finally, upon review of the record, we determine that, contrary to his assertion, the trial court also considered the severity of his attempted murder 1 O’Connor also claims the sentencing court improperly weighed some of the qualities of his youthfulness, such as his potential for rehabilitation, the role of O’Connor’s upbringing in his crimes, and the role of peer pressure in his crimes. But we may not reweigh these factors. See Ramos, 187 Wn.2d at 453. 2 O’Connor also claims that, under Houston-Sconiers, the trial court could have ordered that the firearm enhancement for the robbery charge run concurrently to the rest of his sentence. But the holding in Houston-Sconiers applies only to juveniles, and O’Connor was an adult when he committed robbery. 188 Wn.2d at 34; see also State v. Brown, No. 79954-1-I (Wash. May 18, 2020) (firearm enhancements must run consecutively for adults). 7 No. 79674-7-I/8 charge in weighing his request for an exceptional downward sentence. Thus, we reject the claims raised in the SAG. We affirm. WE CONCUR: 8
01-03-2023
06-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4539916/
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BARTELL DRUG CO./BARTELL DRUG No. 80268-2-1 CO. 56, DIVISION ONE Appellant, UNPUBLISHED OPINION v. WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. Hazelrigg, J. — Bartell Drug Co. seeks reversal of an order by the Board of Industrial Insurance Appeals (BIIA) upholding a citation for a serious violation of the Washington Industrial Safety and Health Act (WISHA).1 Bartell argues that the Department of Labor and Industries failed to show that its exit routes did not meet WISHA's requirements, thereby creating a hazard to its employees. Because substantial evidence supports the findings that the exit route did not meet the minimum width required by WISHA and Bartell's employees had access to the violative condition, we affirm. FACTS In late 2016, the Department of Labor and Industries received a report of potentially unsafe working conditions at the Admiral Way location of Bartell Drug 1Ch. 49.17 RCW. No. 80268-2-1/2 Co. in West Seattle. On December 7, 2016, Department safety inspectors Jason Smith and William Keely went to the store to conduct an inspection. The store manager consented to an inspection of the storage room in the back of the store. Smith and Keely walked through and took photographs of the storeroom. The storeroom was approximately 15 to 20 feet wide and 75 to 100 feet long with a men's bathroom and employee break room at opposite ends. About halfway between the bathroom and the break room, there was a rolling bay door, similar to a garage door, for freight deliveries. At one end of the storeroom, next to the break room, was an emergency exit door. The path through the storage room to the emergency exit door was lined with cardboard boxes stacked on one side and plastic merchandise totes on the other. Smith had forgotten his tape measure on the day of the inspection, so he estimated the width of the walkway between the boxes and the totes using his approximately 12-inch-long writing folder as a reference. Although the pathway varied in width, Smith estimated that the narrowest section was about 15 to 16 inches wide. Smith and Keely had to turn sideways to walk through that section of the corridor. The store typically had up to ten employees working at one time. Employees passed through the storeroom to access the break room, the management office, the bathrooms, and merchandise. In addition to the emergency exit door in the storeroom, the location also had a main entrance at the front of the store and an emergency exit door near the pharmacy accessible from the sales floor. No. 80268-2-1/3 Smith interviewed assistant manager Robyn Gardiner two days after the inspection and took notes during their conversation. Gardiner had not been working on the day of the inspection. The day before the inspection, a box on top of a metal cage in the storeroom had fallen forward when she opened the door to the cage and hit her on her head, causing a mild concussion. Smith noted that Gardiner told him that the back storeroom had been in the same condition since before Halloween. He also included a quote from Gardiner in his notes saying that she did not want to let customers enter the storeroom to use the bathroom because she was afraid something would fall on them. Gardiner later testified that she did not remember making these statements. Based on this inspection, Smith believed that Bartell had committed a serious violation of the Washington Administrative Code (WAC) because the exit route through the storeroom was not at least 28 inches wide at all points. The Department issued a citation for a serious violation of WAC 296-800-31010 for failure to ensure sufficiently wide exit routes and a general violation of WAC 296- 24-60705(10) for failure to ensure minimum vertical clearance below sprinklers in the store room. A penalty of $3,600 was assessed against Bartell for the serious violation. Bartell appealed, requesting that the serious violation be amended to a general violation. The Department affirmed the violations and issued a Corrective Notice of Redetermination (CNR). Bartell appealed the CNR to the BIIA. After a hearing, the Industrial Appeals Judge issued a Proposed Decision and Order affirming the CNR. Bartell filed a petition for review. The BIIA denied the petition, -3 No. 80268-2-1/4 and the Proposed Decision and Order became the Decision and Order of the Board. Bartell sought judicial review of the Decision and Order in superior court, which also affirmed. Bartell then appealed to this court. ANALYSIS I. Standard of Review On a WISHA appeal, we review the BIIA's decision directly, based on the record before the agency. Legacy Roofing, Inc. v. Dep't of Labor & Indus.. 129 Wn. App. 356, 363, 119 P.3d 366 (2005). The findings of fact in the administrative decision are conclusive if supported by substantial evidence in light of the record as a whole. RCW 49.17.150(1); J.E. Dunn Nw.. Inc. v. Dep't of Labor & Indus.. 139 Wn. App. 35, 43, 156 P.3d 250 (2007). Evidence is substantial if it is sufficient to persuade a fair-minded person of the truth of the premise. J.E. Dunn Nw. 139 Wn. App. at 43. We do not reweigh evidence on appeal but view the evidence in the light most favorable to the party that prevailed before the BIIA. Potelco, Inc. v. Dep't of Labor & Indus.. 194 Wn. App. 428, 434, 377 P.3d 251 (2016). If there is substantial evidence to support the findings of fact, we then determine whether those findings support the conclusions of law. Frank Coluccio Constr. Co., Inc. v. Dep't of Labor & Indus.. 181 Wn. App. 25, 35, 329 P.3d 91 (2014). We review questions of law de novo, interpreting agency regulations as if they were statutes. Wash. Cedar & Supply Co., Inc. v. Dep't of Labor & Indus.. 137 Wn. App. 592, 598, 154 P.3d 287 (2007). Accordingly, we interpret a regulation to ascertain and give effect to its underlying policy and intent. Dep't of Licensing v. Cannon, 147 Wn.2d 41, 56, 50 P.3d 627 (2002). We look first to the plain meaning -4 No. 80268-2-1/5 of the provision to determine that intent. Id. The plain meaning is gleaned from the words of the regulation in the context of the entire statutory scheme. Wash. Cedar, 137 Wn. App. at 599. "Rules and regulations are to be given a rational, sensible interpretation." Cannon, 147 Wn.2d at 57. A regulation is ambiguous if it can reasonably be interpreted in more than one way, but "it is not ambiguous simply because different interpretations are conceivable." Id. at 56. We interpret a WISHA regulation in light of the WISHA statutes and regulations as a whole, giving meaning to every word in the regulation and attempting to avoid conflicts between different provisions. Wash. Cedar, 137 Wn. App. at 599-600. "We construe WISHA statutes and regulations liberally to achieve their purpose of providing safe working conditions for workers in Washington." Frank Coluccio Constr., 181 Wn. App. at 36; see also RCW 49.17.010. Although we retain the ultimate responsibility for interpreting a regulation, we give substantial weight to an agency's interpretation of the regulations within its area of expertise. Wash. Cedar, 137 Wn. App. at 598. Consequently, we will uphold the agency's interpretation "if it reflects a plausible construction of the statutory language and is not contrary to the legislature's intent and purpose." jd. The Department bears the burden to prove a WISHA violation. Frank Coluccio Constr., 181 Wn. App. at 36. To establish a serious violation of a WISHA safety regulation, the Department must show that "(1) the cited standard applies; (2) the requirements of the standard were not met; (3) employees were exposed to, or had access to, the violative condition; (4) the employer knew or, through the exercise of reasonable diligence, could have known of the violative condition; -5 No. 80268-2-1/6 and (5) there is a substantial probability that death or serious physical harm could result from the violative condition." Jd at 36-37 (quoting Wash. Cedar & Supply Co., Inc. v. Dep't of Labor & Indus., 119 Wn. App. 906, 914, 83 P.3d 1012 (2003)). Bartell argues that the Department failed to prove that the requirements of the standard were not met and that the employees were exposed to a hazard. II. Requirements of WAC 296-800-31010 Bartell contends that the Department did not meet its burden to prove that the requirements of WAC 296-800-31010 were violated. The regulation at issue requires that employers maintain exit routes in accordance with certain minimum standards: (1) You must make sure each exit route is large enough to accommodate the maximum-permitted occupant load for each floor served by the route. (2) You must make sure the capacity of an exit route does not decrease at any point. (3) You must make sure the exit route has a minimum ceiling height of 7 feet 6 inches and that no projection from the ceiling is less than 6 feet 8 inches from the floor. Objects that stick out into the exit route, such as fans hanging from the ceilings or cabinets on walls, must not reduce the minimum height of the exit route to less than 6 feet 8 inches from the floor. (4) You must make sure exit routes are at least 28 inches wide at all points between any handrails. (a) If necessary, routes must be wider than 28 inches to accommodate the expected occupant load. (b) Make sure objects that stick out into the exit route, such as cabinets on walls, do not reduce the minimum width of the exit route. WAC 296-800-31010. The Decision and Order included a finding of fact that, at the time of the inspection, paths to the exits were narrower than 28 inches wide at some points. 6- No. 80268-2-1/7 Smith's testimony regarding his method of estimating the width of the exit path and photographs showing the writing folder in comparison to the walkway provide substantial evidence for this finding. We next examine whether this finding supports the conclusions of law that Bartell violated WAC 296-800-31010 and that the CNR was properly issued. Bartell argues that this regulation does not require that all exit routes be 28 inches wide, and therefore the Department did not prove a violation because it did not show that Bartell had any exit routes under 28 inches wide "between any handrails." The Department responds that it and the BIIA reasonably interpreted the WAC to require all exit routes to be at least 28 inches wide at all points, not only between handrails. The Department's interpretation is a plausible and reasonable reading of the regulation and accords with WISHA's purpose and intent of protecting workers. Although the regulation does not explicitly state the minimum width of an exit path, the 28-inch requirement logically follows from the specified conditions. If an exit route must be at least 28 inches wide at certain points and may not narrow at any point, then the entire route must be at least 28 inches wide at all points. The federal Occupational Safety and Health Standard analogous to this WISHA regulation further supports the Department's interpretation. State worker safety plans and standards must be "'at least as effective in providing safe and healthful employment and places of employment as the standards promulgated under [the OSH Act] which relate to the same issues.'" SuperValu, Inc. v. Dep't of Labor & Indus., 158 Wn.2d 422, 425, 144 P.3d 1160 (2006) (quoting 29 U.S.C. § 7- No. 80268-2-1/8 667(c)(2)) (alteration in original). Under the corresponding federal regulation, "[a]n exit route must meet minimum height and width requirements." 29 C.F.R. § 1910.36(g). The regulation specifies that "[a]n exit access must be at least 28 inches (71.1 cm) wide at all points," "[t]he width of an exit route must be sufficient to accommodate the maximum permitted occupant load of each floor served by the exit route," and "[ojbjects that project into the exit route must not reduce the width of the exit route to less than the minimum requirements for exit routes." ]d. The Department's interpretation of the regulation is supported by the plain language of the provision and meets the minimum requirement set out in the federal regulations. Therefore, the BIIA's finding that the exit route was not at least 28 inches at all points supports its conclusion that Bartell did not meet the standard set out in WAC 296-800-31010. Bartell also contends that the Department failed to make a prima facie case because it presented insufficient evidence that the exit route was not large enough to accommodate the maximum permitted occupancy load. It argues that the Department could not establish this fact because it failed to determine the maximum permitted occupancy load for the floor served by the exit route. The Department responds that proof of a floor's maximum-permitted occupancy load is unnecessary to show a violation when an exit route is too narrow to accommodate even a single occupant. Again, the Department has the better argument. The regulation states that the exit route must be large enough to accommodate the maximum permitted occupancy load, which may require the route to be wider than 28 inches. WAC -8 No. 80268-2-1/9 296-800-31010. If the exit route does not meet the minimum allowable width, it necessarily cannot accommodate any non-zero occupancy load. The Department was not required to establish the maximum permitted occupancy load when the route did not meet the minimum requirement. III. Exposure to Hazard Finally, Bartell contends that the Department did not establish that Bartell's employees were exposed to an exit route hazard. The BIIA found that the fact that the exit paths were narrower than 28 inches created "a substantial probability that serious physical harm, such as fractures, a concussion, or death, could result because employees could have trouble exiting and avoiding falling boxes in case of an emergency." The photographs taken during the inspection showed boxes stacked nearly to the ceiling along the length of the path to the emergency exit in the storeroom. Smith testified that he and Keely could not pass between the stacks at certain points along the exit path without turning sideways. Smith testified that the narrower path could prevent employees from evacuating quickly in the event of an emergency. In the case of a fire, he testified that a blockage in the exit route could result in burns or death. Substantial evidence showed that the narrowness of the exit route could slow or prevent employees from evacuating in the event of an emergency, which could lead to serious harm or death. The Department is not required to prove actual employee exposure to the hazard. Shimmick Constr. Co., Inc. v. Dep't of Labor & Indus., Wn. App. 2d , 460 P.3d 192, 200 (2020). Rather, the Department must establish that the worker No. 80268-2-1/10 had access to the violative condition. Mid Mountain Contractors, Inc. v. Dep't of Labor& Indus., 136 Wn. App. 1,5,146 P.3d 1212(2006). Employees have access when there is a "'reasonable predictability that, in the course of [the workers'] duties, employees will be, are, or have been in the zone of danger.'" Id. (alteration in original) (emphasis omitted) (quoting Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 147, 750 P.2d 1257 (1988)). A standard prohibiting certain conditions presumes that a hazard is present when the standard is not met. Frank Coluccio Constr., 181 Wn. App. at 41. "Thus, '[a]rguing that a hazard does not exist despite a violation is an impermissible challenge to the wisdom of the standard.'" Id. at 41-42 (alteration in original) (internal quotation marks omitted) (quoting In re Wilder Constr. Co., No. 06 W1078, 2007 WL 3054874, at *4 (Wash. Bd. of Indus. Ins. Appeals June 15, 2007)). Because WAC 296-800-31010 sets out a specific safety standard prohibiting exit routes less than 28 inches wide and the Department showed that the requirements of this standard were not met, we presume that a hazard was present. The workers at the store regularly entered the storeroom to access the bathroom, the break room, the management office, and merchandise stored in the area. Therefore, there is a reasonable probability that employees could be in the zone of danger in the course of their duties. In support of its argument, Bartell primarily argues that the testimony showed that the probability of any harm from the narrow exit route was low because of the availability of other exits and the store manager's lack of concern that the route would suffice in the event of an emergency. However, as stated 10 No. 80268-2-1/11 above, substantial evidence supported the BIIA's conclusion that the narrowness of the exit route could result in harm or death in an emergency. We cannot accept Bartell's invitation to re-weigh the evidence and redetermine the credibility of witnesses on appeal. See Potelco, 194 Wn. App. at 434. Substantial evidence supports the finding that the exit route was less than 28 inches, and that finding supports the conclusion of law that the exit route did not meet the requirements of WAC 296-800-31010. Bartell did not meet specific safety requirements of WISHA, and its employees had access to the violative condition. The BIIA did not err in determining that Bartell committed a serious WISHA violation. Affirmed. WE CONCUR: fi&VM^*^—j J 11 -
01-03-2023
06-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4539910/
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Dependency of K.W.D.D., D.O.B.: 08/07/2015, No. 80209-7-I STATE OF WASHINGTON, DIVISION ONE DEPARTMENT OF CHILDREN, YOUTH, AND FAMILIES, UNPUBLISHED OPINION Respondent, v. DANIELLE LISA KRISTINE GRAVES, Appellant. SMITH, J. — Danielle Graves appeals the juvenile court’s order terminating her parental rights. She contends that the court violated the separation of powers when it entered an order in the underlying dependency proceeding directing the Department of Children, Youth, and Families to file a petition to terminate the parent-child relationship. The mother also alleges a violation of her due process right to an impartial tribunal because the same judge who entered the order directing the Department to file a petition presided over the termination fact-finding hearing. Finally, she argues that the Department did not meet its statutory burden to terminate her parental rights because it failed to offer or provide her with a psychological evaluation. We affirm. 1 1 The mother also seeks modification of the clerk’s March 31, 2020, ruling denying her motion to change the case caption and to use the parent’s initials in the decision. The motion is denied. Citations and pin cites are based on the Westlaw online version of the cited material. No. 80209-7-I/2 FACTS Danielle Graves is the mother of K.D. She struggles with a severe drug addiction and used heroin throughout her pregnancy. K.D. was drug-affected at birth and has special needs. For approximately seven months following K.D.’s birth, the Department of Children, Youth, and Families offered voluntary services to both parents that were focused on addressing their substance abuse.2 In May 2017, when K.D. was almost two years old, the Department filed a dependency petition based on concerns about continuing drug use and after receiving a report that the mother was involved in a domestic violence incident with K.D.’s maternal grandmother while the grandmother was holding K.D. The mother was actively using heroin and methamphetamine at the time. K.D. was placed in the care of his paternal grandparents. Apart from a six-week period in late 2017 when K.D. resided with his mother at a treatment facility, K.D. has remained in his grandparents’ care throughout the dependency. In August 2017, the court entered an agreed dependency order as to the mother, finding K.D. dependent because he had no parent, guardian, or custodian capable of adequately caring for him under RCW 13.34.030(6)(c). The agreed-upon factual basis for the dependency was the mother’s substance abuse. The mother acknowledged that her substance abuse “need[ed] to be addressed by the services” outlined in the dispositional order and that those 2 The father relinquished his parental rights during the 2019 termination trial and is not a party to this appeal. 2 No. 80209-7-I/3 services were “reasonable and necessary to address her parental deficiencies.” The dispositional order required the mother to complete a drug and alcohol evaluation, to participate in random urinalysis testing, to attend sober support groups, and to complete a mental health assessment, a parenting assessment, and an anger management assessment. The order also required her to follow all treatment recommendations of the evaluators and service providers and to “[p]rovide documentation of Psychological evaluation.” Throughout the dependency, the Department focused primarily on the mother’s chronic substance abuse as her primary parental deficiency. In May 2017, after the Department filed the dependency petition, it provided the mother with a referral for a substance abuse evaluation. That evaluation led to a recommendation for inpatient treatment. In August 2017, the mother entered a six-month inpatient treatment program at Isabella House in Spokane. The program is tailored to pregnant and parenting women and offers comprehensive services that include substance abuse treatment, mental health treatment, and parent coaching. Soon after she began the program, the Department arranged for K.D. to be placed with the mother at Isabella House. However, approximately five weeks later, the mother left the treatment program. The mother took K.D. when she left Isabella House and did not notify the Department as to her whereabouts for several days. When he was returned to the care of his grandparents, K.D. had sores in his mouth, an infection under his 3 No. 80209-7-I/4 fingernails, and experienced night terrors. He was referred for an assessment which led to a recommendation for counseling. The Department referred the mother for another substance abuse evaluation in January 2018. The mother decided to enter Family Drug Treatment Court (FDTC) in February 2018. In conjunction with that program, she entered another inpatient long-term drug treatment program at Evergreen Recovery Center the following month. The program at Evergreen offers services for co- occurring disorders and in addition to drug treatment, offers comprehensive mental health treatment. A month into the program, the mother again abandoned treatment and was discharged from FDTC. In its April 2018 order discharging her from FDTC, the juvenile court directed the Department to file a termination petition. In July 2018, the Department referred the mother for another substance abuse evaluation. Shortly after, the mother entered detox and then entered a third long-term inpatient drug treatment program at Riel House in Yakima. Upon admission, the mother was experiencing withdrawal and the treatment provider diagnosed her with substance use disorders related to opioids, amphetamines, and cocaine. Like the other treatment programs the mother attempted, Riel House offers substance abuse treatment in conjunction with mental health treatment and parenting education. Six weeks into the program, the mother discontinued treatment. In the meantime, in August 2018, the Department filed a petition to terminate the mother’s parental rights. In the eight months leading up to the fact- 4 No. 80209-7-I/5 finding hearing, the mother did not reengage in treatment. She told the assigned social worker in early 2019 that she intended to enter another long-term treatment program but did not do so. In addition to substance abuse treatment, throughout the dependency the Department offered the mother services related to mental health, anger management, and urinalysis testing, and services to enable her to develop parenting skills. Although the mother was permitted to visit K.D. twice per week, she did not visit consistently. The Department also offered the mother housing assistance. The mother described her living environment with her mother as “toxic” and told the assigned social worker that she would not be able to stop using drugs while living there. Nevertheless, the mother did not follow up on the Department’s offer to provide housing resources. The hearing took place over two days in May 2019. The mother did not appear at trial. According to the mother’s attorney, she entered a detox program on the eve of trial. K.D. was almost four years old at the time of the hearing and had been out of his mother’s care for nearly two years. After considering the testimony of 10 witnesses and more than 30 exhibits, the court entered over 100 findings of fact and conclusions of law and an order terminating the mother’s parental relationship to K.D. The mother appeals. Standard of Review “Parents have a fundamental liberty interest in the care and welfare of their minor children.” In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452 (2007). To terminate the parent-child relationship, the State must 5 No. 80209-7-I/6 satisfy two statutory prongs. In re Dependency of K.N.J., 171 Wn.2d 568, 576, 257 P.3d 522 (2011). First, the State must establish the six elements of RCW 13.34.180(1) by clear, cogent, and convincing evidence. RCW 13.34.190(1)(a)(i). Evidence is clear, cogent, and convincing if it established the ultimate fact in issue as “‘highly probable.’” In re Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995) (quoting In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). Second, the State must show by a preponderance of the evidence that termination serves the best interests of the child. RCW 13.34.190(1)(b); In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d 1104 (2010). “Whether a termination is in the best interests of a child must be determined based upon the facts of each case.” In re Dependency of A.M., 106 Wn. App. 123, 131, 22 P.3d 828 (2001). We place very strong reliance on a trial court’s determination of what serves the child’s best interests. In re Welfare of L.N.B.-L., 157 Wn. App. 215, 255, 237 P.3d 944 (2010). Where the trial court has weighed the evidence, our review is limited to determining whether the court’s findings of fact are supported by substantial evidence and whether those findings support the court’s conclusions of law. In re Dependency of P.D., 58 Wn. App. 18, 25, 792 P.2d 159 (1990). “Substantial evidence is evidence in sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.” In re Welfare of T.B., 150 Wn. App. 599, 607, 209 P.3d 497 (2009) (citing World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991)). The determination of whether the findings of fact are supported by substantial evidence “must be made in light of 6 No. 80209-7-I/7 the degree of proof required.” P.D., 58 Wn. App. at 25. In determining whether substantial evidence supports the trial court’s findings, “this court does not weigh the evidence or the credibility of witnesses.” In re Dependency of E.L.F., 117 Wn. App. 241, 245, 70 P.3d 163 (2003). Separation of Powers The mother contends that the juvenile court invaded the prerogative of the executive branch—here the Department—and thereby violated the separation of powers when the court ordered the Department to file a petition to terminate her parental rights. The issue of a trial court’s legal authority is a question of law we review de novo. O’Neill v. City of Shoreline, 183 Wn. App. 15, 21, 332 P.3d 1099 (2014). The Department raises as a threshold matter whether the challenged April 2018 order entered in the dependency is reviewable in the mother’s appeal of the order terminating her parental rights. A termination proceeding is a new proceeding, rather than an extension of the prior dependency action, because the “purpose of a dependency proceeding and a termination proceeding are diametric.” In re Welfare of S.I., 184 Wn. App. 531, 540, 337 P.3d 1114 (2014). The mother did not appeal from the 2018 order, or from any other order entered in the prior dependency matter.3 In her appeal, the mother thus attempts to collaterally challenge an order in an action that was 3 Because RAP 2.2 explicitly allows an appeal as of right only of an order following a finding of dependency, it appears that the court’s order discharging the mother from FDTC would be reviewable only under the discretionary review standards of RAP 2.3. 7 No. 80209-7-I/8 not the action in which the order was rendered. As such, her collateral challenge can be maintained only on the basis of fraud that goes to the court’s jurisdiction. Mueller v. Miller, 82 Wn. App. 236, 250-51, 917 P.2d 604 (1996); Batey v. Batey, 35 Wn.2d 791, 798, 215 P.2d 694 (1950); Anderson v. Anderson, 52 Wn.2d 757, 328 P.2d 888 (1958). The mother insists that the order entered in the underlying dependency proceeding is properly before this court because the dependency and termination matters are intertwined. And she argues that her appeal of the termination order brings up for review the 2018 dependency order because the termination action was premised on that order. We agree with the Department. Because the dependency proceeding is legally distinct from the termination proceeding, the April 2018 order entered in the dependency matter is not reviewable in the mother’s appeal of the termination order. But even if we assume that the 2018 order is properly before us, the juvenile court’s 2018 order did not violate the separation of powers. A fundamental principle of our constitutional system is that “the governmental powers are divided among three branches—the legislative, the executive, and the judicial—and that each is separate from the other.” State v. Osloond, 60 Wn. App. 584, 587, 805 P.2d 263 (1991). Washington’s constitution, much like the federal constitution, does not contain a formal separation of powers clause. Osloond, 60 Wn. App. at 587. “Nonetheless, the very division of our government into different branches has been presumed throughout our state’s history to give rise to a vital separation of powers 8 No. 80209-7-I/9 doctrine.” See Carrick v. Locke, 125 Wn.2d 129, 134-35, 882 P.2d 173 (1994). In re the Salary of Juvenile Dir., 87 Wn.2d 232, 238-40, 552 P.2d 163 (1976). The purpose of the doctrine is “to ensure that the fundamental functions of each branch remain inviolate.” Carrick, 125 Wn.2d at 135. The validity of the separation of powers does not, however, “depend on the branches of government being hermetically sealed off from one another.” Carrick, 125 Wn.2d at 135. The separation of powers doctrine evolved side by side with our constitutional scheme of checks and balances. In re Interest of Mowery, 141 Wn. App. 263, 281, 169 P.3d 835 (2007). Harmonizing these doctrines requires that “[t]he different branches must remain partially intertwined if for no other reason than to maintain an effective system of checks and balances, as well as an effective government.” Carrick, 125 Wn.2d at 135. Separation of powers is thus grounded in flexibility and practicality and “rarely will offer a definitive boundary beyond which one branch may not tread.” Carrick, 125 Wn.2d at 135 (citing Juvenile Dir., 87 Wn.2d at 240). To determine whether the separation of powers has been violated, the inquiry is not “‘whether two branches of government engage in coinciding activities, but rather whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another.’” Carrick, 125 Wn.2d at 135 (quoting Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975)). Our inquiry seeks to balance the value of autonomy against the competing value of reciprocity. Wash. State Bar Ass’n, 125 Wn.2d 901, 913, 890 P.2d 1047 (1995). 9 No. 80209-7-I/10 To evaluate whether one branch of government is damaged by an alleged incursion by another, courts may look to the history of the practice and indication of toleration for coinciding activities. Carrick, 125 Wn.2d at 136. As the doctrine protects institutional interests, a “history of cooperation” between the branches “militates against a finding of a separation of powers violation.” State v. Chavez, 134 Wn. App. 657, 666, 142 P.3d 1110 (2006), aff’d, 163 Wn.2d 262, 180 P.3d 1250 (2008). These principles guide our analysis of the mother’s claim that by ordering the Department to file a termination petition, the court unconstitutionally invaded the prerogative and independence of the Department. The court and the Department do not operate within mutually exclusive spheres. In cases involving child welfare, there is a history of interdependence and cooperation between the juvenile courts and the Department. Dependency proceedings under the termination statute are remedial in nature and are intended to protect children and, where possible, to reunite families. Schermer, 161 Wn.2d at 943; In re Dependency of A.L.F., 192 Wn. App. 512, 523, 371 P.3d 537 (2016). The Department has authority to provide services to parents in order to meet the legislative objectives and to alleviate the problems that led to state intervention. RCW 13.34.025; RCW 74.13.010, .031; A.L.F., 192 Wn. App. at 523. But the Department does not bear sole responsibility and authority to intervene in the lives of families. In 1905, the legislature created separate juvenile courts and added neglected children to the court’s jurisdiction. K.N.J., 171 Wn.2d at 575. Eight years later, chapter 13.04 RCW, the predecessor to the current termination statute, was enacted, establishing a “wide range of powers, 10 No. 80209-7-I/11 duties, and procedural guidelines and giving courts the authority to intervene” when a child is found to be dependent. K.N.J., 171 Wn.2d at 575. Under chapter 13.34 RCW, the Department is responsible for case management, but the juvenile court oversees dependency proceedings. The court exercises its oversight role primarily through dependency review hearings. K.N.J., 171 Wn.2d at 579. RCW 13.34.138(1) requires that the court review the status of a dependent child at least every six months. The purpose of review hearings is to evaluate the progress of the parent and determine whether it is appropriate to continue court supervision. K.N.J. 171 Wn.2d at 579; In re Dependency of A.W. 53 Wn. App. 22, 28, 765 P.2d 307 (1988). If a child is not returned to a parent at a review hearing, the court must determine whether the current long-term plan remains in the best interest of the child and whether additional orders are required to move toward permanency. RCW 13.34.138(2)(c)(xii), (xiii). With respect to this determination, the legislature has expressly provided that at the review hearing, the juvenile court may order the filing of a petition to terminate the parent-child relationship. RCW 13.34.138(2)(d). The dependency statute also allows the juvenile court to place a child with a caregiver over the Department’s objections. RCW 13.34.130(1)(b)(i). And at the time of the entry of the dispositional order, the court may order the filing of a termination petition when there are aggravating circumstances, such that reasonable efforts to reunify the family are not required. RCW 13.34.130(8), .132(4). 11 No. 80209-7-I/12 In addition, when a child has been returned to a parent’s custody and then subsequently removed, the court is required to conduct a review hearing to determine whether the permanent plan for the child needs to be changed, whether a termination petition should be filed, or whether other action is warranted. RCW 13.34.138(3)(c). The best interest of the child is the primary consideration in the review hearing process. RCW 13.34.138(3)(c). The permanency planning provisions also provide that the court “shall” order the Department to file a termination petition if the child has been out of the home for 15 months of the most recent 22-month period and the court has not made a “good cause” exception. RCW 13.34.136(3). The mother’s argument is inconsistent with the provisions of Title 13 RCW. While the Department may file a termination petition without impetus from the court, these provisions clearly allow, and sometimes require, the juvenile court to order the Department to file a termination petition. The mother suggests that all provisions authorizing the juvenile court to order the Department to file a termination petition are unconstitutional. But she relies on cases involving the encroachment upon the discretionary charging decisions of criminal prosecutors. See State v. Rice, 174 Wn.2d 884, 896, 279 P.3d 849 (2012); State v. Agustin, 1 Wn. App. 2d 911, 921-22, 407 P.3d 1155 (2018). She advances no compelling argument that the Department’s authority to initiate an action to terminate parental rights is “analogous to a charging document instituting a criminal action” and that these authorities apply outside of the context of criminal prosecutions. The mother fails to establish beyond a 12 No. 80209-7-I/13 reasonable doubt the unconstitutionality of any of the provisions of chapter 13.34 RCW. See In re Welfare of A.W., 182 Wn.2d 689, 701, 344 P.3d 1186 (2015) (Statutes are presumed to be constitutional, and the burden falls to the “challenger of a statute [to] prove beyond a reasonable doubt that the statute is unconstitutional.”). The juvenile court’s actions in this case were consistent with the authority vested by the legislature. The court found K.D. dependent as to the mother in August 2017 and held a review hearing in October 2017. At the review hearing, the court made findings with regard to the mother’s compliance with the court’s orders and her progress, and approved the plan to reunite K.D. with her. Shortly thereafter, the court ordered K.D. to be placed with his mother at an inpatient treatment facility, but then ordered K.D.’s removal again after the mother abandoned treatment. The court held another review hearing in January 2018 and, in accordance with RCW 13.34.138(3)(c), changed the permanent plan for K.D. to a concurrent plan of returning K.D. home or pursuing adoption. In April 2018, after the mother entered FDTC and was then discharged from that program after quickly abandoning another long-term treatment program, the court directed the Department to file a termination petition. Four months later, the Department filed the petition. At a review hearing in May 2018, the court changed the permanent plan to a primary plan of adoption and alternate plan of returning home. The decision of whether and when to file an action to terminate the parent- child relationship under chapter 13.34 RCW is not the exclusive prerogative of 13 No. 80209-7-I/14 the Department. The juvenile court’s April 2018 order directing the filing of a termination petition is consistent with its authority under Title 13 RCW and did not unconstitutionally encroach upon the authority of the Department. Impartial Tribunal The mother next claims she was deprived of her right to an impartial tribunal because the same judge who ordered the Department to file a termination petition in the dependency case presided over the termination fact- finding hearing. Due process requires “an impartial and disinterested tribunal in both civil and criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980). Nevertheless, most issues of alleged bias requiring judicial disqualification do not rise to a constitutional level. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (citing Fed. Trade Comm’n v. Cement Inst., 333 U.S. 683, 702, 68 S. Ct. 793, 92 L. Ed. 1010 (1948)). Because the states’ codes of judicial conduct may provide more protection than due process requires, courts generally resolve most disputes over disqualification without resort to the constitution; only rarely will due process mandate disqualification. Caperton, 556 U.S. at 889-90. When examining whether due process mandates disqualification, a court conducts an objective inquiry, asking not “whether the judge is actually, subjectively biased, but whether the average judge in [their] position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’” Caperton, 556 U.S. at 881. 14 No. 80209-7-I/15 The United States Supreme Court has found an unconstitutional potential for bias in violation of the due process clause only in specific, limited circumstances. For instance, such circumstances may exist where a judge has “a direct, personal, substantial pecuniary interest” in a case, Tumey v. Ohio, 273 U.S. 510, 523, 47 S. Ct. 437, 71 L. Ed. 749 (1927), where a judge overseeing a criminal contempt proceeding had “previously served as grand juror in the same case, or where the party charged with contempt ha[d] conducted ‘an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.’” Williams v. Pennsylvania, 136 S. Ct. 1899, 1912, 195 L. Ed. 2d 132 (2016) (Roberts, C.J., dissenting on other grounds) (quoting Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971)). Unconstitutional potential for bias may also exist where an individual with a stake in a case had a significant and disproportionate role in placing a judge on the case through the campaign process or where a judge had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case. Caperton, 556 U.S. at 884; Williams, 136 S. Ct. at 1906. The circumstances here do not compare to these “extreme” and “extraordinary” scenarios that led the United States Supreme Court to conclude that recusal was required. See Caperton, 556 U.S. at 887-88. The judge in this case acted only in the capacity as a judicial officer. In that capacity, she entered an order involving the mother in FDTC proceedings. Over a year later, when she presided over the fact-finding hearing on the Department’s termination petition, the judge promptly alerted the parties to her prior involvement. At the outset of 15 No. 80209-7-I/16 the termination fact-finding hearing, the judge informed the parties that she had presided over FDTC during the time when the mother participated, that the mother’s name was familiar, and that she remembered no details about the mother’s case. Neither party raised any objection or sought recusal after being apprised of these circumstances.4 Our decision in In re Dependency of A.E.T.H., 9 Wn. App. 2d 502, 446 P.3d 667 (2019), does not advance the mother’s claim on appeal. The juvenile court’s impartiality was compromised in that case by the misconduct of employees of the guardian ad litem program who were “working against” the parents. A.E.T.H., 9 Wn. App. 2d at 517-18. This case involves no allegations of misconduct. And the court’s order discharging the mother from the FDTC program and directing the Department to file a petition was not “working against” the mother. The court was simply balancing its responsibilities under the statute to facilitate the provision of resources and assistance to the parents to enable reunification while, at the same time, protecting the welfare of the child and moving the case toward permanency. While the court directed the Department to file a termination petition, efforts to provide the mother with substantial services, including long-term inpatient substance abuse treatment, continued and the court approved K.D.’s return home as an alternative long-term plan for him. The 4 The mother clarifies in her reply brief that the issue is not simply whether the prior involvement of the judge created an unconstitutional risk of bias, but that unconstitutional bias arose from the fact that “the Superior Court (as a governing body)” adjudicated the matter after having issued an order directing the Department to initiate the termination proceeding. But none of the cases she relies on support her argument that the alleged “structural” flaw she describes results in a violation of the due process right to an impartial tribunal. 16 No. 80209-7-I/17 court’s order does not demonstrate or give rise to an inference of unconstitutional bias. The mother fails to establish a violation of her due process right to an impartial tribunal. Services Finally, the mother claims the evidence does not support the court’s determination that the Department met its burden under RCW 13.34.180(1)(d) because the Department failed to offer her a psychological evaluation. Parents must be offered all reasonably available and necessary services capable of correcting parental deficiencies within the near future. RCW 13.34.180(1)(d). Such services must be individually tailored to the needs of the parent. In re Dependency of D.L.B., 188 Wn. App. 905, 920, 355 P.3d 345 (2015), aff’d, 186 Wn.2d 103, 376 P.3d 1099 (2016). But the Department need not provide additional services where the record establishes that such provision would be futile. In re Parental Rights to K.M.M., 186 Wn.2d 466, 480, 379 P.3d 75 (2016). Where a parent is unwilling or unable to make use of the services already provided, offering additional services would be futile. K.M.M., 186 Wn.2d at 483. The mother claims that a psychological evaluation was a court-ordered service the Department was required to provide. We disagree. No court order, directly or impliedly, required the mother to obtain a psychological evaluation. Based on her representation to Department employees that she completed a psychological evaluation in 2017, the dispositional order and subsequent review hearing orders directed the mother to “provide documentation” of the evaluation 17 No. 80209-7-I/18 to the Department. Although the mother never provided documentation to the Department, she did not change her position that she had, in fact, already completed an evaluation and had obtained the results. Even when a service is not court-ordered, it may still be considered a necessary service that the Department should have brought to the attention of the trial court prior to termination. RCW 13.34.180(1)(d); In re Dependency of T.L.G., 126 Wn. App. 181, 200, 108 P.3d 156 (2005). The mother contends that even if a psychological evaluation was not court-ordered, it was a necessary service because a psychological evaluation is more extensive than a mental health assessment, which the Department was ordered to provide. The mother asserts that such an evaluation could have shed light on her inability to successfully complete drug treatment and could have offered appropriate treatment options to “overcome her pattern” of quickly withdrawing from treatment. But a necessary service is a service that is “‘needed to address a condition that precludes reunification of the parent and child.’” K.M.M., 186 Wn.2d at 480 (quoting In re Dependency of A.M.M., 182 Wn. App. 776, 793, 332 P.3d 500 (2014)). A psychological evaluation does not fall within this definition because an evaluation would not have enabled reunification. The purpose would have been to direct the mother toward appropriate treatment. The mental health treatment that followed from the evaluation, not the evaluation itself, was the service necessary to address a condition precluding reunification. Here, the mother does not identify a mental health or other supportive service that would 18 No. 80209-7-I/19 have been helpful that the Department failed to offer. The mother offers nothing beyond speculation to support the claim that another psychological evaluation would have led to different treatment recommendations. It is undisputed that the Department offered mental health services to the mother, both in conjunction with long-term inpatient drug treatment and independently, and that for the most part, she failed to engage in those services. And the mother does not challenge the court’s finding that during the dependency, she firmly expressed her view that she “needed to focus on her drug addiction and get sober” before she would be able to address any underlying mental health issues. There is no evidence in the record to suggest that a psychological evaluation, or any other available service, was capable of correcting the mother’s parental deficiencies within the child’s foreseeable future. The foreseeable future for K.D. was six months. Substantial evidence supports the trial court’s determination that the Department expressly and understandably offered all reasonably available and necessary services as required by RCW 13.34.180(1)(d). We affirm. WE CONCUR: 19
01-03-2023
06-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/1891795/
345 F. Supp. 325 (1972) UNITED STATES of America v. Joseph J. MACIOCI, as Guardian of Frank T. Rose. Civ. A. No. 4701. United States District Court, D. Rhode Island. July 6, 1972. *326 Lincoln C. Almond, U. S. Atty., Rhode Island, Constance L. Messore, Asst. U. S. Atty., Providence, R. I., for plaintiff. Allegra E. Munson, of Macioci, Grimm & Hall, Newport, R. I., for defendant. OPINION PETTINE, Chief Judge. This action is before the court for decision on the pleadings, memoranda of law and a stipulation of facts. The United States seeks to recover alleged overpayments of Veterans Administration compensation benefits from the defendant, guardian of Frank T. Rose, an incompetent veteran. The pleadings and joint stipulation of facts leaving no genuine issue as to any material fact, the matter is properly before the court on the plaintiff's motion for summary judgment. It will be so treated. The stipulated facts establish that the defendant is attorney-guardian of Frank T. Rose, an incompetent veteran who has neither wife nor child. On December 19, 1965, at a time when his estate exceeded $1500, Rose was admitted to the Rhode Island Veterans Home, Bristol, where he began receiving institutional care without charge. The defendant, in his capacity as guardian, received Veterans Administration benefits on Rose's behalf at the monthly rate of $450 from December 9, 1965 through December 31, 1968, and at the monthly rate of $550 from January 1, 1969 through May 31, 1969. Throughout the period of the above payments, Rose remained a patient at the Rhode Island Veterans Home. On June 16, 1969 the defendant was notified that, pursuant to a determination that Rose's veterans' benefits were unauthorized by law, said benefits had been discontinued retroactively to December 9, 1965. The defendant subsequently refused a demand by the United States for repayment of $19,280, the alleged total amount of payments received by the defendant on or after December 9, 1965. The Government's claim to recovery is based upon 38 U.S.C. Sec. 3203(b) (2), which provides in part as follows: "In any case in which an incompetent veteran having neither wife nor child is being furnished hospital treatment, institutional or domiciliary care without charge or otherwise by the United States, or any political subdivision thereof, and his estate from any source equals or exceeds $1,500, further payments of pension, compensation or emergency officer's retirement pay shall not be made until the estate is reduced to $500." No specific statutory authority authorizes recovery of payments made contra to the prohibition of § 3203(b) (2); however, no such authority is necessary. "The Government by appropriate action can recover funds which its agents have wrongfully, erroneously, or illegally paid. `No statute is necessary to authorize the United States to sue in such a case. The right to sue is independent of statute,' United States v. Bank of the Metropolis, 15 Pet. 377, 401, [40 U.S. 377] 10 L. Ed. 774." United States v. Wurts, 303 U.S. 414, 58 S. Ct. 637, 82 L. Ed. 932 (1938). Recovery of overpayment of Veterans Administration benefits can be waived by the Administrator pursuant to 38 U. S.C. § 3102(a): "There shall be no recovery of payments or overpayments of any benefits (except servicemen's indemnity) under any of the laws administered by the Veterans Administration from any person who, in the judgment of the Administrator, is without fault on his part, and where, in the judgment of the Administrator, such recovery would defeat the purpose of benefits otherwise authorized or would be against equity and good conscience." From the terms of § 3102(a) it appears that one from whom recovery of benefits is sought can make a binding claim of waiver only by showing an affirmative exercise of "the judgment of the Administrator." No such showing has been made here, and I find that the Government has not waived whatever *327 right it may have to recover from the defendant. See United States v. Rohde (D.So.Dak.1960), 189 F. Supp. 842. The first of the defendant's two principal arguments in defense of the Government's claim is that 38 U.S.C. § 3203(b) (2) does not apply to the facts of this case, in that the institutional care received by Frank T. Rose from December 9, 1965 through May 31, 1969 was not furnished by "the United States, or any political subdivision thereof." The defendant argues extensively in support of the proposition that the Rhode Island Veterans Home is not a "political subdivision" of the United States. Although it is undisputed that in most instances and for most purposes a veterans' home cannot be considered a political subdivision of the United States, the court finds the defendant's argument misdirected. The Rhode Island Veterans Home is managed, controlled and funded by the State of Rhode Island, pursuant to the provisions of §§ 30-17-1 and 30-24-1 through 30-24-10, Gen.Laws R.I.1956, as amended.[1] Hospitalization and care provided at the Rhode Island Veterans Home are "furnished" by the State of Rhode Island through the Veterans Home, and the State of Rhode Island is indisputably a political subdivision of the United States. I find that Frank T. Rose was, from December 9, 1965 through May 31, 1969, an "incompetent veteran . . . being furnished hospital treatment, institutional or domiciliary care without charge or otherwise by the United States or (a) political subdivision thereof." The defendant's second argument is an attack on the constitutionality of 38 U.S.C. § 3203(b) (2). Defendant claims that the classifications established by § 3203(b) (2) are "arbitrary and capricious," and that the withholding of benefits from Frank T. Rose as an incompetent veteran "having neither wife nor child," and whose "estate . . . exceeds $1500," is a deprivation of property without due process of law. As the Government correctly observes, recipients of Veterans' benefits have no vested right thereto. "Pensions, compensation allowances and privileges are gratuities. They involve no agreement of parties, and the grant of them creates no vested right. The benefits conferred by gratuities may be redistributed or withdrawn at any time in the discretion of Congress." Lynch v. United States, 292 U.S. 571, 54 S. Ct. 840, 78 L. Ed. 1434 (1934). "[V]eterans' benefits are gratuities and establish no vested rights in the recipients so that they may be withdrawn by Congress at any time and under such conditions as Congress may impose." Milliken v. Gleason (1st Cir. 1964) 332 F.2d 122, cert. denied 379 U.S. 1002, 85 S. Ct. 723, 13 L. Ed. 2d 703 (1965). The fact that payments made pursuant to an Act of Congress are characterized as "gratuities" does not totally immunize the Act from scrutiny under the Fifth Amendment. The interest of a recipient of such payments is "of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause." Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960). However, the scope of protection is limited: "Particularly when we deal with a withholding of a noncontractual benefit *328 under a social welfare program . . ., we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification." Flemming v. Nestor, supra, 363 U.S. at 611, 80 S. Ct. at 1373. "If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment." Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971). Although the classifications embodied in 38 U.S.C. § 3203(b) (2) are not of recent origin[2], and evidence of original legislative intent is not readily available, a reading of § 3203(b) (2) in the light of the general purposes of Title 38 provides an insight into the rationale of the classifications. One of the obvious purposes of Title 38 is that, under appropriate circumstances, the benefits authorized therein be provided to needy veterans and their immediate dependents. A corollary of this purpose is that compensation should not be paid where there is little likelihood that it will ultimately benefit an eligible veteran or his dependents. Section 3203(b) (2) envisions such a situation; it recognizes that an incompetent veteran whose basic needs are taken care of by the government through hospitalization may have little use for periodic benefits directed toward those same basic needs during the period of hospitalization. Benefits received on such a veteran's behalf could accumulate in his estate during his hospitalization, and if he dies while still hospitalized, the accumulated amounts would pass to his heirs without having benefited the veteran directly. Toward the end of preventing such accumulations, benefits are withheld from institutionalized incompetents.[3] Exception is made for veterans having wives or children, for the plain reasons that (1) accumulations are less likely where the hospitalized incompetent has nonhospitalized dependents currently in need of support, and (2) wives and children, being in the class of intended beneficiaries of veterans' benefits, are "acceptable" heirs of accumulated amounts. Section 3203(b) (2) also reflects a recognition that, in spite of "hospital treatment, institutional or domiciliary care" furnished to an incompetent veteran, there may remain a need for income to meet certain current expenses and to satisfy antecedent debts. The size of the veteran's estate is used as in indication of such need. An estate of less than $1500, or, in the case of a veteran with an initial estate of more than $1500, a depletion of such estate to less than $500, are considered indicators that an immediate need for benefits exists. Conversely, an increase of an initially small estate to an amount greater than $1500 is viewed as evidence that continued benefits are not currently needed, and that an accumulation contrary to *329 the purpose of § 3203(b) (2) is taking place. On the basis of the foregoing, I do not feel that it can be said that the classifications governing the operation of § 3203(b) (2) are "utterly lacking in rational justification." Clearly the classifications are "rationally related" to the purpose of Title 38 that veterans' benefits be paid only, as the term suggests, for the benefit of veterans. I find that the reclamation of veterans' benefits paid contra to 38 U.S.C. § 3203(b) (2) is not precluded by the Due Process Clause of the Fifth Amendment.[4] As for the amount of the Government's claim, the court observes that the monthly payments alleged by the Government and admitted by the defendant add up to approximately the amount claimed, $19,280. Judgment will be entered in the amount of $19,280, without prejudice to the defendant's right to show that the addition of the Government and the court is incorrect, and without prejudice to the defendant's right to show that, at any time subsequent to December 9, 1965 and before May 31, 1969, the estate of Frank T. Rose was reduced to an amount less than $500.[5] NOTES [1] Sec. 30-24-1: "The management and control of the Rhode Island veterans' home, established in this state for those men who served in the army or navy of the United States in the war of the rebellion and were honorably discharged therefrom, who by reason of wounds, disease, old age, or other infirmities, are unable to earn their living and have no adequate means of support, shall be in the director of social welfare and the assistant director in charge of community services." Sec. 30-17-1: "The general assembly shall annually appropriate such sums as they may deem necessary for the support of the veterans' home in the town of Bristol . . .." [2] The classifications complained of by the defendant can be found in predecessors of § 3203(b) (2) as far back as 1934. See U.S.C.A., 1942 ed., Title 38, ch. 12, Veterans' Reg. 6(a), para. VI(b). [3] If the institutionalized veteran is ultimately discharged, the amounts withheld under § 3203(b) (2) are paid to him as a lump sum. ". . . The amount which would be payable but for this paragraph (§ 3203(b) (2)) shall be paid to the veteran as provided for the lump sum in (§ 3203(a) (1)) of this subsection, but in the event of the veterans' death before payment of such lump sum no part thereof shall be payable." Sec. 3203(a) (1) provides in part: "If such veteran is discharged from such treatment or care upon certification by the officer in charge of the hospital, institution, or home, that maximum benefits have been received or that release is approved, he shall be paid in a lump sum such additional amount as would equal the total sum by which his compensation or retirement pay has been reduced under this section." [4] The court acknowledges a feature of Sec. 3203(b) (2) which in its practical application could result in the unequal treatment of incompetent institutionalized single veterans having equal estates. It will be observed that Sec. 3203(b) (2) withholds benefits from a veteran whose payments have been suspended pursuant to the section's provisions, and whose estate has subsequently been reduced to an amount less than $1500 but greater than the $500 reinstatement figure, whereas benefits are not withheld from a veteran whose estate has not exceeded $1500 so as to cause suspension, but whose estate is currently in the same $500-$1500 range. Nevertheless, in view of the Government's representation that experience has shown that the estate of a veteran in the latter category normally increases quickly to an amount over $1500, and the fact, noted supra, fn. 3, that withheld benefits are paid as a lump sum in the event of discharge, I am not dissuaded, notwithstanding a small "inequity," from the conclusion that the classifications of Sec. 3203(b) (2) are rationally related to the achievement of legitimate goals. [5] The stipulation of facts establishes only that the estate of Frank T. Rose exceeded $1500 on December 9, 1965; any subsequent reduction of Rose's estate to $500 or less would have reinstated Rose's right to benefits, and would now cancel out a portion of the Government's claim. If such a reduction did occur, I leave it to the defendant to come forward with appropriate proof.
01-03-2023
10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1891586/
345 F. Supp. 1263 (1972) Lera H. STARK, Plaintiff, v. UNITED STATES of America, Defendant. William P. STARK, Plaintiff, v. UNITED STATES of America, Defendant. Nos. 19211-1, 19212-1. United States District Court, W. D. Missouri, W. D. August 2, 1972. Elmer B. Hodges, John I. Wassberg, Kansas City, Mo., for plaintiffs. Bert C. Hurn, U. S. Atty., Kansas City, Mo., Eugene D. Silverman, Trial Atty., Tax Division, Dept. of Justice, Washington, D. C., for defendant. MEMORANDUM AND ORDER I. JOHN W. OLIVER, District Judge. These actions for refund of gift taxes and interest are before the Court on a fully stipulated record. The facts are stipulated by the parties in Standard Pretrial Order No. 2 and in the Stipulation of Uncontroverted Facts. Accordingly we make the following findings: 1. The jurisdictional facts contained in Part II of this Pretrial Order are incorporated herein. 2. On or about November 1, 1962, plaintiff William P. Stark, Sr., executed three separate but identical trust agreements naming his son, William P. Stark, Jr., as "Trustee." Each trust agreement differs only as to the name of the "primary beneficiary," each of whom was a grandchild of William P. Stark, Sr., and a child of William P. Stark, Jr. 3. The trusts were set up in the following names to reflect the name of each "primary beneficiary:" AGE AT CREATION OF NAME TRUST Krishma Marie Stark 2 Rahm Joseph Stark 6 William P. Stark, III 8 4. During the calendar years 1962, 1963, and 1964 transfers were made to each of the three trusts of shares of stock in the Stark Lumber Company, (hereinafter to be referred to as the *1264 "Company"), a closely-held family corporation, with the majority of the stock being held by William P. Stark, Sr. Since 1960 William P. Stark, Sr., has been Chairman of the Board and William P. Stark, Jr., has been President of the Company. 5. The Company was incorporated on or about March 23, 1946. Its stock has never been publicly traded nor offered for sale to the public. There have been no distributions of dividends by the Company (whether in cash, property, obligations or stock) since 1950. 6. During the calendar years 1962 and 1963 gifts of seven (7) shares of the Company's common stock were made to each of the three trusts by plaintiff William P. Stark, Sr., (plaintiff Lera H. Stark, consented to split the gifts with her husband during each of the calendar years 1962, 1963, and 1964). During the calendar year 1964 gifts of 60 shares (after a ten-for-one stock split) of common stock of the Company were made to each of the trusts by plaintiff William P. Stark, Sr., with consents by plaintiff Lera H. Stark. 7. The Company's financial statements reflect the following earnings per share during the periods in question: EARNINGS PER CALENDAR YEAR SHARE 1962 $18.83 1963 3.59[*] 1964 7.66[*] 8. In computing their taxable gifts to the three trusts during the periods in question the plaintiffs excluded the "present value of the right" of the beneficiaries to receive income from the trust property. Consequently, the plaintiffs valued said "right" by applying the table provided in Section 25.2512-5(c) of the Treasury Regulations on Gift Tax. 9. The annual exclusions taken by the plaintiffs were disallowed by the Internal Revenue Service. The parties have also agreed that the issues of law to be determined are, specifically: 1. Whether the plaintiffs by transferring in trust for the benefit of their three grandchildren a life interest in a closely-held stock with a record of non-issuance of dividends made gifts of a present interest (as contended by the plaintiffs) or of a future interest (as contended by the defendant). 2. If the Court determines that the donees' interests in the trust were present interests, were said interests susceptible of valuation at the time the gifts were made? II. Section 2503(b) [Internal Revenue Code, 1954] permits an annual donee exclusion of the first $3,000 of gifts to any person during a calendar year provided that: (1) the gift is not one of a `future interest,' and (2) is one susceptible of valuation. In order for the taxpayer to prevail, he must carry the burden of establishing both that the gift is not one of a "future interest" and that the gift is in fact susceptible of valuation. We may assume, without deciding, that the gifts are not gifts of a future interest. In light of our conclusion that the taxpayers have not carried the burden of establishing that the gifts, regardless of how they may be defined, are in fact susceptible of valuation under Treasury Regulation § 25.2512-5(c), the defendant must prevail. III. A taxpayer claiming an exclusion must assume the burden of showing that his claim is within that exclusion. Under familiar principles, a presumption of correctness attaches to a determination of the Commissioner. Commissioner of Internal Revenue v. Disston, 325 U.S. 442, 449, 65 S. Ct. 1328, 89 L. Ed. 1720 (1945); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S. Ct. 788, 78 L. Ed. 1348 (1934); Hamm v. Commissioner of Internal Revenue (8th *1265 Cir., 1963) 325 F.2d 934, 937; Fischer v. Commissioner of Internal Revenue (3rd Cir., 1961) 288 F.2d 574, 576; and Kniep v. Commissioner of Internal Revenue (8th Cir., 1949) 172 F.2d 755, 758. Commissioner of Internal Revenue v. Disston, supra, turned on the question of whether the gift was of a present or a future interest. Disston relied heavily upon Fondren v. Commissioner of Internal Revenue, 324 U.S. 18, 65 S. Ct. 499, 89 L. Ed. 668 (1945), which dealt with the same question. Both cases, however, made clear that it is necessary to consider the terms of a particular trust and the circumstances of each particular case in determining whether the taxpayer has carried the burden of establishing his right to an exclusion. Plaintiffs recognize that the property given to the three trusts consisted solely of shares of capital stock of W. P. Stark Lumber Company, Inc., which paid dividends during the period from 1946 to 1950, but none thereafter. The taxpayers' claims to exclusion rested upon their dual contention "that these gifts of life income were gifts of present interests and that such interests should be valued according to the tables promulgated in Reg. § 25.2512-5(c)." Plaintiffs concede that the value of a gift of life income in stock can not be determined from the dividend history of that stock. Indeed, they state that "any assumption that income to be received during the lives of children from 2 to 10 years of age can be so prophesied is obviously absurd." [Pl. Br., p. 13]. They argue, however, "since it is impossible accurately to value life estates in income on the basis of known facts, the only fair method of determining such values is by the use of mortality tables and an assumed rate of interest." [Pl. Br., p. 14]. Plaintiffs argue "there is no other reasonable way to determine the values of such life estates" [Pl. Br., p. 15]. The implicit major premise of plaintiffs' argument is that Congress contemplated that some value must be assigned to every gift of life income in common stock and that if such value can not be reasonably ascertained from the factual circumstances of a particular case, all donors of such gifts are nevertheless to be considered entitled to establish one of the two prerequisites for an exclusion by a simple reference to the mortality tables. Plaintiffs argue that this Court should not place "its stamp of approval on . . . the contention of the defendant that the values of the life estates are unascertainable . . ." [Pl. Br., p. 19]. Indeed, in their reply brief the plaintiffs argue that "it is because of the impossibility of determining `reasonable ascertainable values' of a life estate in trust income that the Commissioner, under statutory authority, has promulgated these actuarial tables . . . ." [Pl. Reply Brief, p. 3]. We think it obvious that the Congress did not authorize the Commissioner, by the promulgation of a regulation, to eliminate one of the two requirements that the parties agree a taxpayer must establish in order to be eligible to claim a gift tax exclusion. We are convinced that Congress intended that if proof of value of a particular gift could not be made in regard to the gift of a present, as distinguished from a future, interest, all taxpayers so situated simply would not be able to claim an exclusion. We reject the basic assumption implicit in plaintiffs' argument that all gifts of life estates are in fact susceptible of valuation. Fischer v. Commissioner of Internal Revenue, supra, involved a case in which the government conceded that the "rights of Fischer's three daughters to receive the income from the trust were gifts of present interests." The government argued in that case, as it does in this, that the taxpayer was not entitled to an exclusion because their value "cannot be determined with reasonable certainty." That court concluded that "a gift of a present interest has not qualified for an annual exclusion where the value of the interest was not reasonably certain." We agree with Fischer and conclude that the principles there stated are applicable to this case. *1266 Van Den Wymelenberg v. United States, (7th Cir., 1968) 397 F.2d 443, cert. den. 393 U.S. 953, 89 S. Ct. 377, 21 L. Ed. 2d 364, involved another case in which the government conceded that the gifts were gifts of a present interest but contended that "they are not subject to the exclusion because their value was not ascertainable at the time the trust was created." That court followed Fischer and rejected the taxpayer's argument that the best evidence available to show the value of the income interests was the actual experience of the trust which, in that particular case, apparently showed a consistency in the amounts of income yielded and distributed each year. In rejecting that argument, the Court held that "if the value is not ascertainable then [at the time the gift is made], subsequent experience cannot render it so in retrospect." In Elise McK. Morgan, 42 T.C. 1080 (1964), affirmed on the opinion of the Tax Court (4th Cir., 1965) 353 F.2d 209, the taxpayers contended, as do the taxpayers in this case, that "the value of the income interest is calculatable by use of the tables provided in the applicable regulation." The Tax Court, we believe properly, rejected that argument and held that "where the property may yield no income at all or if the income is definitely determinable by other means, the tables are not applicable." Hamm v. Commissioner of Internal Revenue, supra, was cited by the Tax Court in support of that principle. While we agree with the Third Circuit and the Tax Court's conclusion in Elise McK. Morgan, we have some doubt about whether Hamm v. C.I.R. fully supports the sentence we have quoted from the Tax Court's opinion. We agree, of course, that the implications of now Mr. Justice Blackmun's opinion in Hamm are consistent with what the Tax Court held. And specifically, we think the language of that opinion which states that "the taxpayer's argument here comes down to a demand for a formula" is particularly apropos. That is what taxpayers' argument in this case comes down to. We conclude that the taxpayers in this case can not demand that the Commissioner use a formula which the Congress did not provide. This Court may not read a regulation in a manner which would substitute the use of a formula for the Congressionally required proof of value. The taxpayers rely heavily upon Rosen v. Commissioner of Internal Revenue, (4th Cir., 1968) 397 F.2d 245. The distinction between Rosen and this case was recognized by Judge Craven when he stated in that case that "It is important to note that it has not been suggested to us that the `income interest' was valueless." [Id at 247]. Certainly, the Fourth Circuit did not intimate that it intended by its decision in Rosen to overrule what it had earlier decided in Elise McK. Morgan, in which it affirmed the Tax Court on its opinion to which we have earlier made reference. We recognize, of course, that Rosen did state that "we think the taxpayers are entitled to resort to the actuary tables promulgated by the Commissioner himself." We are not convinced that Hipp v. United States, (W.D.S.C., 1962) 215 F. Supp. 222, which Rosen cited to support that proposition, can be said to support such a broad statement of law. Hipp did note with apparent approval the Tax Court's opinion in Hamm (later affirmed by the Eighth Circuit, as above noted), but distinguished the factual situations presented in Hamm and Hipp. That court quoted with apparent approval the Tax Court's conclusion that under the particular circumstances of that case it was not proper to utilize the tables, by stating that "In the Hamm case, the circumstances affecting the Corporation, United, made it unlikely that there would be any payment of dividends at all to the trusts." In regard to the factual circumstances of Hipp, the court stated "Here, there is every reason to believe that the dividends from Liberty Life stock will be available for gifts to charity." *1267 If, as we have indicated, we are not correct in suggesting that both Rosen and Hipp are properly distinguishable on their particular facts, we indicate for purposes of appeal that we believe any broader construction of those cases is inconsistent with Fischer and the other cases upon which we rely and therefore should not be followed. IV. We therefore find and conclude that the taxpayers have failed to establish that the Commissioner's decision is incorrect, in that they have failed to carry the burden of showing that the life interests were interests susceptible of valuation at the time the gifts were made. NOTES [*] The earnings figures indicated above for the calendar years 1963 and 1964 have been adjusted for a ten-for-one stock split.
01-03-2023
10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4539917/
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Estate of David ) No. 80398-1-I Edward Williams, deceased, ) ) DIVISION ONE ROBERT JOSEPH WILLIAMS, a ) Washington resident; AMY RENEE ) UNPUBLISHED OPINION PETRUCCI, a California resident; ) WARREN SWANSON, a Washington ) resident; and BEVERLY PAULSEN, ) ) Appellants, ) ) v. ) ) ANNA SCHEMSTAD, Personal ) Representative of the ESTATE OF ) DAVID EDWARD WILLIAMS, ) ) Respondent. ) ) HAZELRIGG, J. — Acting in his capacity as personal representative for his mother’s estate, David E. Williams executed a personal representative’s deed after conveyance of the family home to his brother and him by her will. The personal representative deed included language in the caption that referenced joint tenancy between the brothers, but their mother’s will conveyed the property to them as tenants in common. Upon David William’s death, his estate initiated an action seeking declaratory relief and to quiet title to his interest in the property under the Trust and Estate Dispute Resolution Act (TEDRA)1. At the initial hearing on the 1 Ch. 11.96A RCW. Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 80398-1-I/2 TEDRA petition, the trial court determined that the personal representative’s deed contained a scrivener’s error and reformed the deed to conform with their mother’s will. Robert Williams argues the court improperly reformed the deed and that the TEDRA proceeding should have been dismissed based on insufficient evidence of the brothers’ intent. We disagree and affirm. FACTS Marie Williams2 died in June 2015 and left the family home to her two sons, David and Robert, in her will. Specifically, the will provided, “I give, devise and bequeath all of my property, real, personal and mixed to my children, DAVID EDWARD WILLIAMS and ROBERT JOSEPH WILLIAMS, share and share alike, per stirpes.” David Williams was appointed as personal representative of Marie’s estate. In July 2015, David executed a personal representative’s deed which stated the following: GRANTOR: DAVID E. WlLLIAMS, Personal Representative of the ESTATE OF MARIE C. WILLIAMS, deceased, under Whatcom County Probate No. 15-4-00322-8, GRANTEE(S) DAVID E. WlLLIAMS AND ROBERT J. WILLIAMS as joint tenants with right of survivorship .... THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed and acting personal representative of the ESTATE OF MARIE C. WlLLIAMS, deceased, Whatcom County Superior Court Cause No. 15-4-00322-8, and not in Grantor’s individual capacity, hereby grants and confirms to DAVID E. WILLIAMS and ROBERT J. WILLIAMS, Grantees, distrbutes the real property commonly known as 2705 Utter Street, Bellingham, Whatcom County, Washington. 2 For clarity, we refer to the parties by their first names. No disrespect is intended. -2- No. 80398-1-I/3 David died testate on May 13, 2019. Anna Schemstad serves as David’s appointed personal representative. David’s will was admitted to probate in Whatcom County Superior Court. Schemstad, acting in her capacity as personal representative for David’s estate (the Estate), filed a TEDRA action on behalf of the Estate seeking declaratory relief. The Estate sought a ruling to determine that, irrespective of any contrary language in the personal representative deed David had executed, the property was held by David and Robert as tenants in common. If, as the Estate asserted, David’s interest was that of a tenant in common, then it was an asset of the Estate, subject to distribution under his will. As such, the Estate also sought judgment and an order quieting title in David’s half interest in the property and reformation of the deed to conform with Marie’s bequest. The Estate requested that this relief be granted at the initial TEDRA hearing set in August 2019. In support of the TEDRA petition, the Estate argued that Marie had conveyed the property to Robert and David as tenants in common under her will and, as such, the conveyance vested in Robert and David immediately upon Marie’s death. The Estate explained that since the purpose of the personal representative’s deed was merely to paper the title which had already vested, any discrepancy between the deed and will was a mistake subject to reformation. Additionally, the Estate argued regardless of whether a mistake existed, the deed was insufficient to create a joint tenancy as a matter of law, therefore David and Robert’s respective interests remained a tenancy in common. -3- No. 80398-1-I/4 In response, Robert argued that the personal representative’s deed was a testamentary bequest by David to his brother. Robert attempted to offer testimony as to conversations he alleged that he had with David about this bequest, which the trial court refused to consider. Further, Robert asked the court to order the testimony of the attorney who had helped David prepare the personal representative’s deed in order to indicate there was no mistake in the deed. However, the trial court denied this request. The trial court concluded that, contrary to the language contained in the caption to the personal representative’s deed, at the time of David’s death, David and Robert held the family home as tenants in common and David’s interest in the property was thereby an asset in his estate. The trial court granted the TEDRA petition, reforming the deed and quieting title to David’s interest in the property in favor of the Estate. Robert timely appealed to this court. ANALYSIS I. Reformation of the Personal Representative’s Deed Robert first argues that the trial court erred in reforming the personal representative’s deed. Robert’s primary contention is that the deed was facially valid, created a joint tenancy, and cannot be reformed absent evidence of intent from the parties to the deed. “[R]eformation is an equitable remedy reviewed for abuse of discretion.” Glepco, LLC v. Reinstra, 175 Wn. App. 545, 563, 307 P.3d 744 (2013). “A trial -4- No. 80398-1-I/5 court abuses its discretion if its decision rests unreasonable or untenable grounds.” In re Estate of Evans, 181 Wn. App. 436, 451, 326 P.3d 755 (2014). In Washington, the default rule is that when two or more people co-own property, it is held as tenants in common. RCW 64.28.020. A joint tenancy however, may be created through an express written agreement by the owner or owners of property. RCW 64.28.010. The statute and case law both reinforce the need for the “‘four unities of time, title, interest and possession’” to all be present for a joint tenancy to be established under the law. Id.; In re Domestic P’ship of Walsh v. Reynolds, 183 Wn. App. 830, 853-54, 335 P.3d 984 (2014) (quoting Merrick v. Peterson, 25 Wn. App. 248, 258, 606 P.2d 700 (1980)). Further, our state supreme court has held that a third party cannot create a joint tenancy. Lambert v. Peoples Nat’l Bank of Wash., 89 Wn.2d 646, 650, 574 P.2d 738 (1978); In re Estate of Olson, 87 Wn.2d 855, 858-60, 557 P.2d 302 (1976). Robert argues that his brother was able to create a valid joint tenancy while acting as the personal representative of their mother’s estate, despite the fact that her will did not provide for joint tenancy between her sons. This argument is not well taken. When Marie died, her will expressly provided the following, “I give, devise and bequeath all of my property, real, personal and mixed to my children, DAVID EDWARD WILLIAMS and ROBERT JOSEPH WILLIAMS, share and share alike, per stirpes.” This language established a tenancy in common between Robert and David which vested immediately by operation of law upon their mother Marie’s death. See RCW 11.04.250. Robert does not dispute that Marie’s will established that Robert and David were tenants in common. -5- No. 80398-1-I/6 Robert argues that his brother’s subsequent execution of the personal representative’s deed created a valid tenancy in common. We disagree. The personal representative’s deed was captioned as follows: GRANTOR: DAVID E. WlLLIAMS, Personal Representative of the ESTATE OF MARIE C. WILLIAMS, deceased, under Whatcom County Probate No. 15-4-00322-8, GRANTEE(S) DAVID E. WlLLIAMS AND ROBERT J. WILLIAMS as joint tenants with right of survivorship[.] The body of the deed then provided: THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed and acting personal representative of the ESTATE OF MARIE C. WlLLIAMS, deceased, Whatcom County Superior Court Cause No. 15-4-00322-8, and not in Grantor’s individual capacity, hereby grants and confirms to DAVID E. WILLIAMS and ROBERT J. WILLIAMS, Grantees, distributes the real property commonly known as 2705 Utter Street, Bellingham, Whatcom County, Washington. The personal representative’s deed was merely an instrument to paper the title that had already legally vested by operation of law. See RCW 11.04.250. The trial court has the equitable authority to reform the deed to correct this scrivener’s error such that the personal representative’s deed conforms with Marie’s will. See Glepco, 175 Wn. App. at 554-55. “To establish either mutual mistake or scrivener’s error, it must be shown that the parties to the instrument possessed the same intentions.” Id. at 561. Here, the inquiry only goes to Marie’s intentions as expressed in her will, which neither party disputes. See In re Estate of Frank, 146 Wn. App. 309, 318, 326-27, 189 P.3d 834 (2008). The will clearly intended to create a tenancy in common. “Per stirpes” means “proportionately divided between beneficiaries according to their deceased ancestor’s share.” Black’s Law Dictionary (11 th ed. -6- No. 80398-1-I/7 2019). If a parent bequeaths property to two sons in equal shares and uses the phrase per stirpes, then each son receives the same share in the bequeathed property. If one son predeceases the parent, his share passes to his own heirs, rather than to the surviving son. See Erienbach v. Estate of Thompson, 90 Wn. App. 846, 851, 954 P.2d 350 (1998). The will language gave Robert no survivorship interest in David’s share of the real estate. As such, it was proper for the trial court to exercise its equitable powers to correct the scrivener’s error to bring the personal representative’s deed in line with the intentions conveyed by Marie in her will. Further, the personal representative’s deed was insufficient under Washington law to create a joint tenancy between Robert and David. The primary defect is that the deed expressly states that David was acting in his capacity as personal representative of Marie William’s estate, not in his individual capacity. This discrepancy supports our determination that the trial court properly concluded that a scrivener’s error occurred preventing the personal representative’s deed from conforming with Marie’s will and that reformation was appropriate. We agree with the respondent that regardless of scrivener’s error, the trial court could properly quiet title to the property on the alternative basis that the personal representative’s deed was insufficient to establish a joint tenancy, despite any discrepancies between Marie’s will and the deed. A third party is legally unable to establish a joint tenancy. Lambert, 89 Wn.2d at 650. The deed specifically states “THE GRANTOR, DAVID E. WILLIAMS, as the duly appointed and acting personal representative of the ESTATE OF MARIE C. WlLLIAMS, deceased, -7- No. 80398-1-I/8 Whatcom County Superior Court Cause No. 15-4-00322-8, and not in Grantor’s individual capacity.” Acting as personal representative for Marie’s estate, David was in a third party capacity to the title action. Additionally, David could not unilaterally create a joint tenancy in either his individual or personal representative capacity. RCW 64.28.010 sets out two methods by which the brothers could have become joint tenants. First, the brothers could have both conveyed the property to themselves in a separate deed, subsequent to the personal representative’s deed, as joint tenants with rights of survivorship. See RCW 64.28.010. Second, Marie’s will could have established that she was bequeathing the property to the bothers as joint tenants with rights of survivorship. Id. The record is clear that regardless of scrivener’s error, the personal representative’s deed was ineffectual under statute to create a joint tenancy between David and Robert. The trial court did not abuse its discretion in reforming the deed to conform with Marie’s will.3 II. Attorney Fees The Estate requests an award of attorney fees and costs under RCW 11.96A.150 and RAP 18.1. TEDRA allows appellate courts to exercise discretion to award costs and reasonable attorneys’ fees to a party to the proceedings. RCW 11.96A.150. The statute allows an award to come from another party to the proceeding or from the assets of the estate or trust involved in the proceeding. Id. 3 Robert argues that the trial court erred by not dismissing the TEDRA action because the Estate failed to demonstrate David’s intent when he executed the deed. Dismissal of the TEDRA petition was not required under these facts where, contrary to the assertions of appellant, evidence existed to support the critical party’s intent: the will itself clearly expressed Marie’s intent that her sons take title as tenants in common. Robert or David’s intent is immaterial. -8- No. 80398-1-I/9 We grant the Estate’s request and award attorney fees and costs on appeal, provided it complies with RAP 18.1. Affirmed. WE CONCUR: -9-
01-03-2023
06-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/3447908/
Affirming. On May 27, 1930, the board of council of Sturgis, a city of the fourth class, adopted an ordinance authorizing the construction of a water system for the city and providing for the issuance by the city of $75,000 of water revenue bonds under the provisions of chapter 133 of the Acts of the General Assembly of 1926, as amended by chapter 92 of the Acts of the General Assembly of 1930, now sections 2741l-1 to 2741l-20, inclusive, Kentucky Statutes, 1930 Supplement. On June 10, 1930, the board of council adopted an ordinance providing for the employment of engineers to design the proposed waterworks system, directing the advertising for bids, and authorizing the construction of the waterworks system by contract and with the proceeds of the proposed bond issue. On July 2, 1930, the city accepted the bid of the appellee, Christenson Brothers Company, for the construction of the waterworks system. In view of certain legislation adopted at the 1930 session of the General Assembly which became effective on June 19, 1930, the parties to the contract were uncertain as to their rights thereunder, and this action was brought under the Declaratory Judgment Act (sections 639a-1 to 639a-12 inclusive, Civil Code of Practice), for a declaration of their rights. Chapter 133 of the Acts of 1926 authorized cities of the second, third, and fourth classes to acquire waterworks *Page 348 and to issue bonds therefor payable from the revenues of such works. This act was amended and reenacted during the 1930 session of the General Assembly so as to make its provisions applicable to cities of the fifth and sixth classes. Acts of 1930, chapter 92. The 1930 act contained an emergency clause and took effect after its passage and approval on March 17, 1930. At the same session the General Assembly passed an act providing that no city of the fourth, fifth, or sixth class, being the owner of any waterworks system or lighting system by gas, electricity, or other power, should sell, convey, lease, mortgage, or otherwise incumber such waterworks system or lighting system without the assent of two-thirds of the total number of legal voters of such city voting at an election held for that purpose. Acts of 1930, chapter 103. The lower court adjudged that chapter 103 of the Acts of 1930, limiting the right of a city of the fourth class to mortgage or incumber a waterworks system owned by such city, has no application to and does not limit the right of the city of Sturgis in the acquisition of a waterworks system, and that the 1930 act did not repeal or amend chapter 133 of the Acts of 1926, as amended by chapter 92 of the Acts of 1930, so as to require an election in the city of Sturgis as a condition precedent to the issue of bonds by the city for the construction of a waterworks system. It is the rule in this state that where two conflicting acts upon the same subject are passed at the same session of the Legislature and their conflict is such that they cannot be harmonized or made to stand together, the one containing the emergency clause will prevail over the one containing no such clause. Naylor v. Board of Education, 216 Ky. 766,228 S.W. 690. But in our opinion there is no conflict between the two acts, and we find no difficulty in harmonizing the two which it is our duty to do if that can be done. Chapter 133 of the Acts of 1926, as amended and re-enacted by chapter 92 of the Acts of 1930, deals with the original purchase, establishment, and construction of a waterworks system, together with the extensions and necessary appurtenances thereto, while chapter 103 of the Acts of 1930 deals solely with waterworks or lighting systems theretofore acquired and of which the city of the fourth, fifth, or sixth class is the owner. In other words, if the city has become the owner of such waterworks *Page 349 system or lighting system it may not sell, convey, lease, mortgage, or otherwise incumber the franchise or the system itself without the assent of two-thirds of the legal voters of such city voting at an election held for that purpose. As the city of Sturgis does not propose to incumber a waterworks system already owned, but proposes merely to issue bonds for the purpose of acquiring a waterworks system, it follows that it could act without the assent of two-thirds of the legal voters of the city and that the ordinances authorizing the construction and installation of the system, the issuance and sale of the bonds, and acceptance of the bid of the appellee, are valid. The lower court having so held, its judgment is affirmed.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1895640/
267 F.Supp. 649 (1967) Zoe P. KUHNE, Executrix of the Estate of Lawrence J. Kuhne, v. UNITED STATES of America. Civ. A. No. 5317. United States District Court E. D. Tennessee, N. D. March 27, 1967. *650 Bernard E. Bernstein, Knoxville, Tenn., for plaintiff. J. H. Reddy, U. S. Atty., Chattanooga, Tenn., G. Wilson Horde, Asst. U. S. Atty., Knoxville, Tenn., K. D. McCasland, Attorney, Office of Chief Counsel, Atomic Energy Commission, Oak Ridge, Tenn., for defendant. MEMORANDUM ROBERT L. TAYLOR, District Judge. This case was filed under the Federal Tort Claims Act, Title 28 U.S.C. Sec. 2674,[1] to recover $500,000.00 damages for injuries and death to plaintiff's husband, Lawrence J. Kuhne, allegedly caused by the negligence of the Government while decedent was working for the Tennessee Eastman Corporation at Oak Ridge, Tennessee. Jurisdiction is derived from Title 28 U.S.C. Section 1346. Plaintiff claims that her husband was exposed to radioactive materials during the course of his employment; that this exposure was caused by the failure of the Government to provide proper safeguards to him as an employee and others similarly situated; that the Government was negligent in failing to require plaintiff's decedent to wear protective clothing or protective devices which would have indicated to the decedent the presence of dangerous radioactive material; that it was negligent in establishing the project, the processes and procedures that were employed by the Tennessee Eastman Corporation in the production of nuclear materials during the years from 1943 through 1945; that the Government had superior knowledge of the hazards that were inherent in that kind of activity and failed to properly advise plaintiff's decedent and others similarly situated of the extreme hazards that were present; that it had over-all ownership and control of the process, the materials and the end products and failed to properly procure adequate safeguards of the process and *651 for the handling of the material; that it failed to provide proper monitoring devices during the course of the operation; that it created hazards and the risks that were attendant to its objective of using radioactive materials to achieve a nuclear bomb; that on account of this negligence, plaintiff's decedent ingested radioactive materials that affected various organs in his body which ultimately caused the disease of myelofibrosis with myeloid metaplasia which resulted in his death on October 9, 1965. (Myelofibrosis is a disease which attacks the bone marrow, reducing and ultimately terminating its production of red blood cells and finally causing the marrow to become fibrous and spongy. During the course of the disease the cell-making function is supplemented on a temporary basis by the spleen and liver.) Plaintiff's decedent had no knowledge concerning the danger which was present in his employment and the materials that were being handled. A threshold defense of the two-year statute of limitations provided for in the Federal Tort Claims Act[2] was made and decided against the Government on December 6, 1965. Kuhne v. United States, D.C., 250 F.Supp. 523. The complaint was filed on June 5, 1965. The decedent worked for the Tennessee Eastman Corporation at Oak Ridge from August 26, 1943 to October 12, 1945. The statute of limitations question was recently considered by this Court in the case of Kington v. United States, 265 F.Supp. 699, decided February 21, 1967. It was held in that case that the time when the statute begins to run is determined by Federal law instead of state law. See Foote v. Public Housing Commissioner of United States, D.C., 107 F.Supp. 270; Quinton v. United States, 5 Cir., 304 F.2d 234; Hungerford v. United States, 9 Cir., 307 F.2d 99; Kossick v. United States, 2 Cir., 330 F.2d 933, 7 A.L.R.3d 726. A contrary view was expressed in the case of Tessier v. United States, 269 F.2d 305 (C.A. 1). A cause of action does not accrue under Federal law until the injury is discovered or by the exercise of ordinary care should have been discovered, or until the person harmed discovered or should have discovered that his legal rights have been invaded. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282; Quinton v. United States, supra. In 1958 or 1959, when decedent began to lose weight and feel tired, he consulted with Dr. Kaufman of Brooklyn, New York. He was placed in Prospect Heights Hospital by Dr. Kaufman and it was discovered that he had an anemic condition. Dr. Kaufman was not prepared to treat him for that condition and referred him to Dr. Lee, a noted hematologist of Brooklyn, New York, about May 27, 1960. Dr. Lee diagnosed his condition as myelofibrosis with myeloid metaplasia and advised decedent of the diagnosis. Dr. Lee was told by the decedent that he had worked at Oak Ridge where radioactive materials were processed and asked if there was any relation between his disease and his work. Dr. Lee told him in his opinion there was not. But in May, 1965, Dr. Lee read an article that was published in January, 1964 by Dr. Robert E. Anderson and two Japanese doctors which dealt with generalized myelofibrosis with myeloid metaplasia in relation to those who were exposed by the dropping of the bomb on Hiroshima, which caused him to reconsider the question and to advise decedent that there was a possibility that his exposure to radioactive materials at Oak Ridge caused his disease. This was the first time the decedent obtained such information or by the exercise of ordinary care should have obtained it. Plaintiff's decedent filed suit within a month after receipt of the information from Dr. Lee. *652 Decedent did not know and could not have discovered by the exercise of ordinary care that his legal rights had been invaded prior to the time Dr. Lee told him that his condition may have been related to his Oak Ridge work. Plaintiff's suit is not barred by the two-year statute of limitations. It is further contended that plaintiff's suit is barred by laches. This contention is based upon the assertion that the claim was not asserted until twenty years after the alleged negligence and five years following the diagnosis of the disease. The fact that the negligence of the Government allegedly occurred in 1945 does not make out a case of laches against the plaintiff and her decedent. What has heretofore been said in the discussion of the statute of limitations is applicable to the asserted defense of laches. Plaintiff's decedent did not unduly delay the institution of suit after he ascertained that his alleged legal rights had been invaded and such suit is not barred by laches. The discretionary function contained in the Federal Tort Claims Act is also plead as a defense. 28 U.S.C. § 2680(a).[3] The establishment of the project at Oak Ridge involved planning and discretion. Under the wording of the exemption the Government could not be held liable for damages to a third party occurring from the planning of the project unless it abused its discretion. However, at the time plaintiff's decedent worked at Oak Ridge, the project had gotten far beyond the planning level. It was in full-scale operation and producing enriched uranium that was used in the atomic bombs that were dropped on Nagasaki and Hiroshima. Negligence of Government agents occurring during the operational stage, which resulted in injury to employees would make the Government liable. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354; Pierce v. United States, D.C., 142 F.Supp. 721. The Government also claims that it is exempt from liability under Section 2680(j) of the Act, which provides that the Act shall not apply to "Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, * * *." Plaintiff's decedent was not a soldier. He was an electrical engineer who worked in a civilian capacity at Oak Ridge. His claim was in no way connected with the "military or naval forces." He was not engaged in "combatant activities." Johnson v. United States, 9 Cir., 170 F.2d 767. The Government further contends that there is no causal connection between the disease suffered by plaintiff's decedent and his work for the Tennessee Eastman Corporation at Oak Ridge. This is one defense going to the merits of the case and requires an examination of the evidence. Decedent's duties were connected with the construction and installation of equipment in Buildings 9201-1, 9201-2 and 9201-3 until such buildings were completed. Thereafter, in the summer or fall of 1944, following the completion of Building 9201-3, decedent became one of the shift supervisors in the Alpha production process operation carried on in this building and continued in such employment until terminated in October, 1945. Tennessee Eastman Corporation as a cost-plus-fixed-fee contractor with the Government as represented by the U.S. Corps of Engineers, Manhattan Engineering District, for the operation and maintenance of the Government-owned *653 Y-12 electromagnetic facility at Oak Ridge. This project was a part of the nation's military effort in World War II to harness the energy of the atom for the development and production of an atomic weapon or bomb in the national defense. The electromagnetic process involved an effort to separate the isotope uranium 235 from uranium 238 under a chemical and electrical theory for the use of heat to change uranium tetrachloride to a gaseous form, subjecting the ions or atoms of the gas to a high voltage electrical charge to ionize the atoms under a high vacuum condition in a tightly sealed unit or container, and separating the U-235 from the U-238 by virtue of a difference in the arc of the ions or isotopes in a high magnetic field based upon the difference in atomic weight between U-235 and U-238. The item of equipment used in the process was known as a calutron, which weighed many tons and was fixed in place and incorporated a "charge bottle" unit and a "receiver box" unit, which units were removable from the calutron. The charge bottle was filled, sealed and placed in the charge bottle unit as a part of the function of the chemical phase of the electromagnetic operation in an area physically removed and separated from decedent's work area, and the entire charge bottle unit was transported to the calutron unit and placed therein. When the charge bottle unit had been placed in the calutron unit and securely bolted in place, an extremely high vacuum was pulled on the calutron unit prior to commencement of the separation process, such high vacuum being necessary to prevent any arcing of the high electrical voltages used when the process was commenced. The normal run of an Alpha process calutron involved some 14 to 18 days— many runs were much less and some as short as a day—and at the completion of the run the receiver box of the calutron unit was removed from the calutron and taken to a separate location for cleansing and removal of the end product resulting from the process run. The removal work of the receiver box and the end product contained therein was performed by persons other than those under decedent's supervision. After the vacuum had been pulled on the calutron unit and the run commenced, heat from electrical elements in the calutron melted the seal on the charge bottle permitting the escape of the uranium tetrachloride in gaseous form. The mechanics of the process and the high vacuum involved were such that any leakage with respect to the calutron operation was contained within the unit itself and did not escape to the outside atmosphere. Decedent's job activities were managerial and supervisory in nature and in the ordinary course of events would involve less risk to him of exposure to uranium than to the operating personnel supervised by the decedent. At the end of each operating run, each unit was opened and personnel from the chemistry department would remove various boxes from the machinery. The remainder of the machinery had to be cleaned before it could be reassembled for another operating run. When the isotopes were being separated in the operating runs, they would sometimes smash through the inner shielding, necessitating its repair. Decedent supervised the work of these employees. The chemistry department employees sometimes would dust out the receiving boxes when they pulled them from the unit to return them to the chemistry department. In so dusting, they used a brush and a dust pan. The chemistry department employees, in handling the boxes, wore leather or rubber aprons and gloves, as well as goggles, but did not use monitoring devices. Decedent was not directed to and did not wear any protective clothing. He did not have a sensing device or button and did not see any one in the buildings that he worked wearing any sensing devices. On an occasion in 1944 it was necessary to stop the operations of many of the units and to remove the material being processed. Decedent stated: "Something was going on, I don't know what, and *654 they wanted to get all the dust, the good dust that they could get." On that occasion, decedent "actually saw them dust out the boxes into pans, right in our building, not in the chemistry department. * * * They did not take the boxes to the chemistry department, but did it in our building. * * * Now, this is a recollection that has been with me every since I left there." On the occasion when employees emptied so many of the machines, they swept some of the material into the boxes in decedent's department, and in his presence. He was working in Building 9201-3 when the crash project took place of emptying out the machines to get as much material as possible. This project took several days and it was his belief that this was in anticipation of Hiroshima. Decedent was present on occasions in the building when the machinery was being opened, emptied and being made ready for the next operating run. Decedent's personnel, some of whom wore goggles, were responsible for tearing down the machinery after a particular run, cleaning and chipping material off of the machinery and putting it back together. Decedent did not have a physical examination when his work terminated in 1945. During his employment he was treated at Oak Ridge Hospital by Dr. White and was told that he had mononucleosis. He was sent to a laboratory where a white blood count was taken and he was then told to rest as best he could while continuing to work. Decedent was in good health when he left his job at Oak Ridge. From October 1945 until 1953, decedent operated an automobile agency in Brooklyn, New York. In 1953 he was employed by American Home Construction Company until 1958 when he was employed by the City of New York as an evaluation engineer. In 1958 he began to feel weak and realized something was wrong with his health. He was hospitalized for examination at Prospect Heights Hospital in Brooklyn, New York by Dr. Kaufman. Dr. Kaufman's diagnosis of anemia was confirmed while he was at the hospital. He was then referred by Dr. Kaufman to Dr. Lee, a hematologist at Maimonides Hospital in Brooklyn. Since 1958 his condition grew continually worse. He became totally disabled in May, 1965 and was required to retire from his job with the City of New York on July 28, 1965 because of disability. Doctor Lee advised decedent in May, 1965, after Dr. Lee had read the Anderson article, that there was a possibility of connection between his work at Oak Ridge and his physical condition. It was necessary for him to see Dr. Lee at least once or twice a week and receive transfusions on a weekly basis. Decedent knew nothing about radiation when he was employed at Oak Ridge. He believed that the material being processed at Oak Ridge was radioactive, containing Alpha particles. Plaintiff's decedent prior to his sickness had been an athlete and played golf. He was interested in many sport activities. Plaintiff must necessarily rely upon Dr. Lee's testimony to establish a causal relationship between decedent's work and his disease since Dr. Lee was his treating physician from 1960 to the date of his death in 1965. As indicated earlier herein, Dr. Lee stated that decedent mentioned to him that he had worked with uranium or other radioactive material at Oak Ridge and indicated that his employment in that area might have some bearing on his physical condition. He then asked the doctor whether he thought there was any relationship between his Oak Ridge work and his trouble and the doctor replied, "I told him that as far as I knew, there was no relationship between the condition I diagnosed in him and any exposure to radiation." This conversation occurred some four or five years prior to decedent's death. Later on, he told decedent there might possibly be some relationship on account of the article that he had read by Anderson about increased incidents of myelofibrosis among people who had been exposed at Hiroshima. *655 He then mentioned to decedent or some member of his family "the possibility that maybe there was a relationship now, not now, but maybe there was a relationship—since now there was other evidence that perhaps such a relationship existed." This conversation occurred in May, 1965, according to Dr. Lee. There are certain cases in which the etiology of myelofibrosis-myeloid metaplasia is known, but in the great majority of the patients it is not known, according to Dr. Lee. Some of the materials, exposure to which is assigned as a cause of the disease, are benzol, dry cleaning chemicals and petroleum products. In some people the disease follows polycythemia, an increase in the number of red cells. The cause of polycythemia is not known and this prompted Dr. Lee to state "really, we don't know the cause of myelofibrosis which follows it." Doctor Lee believes that myelofibrosis is a very close relative of leukemia. There are a number of pieces of information that connect leukemia with radiation exposure "and so there is a tendency to say, well, if leukemia can be due to radiation, why not myelofibrosis? I don't know of any other positive evidence." Even if Dr. Lee knew the amount and type of exposure of radiation to his patient, he could not establish absolutely a connection between the exposure and leukemia. He never gave the decedent a medical opinion to the effect that his myelofibrosis was occasioned by radiation exposure. The most he said was that if there had been exposure it seemed to him that evidence now existed of a possible causal relationship. The kidney is the critical organ of the body affected by exposure to Alpha particles, but this does not result from the radiation effect but from the effects of the heavy metal uranium. "That has nothing to do with alpha emission." Although radiation is considered as a possible cause of myelofibrosis, the evidence is inconclusive as to whether it may or may not cause it. The amount of uranium found by Dr. Harley in his tests of decedent's bones and urine was about normal, but the amount found in his lungs was high. Ultimately, it was testified, most of uranium will end up in the bone, since uranium is in general a bivalent metal, similar to calcium, which is the major constituent of bones. The toxic effect of uranium is most noticeable and more readily observable and more quickly observable in the kidney than in almost any other portion of the body. Decedent had a severe urinary tract infection during the course of his treatment, but it is not especially associated with myelofibrosis. One thing which does occur in myelofibrosis and which decedent may have had is kidney stones. People with that condition and other myeloproliferation disorders often develop uric acid stones, and decedent had little crystals in his urine at times. Doctor Kaufman, a general practitioner of medicine, began to examine decedent in 1954, 1955 or 1956. The examinations were routine and nothing of importance was discovered. Internal gastro-intestinal bleeding was the first serious trouble which occurred in 1959. At that time, decedent's anemic condition was discovered and he was referred to Dr. Lee. At that time decedent stated that he had worked for the Atomic Energy Commission and that he had been exposed to radiation and he felt possibly that was a factor that entered into his physical condition. Dr. Kaufman could not give an opinion as to whether his anemic condition was attributable to the radiation exposure which he said he sustained at Oak Ridge. He thought that it was quite possible that exposure to radiation could have caused the condition. From what he had read, radiation exposure can induce destruction of bone marrow. But Dr. Kaufman is not a hematologist. It was not known whether decedent harbored any radioactive substance during the time that Dr. Kaufman treated him. Dr. *656 Kaufman testified that exposure to certain toxic substances, from working in chemical plants, petroleum plants, or in dry cleaning establishments, and that exposure to radioactive material and excessive X-ray, etc., can cause myelofibrosis. When decedent was treated by Dr. Kaufman, he had a severe and chronic urinary infection. Doctor John H. Harley, Director of the Health and Safety Laboratory of the Atomic Energy Commission, analyzed the sample of decedent's urine submitted to him by Dr. Hamilton. A report of the test was furnished to him by the Director of Radio-Chemistry Division of the Atomic Energy Commission, Mr. George Welford, in a memorandum dated October 11, 1965. This test revealed 0.37 microgram of uranium per liter of urine. Sample tests were conducted of the laboratory personnel in the Atomic Energy Health and Safety Laboratory and the highest reading obtained was .30. It was also found that there were .50 disintegrations per minute per liter in decedent's urine specimen. Similar tests were not conducted of the laboratory personnel as Dr. Harley did not think this was necessary. Dr. Harley explained that his laboratory was interested in determining the amount of uranium that could be expected in a person's body from inhalation and ingestion of food, which is sometimes called the background level of uranium since everyone has some uranium in his body. Shortly after the urine tests were made decedent died and Dr. Harley was requested to analyze samples of bone and lung taken from his body. This was done and a report made November 3, 1965. The report showed .015 microgram of uranium per gram of bone and .130 microgram of uranium per gram of lung tissue. Specimens of bone and lung tissue were taken from nine other residents of New York which ranged from .001 to .003 per gram of bone and .01 to .03 per gram of lung. The concentration of uranium in the lung tissue of decedent was 40 to 100 times larger than that found in the specimens of nine other residents of New York. Dr. Harley was of the opinion that the tests made were not sufficient to arrive at a conclusion. None of the witnesses were able to explain why more uranium was found in decedent's lung (40 to 100 times) than in any of the nine other lungs which were tested. The amount found in decedent's lung, if unexplained, would be a factor to consider in determining whether there was any connection between the alleged radiation exposure and the disease. Natural uranium, and this is the only kind that was found in decedent's body, has very little radiation, according to Dr. Stannard, a specialist in radio-biology and who teaches at the University of Rochester. Experiments with dogs and monkeys with 5,000 milograms of natural uranium per cubic meter of air resulted in positive uranium in tissues which did no harm. Insoluble uranium remains in lung and soluble material passes from the body through the kidneys. The level for insoluble material is higher. Fifty micrograms of uranium per cubic meter of air of an insoluble material does not do harm. Two hundred fifty micrograms of soluble material is not harmful, according to Dr. Stannard. The amount of uranium found in decedent's bones was not excessive. .130 microgram of uranium found in deceased's lung is higher than for a person not exposed, but is still a small amount. It is an amount several times less than that found in animals which has been found to do no harm. The amount found in decedent's bone was very small. As indicated, the amount found in the lung was higher than found in the lungs of a person not exposed, but was not a sufficient amount to do harm. The amount found in his urine of 0.37 of a gram per liter of urine is not excessive. It was not above the average amount found in unexposed persons and not sufficient to do harm to the kidneys. The lung is a resistant organ to uranium. Doctor Mahoney studied the effects of radiation in Japan from March, 1953 to March, 1964 and served as deputy director *657 for the Government in that research. In 1962 he examined people in the Marshall Islands who were exposed to radiation in 1954. Some of these people suffered with Beta skin burns and minor blood disturbances. They were exposed to Gamma and Beta radiation. They received Alpha emitters but the main damage was by Beta and Gamma emitters. He has made a test of 56 people in Boston but found no radiation in any of them that caused hemoglobic damage. He worked at Oak Ridge in 1954. The delayed effects of radiation are from two, seven to ten years. He doesn't know of any Alpha emitter causing leukemia. He was of the opinion that the amount of uranium found in decedent's lungs was not sufficient to do damage. He was of the opinion that the bone is the risk organ from Alpha emitters. The uranium found in decedent's lungs had no relation to his bone marrow trouble. Doctor Sterner was Medical Director of Tennessee Eastman Corporation during the period of time involved in this case. He had a staff of six physicians and eighteen nurses at Oak Ridge. The air was measured while the charge bottle and receiver box were being cleaned in the buildings where plaintiff's decedent worked but uranium was never found above the permissible limits. He stated that the kidney is the primary organ involved in uranium radiation. In his opinion the tests made of decedent's bone, lung tissue and urine showed no relation between his work and his disease. Doctor Hamiton, a scientist, doctor and hematologist of note, stated there was no way to cause bone marrow damage without damage to the kidney. If decedent had been exposed to enriched uranium it would have shown in Dr. Harley's analysis. Only natural uranium was found in decedent's body according to the tests. The amount of uranium found in decedent's lungs was no greater than that to which the public is exposed. He stated that the present case is the first one in which it has been claimed that radiation caused myelofibrosis and that even if decedent had been swimming in radioactive material his bone marrow could not have been affected without affecting the kidneys. His kidneys were not damaged. In the opinion of Dr. Hamilton, a causal relationship between decedent's work at Oak Ridge and his myelofibrosis is inconceivable. Some of the men who worked with decedent and are still working at Oak Ridge testified in the case. These men, or some of them, did the cleaning of the receiver boxes and other units in the calutron. The substance of their testimony was at the end of a run of material, sometimes referred to as cycles, the receiver boxes were opened and dust would drop out on the floor; that the door on the Alpha unit which leads to the receiver boxes was frequently opened during operation, thus causing dust to escape from the unit into the open air. There was testimony that some of the men who handled the materials in the buildings where decedent worked wore rubber gloves, aprons and goggles with metal on their shoes and other protective devices, while there was other testimony that protective devices were not used. This testimony showed that dust and other particles escaped from the calutron during operation into the open atmosphere in areas where employees worked and which were frequented by plaintiff's decedent in his capacity as supervisor. The burden of proof was upon plaintiff to show that the disease of myelofibrosis with which her husband suffered and died was caused by his exposure to radiation from Alpha emitters while he worked at Oak Ridge for the Tennessee Eastman Corporation. The relationship between the work and the disease must be shown with reasonable certainty by a preponderance of the evidence before there can be a recovery. The Court is constrained to conclude that plaintiff has not borne this burden. Mahoney v. United States, D.C., 220 F.Supp. 823, 841. *658 Since we have held that the relationship between decedent's disease and his work has not been established, it is not deemed necessary to discuss in detail the contentions of the Government that if negligence were established at all it was established against the Tennessee Eastman Corporation, an independent contractor, and for which negligence the Government is not liable. This raises a highly debatable and interesting question. The enriched uranium isotopes produce radiation which, if not controlled, is deleterious to the human body. The proof indicates that during the early stages of the operation some enriched uranium material reached the atmosphere where employees worked and that inadequate protective devices were used. The operation was secret and probably the great majority of the employees did not know that they were working in a place where radiated materials existed. Ordinarily, an employer "is not liable for injuries resulting from the performance of work given over by him to an independent contractor." But there are exceptions to this rule, one of which is that "if the location and condition and the nature of the work to be done are such that in the natural course of things mischievous consequences may be expected to arise unless means are adopted by which such consequences may be prevented the owner is under the non-delegable duty to see that appropriate preventative measures are adopted. Another exception is where the work is intrinsically dangerous and the performance of the contract would probably result in injury to third persons or the public * * *" Mahoney v. United States, supra, p. 826. See: Pierce v. United States, 142 F. Supp. 721 (D.C.E.D.Tenn.); Benson v. United States, 150 F.Supp. 610 (D.C. N.D.Cal.); contra, Lipka v. United States, 369 F.2d 288 (C.A.2, 1966); United States v. Page, 350 F.2d 28 (C.A. 10, 1965). An order will be presented in conformity with the views here stated. NOTES [1] "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *." [2] "A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * *." (28 U.S.C. § 2401 (b).) [3] "The provisions of this chapter and section 1346(b) of this title shall not apply to— "(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a * * * discretion involved be abused."
01-03-2023
10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2892748/
NO. 07-05-0040-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D FEBRUARY 16, 2005 ______________________________ IN RE JERRY WAYNE JOHNSON, RELATOR _______________________________ Before QUINN and REAVIS and CAMPBELL, JJ MEMORANDUM OPINION Relator Jerry Wayne Johnson, an indigent inmate, requests we compel the Honorable Mackey Hancock, Judge of the 99th District Court of Lubbock County, to appoint counsel pursuant to article 64.01(c) of the Texas Code of Criminal Procedure to pursue a motion for DNA testing. Under applicable principles of law, relator’s petition is denied. At the time relator filed his motion on May 6, 2002, article 64.01(c) provided that a convicted person was entitled to counsel if he wished to submit a motion for DNA testing under subparagraph (a). The statute further provided: [i]f a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person. . . . See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2.1 The language of the statute is mandatory. Neveu v. Culver, 105 S.W.3d 641, 642 (Tex.Cr.App. 2003). Once the convicting court determines relator is indigent, the appointment of counsel is a purely ministerial act. Id. Mandamus relief was conditionally granted in Winters v. The Presiding Judge of the Criminal District Court Number Three of Tarrant County, in which the Court noted that appointment of counsel under chapter 64 is mandatory if the convicted person proves he is indigent and informs the court he wishes to file a motion under chapter 64. 118 S.W.3d 773, 775 (Tex.Cr.App. 2003). The respondent in Winters had acknowledged that appointment of counsel pursuant to article 64.01(c) was mandatory, but declined to appoint counsel noting that to do so would be “useless.” Relator is entitled to mandamus relief if he establishes (1) the act sought to be compelled is purely ministerial and (2) he has no other adequate legal remedy. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Cr.App. 2003). The ministerial act requirement is satisfied if relator establishes a “clear right to the relief sought” with nothing left to the exercise of discretion or judgment. Id. Article 64.01(c) does not require relator 1 Amended by Act of April 25, 2003, 78th Leg., R.S., ch. 12, § 1, 2003 Tex. Gen. Laws 16, adding the requirement that the convicting court find reasonable grounds for a motion to be filed. 2 to make a prima facie showing that he is entitled to DNA testing before his right to counsel attaches. In re Rodriguez, 77 S.W.3d 459, 461 (Tex.App.–Corpus Christi 2002, orig. proceeding). When a motion is properly pending before a trial court, the act of considering and ruling upon it is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). However, before relator may be entitled to mandamus relief, he must provide a sufficient record to show the motion was presented to the trial court and it refused to act. In re Villarreal, 96 S.W.3d 708, 710 n.2 (Tex.App.–Amarillo 2003, no pet.) (filing something with the district clerk does not demonstrate that a motion has been brought to the trial court’s attention). By his petition for writ of mandamus, relator contends that on May 6, 2002, he filed four documents in the trial court, to-wit: (1) request for appointment of counsel; (2) affidavit in support thereof; (3) motion for post-conviction DNA testing; and (4) affidavit in support of the motion. Attached to his petition is a copy of a letter dated June 21, 2002, to the District Court Coordinator inquiring about any court orders relating to the filed documents and a copy of a letter dated January 9, 2003, to the District Court Administrator requesting that the filed documents be “placed before the court for consideration and orders.” However, nothing in the scant record demonstrates presentation of his motion to the trial court and a refusal to act. We conclude relator has not satisfied the burden to show entitlement to mandamus relief. See Walker, 827 S.W.2d at 837. 3 Additionally, relator’s petition for writ of mandamus is not accompanied by an appendix containing a certified or sworn copy of the motion that is the subject of this proceeding as required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure. Nor did he include any of the other documents which he filed in the trial court that would show the matter complained of. Id. Accordingly, relator’s petition for writ of mandamus is denied. Don H. Reavis Justice 4
01-03-2023
09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/127218/
537 U.S. 1196 BROWNv.FLORIDA. No. 02-7728. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FOR THE THIRD DISTRICT. 2 Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below: 829 So. 2d 286.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/2766091/
J-A30002-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ISAAC DESHANE JONES, Appellant No. 338 EDA 2013 Appeal from the Judgment of Sentence September 12, 2012 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0012414-2011 BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED DECEMBER 31, 2014 Appellant, Isaac Deshane Jones, appeals from the judgment of sentence imposed after his conviction, following a non-jury trial, of possession of a controlled substance with the intent to deliver and possession of a controlled substance.1 Specifically, Appellant contests the denial of his pre-trial motion to suppress narcotics seized incident to his arrest. After careful review, we hold that the trial court properly determined that there was probable cause to arrest Appellant. The court properly denied suppression. Accordingly, we affirm. The trial court summarized the factual history of this case as follows: ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 35 P.S. §§ 780-113(a)(30) and (16), respectively. J-A30002-14 The only evidence taken at the suppression hearing was that of Police Officer Andre Simpson, badge number 4108, a Narcotics Enforcement Officer in the 35th Police District. Officer Simpson testified that on October 14th, 2011, at approximately 10:24 a.m., following complaints of numerous drug sales, he conducted a narcotics surveillance in the area of the 1400 Grange, 1400 Clearview, and the 5800 and the 5700 block of Broad Street, in the City and County of Philadelphia. He identified it as a high narcotics area, especially the immediate area, as being an area known for heroin sales. He also identified the area as having a methadone clinic in the immediate vicinity of [the] surveillance area and located in the 5800 block of Old York Road. Officer Simpson testified that he has personally made numerous narcotics arrests at this location, predominantly in the morning hours, for heroin sales. Officer Simpson testified that he was a police officer at that time for approximately ten years and with the Narcotics Enforcement Team since 2007. He also testified that he had conducted over 1,000 surveillances for drug transactions and made 700 to 800 narcotics arrests in his career. He had previously set up approximately 200 surveillances in this specific location. Officer Simpson testified that he had observed [Appellant] standing on the corner of the 1400 block of Clearview Street and observed [Appellant] approach a number of pedestrians. He further observed [Appellant] reach into his pocket and show these individuals something from a closed fist to an open fist motion. [Officer Simpson] also testified that he observed no actual transactions take place between [Appellant] and any of those individuals whom he had approached. Of particular note for the purposes of this motion was the fact that [] Officer Simpson testified that [Appellant] was only approaching individuals that he either knew to be heroin addicts or those going into or leaving this aforementioned methadone clinic. After approximately [fifteen] to [twenty] minutes of surveillance, Officer Simpson saw [Appellant] leaving the area. At that point, he radioed his back-up team to stop [Appellant] after providing them with [Appellant’s] description. [Appellant] was stopped approximately two blocks away from the area. -2- J-A30002-14 Recovered from [Appellant] were [twenty] packets of heroin, [fifty-four] Xanax pills and $149.00 in U.S. currency. All were placed on property receipts. [Appellant] was taken into custody at that time. (Trial Court Opinion, 3/14/14, at 4-5) (footnote and record citations omitted). The trial court denied Appellant’s motion to suppress, after a hearing, on July 23, 2012 and immediately held a non-jury trial, convicting him of the drug charges. On September 12, 2012, the sentencing court sentenced Appellant to not less than two-and-one-half nor more than five years’ incarceration, followed by two years’ probation. On September 24, 2012, Appellant filed a post-sentence motion. The court denied Appellant’s motion by operation of law on January 23, 2013. Appellant timely appealed on January 30, 2013.2 Appellant raises the following question for our review: [Whether] the trial court err[ed] in denying [his] motion to suppress physical evidence, as [he] was arrested and subjected to a full custodial search without probable cause? (Appellant’s Brief, at 3). ____________________________________________ 2 Due to a delay in receiving the notes of testimony, Appellant requested, and the trial court granted, an extension within which to file his Rule 1925(b) statement. Appellant failed to file his statement. However, Appellant filed a motion with this Court to remand the matter to permit the filing of his Rule 1925(b) statement upon receipt of the notes of testimony. On September 23, 2013, this Court granted Appellant’s motion and, through counsel, he timely filed a Rule 1925(b) statement on February 5, 2014. The trial court entered its Rule 1925(a) opinion on March 14, 2014. See Pa.R.A.P. 1925. -3- J-A30002-14 It is well-settled that: Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. . . . [W]e must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole. Those properly supported facts are binding upon us and we may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations and quotation marks omitted). Here, Appellant asserts that “the trial court erred in denying [his] motion to suppress[.]” (Appellant’s Brief, at 8 (capitalization omitted)). Specifically, he argues that “[t]he arrest and search [were] illegal . . . [because] there was no probable cause [to arrest him] based on the officer’s observations.” (Id.). We disagree. Probable cause is made out when the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. The question we ask is not whether the officer’s belief was correct or more likely true than false. Rather, we require only a probability, and not a prima facie showing, of criminal activity. In determining whether probable cause exists, we apply a totality of the circumstances test. * * * The time is important; the street location is important; the use of a street for commercial transactions is important; the number of such transactions is important; the place where the small items were kept by one of the sellers is important; -4- J-A30002-14 the movements and manners of the parties are important. [Commonwealth v. Lawson, 309 A.2d 391, 394 (Pa. 1973)]. * * * . . . [A] police officer’s experience may fairly be regarded as a relevant factor in determining probable cause. . . . [A] court cannot simply conclude that probable cause existed based upon nothing more than the number of years an officer has spent on the force. Rather, the officer must demonstrate a nexus between his experience and the search, arrest, or seizure of evidence. Thompson, supra at 931-32, 935 (citations, quotation marks, footnote, and emphasis omitted). Here, the record reflects that Officer Simpson, an experienced narcotics officer, had probable cause to arrest Appellant. In response to numerous complaints of drug sales, Officer Simpson conducted a narcotics surveillance in a known high narcotics area in close proximity to a methadone clinic. (See N.T. Suppression Hearing/Trial (Waiver), 7/23/12, at 7, 12). He had previously conducted approximately 200 surveillances in the same area and personally made numerous arrests in the morning hours for heroin sales. (See id. at 7, 12-13). On the particular morning at issue, Officer Simpson observed Appellant standing at the corner of the 1400 block of Clearview Street. (See id. at 6-8). Appellant approached several pedestrians; individuals Officer Simpson recognized as heroin addicts and/or going to and from the methadone clinic. (See id. at 8-9, 13-14, 19). Appellant reached into his pocket and showed them an item in his hand using a closed fist to open fist motion; behavior Officer Simpson recognized -5- J-A30002-14 as a method often used in narcotic street transactions. (See id. at 8, 14-16, 23-26). Although Officer Simpson did not witness an actual transaction, the Appellant’s mannerisms, time of day, and location led him to believe that Appellant was trying to sell heroin. (See id. at 13-18, 22-24). After approximately fifteen to twenty minutes, Appellant left the area and Officer Simpson radioed the back-up team to stop him. (See id. at 9, 15, 23). Accordingly, under the totality of the circumstances test, Officer Simpson had probable cause to arrest Appellant. See Thompson, supra at 931-32, 935. Therefore, we conclude that the trial court did not err in denying Appellant’s pre-trial motion to suppress narcotics seized incident to his arrest. See id. at 931. Appellant’s issue lacks merit. Judgment of sentence affirmed. Judge Mundy joins the Memorandum. Judge Lazarus files a Dissenting Memorandum. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/31/2014 -6-
01-03-2023
12-31-2014
https://www.courtlistener.com/api/rest/v3/opinions/2766093/
J-A35008-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WILLIAM R. HENDERSON, Appellant No. 724 WDA 2014 Appeal from the Judgment of Sentence Entered April 7, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-SA-0000417-2014 BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J. MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 31, 2014 Appellant, William R. Henderson, appeals pro se from the judgment of sentence of a $300.00 fine, imposed after he was convicted of one count of public drunkenness, 18 Pa.C.S. § 5505. We affirm. Appellant was initially convicted by a District Magistrate of two summary offenses - one count of public drunkenness and one count of disorderly conduct, 18 Pa.C.S. § 5503. He filed a timely summary appeal with the Court of Common Pleas of Allegheny County. At a de novo hearing conducted on April 7, 2014, the Commonwealth presented the following evidence: Officer Ralph Rush of the Borough of Pleasant Hills Police Department[] testified that on November 2, 2013, a young woman approached him while he was in his police vehicle, and reported that an intoxicated male had entered her car for no reason a short time earlier. She described the man and when Officer Rush observed [Appellant] at the scene, the young J-A35008-14 woman identified [Appellant] as the man who had entered her car without her permission. When Officer Rush met with [Appellant], he observed an odor of alcohol emanating from [Appellant’s] breath. He testified that [Appellant’s] words were slurred, his eyes were glassy and bloodshot and he had difficulty maintaining his balance. [Appellant] admitted that he had a “few drinks earlier that evening” but denied being intoxicated. Trial Court Opinion (TCO), 5/29/14, at 1-2 (unnumbered). Based on Officer Rush’s testimony, the court convicted Appellant of public drunkenness, but acquitted him of disorderly conduct. The court imposed a sentence of a $300.00 fine. Appellant filed a timely pro se notice of appeal, as well as a timely Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant subsequently filed an appellate brief with this Court that wholly fails to comport with the Pennsylvania Rules of Appellate Procedure. Namely, Appellant does not include any of the sections required by Pa.R.A.P. 2111(a), with the exception of an argument section (although it is not delineated as such). Because of the substantial defects in Appellant’s brief, we could dismiss his appeal in its entirety. See Pa.R.A.P. 2101. Nevertheless, because it is apparent from Appellant’s brief that he seeks to challenge the sufficiency of the evidence to sustain his public drunkenness conviction, and because we are able to meaningfully review this claim despite the inadequacies of his brief, we decline to dismiss his appeal. Appellant essentially argues that the testimony of Officer Rush was inaccurate. Appellant states that he was sitting with several friends in the -2- J-A35008-14 parking lot of a convenience store when two officers approached the group and asked for Appellant’s driver’s license. Appellant’s Brief at 1 (unnumbered). Although Appellant complied “with all of the officer[s’] requests,” one of the officers “singled [Appellant] out” and threatened “to take [him] to jail.” Id. Appellant emphasizes that the officer “never gave [him] a Breathalyzer test, field sobriety test, or a horizontal gaze nystagmus test,” despite the officer’s testimony at the de novo hearing that Appellant smelled of alcohol, was slurring his words, and was staggering. Id. While Appellant admits he “had approximately four or five beers between about 11:00 p.m. and 12:30 a.m.,” he maintains that he was not intoxicated and was not acting in a disruptive manner. Id. Thus, Appellant avers that his public drunkenness conviction cannot stand. In light of Officer Rush’s testimony at the hearing, Appellant’s argument is meritless. In Commonwealth v. Troy, 832 A.2d 1089 (Pa. Super. 2003), we explained that: The standard we apply in reviewing the sufficiency of the evidence is whether viewing all evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt -3- J-A35008-14 by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Id. at 1092 (citations omitted; emphasis added). Here, the trial court explicitly “found the testimony of Officer Rush concerning [Appellant’s] condition at the relevant time to be clear, credible and consistent. The [c]ourt did not find [Appellant’s] denial of the Officer’s averments credible or persuasive. No other witnesses testified.” TCO at 2 (unnumbered). Because this Court is “bound by the trial court’s credibility determinations,” Commonwealth v. A.W.C., 951 A.2d 1174, 1179 (Pa. Super. 2008) (citation omitted), we may not overturn Appellant’s conviction simply because he offers a different version of the events that preceded his arrest. Additionally, we agree with the trial court that even though Officer Rush did not administer a Breathalyzer, field sobriety, or horizontal gaze nystagmus test, the officer’s testimony was sufficient to prove that Appellant was “manifestly under the influence of alcohol” in a public place, and that he was intoxicated “to the degree that he may [have] endanger[ed] himself or other persons or property, or annoy[ed] persons in his vicinity.” 18 Pa.C.S. § 5505 (defining the offense of public drunkenness). See TCO at 2; Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (“[A] police officer may utilize both his experience and personal observations to -4- J-A35008-14 render an opinion as to whether a person is intoxicated.”) (citations omitted). Accordingly, we affirm Appellant’s public drunkenness conviction. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/31/2014 -5-
01-03-2023
12-31-2014
https://www.courtlistener.com/api/rest/v3/opinions/2899940/
NO. 07-08-0339-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 13, 2009 ______________________________ KEITH A. BARBER,                                                                                                  Appellant v. THE STATE OF TEXAS,                                                                                                  Appellee _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2007-418,534; HON. CECIL G. PURYEAR, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.           Keith A. Barber appeals his conviction of possession of a controlled substance (cocaine). He does so in one issue in which he claims error on the part of the trial court in allowing a Department of Public Safety chemist to testify from a report of another chemist. We affirm the judgment.           Whether or not the testimony was admissible, appellant only objected when the State propounded its first question about the report’s content. Yet, that was not the only question propounded by the State on that subject. And, when it asked its other questions, appellant raised no complaint. Nor had he requested and received a running objection after the trial court overruled his first objection or sought to attack the testimony outside the jury’s presence. Consequently, his complaint was not preserved. Ethington v. State, 819 S.W.2d 854, 859-60 (Tex. Crim. App. 1991).           Accordingly, appellant’s issue is overruled, and the judgment is affirmed.                                                                              Per Curiam Do not publish.
01-03-2023
09-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/3993020/
1 Reported in 99 P.2d 402. This is an appeal from a judgment of the superior court reversing an order of the director of the state department of agriculture. The appellant is Walter J. Robinson, as director of that department. The respondent, J.E. Layton, did business under the trade name and style of Production Laboratories, in the city of Seattle. *Page 615 Pursuant to § 5, chapter 37, Laws of 1937, p. 87, the appellant issued to the respondent a certificate of registration for the year beginning April 1, 1937, and ending March 31, 1938, by which the latter was permitted to manufacture and sell a product called "Coxol" or "Red-Hed Coxol." This product is sold as a remedy or treatment for coccidiosis in poultry. By stipulation, the registration certificate was continued for an additional year, expiring March 31, 1939. January 7, 1938, the appellant prepared and filed in his office a complaint, which required the respondent to show cause why his certificate of registration should not be canceled. Thereafter, a hearing was had in Seattle, and, on account of the convenience of witnesses, in a number of other places. The hearing resulted in findings by the appellant that "Coxol" was of no substantial value, and, in fact, its tendency was to be harmful when used. An order was entered canceling the certificate. The respondent took this order before the superior court for review, and the cause was there heard on the record made in the hearing before the appellant. No additional testimony was taken. The trial court made findings of fact to the effect that "Coxol," when properly used, was not detrimental or injurious, and that it was of substantial value as a remedy for coccidiosis. Judgment was entered reversing the order of the appellant, from which he appealed. The respondent opens his brief with a motion to dismiss the appeal for two reasons, one of which is that the question has become moot. [1] The judgment of the superior court was entered March 13, 1939. The certificate of registration for the second year expired March 31st of that year. Subsequent to that time, the respondent had no certificate which could be affected by any judgment that *Page 616 this court might direct. The question clearly had become moot or academic. It being no longer a question at issue, this court will not pass on a moot question, even though both parties may desire such determination. In State ex rel. Johnston v. Tommy Burns, Inc., 188 Wn. 263,62 P.2d 47, after stating the question which had earlier been in the case, it was said: "Although respondents also urge us to decide this question upon the merits, we decline to do so. The question is purely academic, and this court is not required to pass upon such questions. Courts will not knowingly determine moot questions, however much both parties desire such determination." The cases of Holly-Mason Hardware Co. v. Schnatterly,111 Wn. 29, 189 P. 545, and State ex rel. Burnham v. SuperiorCourt, 180 Wn. 519, 41 P.2d 155, are to the same effect. [2] The appellant, however, says that the superior court had no jurisdiction to review an order entered by him. This question was not raised in the superior court. The appellant did not state it as one of the questions in opening his brief, and did not assign any error with reference thereto. The question was raised for the first time after the motion by the respondent to dismiss was made. Section 9, chapter 37, Laws of 1937, p. 88, provides the procedure for the cancellation of a registration certificate. Subdivision (c) of the same section, p. 89, provides that the hearing for such cancellation shall be held in the county where the holder of the registration has his principal place of business within the state, or in the county where the violation or violations may have occurred. This subdivision concludes with this statement: "Any order of the director canceling or refusing to *Page 617 register a brand shall be subject to review by any court of competent jurisdiction." The appellant says that his order can only be reviewed by the superior court of Thurston county, under Rem. Rev. Stat., § 886 [P.C. § 6260], which provides that anyone having a "claim" against the state shall have a right of action in the superior court of Thurston county. Had that been the intention, the legislature would undoubtedly have provided, as they did in § 3, chapter 169, Laws of 1937, p. 647 (Rem. Rev. Stat. (Sup.), § 10428 [P.C. § 5613]), with reference to public service companies affected by an order of the department of public service, that the review of the order should be by the superior court of Thurston county. It is clear that the superior court of King county had jurisdiction to review the order brought before it. The appeal will be dismissed. BLAKE, C.J., MILLARD, ROBINSON, and SIMPSON, JJ., concur.
01-03-2023
07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4234035/
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT January 3, 2018 Elisabeth A. Shumaker Clerk of Court MELISSA BLACK, Plaintiff - Appellant, v. No. 17-1139 (D.C. No. 1: 15-CV-00340-RBJ) LARIMER COUNTY, (D. Colo.) Defendant - Appellee. ORDER AND JUDGMENT* Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges. On April 17, 2014, Larimer County, Colorado (the County) hired Melissa Black to perform seasonal work as a restroom custodian in its parks department. She alleges that during her employment she was sexually harassed and intimidated by a co-worker. On * Oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs. This order and judgment is an unpublished decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not encouraged, but not prohibited. Fed. R. App. 32.1. Citation is appropriate as it relates to law of the case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation B (unpublished). Id. June 15, 2014, she quit due to the alleged harassment.1 Black complained to the United States Equal Employment Opportunity Commission (EEOC). After investigating the matter, it was “unable to conclude that the information obtained establishes a [Title VII] violation[]” but issued Black a right to sue letter. (R. Vol. 1 at 34.) On February 17, 2015, Black sent a letter to the Clerk of the United States District Court for the District of Colorado requesting court-appointed counsel. She also informed the court she was in the process of moving from Colorado to the State of Washington but she would be using her Colorado address until she could submit a permanent Washington address. The court construed the letter as a request to open a civil action. The next day, a magistrate judge issued an order informing Black that the court had commenced a civil action on her behalf. He denied her request for appointment of counsel as premature. He concluded the February 17 letter was deficient and she had 30 days to file a complaint or the action would be dismissed without further notice. She did not file a complaint. The district judge (hereinafter judge) dismissed the action without prejudice on March 27, 2015. About a month later, Black filed a motion to reopen the case, claiming she had not 1 It consisted of her co-worker: (1) slapping her hip “as if he was going to slap [her] butt”; (2) asking her “Why do females wrap-up [their tampons and sanitary pads] and not put [them] in the bin?”; (3) “lean[ing] into/on the driver’s side window” of her truck while she was in the driver’s seat, “which put him about 8 inches from [her] face”; and (4) following her into a restroom she was cleaning and asking her to pressure wash an area. (R. Vol. 1 at 35.) The County claims it investigated the matter after Black quit and decided her claims were unfounded. -2- received the magistrate’s order until March 30, 2015. On that date, she mailed her complaint but it was returned to her on April 22, 2015. She also claimed not to have received the March 27 dismissal order until April 2, 2015, and to have been in Kentucky from April 8, 2015, through April 21, 2015, due to a death. On December 11, 2015, the judge granted the motion to reopen and gave Black 30 days to file her complaint or the case would be dismissed without further notice. She filed her complaint on January 13, 2016. By that time, Black was residing in Washington. A scheduling conference was held on June 21, 2016. Black appeared by telephone. At the conference, the County requested that Black appear in person in Colorado for her deposition. When the judge asked Black when it would be convenient for her to travel to Colorado, she responded “[i]t wouldn’t be.” (R. Vol. 2 at 27.) He informed her the County had the right to take her deposition in Colorado because she filed the lawsuit there. The parties ultimately agreed Black would physically appear for her deposition in Colorado on September 6, 2016. On August 10, 2016, Black emailed the County saying she did not have the funds to travel to Colorado. She suggested the deposition occur instead via telephone or written questions. The County reminded her of the judge’s requirement of her personal appearance in Colorado and it would not agree to the deposition occurring by telephone or by written questions. Black moved for a protective order to excuse her from traveling to Colorado for -3- her deposition. The County opposed the motion, arguing the cost for Black to travel to Colorado is not unreasonable. And, it claimed, taking her deposition by telephone or by written questions would be inadequate. In both circumstances, the County said, it loses the ability to observe Black’s demeanor to assess her credibility. While the County considered the option of a video-conference deposition, the cost of such service is $400 per hour, far more than the cost for Black to travel to Colorado. The judge denied Black’s motion for protective order on October 17, 2016: The Court discussed this subject with the parties at the Scheduling Conference, and plaintiff agreed to appear in Colorado for a deposition on September 6, 2016. While travel may present an economic hardship, the alleged discrimination occurred in Colorado, the suit was filed in Colorado, and the defendant is entitled to take plaintiff’s deposition in Colorado, absent very unusual circumstances which do not exist. If plaintiff is successful in the lawsuit, the Court will award costs, including reimbursement of all costs reasonably incurred for the trip to Colorado including travel, lodging and meals. The deposition should be taken before the discovery cut−off date, December 31, 2016. However, if plaintiff is unwilling to travel to Colorado for her deposition, she may voluntarily dismiss the case or face the likelihood that the case will be dismissed by the Court without prejudice for failure to prosecute. (R. Vol. 1 at 96.) That same day, the County contacted Black via email to reschedule her deposition and suggested several dates. Black did not respond. The County emailed her again on November 2 requesting dates for her deposition and sent her a hard copy of the email via U.S. mail. Again, no response from Black. As a result, the County unilaterally selected December 2, 2016, to take her deposition and sent Black notice via email and U.S. mail. It asked Black to let it know if she did not intend to be present. Black chose to again ignore the notice and did not appear on December 2. However, a court reporter did, -4- requiring the County to incur a non-appearance fee. On December 13, 2016, the County filed a motion to dismiss for failure to prosecute under Fed. R. Civ. P. 41(b). Black did not specifically respond to the motion to dismiss. Instead, she filed a motion to join additional claims (conspiracy, False Claims Act based on the denial of unemployment insurance, and intentional infliction of emotional distress) and parties (the EEOC and the County’s attorney) and a motion to extend the scheduling conference deadlines. On March 21, 2017, the judge granted the County’s motion to dismiss based on Black’s failure to appear for her deposition as ordered. He denied as moot Black’s motion to join additional claims and parties and for extension of the scheduling deadlines. Judgment was entered the same day. On June 14, 2017, he amended the judgment to clarify the dismissal was without prejudice.2 2 Prior to entry of the amended judgment, the County filed a motion to dismiss this appeal for lack of jurisdiction because Black’s notice of appeal from the original judgment was filed one day late. See 28 U.S.C. § 2107(a); see also Bowles v. Russell, 551 U.S. 205, 214 (2007) (“Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”). While she filed a post-judgment motion to vacate under Fed. R. Civ. P. 60, that motion, the County said, did not toll the time to appeal because it was untimely. See Fed. R. App. P. 4(a)(4)(A)(vi) (stating a Rule 60 motion will extend time to appeal if it is filed “no later than 28 days after the judgment is entered”). On June 14, 2017, the judge construed Black’s reply brief in support of her motion to vacate as a timely request for an extension of time to appeal. See 28 U.S.C. § 2107(c). He also decided there was a clerical mistake in the judgment because it did not specify whether the dismissal was with or without prejudice. He therefore amended the judgment to clarify the dismissal was without prejudice. Although the judge interpreted the rules to allow Black 30 days to file a notice of appeal from the amended judgment, the rules only allowed him to extend the time for 14 days. See Fed. R. App. P. 4(a)(5)(C). As a result, (Continued . . .) -5- Discussion A judge may dismiss an action “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order.” Fed. R. Civ. P. 41(b); see also AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (“A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules.”) (quotation marks omitted). We review an order of dismissal for failure to prosecute for abuse of discretion. AdvantEdge Bus. Grp., 552 F.3d at 1236. A district court abuses its discretion if it “makes a clear error of judgment or exceeds the bounds of permissible choice in the circumstances.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) (quotation marks omitted). Because Black is proceeding pro se, we liberally construe her pleadings, stopping short however of serving as her advocate. Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir. 2012). Black’s pro se status does not excuse her from following he told Black “she might wish to file her notice of appeal within 14 days of this order [by June 28, 2017] to be on the safe side.” (Dist. Ct. Doc. No. 63 at 2.) Black did so, filing an amended notice of appeal on June 26, 2017. Her appeal is timely, both as to the original judgment and the amended judgment. Although the dismissal order was without prejudice, it is final and appealable because it expressly dismisses the entire “case,” see Dist. Ct. Doc. No. 64 at 1, and Black has “been effectively excluded from federal court under the present circumstances.” Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001) (“Although a dismissal without prejudice is usually not a final decision, where the dismissal finally disposes of the case so that it is not subject to further proceedings in federal court, the dismissal is final and appealable.”); see also Moya v. Schollenbarger, 465 F.3d 444, 450 (10th Cir. 2006) (“[I]f a district court order expressly and unambiguously dismisses a plaintiff’s entire action, that order is final and appealable.”). -6- the same procedural rules that govern other litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Black claims her case ought not to have been dismissed for failure to prosecute. We see it differently. We took pains to lay out the procedural history of this case and need not repeat it here. That history makes one thing apparent—Black had no intention of traveling to Colorado for her deposition despite being twice ordered to do so and despite being warned that if she did not appear in Colorado for her deposition dismissal without prejudice was likely. We see no abuse of discretion in the judge making good on his promise. See Gates v. United States, 752 F.2d 516, 517 (10th Cir. 1985) (district court did not abuse its discretion in dismissing plaintiffs’ complaint for failure to appear at their court-ordered depositions); see also O’Neil v. Burton Grp., 559 F. App’x 719, 722 (10th Cir. 2014) (affirming dismissal for failure to appear in person for second-scheduled deposition despite plaintiff alleging he could not afford to travel from California to Utah for the deposition). Black resists with arguments consisting mainly of bullet points rather than full sentences; they are not a model of clarity. Nevertheless, we discern three key arguments. First, she faults the judge for not considering the Ehrenhaus factors prior to dismissing her case.3 Generally, “Rule 41(b) involuntary dismissals should be 3 See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (factors to consider before choosing dismissal as a sanction include: (1) “the degree of actual (Continued . . .) -7- determined by reference to the Ehrenhaus criteria.’” Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir. 2002) (quotation marks omitted). However, when, as here, the dismissal is without prejudice, consideration of those factors is not required. AdvantEdge Bus. Grp., 552 F.3d at 1236; see also Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1162 (10th Cir. 2007) (“[A] district court may, without abusing its discretion, enter [a Rule 41(b) dismissal order without prejudice] without attention to any particular procedures.”). Second, Black contends the judge’s order denying her motion for a protective order was deficient because it was a text-entry only (minute order) and did not contain any order compelling her to appear. She is wrong on both counts. The minute order reiterated Black’s agreement at the scheduling conference to physically appear in Colorado for her deposition. Although it did not contain explicit language “ordering” her to appear in Colorado, it did so implicitly by denying her motion for a protective order, which sought to prevent her appearance in Colorado for her deposition. And the minute order, although not a formal written order, is an “‘order,’ the disobedience of which justified dismissal under Rule 41(b).”4 See Yourish v. California Amplifier, 191 F.3d prejudice to the defendant”; (2) “the amount of interference with the judicial process”; (3) “the culpability of the litigant”; (4) “whether the court warned the party in advance that dismissal would be a likely sanction for noncompliance”; and (5) “the efficacy of lesser sanctions.”) (quotation marks omitted). Even were these factors applicable, they clearly support dismissal. 4 Black also argues she did not need to appear at the September 6 deposition because her motion for protective order was still pending at that time. Perhaps, but by October 17 the judge had denied that motion and required her to appear in Colorado for (Continued . . .) -8- 983, 987 (9th Cir. 1999). Finally, Black blames the County for demanding she physically appear in Colorado for her deposition rather than allowing her to appear remotely via telephone or to provide written admissions or an affidavit. She complains she lacked the funds and time to travel to Colorado. She also tells us that victims of sexual assault, like herself, ought not to have to attend their depositions in person due to the sensitive nature of the events. She also goes so far as to accuse the County of exploiting her pro se status. Black’s attempts to avoid responsibility for the consequences of her actions are futile. The district judge considered the economic hardship of Black having to travel to Colorado but nevertheless ordered her to physically appear in Colorado for her deposition because the alleged harassment occurred in Colorado and she filed suit there. And, as the County pointed out in opposing the motion for protective order, it was imperative that Black appear in person so it could witness her demeanor for purposes of judging her credibility. Such judgment cannot be made via written questions, affidavit, or telephonic depositions. Finally, there is no evidence the County acted improperly in requiring her to appear in person; it was simply trying to adequately defend itself.5 her deposition. She not only refused to cooperate in rescheduling her deposition, she also failed to appear at the December 2 deposition. 5 Black also appears to claim there was no need for her deposition because she had already submitted to four hours of interviews under oath and most of the facts are undisputed. Although we are not certain, it appears Black is referring to the interviews that occurred during the County’s and/or EEOC’s investigations. But those interviews are not an adequate substitute for a deposition conducted by an attorney in the course of litigation. And Black’s allegations were and continue to be disputed by the County. -9- The district judge bent over backward to accommodate Black, but, it appears, nothing short of “doing it her way” would suffice. Such an obstinate and self-centered approach is intolerable. AFFIRMED. We DENY the County’s motion to dismiss the appeal for lack of jurisdiction. Entered by the Court: Terrence L. O’Brien United States Circuit Judge - 10 -
01-03-2023
01-03-2018
https://www.courtlistener.com/api/rest/v3/opinions/4102639/
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A15-1511 State of Minnesota, Respondent, vs. Andrew Russell Severtson, Appellant. Filed November 28, 2016 Affirmed Smith, Tracy M., Judge Olmsted County District Court File No. 55-CR-13-6323 Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, Rochester, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and Smith, John, Judge.  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION SMITH, TRACY M., Judge Appellant Andrew Russell Severtson appeals from his conviction of first-degree criminal sexual conduct, arguing that (1) he is entitled to a new trial because the state failed to disclose a colposcopy video from the victim’s medical examination and (2) the district court erred in denying his Paradee motion for in camera review of the victim’s counseling and mental-health records for possible discovery of the records. Because the state did not violate its discovery obligations and because Severtson did not make a plausible showing that the counseling records sought would be material and favorable to his defense, we affirm. FACTS In August 2013, eleven-year-old E.S. told her mother that her father, appellant Andrew Russell Severtson, had sexually assaulted her multiple times while she was living with him from 2010 to 2012. E.S.’s mother reported E.S.’s account to Benton County Human Services (BCHS) and the police. A Benton County child protection social worker interviewed E.S. at the St. Cloud Police Department. Based on that interview, BCHS referred E.S. to the Midwest Children’s Resource Center (MCRC), a department of Children’s Hospitals and Clinics of Minnesota that specializes in medical assessments of children who are suspected victims of abuse. A nurse conducted the examination at MCRC while the social worker observed from another room via a live video feed. A video recording was made of the examination (exam- room video), in which E.S. and the nurse were mostly off screen but audible during the 2 genital examination. During the MCRC exam, the nurse examined E.S.’s genitals using a colposcope, which is a machine that illuminates, magnifies, and records video of the area during examination (colposcopy video). Dr. Carolyn Levitt viewed the colposcopy video and concluded that a healed “transection” or tear in E.S.’s hymen was consistent with the abuse E.S. described. The social worker gave the exam-room video and MCRC’s written report to the police. MCRC’s written report described the “VIDEOCOLPOSCOPIC GENIT[AL]/ANAL EXAM” and results. The colposcopy video remained in the medical records at MCRC and was not sent to law enforcement. Severtson was charged with first- degree criminal sexual conduct. Before trial, Severtson made a Paradee motion asking the district court to review in camera any counseling and mental-health records of E.S.1 Severtson’s main defense theory was that E.S.’s mother had “coached” her to make false allegations, and he asserted that counseling would be the “one place where the child would be free of the influence of her mother and would be candid and honest.” Without a subpoena, Severtson moved the district court to acquire E.S’s counseling and mental-health records, if any, and review them in camera for evidence supporting his theory. The state argued that the request was a “fishing expedition” because Severtson had not identified any evidence that E.S. had been in counseling or that counseling records would show that E.S. had been coached. The state further said it had not found any reference to relevant mental-health records in the police 1 A Paradee motion asks the court to review privileged material in camera to determine whether it is discoverable, balancing the defendant’s interest in obtaining beneficial evidence with the privilege holder’s interest in having her confidences kept. State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987). 3 reports or at E.S.’s medical clinics. The district court agreed with the state and denied the motion. At a jury trial, E.S. testified that Severtson had assaulted her multiple times using multiple forms of penetration. On the second day of trial, the state called Dr. Levitt as a witness. Severtson moved to prevent Dr. Levitt from testifying about the colposcopy and the report on confrontation clause and hearsay grounds because the colposcopy was conducted by a nurse who was not testifying and Dr. Levitt based her conclusions on the colposcopy video rather than firsthand experience conducting the exam. Severtson also noted that the state had not disclosed the colposcopy video and claimed that he did not know there was a colposcopy video prior to trial. The state said it did not have the colposcopy video. The district court denied Severtson’s motion and allowed Dr. Levitt to testify. Dr. Levitt testified that, based on the colposcopy video, she determined that E.S. had suffered vaginal “blunt force penetrating trauma.” Dr. Levitt testified that it is “extremely rare” for a child E.S.’s age to have a tear like the one E.S. had in the absence of sexual abuse and that the kind of accidental injury that could cause a similar tear is “very, very uncommon.” On the third day of trial, after the state rested its case, defense counsel moved the district court to order the state to obtain the colposcopy video and disclose it to Severtson pursuant to Minn. R. Crim. P. 9.01 so he could request a continuance and hire an expert to interpret it and testify if it could be helpful to his defense. The district court denied the motion because Dr. Levitt had been listed as a witness, Severtson had the written report 4 from the MCRC exam that discussed the doctor’s findings, and Severtson, “all along, if [he] wanted to, could have hired an expert,” but did not do so. Severtson did not testify or call any witnesses. The jury found Severtson guilty of first-degree criminal sexual conduct. The district court sentenced Severtson to 270 months. Severtson appeals. DECISION I. The state did not violate its discovery obligations by failing to obtain the colposcopy video when Severtson asked for it on the last day of trial after the state rested its case. Severtson argues that he is entitled to a new trial because the state failed to disclose to him the colposcopy video from the MCRC examination of E.S., violating its discovery obligations under Minn. R. Crim. P. 9.01, subd. 1. Whether a discovery violation occurred is a legal issue that we review de novo. State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005). This court generally will not grant a new trial to remedy a prosecutorial discovery violation unless the appellant shows that the discovery violation was prejudicial. Id. “A new trial is warranted when the State’s discovery violations viewed in the light of the whole record, appear[] to be inexcusable and so serious and prejudicial that the defendant’s right to a fair trial was denied.” State v. Miller, 754 N.W.2d 686, 705 (Minn. 2008) (quotation omitted). The suppression of evidence is prejudicial if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Gorman v. State, 619 N.W.2d 802, 807 (Minn. App. 2000) (quotation omitted), review denied (Minn. Feb. 21, 2001). 5 The Minnesota Rules of Criminal Procedure require the state to disclose to the defense “documents and tangible objects . . . that relate to the case,” as well as the “results or reports of physical or mental examinations.” Minn. R. Crim. P. 9.01, subd. 1(3)(b), (d); id. at subd. 1(4)(a). The prosecutor’s disclosure obligations under subdivision 1 extend to objects and information possessed or controlled by the prosecution staff and by “others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to the prosecutor’s office.” Minn. R. Crim. P., subd. 1a(1). Severtson argues that the state violated its disclosure obligation by not obtaining from MCRC and disclosing the colposcopy video when Severtson requested it after the close of the state’s case. He asserts that the colposcopy video was material that was possessed by MCRC and that MCRC “reported [] to the prosecutor’s office” with reference to this case. Id. The state disputes that MCRC reported to the prosecutor’s office and therefore disagrees that the colposcopy video fell within the scope of Rule 9.01, subd. 1a. We need not decide whether MCRC reported to the prosecutor’s office for purposes of Rule 9.01. The state argues, and we agree, that (1) even if MCRC did report to the prosecutor’s office, in the circumstances of this case the state satisfied its disclosure obligations and (2) even if the state did not satisfy its obligations, Severtson has failed to prove he was prejudiced by the violation. Disclosure Obligations Under Rule 9.01, the prosecutor is required to allow the defendant to inspect and reproduce any information required to be disclosed. Minn. R. Crim. P. 9.01, subd. 1a(2). 6 Here, the state apparently made available for discovery every discoverable item it actually possessed related to the MCRC exam. Dr. Levitt was on the witness list that the state filed and served on Severtson in October 2013, 18 months before the April 2015 trial. During discovery, which began in October 2013, the state disclosed to Severtson the written report from the MCRC investigation that was prepared by Dr. Levitt and the nurse who performed the colposcopy. The state also disclosed the exam-room video, which shows the nurse talking with E.S. about the reason for the exam and then moving out of frame to conduct the colposcopy, and shows Dr. Levitt entering the exam room after the colposcopy to conduct the rest of the physical exam. The only item Severtson claims to have been deprived of related to the MCRC exam is the colposcopy video of E.S.’s genitals, which the prosecution stated on the record it never possessed. Severtson does not claim that the prosecutor had any obligation to obtain and produce the colposcopy video prior to his request, but he argues that the state violated rule 9.01 after his request. The state argues that it satisfied its disclosure obligations when it disclosed in pretrial discovery the medical report written by Dr. Levitt and the MCRC nurse that identified the videocolposcopy examination and its results. In the circumstances of this case, we agree with the state. Severtson failed to request the colposcopy video until the final day of trial despite the fact that the state’s pretrial disclosures were sufficient to put him on notice that a colposcopy video existed. The written report described how the genital examination was conducted, referring to it as a “videocolposcopic” exam using a “video colposcope.” The report, which was written partially in the first person by the nurse and signed by Dr. Levitt, 7 indicated that the nurse conducted the colposcopy and that Dr. Levitt conducted the rest of the physical exam and made the final diagnosis of blunt force penetrating trauma. The exam-room video that was disclosed to Severtson shows the nurse and E.S. having a conversation alone in the exam room and then moving off screen to conduct the colposcopy, making it apparent that Dr. Levitt was not in the room during the genital exam. Because Dr. Levitt then signed the report drawing a conclusion about the cause of E.S.’s tear, an inference can be drawn that Dr. Levitt’s conclusion must have been based on viewing the colposcopy video. The written report and video that were disclosed to Severtson in discovery made it clear that a colposcopy video was taken. Thus, Severtson could have asked for the video long before trial. Instead, Severtson did not ask the state if a colposcopy video existed until voir dire at the earliest, did not raise his concerns about the video with the district court until the second day of trial while moving to exclude Dr. Levitt’s testimony, and did not ask the state to obtain and produce the colposcopy video until the third and final day of trial, after the state had rested its case.2 The state did not have the colposcopy video and noted that, by the time Severtson asked for it, the state no longer would have been able to obtain it without a court order or another medical records release because the release signed by E.S.’s mother had likely expired. Severtson did not have an expert witness at the time of his request, and the colposcopy video would have been of no use to him without an expert to analyze it. If the district court had granted Severtson’s motion at that point, it would 2 The first time Severtson asked the state to produce the colposcopy video was when he moved the district court to order the state to obtain and produce it. 8 have had to grant a continuance, delaying trial not only long enough for the state to seek the requisite release and obtain a copy of the video, but also long enough for Severtson to go through the process of finding an expert witness and preparing that witness for trial. This delay would have been undue in light of the fact that the written report and exam- room video that were disclosed to Severtson during discovery showed that a colposcopy video existed. We conclude that the state did not violate its disclosure obligations. Prejudice Even if the state violated its disclosure requirements, Severtson has failed to show prejudice entitling him to a new trial. Miller, 754 N.W.2d at 705. Severtson’s argument that the nondisclosure was prejudicial focuses on the fact that the doctor’s testimony about the colposcopy video and the conclusions she drew from it “were a major part of the State’s case.” The doctor testified in detail about what the video showed, concluded, based on the video, that E.S. had a healed tear in her hymen indicating “blunt force penetrating trauma” that could have been caused by the kind of abuse E.S. reported, and used her conclusions from the video to refute Severtson’s theory that the tear may have been from an accidental injury. The state also discussed the colposcopy during its closing argument as key evidence corroborating E.S.’s testimony. Severtson asserts that if the colposcopy video had been disclosed, he could have determined that it would be beneficial to obtain his own expert witness to rebut Dr. Levitt’s testimony, creating a reasonable probability that the verdict would have been different. The state argues that Severtson has not shown prejudice because Dr. Levitt’s conclusions were disclosed to Severtson long before trial in the written report, giving 9 Severtson the opportunity to call an expert to rebut those conclusions, and because Severtson does not claim that Dr. Levitt’s conclusions were incorrect or explain how any other expert might have reached a different conclusion from viewing the video. We agree. Severtson chose not to obtain an expert witness despite the fact that the state’s disclosures related to the MCRC exam and Dr. Levitt gave him a fair opportunity to seek an expert to rebut the state’s proposition that the tear corroborated E.S.’s allegations against Severtson. The criminal complaint filed on September 27, 2013, mentioned the MCRC report and stated that the report said E.S. had “a transection at the 7-8 o’clock position of her hymen which is consistent with blunt force penetrating trauma.” Dr. Levitt was identified as a possible witness for the state a year and a half before trial. The written report that was disclosed during discovery described the colposcope and the examination process. The report disclosed the physical findings about the tear as well as the conclusion that the tear was consistent with blunt force penetrating trauma. It was clear from the report that the results of the colposcopy would be key evidence corroborating E.S.’s allegations. We therefore conclude that the state’s disclosures gave Severtson sufficient opportunity to obtain an expert witness to rebut Dr. Levitt’s conclusions, and the state’s failure to obtain and disclose the colposcopy video when Severtson requested it on the last day of trial did not prejudice Severtson. Moreover, Severtson has not provided any basis other than speculation to conclude that “there is a reasonable probability . . . that the outcome of the trial might have been different” had the colposcopy video been disclosed. State v. Ramos, 492 N.W.2d 557, 560 10 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). Without prejudice, a discovery violation does not warrant a new trial. Miller, 754 N.W.2d at 705. II. The district court did not err in denying Severtson’s Paradee motion for in camera review of E.S.’s counseling and mental-health records. Severtson argues that the district court erred in denying his Paradee motion for in camera review of E.S.’s counseling and mental-health records. District courts have wide discretion in discovery matters, and normally a discovery order will not be overturned absent an abuse of that discretion. State v. Underdahl, 767 N.W.2d 677, 684 (Minn. 2009). “To find an abuse of discretion, an appellate court must conclude that the district court erred by making findings unsupported by the evidence or by improperly applying the law.” Id. (citing Shetka v. Kueppers, 454 N.W.2d 916, 921 (Minn. 1990)). When a criminal defendant seeks discovery of privileged material and it is not clear whether the material is discoverable, the district court should examine the material in camera to determine if the defendant’s rights should prevail over the privilege. Paradee, 403 N.W.2d at 642. To obtain in camera review, the defendant first must make a “plausible showing that the information sought would be both material and favorable to his defense.” State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (quotation omitted). Severtson argued that E.S.’s counseling and mental-health records might contain material and favorable evidence that E.S.’s mother convinced her to fabricate the allegations. At the time of the motion, neither Severtson nor the state claimed to know whether any counseling or mental-health records for E.S. existed. However, Severtson asked the district court to order the state to look for records of that kind and submit them 11 for in camera review because “[i]f there’s one place where the child would be free of the influence of her mother and would be candid and honest, it should be in a counseling-type situation.” The district court heard arguments from both parties and determined that Severtson failed to make the requisite showing, noting that it sounded like “a fishing expedition” and an “attack . . . on the mother more than anything else.” The district court’s decision accords with precedent. In State v. Evans, the district court granted in camera review of records from a single medical examination of a witness, but the defendant argued that the court should have reviewed more of the witness’s medical records for evidence of mental-health problems that would cast doubt on the witness’s credibility. 756 N.W.2d 854, 873 (Minn. 2008). The supreme court in Evans rejected the defendant’s arguments because he failed to make a showing that other records would contain information that would be material and favorable to his case; he “only offered argument and conjecture.” Id. Similarly, in Underdahl, the supreme court concluded that the district court abused its discretion in finding Underdahl had shown that the source code to an alcohol-concentration-testing instrument was relevant to his guilt or innocence. 767 N.W.2d at 687. Underdahl argued that challenging the validity of the testing instrument was the only way to dispute the charges against him, but he “failed to demonstrate how the source code would help him do so” and “advanced no theories on how the source code could be related to his defense” or that it “was reasonably likely to contain information related to his case.” Id. (quotation omitted). In contrast, the supreme court in Underdahl concluded that another defendant, Brunner, had met the requisite showing by submitting 12 nine exhibits including source-code definitions, written expert testimony that explained source codes, and an example of a breath-test analysis and its potential defects. Id. at 686. Here, Severtson generally articulated a theory that E.S. might have counseling records that might contain information related to his case based on his suspicion that E.S.’s mother convinced her to lie and his assumption that a child is more likely to be honest in counseling than in any other situation. Severtson argues, without providing any factual support, that it is plausible that E.S. made statements in counseling that could help his case “by exposing bias, motive to fabricate, or evidence that she had been coached, which could have been used for impeachment.” Like Evans and Underdahl, Severtson explained the logic behind his theory but did not offer any evidence to support his suspicion that the records existed or contained material information favorable to his case. Thus, we conclude that the district court did not abuse its discretion in denying Severtson’s Paradee motion. III. Severtson’s Pro Se Arguments Are Without Merit. Severtson raised additional arguments in a pro se supplemental brief. First, Severtson challenges the credibility of E.S. and her mother as witnesses. “[D]etermining the credibility or reliability of a witness lies with the jury alone,” and it is not within this court’s role to reconsider witness credibility on appeal. State v. Buckingham, 772 N.W.2d 64, 71 (Minn. 2009). Additionally, Severtson offers as support for these arguments descriptions of prior events that are not supported by evidence in the record. “An appellate court may not base its decision on matters outside the record on appeal.” Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). 13 Second, Severtson argued that his attorney improperly declined to call witnesses to testify on his behalf and therefore he received ineffective assistance of counsel. To prove ineffective assistance of counsel, “[t]he defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2068 (1984)). The decision of which witnesses to call is part of trial tactics and “lies within the proper discretion of trial counsel.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). Severtson does not identify any factual issue material to this case to which his potential witnesses could have testified. Severtson has failed to show there is a reasonable probability that the result of the proceeding would have been different had his counsel called witnesses, so he has not met his burden to prove ineffective assistance of counsel. Gates, 398 N.W.2d at 561. Affirmed. 14
01-03-2023
11-28-2016
https://www.courtlistener.com/api/rest/v3/opinions/4539915/
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON GEORGE CANTU, No. 80229-1-I Appellant, DIVISION ONE v. PROVIDENCE HOSPITAL and UNPUBLISHED OPINION SANJEEV VADERAH, MD, Respondents. MANN, C.J. — George Cantu appeals the summary judgment dismissal of his medical malpractice action. We affirm, holding that summary judgment was appropriate because Cantu failed to produce the requisite expert testimony to support his claims. I. On March 3, 2015, after complaining of chest pain, Cantu underwent a cardiac catheterization with Skagit Valley Hospital cardiologist Dr. Sanjeev Vaderah. Following the procedure, Dr. Vaderah recommended that Cantu immediately transfer to Providence Hospital for additional medical treatment. Cantu transferred the next day. On March 6, Cantu underwent a coronary artery bypass graft surgery with cardiothoracic surgeon Dr. James Brevig at Providence. Dr. Brevig’s chart notes indicated that Cantu suffered a “respiratory arrest in [the] preoperative holding area” before the surgery, and was “initially unresponsive, but recover[ed].” The incident was Citations and pincites are based on the Westlaw online version of the cited material. No. 80229-1-I/2 “likely related to medication administration.” Dr. Brevig performed the surgery without any further complications and Cantu was discharged from Providence days later. In March 2018, Cantu filed a pro se medical malpractice complaint against Providence and Dr. Vaderah. The complaint alleged he received the wrong medication at Providence that caused him to experience “oxygen deprivation,” resulting in “some dementia,” “difficulties with thought processes,” “poor memory,” and “changes in personality and behavior.” Dr. Vaderah moved for summary judgment, arguing that the complaint should be dismissed because Cantu failed to identify any expert support for his claims and that the doctrine of res ipsa loquitur was inapplicable. Providence joined the motion. The trial court granted summary judgment and later denied Cantu’s motion for reconsideration. Cantu, still pro se, appeals. 1 II. Preliminarily, to the extent Cantu argues that the trial court should have applied a more lenient standard toward him as a pro se litigant, his argument fails. In Washington, courts “hold pro se parties to the same standards to which it holds attorneys.” Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187 (2010); In re Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155 (1983) (“[T]he law does not distinguish between one who elects to conduct his or her own legal affairs and one who seeks assistance of counsel—both are subject to the same procedural and substantive laws.”). 1 Cantu’s opening brief states that he “is not appealing the dismissal of defendant Dr. Vaderah from the case.” He has also filed a document in this appeal entitled “Appellant’s Motion to Voluntarily Dismiss Doctor Vaderah from this Appeal and Declaration of Service.” Because our holding resolves all issues in this appeal, we deny the motion as moot. -2- No. 80229-1-I/3 III. Cantu “seeks to overturn the [trial court’s] erroneous summary judgment dismissal.” We conclude there was no error. We review summary judgments de novo, engaging in the same inquiry as the trial court, and viewing the facts and the inferences in favor of the nonmoving party. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). “Summary judgment in favor of the defendant is proper if the plaintiff fails to make a prima facie case concerning an essential element of his or her claim.” Seybold v. Neu, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001). If the defendant shows an absence of evidence to establish the plaintiff’s case, “the burden shifts to the plaintiff to produce evidence sufficient to support a reasonable inference that the defendant was negligent.” Seybold, 105 Wn. App. at 676. A cause of action for medical malpractice requires the plaintiff to show that (1) the healthcare provider failed to exercise the requisite standard of care and (2) such failure was a proximate cause of the plaintiff’s injuries. RCW 7.70.040. But only experts are allowed to testify regarding the standard of care and whether the healthcare provider met that standard. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 228- 29, 770 P.2d 182 (1989). Moreover, “the expert testimony must be based on facts in the case, not speculation or conjecture.” Seybold, 105 Wn. App. at 677. The expert’s “testimony must be sufficient to establish that the injury-producing situation ‘probably’ or ‘more likely than not’ caused the subsequent condition, rather than that the accident or injury ‘might have,’ ‘could have,’ or ‘possibly did’ cause the subsequent condition.” Merriman v. Toothaker, 9 Wn. App. 810, 814, 515 P.2d 509 (1973) (citing Ugolini v. -3- No. 80229-1-I/4 States Marine Lines, 71 Wn.2d 404, 407, 429 P.2d 213 (1967)). Such testimony must also be based on a reasonable degree of medical certainty. McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774 P.2d 1171 (1989). If the plaintiff fails to produce competent expert testimony, the defendant is entitled to summary judgment. Morinaga v. Vue, 85 Wn. App. 822, 832, 935 P.2d 637 (1997). Here, even when viewing the facts in a light most favorable to him, the record shows that Cantu did not identify a competent expert who would testify in support of his claim that the treatment he received at Providence or from Dr. Vaderah fell below the applicable standard of care. Nor did Cantu disclose an expert to testify that such treatment caused his injuries. Summary judgment in favor of the defendants was proper on this basis. 2 IV. Cantu advances several additional arguments in his brief. They lack merit. A. Cantu contends that the trial court erred in denying his motion for a fourth continuance of the summary judgment hearing. Trial courts may continue a summary judgment motion to give the nonmoving party additional time to conduct discovery. CR 56(f). A court may deny a motion for 2 Citing Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997), Cantu argues that the trial court should have given him more time to conduct discovery, not dismiss his case. In Burnet, our Supreme Court held that when imposing sanctions for discovery violations under CR 37(b)(2), the trial court must indicate on the record whether the sufficiency of a lesser sanction was explicitly considered, whether the conduct that led to the sanction was willful, and whether the violation substantially prejudiced the opponent’s ability to prepare for trial. Burnet, 131 Wn.2d at 493-94. Because the trial court did not impose any discovery sanctions below, Burnet is inapplicable to this case. Additionally, Cantu does not assign error to or present any argument regarding application of the res ipsa loquitur doctrine. Thus, we do not address the issue. Holder v. City of Vancouver, 136 Wn. App. 104, 107, 147 P.3d 641 (2006) (a party abandons an issue on appeal by failing to brief the issue). -4- No. 80229-1-I/5 continuance when: “(1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact.” Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989). We review denial of a summary judgment continuance for an abuse of discretion. 3 Mannington Carpets, Inc. v. Hazelrigg, 94 Wn. App. 899, 902, 973 P.2d 1103 (1999). Cantu requested his fourth continuance on the ground that discovery was ongoing and that a trial date had not yet been set. 4 But Cantu knew in March 2019, about three months before the summary judgment hearing, that no more continuances would be granted. The court advised Cantu that there “will be no more continuances based on not having a lawyer; no more continuances based on not being ready to proceed with expert testimony; and no more continuances based on incomplete discovery.” Cantu had approximately 15 months from the date of the filing of his complaint to conduct discovery, retain counsel, and obtain any experts needed before his complaint was dismissed. Under the circumstances, the trial court did not abuse its discretion in denying Cantu another continuance. 5 3 A court abuses its discretion when it bases its decision on manifestly unreasonable or untenable grounds. Trummel v. Mitchell, 156 Wn.2d 653, 671, 131 P.3d 305 (2006). 4 Initially, the summary judgment hearing was set for December 28, 2018. The hearing was first continued to February 7, 2019 based on Cantu’s claims of unavailability. Then, based on Cantu’s requests for more time to conduct discovery, the hearing was continued to March 8, 2019 and finally continued to June 6, 2019. 5 Cantu also asserts that the trial court erred by denying his motion to compel discovery from Providence he deemed necessary to defeat summary judgment. As nothing in this record shows the trial court ruling on such a motion, there is no ruling for us to review on appeal. Mayekawa Manufacturing Co., Ltd., v. Sasaki, 76 Wn. App. 791, 796 n.6, 888 P.2d 183 (1995) (ruling must be final and definitive to preserve the right to review). -5- No. 80229-1-I/6 B. Cantu next argues that the trial court erred in denying reconsideration under CR 59 and CR 60. Since he failed to establish any grounds to justify reconsideration, the trial court did not err. We review a trial court’s decision on a motion for reconsideration for abuse of discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002). There was a tenable basis for the trial court to rule as it did. Cantu’s motion for reconsideration, in various forms, asserted that he had only recently learned of the identity and employer of Dr. Nikolay Usoltsev, the anesthesiologist he later claims gave him the wrong medication. 6 His motion did not disclose any new experts for the trial court’s consideration. Thus, the court did not err in denying reconsideration. C. Cantu also argues that the trial court erred by denying his motion to amend his complaint to add Dr. Usoltsev as a defendant. Leave to amend pleadings is freely given by a trial court when justice so requires. CR 15(a). However, “[w]hen a motion to amend is made after the adverse granting of summary judgment, the normal course of proceedings is disrupted and the trial court should consider whether the motion could have been timely made earlier in the litigation.” Doyle v. Planned Parenthood of Seattle-King County, Inc., 31 Wn. App. 126, 130-31, 639 P.2d 240 (1982). We review 6 The record does not support Cantu’s claim of “recently learning” of Dr. Usoltsev’s identity. In medical records Cantu attached as an exhibit to a November 2018 pleading, Dr. Usoltsev’s name was mentioned as one of three doctors who visited him after the Providence respiratory incident. At a minimum, Cantu was aware for Dr. Usoltsev’s identity for seven months before the June 2019 summary judgment hearing. -6- No. 80229-1-I/7 the denial of a motion to amend for abuse of discretion. Cambridge Townhomes, LLC v. Pac. Star Roofing, Inc., 166 Wn.2d 475, 483, 209 P.3d 863 (2009). Here, Cantu moved to amend his complaint more than 15 months after his original complaint, about seven motions after filing medical records containing Dr. Usoltsev’s name, and over a week after summary judgment. On this record, the trial court had tenable grounds to deny Cantu’s motion to amend. It did not err. D. Finally, Cantu contends that the “denial of discovery, amendment to add doctor Usoltsev coupled with dismissal of the case violate[d his] due process rights guaranteed” by the state and federal constitutions. But his brief neither states how the trial court’s orders violated his rights to due process nor cites to relevant parts of the record or to any legal authority that supports his contention. Accordingly, this argument is insufficient for appellate review. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). V. We deny Cantu’s request for attorney fees and costs on appeal. Beyond not being the prevailing party, such fees are not available on appeal to a nonlawyer, pro se litigant. In re Marriage of Brown, 159 Wn. App. 931, 938, 247 P.3d 466 (2011). VI. For the reasons discussed above, we affirm the trial court’s summary judgment dismissal and denial of reconsideration. -7- No. 80229-1-I/8 WE CONCUR: -8-
01-03-2023
06-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/996833/
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-1699 HERBERT ARTHUR CONSIDDER, Plaintiff - Appellant, versus EDDIE SHEPPARD; TOM AUSTIN; GREG ATLER; HALMODE APPAREL, INCORPORATED, a/k/a Kelwood & Company, Defendants - Appellees. Appeal from the United States District Court for the Western Dis- trict of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CA-96-1072-R) Submitted: October 20, 1998 Decided: November 3, 1998 Before WILKINS and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Herbert Arthur Considder, Appellant Pro Se. William Fain Ruther- ford, Jr., Kerith Cohen, FLIPPIN, DENSMORE, MORSE, RUTHERFORD & JESSEE, Roanoke, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Herbert A. Considder appeals the district court’s order deny- ing his Fed. R. Civ. P. 59 motion for reconsideration of its order dismissing his claims under the American with Disabilities Act, 42 U.S.C.A. §§ 12101-12213 (West 1995 & Supp. 1998), and the Age Dis- crimination in Employment Act, 29 U.S.C. §§ 621-634 (1994). We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Considder v. Sheppard, No. CA-96-1072-R (W.D. Va. Mar. 17, 1998; Apr 13, 1998). We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2
01-03-2023
07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/4539921/
Filed 6/8/20 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE RICHARD LUCIO DEHOYOS, G056178 Petitioner, (Super. Ct. No. C77640) v. OPINION THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Petition granted. Hilary Potashner, Federal Public Defender, Susel Carrillo-Orellana and Andrea Yamsuan, Deputy Federal Public Defenders, for Petitioner. Xavier Becerra, Attorney General, Ronald S. Matthias, Assistant Attorney General, Holly D. Wilkens and Scott C. Taylor, Deputy Attorneys General, for Real Party in Interest. * * * In 1993, Richard Lucio DeHoyos was convicted by a jury of kidnapping, raping and murdering a nine year old girl. He was sentenced to death. In April 2018, DeHoyos petitioned this court for a writ of mandate after the trial court denied his motion for an order permitting his federal habeas counsel to contact jurors who had served on his trial jury. We summarily denied his petition, but the Supreme Court granted review and transferred the case back to us with directions to issue an alternative writ directing the trial court to either vacate its order and issue a new order granting relief with respect to three jurors DeHoyos identified as having previously discussed the case with his investigators, or to show cause before this court. In its order, the Supreme Court cited Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1097 (Townsel). The trial court refused to vacate its order denying the motion and, having considered the arguments made by the Attorney General in support of the court’s refusal, we now grant the petition and issue a writ of mandate ordering the trial court to vacate its order and to schedule a hearing to establish a reasonable procedure to facilitate contact with the three jurors to ascertain their current willingness to speak with DeHoyos’s counsel. As explained in Townsel, if any of those jurors consent to speak with counsel, the trial court may not prohibit it. If any juror declines contact, the issue with respect to that juror will be resolved. 2 FACTS After a jury convicted him at his second trial in 1993, DeHoyos was 1 sentenced to death. In the wake of his conviction, DeHoyos moved for a new trial, arguing (among other things) that the prosecutor had committed misconduct by sending a letter to the jurors suggesting they not speak with any representative of the defense unless a representative of the prosecution was also present. At least one juror submitted a declaration in connection with the new trial motion, explaining she had not been misled by the prosecutor’s letter; her letter also disclosed she and other jurors had spoken with both the defense and the prosecution after the penalty verdict was rendered. In 1999, after counsel was appointed to represent DeHoyos in his automatic appeal to the Supreme Court, DeHoyos filed a motion to correct and augment the record on appeal. In response, the Attorney General asked the trial court to issue a jury protective order in order to “protect the privacy of all jurors in the instant matter.” Specifically, the Attorney General requested the court to redact all juror personal information, such as names, addresses, and telephone numbers from any discovery order related to jurors, and to require a showing of good cause for the release of that information. Further, citing Townsel for the proposition that “[t]rial courts have the inherent power and discretion to act as gatekeepers, ensuring any juror contact . . . is consensual and reasonable,” the Attorney General asked that DeHoyos be required to seek court approval before contacting any juror and to be prohibited from any non- consensual or unreasonable contact. In November 2000, the trial court granted the requested restraining order in part. The court specifically allowed the parties to have access to the juror personal information. The court ordered that “[a]s part of the record on appeal, the parties will be 1 DeHoyos was also convicted at his first trial in 1991, but the court ordered a new trial based on evidence of juror misconduct. 3 provided with certain information pertaining to potential and seated jurors, namely the ‘Juror Background/Voir Dire Report’ (hereafter voir dire report), the juror questionnaires, and medical reports relating to prospective jurors who were excused for medical reasons (hereafter medical reports.)” However, the court ruled that “[a]ll such information relating to the jurors (seated or potential), except for their names (which are already part of the record on appeal) is deemed confidential and can be disclosed only for purposes of and in connection with the above-referenced matter and related habeas corpus proceedings.” The court prohibited the disclosure of juror addresses to DeHoyos himself, and ordered counsel not to leave the juror medical reports, voir dire report or juror questionnaires in DeHoyos’s possession. At the same time, the court granted the Attorney General’s request for an order prohibiting contact with jurors without court approval. The order states “No contact, or attempted contact, shall be made with any juror (seated or potential) by counsel of record for the parties, including co-counsel and associate counsel, habeas counsel, or employees, agents, or representatives of counsel or habeas counsel, unless pursuant to an order of the court.” The no-contact order in this case is similar to the order in Townsel, which had been decided a year earlier. In Townsel, the court ordered that “‘there’s to be no jury contact without prior court approval. In other words, if you do come upon a juror questionnaire that you do want to contact that person, then you’ll have to petition the Court, giving forth your reasons before that would be granted.’” (Townsel, supra, 20 Cal.4th at p. 1088.) The court later clarified that the “petitioner’s counsel must show ‘good cause’ or ‘probable cause’ before the court would allow her to contact the jurors.” (Ibid.) Although the order in this case did not specify “good cause” as a condition precedent for juror contact, the trial court later interpreted the order as requiring such a showing. In 2011, counsel appointed to represent DeHoyos in a state court petition for 4 habeas corpus filed a motion seeking permission to contact jurors on a “wide array of subjects.” The court denied the motion, finding counsel’s request to be a “fishing expedition” because the motion was not supported by a sufficient showing that any juror misconduct had occurred. Referring to Townsel, the court explained, “I do think that the Supreme Court would expect the court not to disturb jurors after eighteen years unless there is some evidence of actual misconduct of some kind.” The court also noted that “at this point I have to assume that they have not requested to be interviewed. You haven’t produced any evidence that any jurors have agreed to do that. [¶] I think that the Supreme Court would expect the court to protect the jurors to that extent from the intrusive nature of having someone show up on their doorstep wanting to interview them about a trial they heard eighteen years before and had no contact with in the meantime.” However, the court stated its denial was without prejudice, telling DeHoyos’s counsel that “[i]f you find that there were jurors who agreed to be interviewed 2 and were not, I would consider then sending the letter that you have proposed today. Because of the passage of time, I would want to give them another chance to rethink whether they are still willing to be interviewed. But I think you would be in a much stronger position there than you are now.” In December 2014, the Office of the Federal Public Defender was appointed to pursue a petition for habeas corpus in the federal district court. In October 2 Earlier in the hearing, DeHoyos’s counsel had addressed the possibility that the initial contact with the jurors might come in a letter from the court, rather than directly from counsel, while noting that would be “obviously not ideal for us.” Counsel explained, “We believe that face-to-face contact creates an easier environment for the jurors to talk in person versus calling them or something like that, versus having them come into the court.” But counsel acknowledged that “if that was the only thing that the court was willing to do, then we would be willing to have a letter come from you asking if they would like to speak or not to speak about their experience.” 5 2016, five years after the court’s denial of his last motion for permission to contact jurors, DeHoyos filed a motion requesting an order vacating the no contact order or granting permission for his federal habeas counsel to contact the jurors. The motion specified that counsel “seeks only the opportunity to contact jurors to ask whether they would be willing to speak about their service on the jury at DeHoyos’s second trial. If a juror expresses that he or she does not wish to speak about their experiences, counsel will immediately end the discussion and will not attempt to contact the juror again.” In the alternative, DeHoyos sought permission to contact the three jurors he identified who agreed to speak with his investigators back in 1993. Although there was no opposition filed, the trial court denied the motion without a hearing. The court noted that “[i]t has been more than 20 years since the 1993 verdict in the present case.” Citing Townsel repeatedly, the court explained that “[a] trial court has the ‘inherent power to protect both juror safety and juror privacy.’ [Citation.] ‘A criminal defendant has neither a guaranty of posttrial access to jurors nor a right to question them about their guilt or penalty verdict.’ [Citations.] ‘[S]trong public policies protect discharged jurors from improperly intrusive conduct’ after their service has concluded.” The court acknowledged that “the policies protecting juror privacy ‘must be balanced with the equally weighty public policy that criminal defendants are entitled to jury verdicts untainted by prejudicial juror misconduct,’” but reasoned that those competing interests could be harmonized by a rule that allows access to jurors only if the defendant “submits a timely motion which includes ‘a sufficient showing to support a reasonable belief that jury misconduct occurred.’ [Citing Townsel].” Concluding that DeHoyos had failed to make that “necessary preliminary showing” because “[t]he documents provided, including all exhibits, fail to support a reasonable belief that juror misconduct occurred,” the court denied the motion. 6 The court also denied DeHoyos’s alternative request to contact only the three jurors who had previously consented to be interviewed because the documents failed “to establish that any of the three specified jurors interviewed in 1993 after the verdict either (1) agreed to be interviewed but were not interviewed; or (2) consented to a subsequent interview or expressed willingness to be interviewed in the future.” In April 2018, DeHoyos challenged the court’s denial of his motion by filing a petition for habeas corpus in this court, contending that the trial court abused its discretion by issuing the no-contact order in the first place, and also by denying his habeas counsel permission to contact the jurors under the terms of that order. In the alternative, DeHoyos argued the petition should be granted as to the three jurors who agreed to speak with his investigators in the wake of the 1993 trial. We summarily denied that petition. DeHoyos then filed a petition for review in the Supreme Court. (DeHoyos v. Superior Court, review granted March 20, 2019, S253936.) The Supreme Court granted the petition for review and transferred the case back to us with directions to vacate our denial order and to issue an alternative writ directing the trial court to vacate its order and issue a new order granting relief with respect to the three identified jurors or to show cause before this court. We complied with that directive and issued the alternative writ. The trial court declined to vacate its ruling; we set the matter for a hearing. DISCUSSION 1. Background Law Most issues concerning juror privacy involve either (1) the right to obtain the juror’s personal identifying information, which is governed by Code of Civil 7 3 Procedure section 237, or (2) the right to contact jurors, which is governed by section 206. Since 1996, section 237 has required that jurors’ personal information, including their names, addresses and telephone numbers, be sealed following the recording of a verdict, and that any petition for access to those records be supported by a showing of good cause. However, that provision applies only to cases in which the jury verdict was returned on or after January 1, 1996. (§ 237, subd. (a)(4).) In this case, the court’s no-contact order expressly confirmed that the jurors’ names and other personal identifying information would be included in the record on appeal, and thus that DeHoyos and his counsel would have access to it—albeit with some restrictions. Consequently, that issue is not in dispute. The sole issue before us is whether the three identified jurors should be contacted for the purpose of determining whether they will consent to a more comprehensive interview by defense counsel. That issue is governed by section 206, which has not significantly changed since this case was tried in 1993. Both then and now, section 206 has made clear that a defendant’s right to discuss the case with any juror is conditioned on the juror’s consent. The statute requires that jurors be informed, prior to their discharge, that they have the absolute right to discuss or not discuss their deliberation or verdict with anyone. (§ 206, subd. (a).) The statute also expressly provides that the defendant and his or her attorney are permitted to discuss the jury’s deliberation with any juror as long as the juror consents and the discussion take place at a reasonable time and place. (§ 206, subd. (b).) Any unreasonable contact with a juror, without the juror’s consent, must be immediately reported to the trial judge and is treated as the violation of a lawful court order. (§ 206, subds. (d) and (e); § 206, former subds. (c) and (d).) 3 All further statutory references are to the Code of Civil Procedure unless otherwise indicated. 8 Effective in 2001, section 206 added a requirement that if a discussion about the deliberation or verdict occurs more than 24 hours after the verdict was returned, the defendant (or prosecutor) and any attorney or representative of either party, is required to inform the juror of the identity of the case, the name of the party he or she represents, the subject of the interview, the right of the juror to either discuss or not discuss the deliberations or verdict, and the juror’s right to have a copy of any declaration filed with the court. (§ 206, subd. (c).) In Townsel, the Supreme Court considered the propriety of a no-contact order in a case like this one. In Townsel, the petitioner’s trial took place in 1991, and thus the unredacted juror questionnaires were included in the appellate record and there was consequently no dispute about counsel’s access to the jurors’ personal information. (Townsel, supra, 20 Cal.4th. at pp. 1087-1088.) However, on its own motion, the trial court in Townsel issued an order prohibiting any contact with jurors without prior court approval, and required that “petitioner’s counsel must show ‘good cause’ or ‘probable cause’ before the court would allow her to contact the jurors.” (Id. at p. 1088.) The petitioner sought a writ of mandate in the Supreme Court, arguing the trial court had no authority to issue such an order, and that even if it did, the court had abused its discretion by doing so under the circumstances of that case. The Supreme Court denied relief, concluding that “notwithstanding the Legislature’s enactment and expansion of statutory procedures governing attorney contact with jurors after a jury trial has ended, trial courts have always possessed the inherent power to protect jurors’ physical safety and privacy. Nothing in the exercise of a court’s inherent power in this respect is inconsistent with present statutory guarantees. Nor did respondent court, in entering the no-contact order in the present case, abuse its inherent discretion. Rather, respondent, in the exercise of its inherent power, was merely acting as a gatekeeper to ensure that any juror contact by petitioner’s counsel . . . is both consensual and reasonable.” (Townsel, supra, 20 Cal.4th at p. 1087, italics added.) 9 The court began its analysis by confirming that even before the Legislature enacted sections 206 (in 1988) and 237 (in 1992), trial courts had “inherent powers to ensure jurors were protected, following their discharge from a trial, from threats to their physical safety and invasions of their personal privacy.” (Townsel, supra, 20 Cal.4th at p. 1091.) The court acknowledged, however, that concerns for juror safety and privacy “must be balanced with the equally weighty public policy that criminal defendants are entitled to jury verdicts untainted by prejudicial juror misconduct.” (Id. at p. 1092.) The 4 court identified People v. Cox (1991) 53 Cal.3d 618 (Cox) as a case in which the trial court had properly exercised its discretion to supervise the defendant’s contact with jurors even before the 1988 enactment of section 206. In that case, the trial court’s order— which the Supreme Court affirmed—required “all further communications with the jurors to take place through the court clerk” because several jurors had reported anxiety after being contacted by a defense investigator. (Townsel, at p. 1092; see Cox, at p. 692.) In Townsel, the court characterized the order in Cox as striking “the proper balance” between the policies of protecting jurors and ensuring verdicts untainted by misconduct. (Townsel, at p. 1092.) The court also cited People v. Rhodes (1989) 212 Cal.App.3d 541—a case involving disclosure of juror identifying information—as “another case arising before the 1988 enactment of section 206, [in which] the appellate court applied an express balancing test to conclude the trial court, in denying a defendant’s request for disclosure of juror identifying information, did not abuse its inherent authority.” (Townsel, supra, 20 Cal.4th at p. 1093.) The court concluded Rhodes was significant because “[n]o applicable statutory law having been in effect at the time, the Rhodes court, in upholding 4 Disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22. 10 the trial court’s ruling, must necessarily have been relying on the inherent power of the judiciary to protect the safety and privacy of jurors.” (Townsel, at p. 1094.) The court next explained why the enactment of section 206 did not deprive the trial court of its inherent power to protect jurors, stating that “the trial court’s decision in this case to act as gatekeeper is consistent with section 206, in that it enables the court to determine ahead of time from the jurors whether or not any wishes to speak to appellate counsel. If a juror refuses to consent and so informs the trial court, certainly counsel has no legitimate claim under section 206 that her ability to investigate potential claims for habeas corpus was undermined unfairly.” (Townsel, supra, 20 Cal.4th at pp. 1095-1096, italics added.) The court then stated that such a “gatekeeper” order was not an abuse of discretion under the circumstances of that case for several reasons. First, the case was a capital case and the defendant was sentenced the death. Second, the defendant was convicted of murdering a witness to a previous crime and attempting to dissuade a witness. The court stated that “[e]ach of these circumstances raises serious concerns about juror safety.” (Townsel, supra, 20 Cal.4th at p. 1097.) Additionally, the court pointed to the long passage of time since the trial, reasoning that “[t]his long period of repose will have heightened the jurors’ sense of privacy regarding Townsel’s trial, likely making any present contact by appellate counsel both startling and more intrusive. Respondent court appeared concerned for the jurors’ privacy, expressing the view that they not be disturbed. For respondent to ensure that any attorney contact with the jurors, so long after their discharge from jury service, is both fully consensual and conducted with proper solicitude for their privacy is not unreasonable.” (Ibid.) Finally, the court emphasized that the trial court’s role as “gatekeeper” under the no-contact order meant only that “the court can act as a neutral third party, serving to apprise the jurors of counsel’s interest and to determine, in the first instance, if a juror will consent to an interview with appellate counsel. If any juror refuses to 11 consent, that is the end of the matter. If, however, a juror consents to an interview, no more need be shown, as section 206, subdivision (a) provides that jurors enjoy ‘an absolute right to discuss . . . the deliberation or verdict with anyone.’” (Townsel, supra, 20 Cal.4th at p. 1097.) However, “[i]f a juror does consent to an interview, respondent court would abuse its discretion by requiring counsel to make a showing of need or ‘good cause’ greater than the desire to interview the juror for a lawful purpose.” (Ibid.) 2. The No-Contact Order in this Case The no-contact order in this case was sought by the Attorney General pursuant to Townsel, and expressly based on the trial courts’ “inherent power and discretion to act as gatekeepers, ensuring any juror contact . . . is consensual and reasonable.” Under Townsel, the issuance of such an order can be reasonably justified based on a significant passage of time since the trial, and the court’s concern that any contact with the jurors might, as a consequence, be unduly startling and intrusive. Given that the period of time between the trial and the no-contact order in this case (nine years) is substantially longer than in Townsel (six years), we cannot say the trial court abused its discretion in issuing the order. However, our analysis does not end there. In its “gatekeeper” role, the trial court’s responsibility is to manage the initial contact with the jurors to ascertain consent to be interviewed, not to unilaterally prohibit all contact. (Townsel, supra, 20 Cal.4th at p. 1097.) Thus, unless the juror has already communicated an unwillingness to speak with the defendant’s counsel, the court’s role is “to determine ahead of time from the jurors whether or not any wishes to speak to appellate counsel.” (Townsel, at 5 pp. 1095-1096, italics added.) 5 At oral argument, counsel argued that we should order defense access to additional jurors beyond the three referred to in the Supreme Court’s order. We decline to do so because the only issue before us is as stated in the Supreme Court’s order. 12 In denying the motion here, the trial court failed to do what Townsel required of it. The court refused to allow any contact with the jurors—even those three who agreed to speak with DeHoyos’s representatives in the past—indicating it was not convinced they had expressed a current willingness to be interviewed. That justification begs the question rather than answers it. The court’s obligation as gatekeeper is to ask. DISPOSITION The petition for writ of mandate is granted. The trial court is directed to conduct a hearing to ascertain an appropriately neutral means of contacting the three jurors identified by DeHoyos, to inquire whether they consent to be interviewed by DeHoyos’s representatives, and if so, under what conditions. GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J. 13
01-03-2023
06-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/2912083/
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* MARTIN D. CASPER, * No. 14-197V * Petitioner, * Special Master Moran * v. * Filed: July 28, 2015 * SECRETARY OF HEALTH * Stipulation; influenza (“flu”) AND HUMAN SERVICES, * vaccine; Acute Disseminated * Encephalomyelitis (“ADEM”). Respondent. * ********************* Lisa A. Roquemore, Esq., Rancho Santa Margarita, CA, for Petitioner; Michael Milmoe, United States Dep’t of Justice, Washington, DC, for Respondent. UNPUBLISHED DECISION1 On July 23, 2015, respondent filed a joint stipulation concerning the petition for compensation filed by Martin D. Casper on March 10, 2014. In his petition, Mr. Casper alleged that the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on or about October 19, 2012, caused him to suffer Acute Disseminated Encephalomyelitis (“ADEM”). Petitioner further alleges that he suffered the residual effects of this injury for more than six months. Petitioner represent that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition. Respondent denies that the flu vaccine caused petitioner’s alleged ADEM or any other injury and further denies that his current disabilities are a sequela of a vaccine-related injury. 1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the party has 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. Nevertheless, the parties agree to the joint stipulation, attached hereto as “Appendix A.” The undersigned finds said stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. Damages awarded in that stipulation include: A lump sum of $200,000.00 in the form of a check payable to petitioner, Martin D. Casper. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 14-197V according to this decision and the attached stipulation.2 Any questions may be directed to my law clerk, Mary Holmes, at (202) 357- 6360. IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge. 2 Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 1 of 5 Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 2 of 5 Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 3 of 5 Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 4 of 5 Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 5 of 5
01-03-2023
09-10-2015
https://www.courtlistener.com/api/rest/v3/opinions/8540627/
Opinión disidente emitida por la Juez Asociada Señora Ro-dríguez Rodríguez. Hoy una mayoría de este Tribunal abdica al llamado impostergable de interpretar coherente, íntegra y razona-blemente la Constitución del Estado Libre Asociado de Puerto Rico ante embates internos y externos. En su lugar, esa mayoría opta por una metodología interpretativa que dista del ponderado quehacer de un juez de esta Curia y raya en la elaboración de un grimorio judicial para enfren-tarse a problemas de índole constitucional. Disiento del proceder que este Foro adelanta hoy por entender que esa actuación debilita y vulnera nuestro es-quema constitucional. Además, disiento porque lo resuelto por este Tribunal expone a la Constitución en una situa-ción de interpretación tan laxa como precaria, en perjuicio de la democracia puertorriqueña. I El 10 de octubre de 2011, el Senado de Puerto Rico aprobó la Resolución Concurrente Núm. 35, 16ta Asamblea Legislativa, 3ra Sesión Ordinaria (Res. Conc. Núm. 35), con votación de veinte miembros a favor, ocho en contra, uno ausente y dos vacantes. (1) Esa resolución concurrente propone múltiples y variadas enmiendas al Art. III de la Constitución del Estado Libre Asociado de Puerto Rico, L.P.R.A., Tomo 1, con el “propósito único de reestructurar el Poder Legislativo”, debido a que “[e]n las elecciones gene-rales de 2008, el pueblo puertorriqueño avaló el Programa de Gobierno presentado por el Partido Nuevo Progresista *90[y e]ste Programa incluía un compromiso de realizar una Reforma Legislativa”. (Énfasis suplido). Exposición de Mo-tivos de la Res. Conc. Núm. 35, pág. 1. Posterior a la apro-bación de la Res. Conc. Núm. 35,(2) el 10 de mayo de 2012 el Senado aprobó la Resolución Concurrente Núm. 60,16ta Asamblea Legislativa, 7ma Sesión Ordinaria, (Res. Conc. Núm. 60) para proponer otra enmienda constitucional, pero a los fines de restringir el derecho a la fianza en par-ticulares circunstancias delictivas. Esta última resolución concurrente incluyó una sección objeto de controversia en este caso, que dispone: Sección 2.— La enmienda propuesta en esta Resolución Con-currente será sometida para su aprobación o rechazo a los electores capacitados en Puerto Rico en un Referéndum Especial ... conjunto con la consulta para enmendar la Constitución a los fines de cambiar la composición de la Asamblea Legisla-tiva, propuesta en la Resolución Concurrente del Senado Núm. 35, ... la cual reiteramos en la presente Resolución Concurrente. (Énfasis suplido). Id., págs. 11-12. En síntesis, nuestra labor judicial en el caso de autos se limita a pasar juicio sobre la validez constitucional de la Res. Conc. Núm. 35. Debemos examinar si el tracto legis-lativo para su aprobación cumple con las exigencias proce-sales de la Sec. 1 del Art. VII de la Constitución del Estado Libre Asociado de Puerto Rico. Para atender la interpreta-ción improvisada y errante a la que nos invita el Estado Libre Asociado (peticionario), y que la mayoría de este Foro asume sin justificación plausiva, resulta imperativo aus-cultar si una primera resolución concurrente que no cum-plió con las exigencias procesales para enmendar la Cons-titución, puede ser subsanada con otra resolución concurrente posterior. Veamos. *91II Previo a considerar los asuntos que ocupan nuestra atención, resulta forzoso exponer los alcances interpretati-vos de una controversia constitucional como la de autos. Cómo acercarse a las disposiciones sobre una enmienda constitucional y cómo interpretarlas, resulta una labor ar-dua, pero ineludible a nuestra función constitucional como últimos intérpretes de nuestra Ley Suprema. E.L.A. v. Aguayo, 80 D.P.R. 552 (1958). Esa interpretación, y aquélla hecha a alguna medida legislativa sobre la enmienda cons-titucional, debe ser razonable, según expresa la Opinión mayoritaria al citar al Juez Presidente del Tribunal Supremo de Estados Unidos, señor Roberts. Opinión mayori-taria, acápite XI. Por lo mismo, resulta incongruente que este Tribunal cite la necesidad de interpretaciones razona-bles, cuando el resultado aquí hallado se distancia de ese adjetivo. Nuestra labor en controversias como la de autos no es juzgar la sabiduría de las enmiendas propuestas, sino eva-luar su constitucionalidad. Berríos Martínez v. Gobernador II, 137 D.P.R. 195, 202 (1994); véase también Córdova y otros v. Cámara Representantes, 171 D.P.R. 789, 801 (2007) (“la Rama Judicial tiene el poder de determinar si las otras ramas del gobierno observaron las limitaciones constitucio-nales y si los actos de una de éstas exceden sus poderes delegados”). Ello es así, puesto que realizar lo contrario contravendría al principio de separación de poderes reco-gido en nuestra Constitución. Const. P.R., Art. I, Sec. 2. En Berríos Martínez v. Gobernador II, supra, pág. 200, nos expresamos sobre este asunto y sostuvimos que: Al amparo de la facultad que nos otorga el Art. V de la Cons-titución del Estado Libre Asociado, L.P.R.A., Tomo 1, de ser los intérpretes máximos de la Constitución, tenemos el deber de garantizar y vigilar que las enmiendas a nuestra Ley Su-prema cumplan con lo dispuesto en el Art. VII de la Constitución del Estado Libre Asociado, L.P.R.A., Tomo 1. *92Sobre la concepción de lo que es una Constitución y el modo de enfrentarse a ella ante una propuesta de en-mienda, el Informe de la Comisión de Preámbulo, Orde-nanzas y Procedimientos de Enmiendas a la Constitución, sobre Enmiendas que se recoge en el Diario de Sesiones de la Convención Constituyente, expone: Una constitución, desde luego, es más que una ley ordina-ria, es la ley que gobierna al gobierno. La estabilidad de la constitución es esencial al adecuado desarrollo, dentro de un régimen de ley, de las instituciones y principios que en ella se organizan y establecen. Las constituciones deben estar fuera del alcance de la pasión súbita y el juicio pasajero y, siendo tan alto el fin que ellas cumplen, el procedimiento para enmendar-las debe ser lo suficientemente difícil como para invitar al análisis sereno y cuidadoso. ... Si bien el procedimiento para enmendar la constitución debe ser lo suficientemente rígido para impartirle estabilidad a la constitución y distinguirla de las leyes ordinarias, el procedimiento a su vez debe ser lo su-ficientemente flexible para que la constitución pueda ceder ante una opinión pública informada y consciente y continuar así reflejando los postulados esenciales de vida de la comunidad. (Énfasis suplido). 4 Diario de Sesiones de la Con-vención Constituyente 2559 (1951). Cuando nos enfrentamos a situaciones complejas y pro-cesos legislativos irregulares sobre una propuesta de en-mienda a la Constitución, nuestra función revisora se toma más significativa y se pone a prueba nuestra capaci-dad de llegar a un resultado que no contravenga los prin-cipios y las disposiciones que encarna la propia Ley Suprema. Para ello, es meritorio que seamos conscientes de la naturaleza de una Constitución y las formas de inter-pretar tanto a la Carta Magna, como a aquellos estatutos que incidan sobre ésta. Una Constitución es “un acto político y legal ... y en su conjunto expresa más o menos adecuadamente las relacio-nes políticas de una sociedad organizada en un Estado, [además que] fija las estmcturas básicas del aparato esta-tal y funciona como salvaguarda del mantenimiento y de-sarrollo del sistema sociopolitico”. J. Wróblewski, Constitu-*93ción y teoría general de la interpretación jurídica, Madrid, Ed. Civitas, 2001, pág. 112. La Constitución también se ha definido como “el cauce para que la sociedad se autodirija políticamente, con un ánimo de seguridad jurídica”. P.A. Contreras Matus, Interpretación constitucional: un régi-men especial, 11 Rev. Derecho y Humanidades 311-321 (2005). En la medida en que se permita que se enmiende la Constitución sin que se cumplan a cabalidad las garantías que ella misma expone, se trastoca el carácter de ella como documento que salvaguarda el desarrollo de una sociedad democrática. Ahí estriba la importancia de nuestra función como garantes del cumplimiento del contenido de la Constitución. La Constitución, pues, es un documento con un poder simbólico originario depositado por los delegados de la Asamblea Constituyente y que nos sigue vinculando en tanto como sociedad depositemos en ella la cohesión de nuestro sistema político-democrático. Para mantener esa seguridad jurídica que simboliza la Ley Suprema, es impe-rativo que nuestra interpretación sobre ella y las leyes que la incidan se enmarque en unos contornos de razonabili-dad, coherencia y sensatez. Al enfrentarnos al texto magno, como jueces debemos tener presentes varios principios de interpretación constitucional. Ello resulta de gran importancia para evi-tar llegar a conclusiones erradas como parte de metodolo-gías aleatorias, tal cual hizo la opinión mayoritaria en el caso de autos. Así, la doctrina ha elaborado una serie de principios de interpretación constitucional, los que apunta-mos aquí: a) El Principio de la unidad constitucional— La interpretación tiene que estar orientada siempre a pre-servar la unidad de la norma primera como punto de partida de todo el ordenamiento jurídico. El texto constitucional debe ser entendido como un sistema dotado de una unidad de sig-nificado en el que cada norma ha de ser interpretada en rela-ción a las demás, de tal manera que se eviten contradicciones *94con otras normas constitucionales. b) Principio de armonización o concordancia práctica— Esto significa que cuando dos o más preceptos constitucio-nales entran en conflicto en la resolución de un caso concreto, debe evitarse la aplicación excluyente de uno en perjuicio de otro. ... Se debe interpretar el texto constitucional de modo que no se produzca el sacrificio de una norma constitucional en aras de otra norma del mismo rango. c) Principio de la corrección funcional— El intérprete debe cuidar de respetar el esquema de estruc-turas de poder y de distribución de funciones y tareas entre órganos y entes públicos que consagran la Constitución. d) Principio de la eficacia normativa— La interpretación debe tender a maximizar la eficacia de las normas constitucionales, dando preferencia a los puntos de vista que permitan extraer de ellas consecuencias de aplica-ción inmediata. e) Principio de función integradora— La Constitución se propone la creación y mantenimiento de la unidad política, entendida como la cohesión de diferentes corrientes de opinión, por tanto, se exige que se prefiera para solucionar los problemas jurídicos constitucionales aquellas interpretaciones que tiendan a mantener dicho propósito. f) Principio de la fuerza normativa de la Constitución— Aun cuando la interpretación de la Constitución pueda ser muy flexible, hay que partir de que la Constitución es una norma jurídica y no puede por consiguiente perder por vía interpretativa la fuerza normativa, es decir, el valor que como Norma Suprema posee. Contreras Matus, supra, págs. 315-316. Como veremos más adelante, la opinión que hoy emite este Tribunal ignora cualquier principio y metodología de interpretación constitucional. Así, la Opinión mayoritaria elabora una propia y novedosa interpretación, incurriendo en lo que le criticó al Partido Independentista Puertorriqueño (P.I.P), al decir que su estándar “comes from ... well, from nowhere”. Opinión mayoritaria, acápite VII-B, pág. 32 (citando a la Juez Asociada del Tribunal Supremo de Estados Unidos, Señora Kagan, en Martel v. Clair, 132 S. *95Ct. 1276, 1285 (2012).(3) La interpretación constitucional que realiza la opinión emitida y que es avalada por una mayoría de esta Curia es de poco calado, además que cons-tituye un intento de reducir a lo trivial cualquier interpre-tación que se haga sobre la Carta Magna. III El Estado Libre Asociado (E.L.A.) nos convida a resolver que el requisito del voto de dos terceras partes del número total de miembros de cada cámara (2/3 x 100 = 66.66%) para proponer enmiendas a la Constitución del Estado Li-bre Asociado de Puerto Rico, Const. P.R., Art. VII, Sec. 1, se refiere únicamente a dos terceras partes de los miembros juramentados y no a la totalidad de escaños existentes. Sostiene su alegación en que, conforme a la definición pro-vista por la más reciente versión del diccionario de la Real Academia Española, el término miembro significa “[i]ndividuo que forma parte de un conjunto, comunidad o cuerpo moral” y que, a su vez, individuo se define como “[p]ersona, con abstracción de las demás”. Alegato de la parte peticionaria, pág. 22. Por lo tanto, arguye que como la Res. Conc. Núm. 35 obtuvo el voto afirmativo de veinte de los veintinueve senadores activos al momento en que se llevó a cabo la votación (20/29 x 100 = 68.96%), ésta satis-fizo el imperativo constitucional. El P.I.P., por su parte, plantea que las dos terceras partes se refieren al número total de escaños existentes en cada cámara. Según este cri-terio, como el Senado se componía de treinta y un escaños *96al momento cuando se realizó la votación, incluyendo dos vacantes, la medida no obtuvo los votos necesarios para ser aprobada válidamente (20/31 x 100 = 64.51%). El P.I.P. tiene razón. Con el propósito de auscultar el significado verdadero de la frase “total de los miembros de que se compone cada cámara” utilizada en nuestra Carta Magna, debemos rea-lizar un análisis integrado de la totalidad del documento bajo escrutinio antes de acudir a fuentes exógenas que nada tienen que ver con nuestro ordenamiento jurídico. Cónsono con esta apreciación, vemos que la See. 2 del Art. III de la Constitución presenta urna definición numérica al disponer que “[e]Z Senado se compondrá de veintisiete Senadores y la Cámara de Representantes de cincuenta y un Representantes, excepto cuando esa composición resultare aumentada a virtud de lo que se dispone en la Sección 7 de este Artículo”. (Enfasis suplido). De esta forma, contrario a otras constituciones, la nuestra no fijó un número variable de integrantes de cada cámara,(4) sino un número fijo: veintisiete en el Senado y cincuenta y uno en la Cámara de Representantes, sujeto a variación únicamente por la aplicación de la See. 7 del Art. III, conocida comúnmente como la Ley de Minorías.(5) Véase Escuela de Administración Pública U.P.R., La nueva Constitución de Puerto Rico, San Juan, Ed. U.P.R., 2005, pág. 365. Además, como parte de un análisis integrado y de uni-dad constitucional, para definir las exigencias de la Sec-ción 1 del Artículo VII de la Constitución, notamos que el léxico utilizado en esta sección remite inexpugnablemente *97al lenguaje del Artículo III, Sección 2. A saber, el Artículo VII, Sección 1, expone que el cálculo se tomará del “número total de los miembros de que se compone cada cámara”, mientras que el Artículo III, Sección 2, define que el “Se-nado se compondrá de veintisiete Senadores”. (Énfasis suplido). De una metodología basada en el propio lenguaje, podemos definir los propósitos depositados en estas cláusu-las de la Constitución, manteniendo así la unidad que ella representa. Debido a los resultados obtenidos en la última con-tienda electoral, la precitada See. 7 del Art. III, entró en efecto y la composición del Senado de Puerto Rico para este cuatrienio quedó fijada finalmente en treinta y un miembros. Por consiguiente, la Constitución requiere que un mínimo de veintiún Senadores expresen su anuencia mediante voto afirmativo para cumplir con el requisito de dos terceras partes. Ahora bien, ¿qué sucede cuando surgen vacantes en urna cámara legislativa? ¿Acaso era la intención de nuestros constituyentes que los escaños vacantes fueran excluidos del cálculo a la hora de obtener las dos terceras partes requeridas y que se contaran solo los miembros activos, según plantea el E.L.A.? Un vistazo al Diario de Sesiones de la Convención Constituyente nos convence de que no era esa su intención. Como bien señala la mayoría, un debate suscitado en la Convención Constituyente entre los delegados don Miguel A. García Méndez y quien posteriormente se convirtiera en Juez Presidente de este Tribunal, don José Trías Monge, arroja luz sobre la respuesta a la incógnita ante nuestra consideración. El Diario muestra que el delegado García Méndez propuso una enmienda para que se robustecieran aún más los requisitos para alterar nuestra Constitución mediante la exigencia de que toda enmienda constitucional fuera aprobada no solo por dos terceras partes del total de miembros de ambas cámaras legislativas, sino, además, *98por el voto afirmativo de dos terceras partes de los electo-res que participasen en un referéndum. Trías Monge asu-mió un turno en contra de la medida en donde expresó: ... [E]stamos insertando en esta proposición de enmiendas, las garantías esenciales a la estabilidad de la constitución, en cuanto se indica que únicamente podrán proponerse enmien-das a esta constitución mediante resolución concurrente que se apruebe por no menos de dos terceras partes de los miem-bros que componen cada cámara. O sea, el punto fundamental es cuanto a las garantías de limitación en la etapa iniciativa de la enmienda a la constitución. Ahí debidamente reconoce-mos, como se reconoce en 47 constituciones de los estados, que para iniciar una enmienda la Asamblea Legislativa, única-mente podrá hacerse por no menos de dos terceras partes ab-solutas de los miembros que componen las cámaras legislativas. (Enfasis suplido). 3 Diario de Sesiones de la Con-vención Constituyente 1829 (1951). Con estas palabras Trías Monge aclaró que el requisito de dos terceras partes en la Asamblea Legislativa era lo suficientemente riguroso como para asegurar la estabili-dad necesaria que debe brindarse a toda Constitución, por lo que se hacía innecesario imponer medidas adicionales tan onerosas como requerir también la aprobación de dos terceras partes del voto popular. Acto seguido, la Asamblea Constituyente rechazó la enmienda del señor García Mén-dez, prevaleciendo la postura favorecida por Trías Monge. La discusión reseñada demuestra que los constituyentes interpretaron el mecanismo de dos terceras partes como una exigencia de difícil cumplimiento que, junto con una simple mayoría de electores, aseguraba la protección de la Constitución contra ataques súbitos y constantes que res-pondieran más al vaivén político cotidiano que a la verda-dera voluntad generalizada de nuestro pueblo. La definie-ron, pues, como dos terceras partes absolutas. En ese contexto, no puede caber duda de que con ello se referían al número total de puestos de que se compondría cada cámara. A la luz de estos pronunciamientos, interpretar lo contrario no sería sensato, pues podría conllevar que una *99enmienda constitucional fuese aprobada válidamente me-diante el voto afirmativo de un número reducido de legisladores. Llevado al absurdo, la interpretación del E.L.A. permi-tiría que solo dos legisladores, de tres activos, aprobasen válidamente una propuesta de enmienda constitucional en su cámara, siempre que el resto del cuerpo legislativo es-tuviera vacante; después de todo, el voto de esos dos miem-bros representaría más de dos terceras partes del número total de miembros de que se compondría esa cámara. Evi-dentemente, nuestra Constitución no permite tal absurdo. Además, adoptar la proposición del E.L.A. llevaría a un escenario indeseado, porque dejaría a merced de los pro-pios legisladores definir el “número total de los miembros”, según la conveniencia que persigan. Ello propiciaría a que un grupo de legisladores gestionen la renuncia o el impe-dimento de que se ocupe un escaño vacío, con tal de llegar al número deseado y necesario de las dos terceras partes. Aparte de lo mencionado, resulta pertinente resaltar que este Tribunal se expresó en torno a la frase “número total de los miembros” según otras secciones del Artículo III que no están hoy en controversia. A esos efectos, en Noriega Rodríguez v. Jarabo, 136 D.P.R. 497, 528-529 (1994), comentamos: Por mandato constitucional el quorum de la Cámara de Re-presentantes se constituye con una mayoría del número total de los miembros que la componen. ... También, por mandato constitucional, se requiere una mayoría del número total de los miembros que componen el cuerpo para aprobar un pro-yecto de ley. ... Es decir, que si el número total de miembros de la Cámara es de cincuenta y un (51) representantes, excepto cuando dicha composición es aumentada en virtud de las dis-posiciones sobre representación de partidos de minoría, el quorum del Cuerpo se constituye con veintiséis (26) representantes. Así mismo, se requieren los votos de veintiséis (26) Representantes para lograr una mayoría absoluta para la aprobación de un proyecto de ley, resolución conjunta o concurrente. (Enfasis suplido). *100Esta misma postura asumimos al evaluar otra disposi-ción constitucional con lenguaje similar. La See. 4, Art. V de la Constitución del Estado Libre Asociado de Puerto Rico dispone que “[n]inguna ley se declarará inconstitucio-nal a no ser por una mayoría del número total de jueces de que esté compuesto el tribunal de acuerdo con esta Constitución o con la ley”. (Enfasis suplido). En Sánchez Rodríguez v. López Jiménez, 116 D.P.R. 392 (1985), reiterando lo que ya habíamos clarificado desde, irónicamente, P.I.P. v. E.L.A., 109 D.P.R. 685 (1980), resolvimos que “[e]n el caso de reclamación de inconstitucionalidad de leyes ... [la Constitución] requiere mayoría absoluta de [los] miembros [del Tribunal Supremo] indistintamente de que hubiese va-cantes, por lo que éstas se sumarían en el número ideal de sus miembros”. (Énfasis en el original suprimido y énfasis suplido). Sánchez Rodríguez, supra, pág. 395. De hecho, esta norma constitucional goza de tal importancia que li-mita igualmente nuestra facultad para declarar inconsti-tucional un reglamento judicial, Ortiz v. Dir. Adm. de los Tribunales, 152 D.P.R. 161 (1980), e impide que confirme-mos una sentencia de inconstitucionalidad dictada por un tribunal de menor jerarquía en caso de que los jueces de esta Curia se encuentren divididos en partes iguales. A pesar de su pertinencia, sorprendentemente el E.L.A. ni siquiera se expresa sobre nuestros pronunciamientos en estos casos. El peticionario no explica en su alegato por qué debemos interpretar de manera distinta las frases “número total de jueces de que esté compuesto el tribunal”, recogido en la See. 4 del Art. V, supra, de la frase “número total de los miembros de que se compone cada cámara” dispuesto en la Sec. 1 del Art. VII, supra. (Énfasis suplido). La realidad es que no existe razón válida que amerite que adoptemos interpretaciones distintas de frases virtualmente idénti-cas.(6) *101Anteriormente hemos expresado que nuestro: ... [O]rdenamiento constitucional requiere que las tres ra-mas reconozcan y respeten los ámbitos constitucionales de cada una. Así pues, la deferencia judicial que le concedemos a la Rama Legislativa y a la Rama Ejecutiva tiene como corola-rio necesario que ellas también tengan la misma deferencia hacia los poderes conferidos por nuestra Constitución a la Rama Judicial, para así evitar que se menoscabe el sistema republicano de gobierno. (Énfasis en el original suprimido y énfasis suplido). Acevedo Vilá v. Meléndez Ortiz, 164 D.P.R. 875, 884 (2005). Según surge del historial legislativo de la Res. Conc. Núm. 35, antes de aprobarse la resolución se trajo a la discusión del Senado el hecho de que la aprobación de la medida no contaba con el voto de dos terceras partes del número total de miembros que compone la Cámara Alta. LIX (Núm. 13) Diario de Sesiones del Senado de Puerto Rico, 10 de octubre de 2011, págs. 36208-36210 y 36221-36225.(7) Ante tal reclamo, el argumento se rechazó ha-ciendo abstracción del contenido del Diario de Sesiones de la Convención Constituyente y de nuestros pronuncia-mientos, según acabamos de reseñar. Este proceder de-muestra que el Senado de Puerto Rico no brindó deferencia hacia la Rama Judicial en su interpretación sobre lo que *102significa “número total de los miembros”, al insistir en dar por aprobada la Res. Conc. Núm. 35. Tal actuación mina nuestro ordenamiento constitucional y sistema republi-cano, porque desvanece el respeto, consideración y deferen-cia entre las tres ramas de gobierno. Tras discutir y demostrar que la Res. Conc. Núm. 35 no fue aprobada según las exigencias procesales de la Sec. 1 del Art. VII de la Constitución del Estado Libre Asociado de Puerto Rico, debemos examinar si la Res. Conc. Núm. 60 pudo subsanar dicho incumplimiento, defecto o “traspié legislativo”. Opinión mayoritaria, acápite XII, pág. 47. IV Según mencionamos, la pregunta de umbral que nos ha-cemos ahora es si la Res. Conc. Núm. 60 puede subsanar un defecto de índole constitucional en la aprobación de la Res. Conc. Núm. 35. Como demostraremos, es jurídica-mente imposible que la constitucionalidad de la Res. Conc. Núm. 35 se sostenga a base de una medida posterior, cuando la resolución anterior nunca llegó a tener vigencia ni existencia jurídica, lo que redunda en una reiteración o validación de la nada, de lo nulo, de lo inexistente. Como jueces, no podemos apostar a entendimientos centrífugos de la sensatez y la coherencia. Todo lo contrario, en ánimos de preservar la independencia judicial, la validez constitu-cional y la legitimidad que tenemos como Tribunal al inter-pretar la propia Constitución, debemos interpretar la Carta Marga y los procesos legislativos concernientes a ella de una manera integrada y armoniosa con la filosofía detrás de la Constitución para mantener vigorosamente la fuerza normativa que la caracteriza. Desde la creación de la Constitución, ha permeado un espíritu de permitir cambios en ella que se adecúen a las exigencias de nuevos tiempos y realidades, pero sin que esas enmiendas surjan como parte de procesos poco *103rigurosos. Córdova y otros v. Cámara Representantes, 171 D.P.R. 789, 802 (2007) (“se estableció un procedimiento lo suficientemente rígido como para impartirle estabilidad a la Constitución y distinguirla de las leyes ordinarias. De esta forma, se establecieron límites explícitos al proceso de enmendar la Constitución”); Berríos Martínez v. Gobernador II, supra. La Escuela de Administración Pública de la Universidad de Puerto Rico también había recomendado el mismo principio a la Convención Constituyente: “La tarea de los delegados a la Convención Constituyente es, por lo tanto, redactar una cláusula de enmienda que permita mo-dificar la Constitución de acuerdo con la demanda social de un cambio fundamental y que, sin embargo, evite pueda ser cambiada tan fácilmente como una ley”. La nueva Constitución de Puerto Rico, op. cit., pág. 522. En este marco ideológico sobre el proceso de enmendar la Constitución, debemos entonces auscultar el proceso le-gislativo en torno a la Res. Conc. Núm. 35 que faculta el referéndum del 19 de agosto de 2012 para enmendar el Art. III de la Constitución. La opinión que emite este Foro en el día de hoy realiza un acto de omisión de la unidad y de la fuerza normativa que encierra la Constitución. Así, soslaya el marco ideoló-gico que subyace al Artículo VII de la Carta Magna (De las enmiendas a la Constitución), al permitir que un “traspié legislativo” que incumple con dicho Artículo VII tome valor jurídico. En Berríos Martínez v. Gobernador II, supra, pág. 211, expresamos que: Los límites necesarios al proceso de revisión de una Consti-tución pueden ser explícitos o implícitos. Los primeros constan expresamente en la Constitución; los implícitos son aquellos “cuya existencia sólo puede ser deducida indirectamente, bien como una consecuencia lógica de los presupuestos en que des-cansa el sistema constitucional considerado en su conjunto, bien como correlato de las singulares cualifícaciones que se producen en determinados preceptos de la Constitución”. (Én-fasis suplido y citas omitidas). *104Partiendo de este acercamiento a la interpretación de la Constitución, resulta inconcebible la teoría novedosa de la opinión mayoritaria de que una resolución concurrente que verse sobre un asunto particular (limitación de la fianza) pueda reiterar otra resolución concurrente que nunca llegó a tener vida jurídica y que a su vez aborda sobre otro asunto (reforma legislativa). La nueva interpretación de la mayoría sobre las enmiendas a la Constitución parte de la premisa de que una medida legislativa que es nula ab ini-tio por contravenir el requisito constitucional de haber sido aprobada por no menos de dos terceras partes del número total de miembros de cada cámara, puede ser revivida pos-teriormente por un simple “reiteramos”. Se trata de revivir un natimuerto. Esa mayoría ignora que jurídicamente no se puede reiterar o subsanar lo irreiterable o insubsanable porque la nulidad de la Res. Conc. Núm. 35 versa sobre un elemento esencial para su propia existencia. Ergo, la inexistencia de la Res. Conc. Núm. 35 por vicio de incons-titucionalidad no tiene posibilidad de subsanarse y la reso-lución resulta nula ab initio.(8) *105La opinión mayoritaria también argumenta que, como la Constitución es silente en cuanto a los requisitos y la definición de una resolución concurrente, el Senado estaba facultado para realizar cualquier gestión la Res. Conc. Núm. 60 para validar la Res. Conc. Núm. 35. Con tal pro-ceder se ignora cualquier principio de interpretación cons-titucional, lacerando así la unidad constitucional y vulne-rando toda garantía de firmeza y estabilidad jurídica en el propio texto magno. Si el espíritu rector detrás del Artículo VII es no permitir enmiendas fáciles a la Constitución, de manera que se “pueda mantener su coherencia, libre de los caprichos momentáneos y arbitrarios de las mayorías”, (én-fasis suplido) Berríos Martínez v. Gobernador II, supra, págs. 210-211, tal cual reconoce la opinión mayoritaria en el acápite VI, entonces nos resulta incomprensible que en esta ocasión el Tribunal permita el inicio de un proceso de enmienda constitucional que contraviene ese espíritu rector y que objetivamente denota ilegalidad. Nos encontra-mos, pues, ante un límite implícito al proceso de enmienda constitucional. Es cierto que la Constitución no abunda sobre la natu-raleza de una resolución concurrente, sino que simple-mente hace mención a que mediante esa medida legisla-tiva se podrán proponer enmiendas al texto constitucional. No obstante, la falta de definición sobre estas piezas legis-lativas no representa una carta en blanco sobre el proceso de enmienda constitucional, sino que se debe evaluar e in-terpretar en conjunto e integradamente con el resto de la Constitución, preservando siempre el componente ideoló-gico que recogimos previamente en torno a los procesos de enmienda constitucional. A base de una interpretación integral de las disposicio-nes constitucionales y del espíritu rector sobre las enmien-das a la Carta Magna, debemos concluir que una resolu-ción concurrente que intente enmendar la Constitución debe seguir el mismo rigor de aprobación que establece la *106Sec. 17 del Art. III, respecto a la regla de un solo asunto. Esa misma exigencia se recogió para las resoluciones con-juntas, al requerirse para su aprobación el mismo trámite de un proyecto de ley. Const. P.R., Art. III, Sec. 18. Resul-taría incongruente con la ideología rigurosa de enmiendas a la Ley Suprema que ante la ausencia de requisitos sobre una resolución concurrente para enmiendas constituciona-les, deba interpretarse que éstas podrán aprobarse me-diante exigencias más laxas que las de una ley o resolución conjunta, cuando las resoluciones concurrentes son la única vía de iniciar un proceso de enmienda constitucional. A pesar de lo anterior y en el contexto del cuatrienio presente, la aprobación de la Res. Conc. Núm. 60 tampoco cumplió con el Reglamento del Senado, adoptado por la See. 9 del Art. III de la Constitución. Este define las reso-luciones concurrentes como “aquellas medidas aprobadas por ambos Cuerpos, las cuales se utilizan para: a) Propo-ner enmiendas a la Constitución de Puerto Rico; b) Consig-nar expresiones de la Asamblea Legislativa que no tienen carácter de legislación; c) Disponer sobre el gobierno in-terno de la Asamblea Legislativa”. Sec. 17.1 del Regla-mento del Senado de Puerto Rico, R. del S. 27, 16ta Asamblea Legislativa, Ira Sesión Ordinaria, 12 de enero de 2009, pág. 56. Como se puede apreciar, las resoluciones concurrentes se utilizan tanto para asuntos menos trascen-dentales, como para otros de gran envergadura, como urna enmienda constitucional. Conscientes de ello, no podemos caer en la candidez de decir que como estas medidas no tienen fuerza de ley y son expresiones del Poder Legisla-tivo, las resoluciones sobre enmienda a la Constitución se deben analizar e interpretar aisladamente del resto del an-damiaje constitucional, como pretende hacer la opinión mayoritaria. Además de la definición anterior, el propio Reglamento del Senado regula las resoluciones concurrentes al expre-sar: *107Todo proyecto de ley o resolución tendrá un título corto en el cual se expresará en forma clara y concisa el asunto y propó-sito del mismo, de manera que, de la lectura del título se en-tienda el propósito de la medida. Ninguna medida, con excepción de la del presupuesto general, podrá contener más de un asunto. (Enfasis suplido). See. 15.6 del Reglamento del Senado de Puerto Rico, supra, pág. 50. Más adelante, continúa: Las Resoluciones Concurrentes que propongan enmiendas a la Constitución, luego de radicadas, se tramitarán en la misma forma que un proyecto de ley, siendo referidas para su consi-deración y estudio a las Comisiones Permanentes o Especiales que a estos efectos se disponga. Una vez aprobadas dichas Resoluciones Concurrentes serán enviadas al Gobernador, aun cuando éstas no requieren su aprobación, así como a los fun-cionarios concernidos para que éstos procedan a la ejecución de los trámites correspondientes que se establecen en nuestro ordenamiento constitucional y jurídico. (Énfasis suplido). See. 17.3, id., pág. 57. A base de lo anterior, resulta imperativo llegar a la con-clusión de que el Senado no solo incumplió con los requisi-tos del Art. III y del Art. VII de la Constitución del Estado Libre Asociado de Puerto Rico, sino que también incumplió con los requisitos de su propio Reglamento al aprobar la Res. Conc. Núm. 60 que versa sobre más de un asunto: (1) la enmienda constitucional para limitar el derecho a la fianza y (2) la enmienda constitucional para realizar una reforma legislativa. A modo de silogismo, si el Reglamento del Senado exige que toda resolución concurrente que pro-ponga enmiendas a la Constitución sea aprobada “en la misma forma que un proyecto de ley”, Sec. 17.3 del Regla-mento del Senado de Puerto Rico, supra, y cómo será apro-bado un proyecto de ley se define en el Reglamento del Senado análogamente a como lo hace la Constitución,(9) es *108forzoso concluir que toda resolución concurrente que pro-pusiera enmiendas a la Constitución debía ser aprobada como exige la Sec. 17 del Art. III de la Constitución. Como se incumplió con el Reglamento del Senado, con la Sec. 17 del Art. III y el Art. VII de nuestra Ley Suprema, es me-nester que se elimine de la Res. Conc. Núm. 60 el asunto de la reiteración de la Res. Conc. Núm. 35. Antes de proseguir sobre la importancia de cumplir con los propios reglamentos legislativos, es necesario demos-trar el incumplimiento de la Res. Conc. Núm. 60 con el Reglamento del Senado y la Constitución al versar sobre más de un asunto: la limitación al derecho a la fianza y la reforma legislativa. En Herrero y otros v. E.L.A., 179 D.RR. 277 (2010), tuvimos una controversia en donde nos dimos a la tarea de interpretar la regla de un solo asunto de la See. 17 del Art. III de la Constitución del Estado Libre Asociado de Puerto Rico, supra. Tras brindar un trasfondo histórico sobre la regla de un solo asunto, expusimos que “la cláu-sula se introdujo para prevenir el logrolling”. Id., pág. 292. Acto seguido, indicamos que una de las modalidades más conocidas del logrolling son los riders (“disposiciones de ley no relacionadas con el asunto principal de la legislación, ... que son añadidas o ‘montadas’ en proyectos de ley”. Id., pág. 293). Lo que se promueve con esta regla de un solo asunto es prevenir el logrolling e “impedir la aprobación de leyes con disposiciones que no son advertidas en su título (riders)”. íd., pág. 295. Asimismo, indicamos en aquel caso que el requisito de un solo asunto debe interpretarse liberalmente, pero “sin dejar de lado el propósito y objetivo de la exigencia constitucional”. Id., pág. 296. Por lo tanto, expresamos que al examinarse la validez de urna ley a la luz de la regla de un solo asunto, es necesario auscultar todas sus disposicio-nes para determinar si éstas se relacionan entre sí y son afines con el asunto que se expresa en su título. Id. Como observamos, en Herrero y otros v. E.L.A. este Tribunal solo *109mantuvo la misma política liberal en cuanto a la regla de un solo asunto, mas no facultó a la Asamblea Legislativa con una licencia abierta para adoptar medidas con multi-plicidad de asuntos que no sean afines entre sí ni estén comprendidos en el asunto general. En el caso de autos, la opinión mayoritaria cita a Herrero y otros v. E.L.A., pero sin mucha elaboración solo se limita a comentar sobre la liberalidad de la interpretación de la regla de un solo asunto. Para evaluar la Res. Conc. Núm. 60 a la luz de la regla de un solo asunto, debemos analizar si los asuntos contenidos tienen “una relación ra-zonable, de modo que haya cierto vínculo de inter-dependencia”. íd., pág. 301. Los asuntos contenidos en esa resolución concurrente son (1) limitación al derecho a la fianza y (2) reiterar la reforma legislativa (See. 2). Su título expresa: “Para propo-ner ... una enmienda a la Sección 11 del Artículo II de la Constitución ... cuyo fin será otorgarle discreción a los jue-ces para conceder o denegar el derecho a permanecer en libertad bajo fianza a los acusados de asesinato cometido [en ciertas circunstancias]”. Res. Conc. Núm. 60, pág. 1. El título no hace mención a la intención de reiterar la Res. Conc. Núm. 35 ni mucho menos abunda sobre realizar una reforma legislativa. La pregunta que surge es si limitar el derecho a la fianza y la reforma legislativa están comprendidos en un solo asunto general. Diáfanamente surge que el único vín-culo que hay entre estos asuntos es que ambos son un in-tento legislativo para enmendar la constitución el 19 de agosto de 2012. El asunto de la limitación al derecho a la fianza no tiene ninguna relación, ni tan siquiera incidental, con la reforma legislativa, puesto que ésta se puede realizar sin interferir con ese derecho de nuestra Carta de Derechos. Tanto es así, que en las alegaciones del E.L.A. y del P.I.P, ambas partes coinciden en que según la Sec. 1 del Art. VII de la Constitución la proposición de limitación al *110derecho a la fianza y la proposición de reforma legislativa son dos asuntos separados e independientes. Esto difícil-mente se pueda controvertir por algún Juez o Jueza de este Tribunal. Véase Opinión mayoritaria, acápite VII-B. Demostrado que son dos asuntos independientes y disí-miles en la Res. Conc. Núm. 60, es innegable que ésta se aprobó en contra de las Secs. 15.6 y 17.3 del Reglamento del Senado y, por consiguiente, en contra de la Sec. 17 del Art. III de la Constitución del Estado Libre Asociado de Puerto Rico. Las implicaciones del rider que se efectuó en la mencionada resolución concurrente, se ejemplifican cla-ramente mediante los votos de una senadora, la Hon. Sila M. González Calderón. La Senadora votó en contra de la Res. Conc. Núm. 35, pero luego votó a favor de la Res. Conc. Núm. 60. Aquí ocurrió lo que se quiso prevenir con la inclusión de la regla de un solo asunto en la Constitución de Puerto Rico: “evitar que se hagan enmiendas extrañas al propósito de los proyectos y que se adultere el fin de un proyecto”. 2 Diario de Sesiones, supra, pág. 896. Bajo la teoría de la mayoría de esta Curia de que la Res. Conc. Núm. 60 reiteró una resolución concurrente anterior que no fue aprobada por no contar con los votos necesarios, entonces se debe contar el voto de la senadora González Calderón como un voto de reiteración, cuando ella eviden-temente se opuso a la Res. Conc. Núm. 35. Sin mayor ex-plicación, aquí hubo logrolling en su modalidad de rider en peijuicio de la Senadora. Por último, para que un Cuerpo legislativo funcione efi-cientemente, se tienen que obedecer las reglas del propio cuerpo. Noriega Rodríguez v. Jarabo, 136 D.P.R. 497, 533 (1994). No se puede pretender que el Reglamento en cues-tión haya sido aprobado para hacer omisión de sus reglas cuando no convengan al propósito ulterior detrás de al-guna medida legislativa. “ [E]l Presidente de [una] Cámara ... no puede obviar o ignorar las limitaciones jurídicas que puedan existir aun sobre los poderes de gobierno interno *111de su Cámara. Y es al Tribunal Supremo a quien le corres-ponde aclarar los contornos de tales poderes”. Acevedo Vilá v. Meléndez Ortiz, supra, pág. 937 (Op. Disidente J. Fuster Berlingeri). Es por ello que esta Curia viene obligada a exigirle al Senado a que cumpla con su propio Regla-mento.(10) Lástima que una mayoría de este Foro abdique a tal obligación.(11) V Es en controversias como la de autos, donde el proceso legislativo para enmendar la Constitución estuvo marcado por irregularidades insubsanables, cuando los integrantes de este Tribunal vienen llamados a ejercer celosamente su deber de preservar la unidad constitucional y su poder normativo. Nuestro compromiso con defender la Constitu-ción se extiende a evitar hasta la apariencia de que este Tribunal se invista como adlátere del “traspié legislativo” que mancilla el proceso democrático de enmienda a la Constitución. Disiento del proceder de la mayoría de esta Curia por-que, según lo aquí demostrado, las medidas legislativas que promueven el proceso de enmienda constitucional no *112cumplieron con los requisitos básicos para iniciar ese proceso. Avalar los dislates legislativos en procesos que, por su naturaleza cimera, deben guardar la mayor serie-dad y pulcritud, nos convierte en cómplices de tan desati-nado proceder de ofensa constitucional. Por las razones esbozadas, declararía inconstitucional la Res Conc. Núm. 35 e inválido el intento de reiterar esa resolución por medio de la Res. Conc. Núm. 60. Por consi-guiente, y bajo la mácula de inconstitucionalidad del pro-ceso de enmienda a la Constitución para lograr una re-forma legislativa, ordenaría paralizar la consulta al Pueblo sobre enmiendas al Artículo III de la Constitución del Es-tado Libre Asociado de Puerto Rico, que ha de celebrarse mediante referéndum el próximo 19 de agosto de 2012. Al llegar a esta conclusión resulta improcedente e innecesario expresamos sobre los requisitos sustantivos de la Sección 1 del Artículo VII de la Constitución, en cuanto al asunto del número de proposiciones de enmienda en el mismo referéndum. Igualmente, resulta innecesario expresarnos sobre el asunto de la publicidad de las medidas legislativas en cuestión, puesto que tras una declaración de inconstitu-cionalidad, ello sería inconsecuente. (1) El proceso de aprobación de la Res. Conc. Núm. 35 en la Cámara de Repre-sentantes de Puerto Rico no está en controversia, por lo que se omite en esta opinión. (2) Es de notar que la Res. Conc. Núm. 35 se aprobó con la oposición de los senadores de minoría, que objetaron la ausencia del voto de dos terceras partes del total de miembros que componen el Senado. Véase LIX (Núm. 13) Diario de Sesiones del Senado de Puerto Rico, 10 de octubre de 2011, págs. 36208-36210 y 36221-36225. (3) Huelga aclarar que no toda idea o teoría innovadora está destinada a la incorrección o al fatalismo innato, puesto que toda teoría o doctrina tiene un co-mienzo al que no le precedió nada. No obstante, al elaborar una teoría interpretativa sobre los alcances de la Constitución, se debe realizar en armonía con la propia Constitución y la concepción ideológica que emana de ella y se ha elaborado en torno a ella. Además, debe hacerse en conjunto con otros acercamientos e interpretaciones que sobre esa Ley Suprema se hayan hecho. Evidentemente, la opinión que suscribe la mayoría de este Foro se distancia diametralmente de estos principios básicos de interpretación constitucional. (4) El ejemplo más evidente de este tipo de sistema se encuentra en la See. 3 del Art. I de la Constitución de Estados Unidos, la cual estableció originalmente un esquema proporcional de un Representante por cada treinta mil habitantes. (5) En síntesis, la Ley de Minorías dispone una fórmula de aumento de escaños legislativos para “[c]uando en una elección general resultaren electos más de dos terceras partes de los miembros de cualquiera de las cámaras por un solo partido o bajo una sola candidatura”. Const. P.R., Art. III, Sec. 7, L.P.R.A., Tomo 1, ed. 2008, pág. 384. Como parte de esa fórmula, limitó el número de legisladores añadidos a nueve en el Senado y diecisiete en la Cámara de Representantes. íd. (6) Es de reseñar que durante la vista oral del caso de autos celebrada en este Tribunal el 27 de junio de 2012, se discutió el alcance de la frase “número total de ...” *101de los Arts. V y VII de la Constitución, L.P.R.A., Tomo 1. Tras exponer nuestra interpretación en Sánchez Rodríguez v. López Jiménez, 116 D.P.R. 392 (1985), se le cuestionó al Ledo. Eliezer Aldarondo Ortiz, representante del Estado Libre Asociado de Puerto Rico, si el peticionario proponía una interpretación distinta para el proceso de enmienda a la Constitución vis-á-vis a la interpretación que esta Curia ha dado a la See. 4 del Art. V de la Constitución, L.P.R.A., Tomo 1, por lo que se proponían dos interpretaciones distintas para textos idénticos en una misma Constitución. A estas preguntas, el licenciado Aldarondo Ortiz respondió que sí. Transcripción de Evidencia de la Vista Oral, págs. 32 y 34. (7) Cabe mencionar que en esa sesión senatorial igual se trajeron a colación las disposiciones del Mason’s Manual of Legislative Procedure, manual de procedimiento parlamentario que usa la National Conference of State Legislatures, en donde par-ticipa el Senado de Puerto Rico. Diario de Sesiones del Senado, supra, págs. 36221-36222. El Mason’s Manual dispone en la Sección 512.4: “Where a constitution, charter, or controlling provision of law requires a two-thirds vote of all members, a vote less than that number, although two-thirds of a quorum, is not sufficient. Even though there are vacancies, a vote equal to two-thirds of the total membership is required”. P. Manson, Mason’s Manual of Legislative Procedure, Denver, Ed. Thomson Reuters, 2010, Sec. 512.4. (8) Independientemente se hable de reiterar o de ratificar, como surgió en la discusión de la Vista Oral del 27 de junio de 2012, Transcripción de Evidencia de la Vista Oral, págs. 52-54, el resultado sería el mismo. Por un lado, “[a]l indagar sobre la definición de ‘ratificar’ encontramos que se refiere al acto de ‘aprobar o confirmar actuaciones, palabras, opiniones, decisiones, decretos y reglamentos, dándolos por legales, valederos y ciertos’ ”. (Cita omitida, énfasis en el original suprimido y énfasis suplido). Córdova y otros v. Cámara Representantes, 171 D.P.R. 789, 804 esc. 8 (2007), Partiendo de esta definición, si se rati-ficara la Res. Conc. Núm. 35, se daría por legal, valedera y cierta una medida que no contó con las exigencias constitucionales, por lo que se daría por válido lo inválido, creando un desconcierto jurídico inaudito. En la alternativa, si nos refiriéramos al vocablo reiterar, la opinión mayoritaria señala que éste significa “volver a decir o a hacer algo”. Real Academia de la Lengua Española, Diccionario de la lengua española, 22da ed., Madrid, Ed. Espasa-Calpe, 2001, T. II, pág. 1934. Lo que soslaya la opinión de esta Curia al utilizar una fuente extrajurídica que no alcanza a arrojar luz sobre esta controversia, es que reiterar puede significar volver a decir o a hacer algo correcto, como algo incorrecto, ya que el diccionario utilizado no delimita el vocablo a la naturaleza correcta de lo dicho o hecho. Partiendo de esta premisa, reiterar la Res. Conc. Núm. 35, después de que fue aprobada inválidamente, como concluye la Opinión mayoritaria en el acápite VII-B, no tiene otro significado que volver a decir o a hacer el acto inválido o inconstitucio-nal que se hizo previamente. En otras palabras, reiterar la invalidez reproduce invalidez. (9) “No se aprobará ningún proyecto de ley, con excepción de los de presupuesto general, que contenga más de un asunto, el cual deberá ser claramente expresado en su título, y toda aquella parte de una ley cuyo asunto no haya sido expresado en el título será nula”. Const. P.R., Art. III, Sec. 17. (10) Cónsono con lo anterior, hemos manifestado que: “[E]n nuestra jurisdicción hemos acogido la doctrina de deferencia judicial a la adopción e interpretación por parte de las cámaras legislativas de sus reglas y procedimientos. Sin embargo, ello no significa que dichos procesos y reglamentos sean inmunes a una intervención judicial, pues este Tribunal no puede abdicar a su responsabilidad de determinar si tales actos legislativos se enmarcan dentro de los poderes constitucionales facultados”. Acevedo Vilá v. Meléndez Ortiz, 164 D.P.R. 875, 891 (2005). (11) Resulta pertinente señalar que el Reglamento del Senado pudo haber sido enmendado el mismo día de la sesión en que se aprobó la Res. Conc. Núm. 60, para así alterar las secciones que incidían sobre la aprobación de esa resolución concurrente. Tal fue el argumento certero de la Jueza Asociada Señora Pabón Charneco en la vista oral celebrada en este Tribunal. Transcripción de Evidencia de la Vista Oral, pág. 47. Sin embargo, esas enmiendas no se realizaron y la Res. Conc. Núm. 60 se aprobó con el Reglamento, según hemos citado. Por supuesto, de haberse propuesto enmiendas al Reglamento o suspensiones de algunas disposiciones, éstas debían hacerse conforme las Secs. 2.1 y 2.2 de ese cuerpo reglamentario: con el voto afirmativo de no menos de la mayoría absoluta del total de miembros del Senado.
01-03-2023
11-23-2022
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537 U.S. 1198 BROSKYv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. No. 02-7818. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied.
01-03-2023
04-28-2010
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NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ HEMOPET, Plaintiff-Appellant v. HILL'S PET NUTRITION, INC., Defendant-Appellee ______________________ 2015-1218 ______________________ Appeal from the United States District Court for the Central District of California in No. 8:12-cv-01908-JLS- JPR, Judge Josephine L. Staton. ______________________ JUDGMENT ______________________ FRANCES S. LEWIS, Susman Godfrey L.L.P., Los Ange- les, CA, argued for plaintiff-appellant. Also represented by MARC M. SELTZER; JOSEPH SAMUEL GRINSTEIN, JOHN PIERRE LAHAD, Houston, TX. BRYAN SCOTT HALES, Kirkland & Ellis LLP, Chicago, IL, argued for defendant-appellee. Also represented by DENNIS J. ABDELNOUR, ERIC DAVID HAYES, KRISTINA NICOLE HENDRICKS. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (NEWMAN, DYK, and TARANTO, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT September 21, 2015 /s/ Daniel E. O’Toole Date Daniel E. O’Toole Clerk of Court
01-03-2023
09-21-2015
https://www.courtlistener.com/api/rest/v3/opinions/127260/
537 U.S. 1199 DUHARTv.PETROVSKY, WARDEN. No. 02-7845. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. 2 C. A. 11th Cir. Certiorari denied.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/4538759/
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3389-18T3 WARREN LUMBER, INC. c/o WARREN MILLWORK & EMPIRE TFI JERSEY HOLDING, LLC, Plaintiffs-Respondents, v. WASHINGTON BOROUGH, Defendant-Appellant. __________________________ Submitted March 2, 2020 – Decided June 4, 2020 Before Judges Sumners and Geiger. On appeal from the Tax Court of New Jersey, Docket Nos. 004276-2013 and 002647-2014. Richard M. Conley, LLC, attorneys for appellant (Richard M. Conley, of counsel and on the briefs). Schneck Law Group, LLC, attorneys for respondents (Michael I. Schneck, of counsel and on the brief). PER CURIAM Following a trial before the Tax Court, Washington Borough (the Borough) appeals two orders reducing its tax assessments for the years 2013 and 2014 on property previously owned by plaintiff Warren Lumber, Inc. and thereafter owned by plaintiff Empire TFI Jersey Holding LLC (Empire). We affirm for the reasons expressed by Tax Court Judge Joshua D. Novin in his comprehensive written opinion that properly applied the law and the credible facts in the record. The property in question is a 6.53-acre lot, upon which five buildings – a multi-family residence with an attached garage, three warehouses, and a two- story office building – are situated. In accordance with N.J.S.A. 54:4-23, the Borough's tax assessor made valuations of the property determining the property's value as $1,658,000 (land - $296,200 and improvements - $1,361,800) for the tax years 2013 and 2014. Warren Lumber owned the property until December 18, 2013, when its right of redemption was foreclosed on by Empire, which three years prior had purchased a Borough tax lien on the property. In 2015, the property was sold for $800,000 in an arms-length transaction. Warren Lumber and Empire challenged the Borough's 2013 and 2014 tax assessments prior to Empire's sale of the property. A Tax Court trial ensued. A-3389-18T3 2 Following trial, Judge Novin determined the Borough's assessments were excessive and reduced them in 2013 to $837,100 (land - $296,200 and improvements - $540,900) and in 2014 to $862,800 (land - $296,200 and improvements - $566,600). Before us, the Borough contends the presumption that its tax assessments are correct, Pantasote Co. v. City of Passaic, 100 N.J. 408, 413 (1985), was not overcome by Empire as required by Ford Motor Co. v. Twp. of Edison, 127 N.J. 290, 312 (1992). Specifically, the Borough asserts the judge's reliance on Empire's expert's property valuation was misplaced because: (1) property photos relied upon by expert were taken in 2017, not 2013 and 2014, the tax years in question; (2) the expert never contacted the Borough's officials to inquire about the residential building and did not determine any value for the building; (3) the judge rejected the expert's contention the highest and best use for the residential building was that it be demolished and Empire offered no evidence regarding the costs to modify, renovate, convert or demolish the building; (4) the judge rejected the expert's downward adjustment for the property's environmental concerns; (5) the expert only reviewed one lease for comparable properties; and (6) the expert did not inspect the buildings' interiors. We disagree. A-3389-18T3 3 Our review of the record leads us to conclude the judge thoroughly explained why he found telling aspects of Empire's expert's valuation credible to refute the Borough's assessments. Noting Empire had overcome the presumption of validity of the Borough's valuation, which did not mean the property tax assessment was erroneous, the judge, relying on Ford, used evidence adduced at trial to determine valuation of the property based upon the "highest and best use analysis," as Empire's expert opined. The analysis is a market-driven concept which considers a property's "most profitable, competitive use to which [it] can be put." Id. at 302 (citations omitted). Thus, "all the capabilities of the property and all the uses to which it may be applied, or for which it is adapted, are to be considered and examined and that use which yields the highest value should be selected." Ford Motor Co. v. Edison Twp., 10 N.J. Tax 153, 165 (Tax 1988) (citation omitted). The judge rejected Empire's expert's analysis of the residential building's value as "imperfect" because he failed to consider the financial feasibility of renovating the building into office space to maximize its productivity. The judge found no merit to the expert's opinion that there was no legally conforming use for the building or that it did not contribute to the value of the property, and instead found it would be reasonable for a hypothetical buyer to purchase the A-3389-18T3 4 property and use the building as a supportive office to one of the warehouses. However, the judge credited the expert's methodology for determining rental rates of all the buildings on the property, finding his proposed rate of $2.50 per square foot in "fair" condition and $1.50 per square foot in "poor" condition to be reasonable. According to the judge, the residential building was in "poor" condition because it was not being used as supportive office space. Regarding the expert's adjustments, the judge reduced his vacancy and collection loss factor from twenty percent to fifteen percent because his analysis on the presumption that the "property was completely vacant for number of years prior to the effective valuation dates," was not as credible as relying on statistical data from investor surveys. The judge found the expert's stabilizing expenses for management fees, leasing commissions, and reserves to be reasonable as well as his proffered loan-to-value ratio. Last, the judge rejected the expert's $88,800 downward adjustment for purported environmental concerns, noting no credible evidence was offered to show any concerns impacted the value of the land in accordance with Inmar Assocs., Inc. v. Borough of Carlstadt, 112 N.J. 593, 605- 08 (1988). Considering his findings and adjustments, the judge computed the "true market value" of the property for the tax years of 2013 and 2014 and concluded A-3389-18T3 5 it was $1,067,150 for each year. Next, applying N.J.S.A. 54:51A-6(a) (Chapter 123), the judge reasoned when the court is satisfied in a non-revaluation year by the evidence presented "that the ratio of the assessed valuation of the subject property to its true value exceeds the upper limit or falls below the lower limit of the common level range, it shall enter judgment revising the taxable value of the property by applying the average ratio to the true value of the property . . . ." [Ibid.] This process involves application of the Chapter 123 common level range. N.J.S.A. 54:1-35(a)-(b). When the ratio of assessed value exceeds the upper limit or falls below the lower limit, the formula for determining the revised taxable value of property, under N.J.S.A. 54:51A-6(a), is as follows: True market value x Average ratio = Revised taxable value For the 2013 tax year, application of the Chapter 123 ratio results in an applied upper limit of 0.9021 and lower limit of 0.6667. The ratio of total assessed value, $1,658,000, to true market value, $1,067,150, yields a ratio of 1.5537%, which exceeds the applied upper limit. Consequently, the calculation for the 2013 tax year is: $1,067,150 x 0.7844 = $837,100 [ROUNDED] Accordingly, a judgment establishing the subject property's tax assessment for the 2013 tax year will entered as follows: Land: $296,200 Improvement: $540,900 Total: $837,100 A-3389-18T3 6 For the 2014 tax year, application of the Chapter 123 ratio results in the applied upper limit of 0.9298 and lower limit of 0.6872. The ratio of total assessed value, $1,658,000, to true market value, $1,067,150, yields a ratio of 1.5537%, which exceeds the applied upper limit. Consequently, the calculation for the 2014 tax year is: $1,067,150 x 0.8085 = $862,800 [ROUNDED] Accordingly, a judgment establishing the subject property's tax assessment for the 2014 tax year will be entered as follows: Land: $296,200 Improvement: $566,600 Total: $862,800 (Da93-Da94). Judgments reflecting these totals were entered. Considering Judge Novin's decision was based upon his expertise as a Tax Court judge, his evaluation of witness credibility, and is supported by substantial credible evidence, we find no reason to second-guess his decision. See Dover- Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 195 (App. Div. 2011) (recognizing appellate review "take[s] into account the special expertise of Tax Court judges in matters of taxation"); Rova Farms Resort, Inc. v. Inv'rs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (holding appellate courts owe deference to the judge's evaluation of witness credibility and fact findings supported by A-3389-18T3 7 "adequate, substantial and credible evidence" in the record). The Borough's arguments are without sufficient merit to warrant further discussion. R. 2:11- 3(e)(1)(E). Affirmed. A-3389-18T3 8
01-03-2023
06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/3063026/
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-14872 ELEVENTH CIRCUIT MARCH 31, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK Agency Nos. A096-096-763, A096-096-764 MARIELA SOLAQUE-PRIETO, RAUL ROJAS-CHARRY, NATALY ROJAS-SOLAQUE, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals _________________________ (March 31, 2010) Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges. PER CURIAM: Mariela Solaque-Prieto (“Prieto”) petitions this court to review the order of the Board of Immigration Appeals (“BIA”) denying her motion to reopen its earlier deportation ruling. We deny the petition. Prieto, a native and citizen of Colombia, received a notice to appear, charging her with removability under 8 U.S.C. § 1227(a)(1)(B). She requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”) on the ground that she was persecuted by the Revolutionary Armed Forces of Colombia (“FARC”). Following a hearing, the Immigration Judge (“IJ”) denied relief, finding Prieto lacked credibility and that she failed to establish past persecution on account of her political beliefs or a well-founded fear of future persecution. Prieto appealed to the BIA, which dismissed the appeal on May 30, 2008. This court subsequently denied Prieto’s petition for review in an opinion dated February 5, 2009. Solaque-Prieto v. United States Att’y Gen., 310 Fed. Appx. 326 (11th Cir. 2009). Thereafter, on February 26, 2009, Prieto filed a motion to reopen proceedings with the BIA. She also sought to stay her removal. According to Prieto, she faced an increased danger if she returned to Colombia. She submitted affidavits to support her claims of danger from FARC. The BIA denied the motion to reopen as untimely and found that there was no change in the country conditions to excuse the untimely motion. Prieto now 2 petitions this court for review, arguing that the BIA misunderstood or ignored the evidence indicating an alleged increase in the intensity with which the FARC anticipates her return to Colombia. We review a BIA’s denial of a motion to reopen for abuse of discretion. Abdi v. United States Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Our review in this regard “is limited to determining whether there has been an exercise of administrative discretion and whether the matter of exercise has been arbitrary or capricious.” Id. (quotation and citations omitted). Further, we have held that the BIA’s discretion to reopen “is so wide that even if the party moving has made out a prima facie case for relief, the BIA can deny a motion to reopen a deportation order.” Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999) (quotation and citation omitted); see also 8 C.F.R. § 1003.2(a). “Motions to reopen are disfavored, especially in a removal proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Abdi, 430 F.3d at 1149 (quotation and citation omitted). A motion to reopen proceedings shall not be granted unless it appears to the BIA that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. Id. An alien who seeks to reopen proceedings bears a heavy burden and must present evidence that satisfies the BIA that, if the proceedings 3 were reopened, the new evidence would likely change the result in the case. Ali v. United States Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006). A motion to reopen must be filed no later than 90 days after the final administrative decision that is the subject of the motion. See 8 C.F.R. § 1003.2(c)(2). This deadline does not apply, however, if the motion to reopen is based on changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii). Here, Prieto does not dispute that her motion to reopen was filed more than 90 days after the BIA’s deportation ruling. She instead seeks to avail herself of the limited exception to the deadline set forth in § 1003.2(c)(3)(ii). Although Prieto did not base her motion on any purported changed country conditions, the BIA nonetheless sua sponte considered whether the “new evidence” offered by Prieto was sufficient to excuse the untimely motion and found that it was not. Specifically, the BIA found the affidavits offered by Prieto in her motion merely showed that FARC was continuing the intimidation and harassment tactics that existed at the time of Prieto’s initial asylum hearing. We agree. The new statements Prieto submitted do not tend to show any changed country condition that would excuse the untimely motion. Moreover, the affidavits do not establish an increase in FARC’s intimidation tactics or harassment that did not exist at the time of Prieto’s removal hearing. On this record, Prieto has not demonstrated that the BIA acted arbitrarily or capriciously in ruling that she 4 failed to produce evidence of changed country conditions sufficient to satisfy the limited exception to the 90-day deadline for the filing of a motion to reopen. PETITION DENIED. 5
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/2899962/
NO. 07-08-0393-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 7, 2009 ______________________________ IN THE INTEREST OF A.W.P. AND E.L.P., CHILDREN _________________________________ FROM THE 251 ST DISTRICT COURT OF RANDALL COUNTY; NO. 54,903-C; HON. ANA ESTEVEZ, PRESIDING _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. On Joint Motion to Effectuate Settlement Agreement Appellant, Mark Frederick Postlewaite, perfected an appeal from the trial court’s order in suit to modify parent-child relationship.  Appellant and appellee, Rebecca LeeAnn Postlewaite, have filed a Joint Motion to Reverse Judgment and Remand asserting that the parties have reached a settlement agreement.  This joint motion requests this Court to set aside the judgment of the trial court without regard to the merits and remand the case to the trial court for rendition of a judgment in accordance with the parties’ agreement.  This disposition is authorized by rules 42.1(a)(2)(B) and 43.2(d) of the Texas Rules of Appellate Procedure.  Finding the motion complies with the requirements of rules 6.6 and 42.1(a) of the Texas Rules of Appellate Procedure, we vacate the judgment of the trial court and remand for rendition of judgment in conformity with the parties’ agreement. Having disposed of this appeal at the parties’ request, we will not entertain a motion for rehearing and our mandate shall issue forthwith. Per Curiam
01-03-2023
09-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/4538754/
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 18-BG-586 IN RE ROY L. PEARSON, JR., RESPONDENT A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 955948) On Report and Recommendation of the Board on Professional Responsibility (15-BD-31) (Argued January 9, 2020 Decided June 4, 2020) Roy L. Pearson, Jr., pro se. Joseph Charles Perry, Assistant Disciplinary Counsel, with whom Hamilton P. Fox, III, Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel. Before FISHER and EASTERLY, Associate Judges, and STEADMAN, Senior Judge. PER CURIAM: The Board on Professional Responsibility (the “Board”) concluded that the respondent, Roy L. Pearson, Jr., violated two of the District of Columbia Rules of Professional Conduct: Rule 3.1 and Rule 8.4(d).1 Though the 1 Disciplinary Counsel also charged Pearson with violating Rule 3.2(a) (delaying a proceeding “solely to harass or maliciously injure another”). However, (continued…) 2 Ad Hoc Hearing Committee (the “Hearing Committee”) recommended a thirty-day suspension, stayed during a two-year period of probation, the Board disagreed and recommended a ninety-day suspension without a stay. We agree with the Board’s conclusion that Pearson violated both rules and adopt the Board’s recommendation as to sanction. I. Factual Background The allegations of misconduct arise from the litigation culminating in Pearson v. Chung, 961 A.2d 1067 (D.C. 2008).2 In that case, Pearson sued three defendants (Soo Chung, Jin Nam Chung, and Ki Y. Chung) who jointly owned and operated Custom Cleaners, a dry cleaning business. Id. at 1069. The dispute originated with Pearson’s allegation that the Chungs lost a pair of pants that he had brought to Custom Cleaners for alterations. Pearson initially demanded $1,150 in (…continued) the Hearing Committee found that Disciplinary Counsel had not proven a violation of that rule, and the Board endorsed that finding. Disciplinary Counsel did not take exception to this finding, so the issue is not before us. 2 Respondent has disputed the Hearing Committee’s and the Board’s understanding of the operative facts throughout his brief. As the Board adopted the Hearing Committee’s factual findings, and they are supported by substantial evidence in the record, we accept them. Much of our discussion of the facts is based upon the Hearing Committee’s report. That report, in turn, often relied upon the record of the litigation in the Superior Court and this court. 3 compensation. He then filed a lawsuit in the Superior Court claiming that defendants had violated the District of Columbia Consumer Protection Procedures Act, D.C. Code §§ 28-3901 to -3913 (2013 Repl. & 2019 Supp.) (“CPPA”), and committed common law fraud, negligence, and/or conversion. Pearson’s claims rested on his interpretation of three signs in the Chungs’ store: “Satisfaction Guaranteed,” “Same Day Service,” and “All Work Done on Premises.” In the initial complaint, he sought at least $15,000 in compensation for emotional distress and $15,000 in punitive damages from each defendant. Pearson’s demands for compensation escalated dramatically as the case went on. His claims for emotional damages increased to $3,000,000 by trial. He asserted that he was entitled to $90,000 to obtain a rental car so he could travel to a different dry cleaner in the city. He claimed that he had expended 1,200 hours of work on the matter, worth $500,000 in attorney’s fees. He sought prospective relief requiring the Chungs to pay him $10,000 within twenty-four business hours if he notified them that they were not providing him with acceptable service.3 His damages theories often included multiplying his claims by three (for each defendant), by two (for his separate statutory and common law claims), by three 3 We note that, by trial, the Chungs did not even have the “Satisfaction Guaranteed” sign on display. Pearson v. Chung, 961 A.2d at 1073. 4 (for treble damages under the CPPA), by three (for each sign), by seven (for each CPPA subsection allegedly violated), and/or by every single day that a particular sign had been on display within the statute of limitations (under his theory that each day represented a separate violation of the statute and was independently compensable). By the time the Joint Pre-Trial Statement was filed, Pearson claimed that he was owed more than $67,000,000 in compensatory and punitive damages. Pearson’s theories of liability likewise expanded — or at least were clarified as being extremely expansive — as the litigation progressed. In his motion for partial summary judgment, Pearson claimed that the “Satisfaction Guaranteed” sign represented “an unconditional and unlimited guarantee of satisfaction, as a matter of law” (emphasis in original) so that any customer who claimed dissatisfaction, regardless of whether the claim was made in good faith, could demand any compensation whatsoever. Custom Cleaners would then have to meet that demand, no matter what it was, in order to resolve the customer’s dissatisfaction. Pearson testified at trial that this would include situations in which the Chungs — or any other provider — knew that the customer was lying and/or when the customer demanded an exorbitant amount of money, such as a trillion dollars. Respondent’s theories regarding the other two signs were similarly 5 expansive. For example, in his trial brief, Pearson listed as an “undisputed fact” that the “Same Day Service” sign meant that “any customer request for any of defendants’ service would be completed the same day” (emphasis in original). The trial court granted judgment for the Chungs on this claim as a matter of law because Pearson’s “Same Day Service” theory was “completely unreasonable,” failing to consider any other factors, such as when customers dropped off the clothes, how many items they wanted serviced, what kind of services they were requesting, and whether customers asked for or even desired same day service. As the case progressed, the trial court repeatedly expressed concerns about Pearson’s characterizations of case law, statutes, and the court’s own orders. In one instance, the court pointed out that Pearson had misquoted a case, attempting to imply that it had involved an identical “Satisfaction Guaranteed” sign. The court reminded Pearson that he had “an obligation to the Court to be accurate in the representations you make with regard to what cases are about.” Pearson initially conceded that he had misquoted the case and apologized, but later filed a “Correction,” attempting to rescind that admission, because he claimed that there was no “rational basis for distinguishing the meaning of the term ‘unconditional guarantee’ from the meaning of the term ‘satisfaction guaranteed’ . . . . In 6 plaintiff’s view, . . . the two terms are indistinguishable in substance and meaning.”4 At another point, the trial court quoted from a prior discovery order to rebut Pearson’s contention that the discovery deadline had been implicitly extended. Pearson also made repeated accusations of bias against Judge Neal Kravitz in a pair of belated motions for a jury trial.5 Judge Kravitz denied the motions as being based on repetitive, “false and wholly unsubstantiated” factual claims. Throughout litigation, Pearson cited 16 C.F.R. § 239.3(b) for his proposition that “[t]he inherently deceptive nature of an unqualified guarantee that turns out to be qualified is well chronicled in the law” (emphasis in brief) and to support his favored interpretation of the sign — that the sign provided an unqualified guarantee, entitling the customer, in his sole discretion, to determine whatever compensation would subjectively satisfy him. However, Pearson consistently 4 The case in question, Montgomery Ward & Co. v. F.T.C., 379 F.2d 666 (7th Cir. 1967), involved specific warranties touted in newspaper advertisements that differed from the written guarantee certificates actually provided with the advertised products. The certificates imposed additional restrictions on the warranties. Id. at 670. The case did not involve a “Satisfaction Guaranteed” sign. 5 Judge Kravitz handled pretrial motions, but Judge Judith Bartnoff presided over the trial. 7 refused to acknowledge the preceding sentence in 16 C.F.R. § 239.3(a), which stated that “[a] seller or manufacturer should use the terms ‘Satisfaction Guarantee’ . . . or similar representations in advertising only if the seller or manufacturer, as the case may be, refunds the full purchase price of the advertised product at the purchaser’s request,” directly supporting the Chungs’ legal position. Summing up Pearson’s approach to litigation, the trial court observed that this was “a case that, in the Court’s view, has been delayed unnecessarily by plaintiff’s disproportionate approach to the discovery process and by the plaintiff’s active but largely unsuccessful motions practice” and “the Court has significant concerns that the plaintiff is acting in bad faith and with an intent to delay the proceedings.” In adopting the Hearing Committee’s factual findings, the Board agreed that Pearson’s litigation choices made the case unduly time and resource- intensive, especially considering that the suit arose from a claim that the cleaners had lost a pair of pants. Exemplifying his “voluminous and at times excessive” discovery and motions practice,6 Pearson violated a court order prohibiting more discovery, submitted document requests that the trial court found to be “too 6 Although the Board found Pearson’s discovery and motions practice relevant to whether Pearson interfered with the administration of justice in violation of Rule 8.4(d), the Board also found that Disciplinary Counsel had not established that the practices constituted a violation of Rule 3.2(a). 8 intrusive, time-consuming, and harassing to be enforced,” and then followed those requests with another set of requests that was “even more burdensome, intrusive and calculated to harass.” The Board summarized these issues by stating that the Chungs were “forced to endure a major litigation that more properly belonged in Small Claims court.” The Board found that Pearson’s litigation strategy and exorbitant demands had a direct impact on the amount of resources expended by both the judicial system and by defendants. During litigation, the Chungs made three offers of judgment, the largest being in the amount of $12,000, all of which Pearson rejected. At another point, after the trial had concluded in the Chungs’ favor, the defendants withdrew a motion that could have allowed them to recover attorney’s fees and costs, along with the imposition of Rule 11 sanctions, because the publicity generated by the case had allowed them to crowd-source the money necessary to pay their legal fees. They did so, hoping that Pearson would “put this matter behind them.” Instead, Pearson argued that he should be awarded expenses and attorney’s fees for opposing the motion. The court responded by observing that: The merits of the [Chungs’] motions are not directly before the Court, except by way of the plaintiff’s request for attorney’s fees or expenses. The Court recognizes that the Consumer Protection Procedures Act was 9 enacted to benefit consumers and that an award of attorneys’ fees against a consumer plaintiff would be very unusual. But this is an unusual case, in which the plaintiff attempted to take what was at best a misunderstanding about one pair of pants and expand it to a claim of $67 million, based on legal theories that — once they clearly were articulated — were unsupported in fact or in law. At that point, Pearson appealed to this court, see 961 A.2d 1067, and continued to pursue his legal theories after losing that appeal, filing a Petition for Rehearing or Rehearing En Banc. In addition to reviewing the respondent’s conduct in the Pearson v. Chung litigation, the Board also noted that Pearson had shown no remorse throughout the disciplinary process, but had instead chosen to litigate the charges with the very same tactics that had brought him to the disciplinary system in the first place. The Board considered this conduct only when analyzing aggravating and mitigating factors to determine what sanction to recommend; it played no role in the Board’s consideration of whether Pearson had violated the Rules of Professional Conduct. The Board found that, instead of grappling with the allegations against him — or the opinions of the trial court and this court — Pearson had continued to push the same legal theories as not only permissible, but “unambiguous, obvious, deriving from plain meaning, based on plain English, subject to no debate, and 10 well-established” (internal quotation marks omitted). The Board also found that Pearson “continued to engage in frivolous motions practice” before the Hearing Committee and the Board and noted that Pearson went so far as to accuse Disciplinary Counsel “of engaging in the very same types of misconduct that are the bases for the charges against Respondent.”7 Because of these aggravating factors and the overall seriousness of the misconduct, the Board rejected the Hearing Committee’s recommendation of a thirty-day suspension, stayed during a two-year period of probation, and instead recommended a ninety-day suspension without a stay. II. Standard of Review Disciplinary Counsel must establish a rule violation by clear and convincing evidence. In re Tun, 195 A.3d 65, 72 (D.C. 2018). This court accepts the Board’s factual findings “if they are supported by substantial evidence in the record.” In re Howes, 52 A.3d 1, 12 (D.C. 2012); see also D.C. Bar R. XI, § 9(h)(1). We also place “great weight” on credibility determinations made by the Board and the 7 Pearson has repeated these accusations in his brief to this court, describing Disciplinary Counsel’s efforts as a “crude and inept” “make-up-the-violations-as- we-go-along effort to fashion something with which to literally hang the Respondent.” He also refers to the Board and Hearing Committee as “proxies for racists everywhere” and calls this court’s decision in Pearson v. Chung “moronic.” 11 Hearing Committee because of the Hearing Committee’s unique “opportunity to observe the witnesses and assess their demeanor.” In re Sabo, 49 A.3d 1219, 1224 (D.C. 2012). As for sanctions, under D.C. Bar Rule XI, § 9(h)(1), we “shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.” See also In re Cleaver-Bascombe, 986 A.2d 1191, 1194 (D.C. 2010) (“Generally speaking, if the Board’s recommended sanction falls within a wide range of acceptable outcomes, it will be adopted and imposed.”). We review the Board’s conclusions of law de novo. In re Saint-Louis, 147 A.3d 1135, 1147 (D.C. 2016). III. Analysis A. Rule 3.1 Rule 3.1 provides that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.” In determining whether Rule 3.1 has been violated, “consideration should be given to the clarity or ambiguity of the 12 law.” In re Spikes, 881 A.2d 1118, 1125 (D.C. 2005). The “plausibility of the position taken[] and the complexity of the issue” are also relevant factors. Id. Ultimately, a position “is frivolous when it is wholly lacking in substance and not based upon even a faint hope of success on the legal merits.” Id. (internal quotation marks omitted). Attorneys have a continuing responsibility to make an “objective appraisal of the legal merits of a position,” asking how a “reasonable attorney” would evaluate “whether a claim is truly meritless or merely weak.” In re Yelverton, 105 A.3d 413, 425 (D.C. 2014). “The distinction between a weak claim and a frivolous or meritless one can be difficult to pinpoint, and in making that determination under the ethical rules we have relied on cases applying Superior Court Civil Rule 11 and our Rule 38.” Id. at 424. In this case, the Board took care to explain that “[a]ttorneys in the District of Columbia should not fear discipline for making aggressive and creative arguments.” It emphasized that “[f]rivolous is more than ultimately meritless, and the good faith exception to a Rule 3.1 violation allows a wide range of creative and aggressive challenges to existing law” (internal quotation marks omitted). But the Board also explained that, while a Rule 3.1 violation may not have been clear at 13 the outset, “[a]s his lawsuit progressed, Respondent’s liability and damages arguments morphed into the preposterous.” It was “the entire course of Respondent’s extreme conduct over the course of the suit,” not a showing “that the claims were frivolous when first made,” that convinced the Board that Pearson had violated Rule 3.1. We agree that this distinction is crucial and that, as his theories expanded and his tactics grew more extreme, respondent failed to comply with his continuing responsibility to conduct an objective evaluation of the merits of his claims. Yelverton proves instructive. The attorney in that case “filed numerous repetitive and unfounded motions in Superior Court and in this court, and . . . twice asked the trial judge to recuse himself from the case when he lacked any objective reason to do so.” 105 A.3d at 426. The Board found that Pearson’s motions and discovery practices were similarly repetitive — both during the initial litigation and during this disciplinary proceeding — and that his unfounded allegations of bias against Judge Kravitz were strikingly similar to the motion to disqualify in Yelverton.8 These conclusions are well supported by the record. 8 Because the quote from Yelverton refers to “the trial judge,” we pause to make clear that Pearson’s accusations of bias were directed against Judge Kravitz, who presided over pretrial motions, not against Judge Bartnoff, the trial judge. 14 Pearson’s liability and damages claims compounded the mischief of his motions and discovery practice. Pearson protests that his liability claims cannot fairly be deemed frivolous, as he survived summary judgment and a motion to dismiss and was allowed to proceed to trial. The trial court also opted not to sanction him. But, while relevant, those decisions are not dispositive of whether the legal theories ultimately were frivolous.9 Pearson’s claims continually expanded throughout litigation and his liability and damages theories became more clear — and more outlandish — as the case progressed. As noted above, the trial court granted judgment as a matter of law rejecting Pearson’s claims based on the “Same Day Service” sign. In light of the entire record, surviving summary 9 Pearson brings to our attention the following quote for the proposition that surviving summary judgment is “an absolute bar” to finding a Rule 3.1 violation: “[f]or a trial judge to rule in favor of a party, the trial judge necessarily must conclude that the party’s position is ‘well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’” Montgomery v. Jimmy’s Tire & Auto Ctr., Inc., 566 A.2d 1025, 1030 (D.C. 1989) (quoting Indianapolis Colts v. Mayor & City Council of Baltimore, 775 F.2d 177, 181 (7th Cir. 1985), and Fed. R. Civ. P. 11). However, similar to his selective quotation of 16 C.F.R. § 239.3(b) and other laws and cases during the Pearson v. Chung litigation, Pearson ignores relevant context that makes the asserted proposition untenable. Jimmy’s Tire explicitly contemplates, in the very next sentence, that “[i]t may be that [the] denial of summary judgment . . . can be reconciled with . . . [the] finding that those papers were sanctionable” and the court remanded for an explanation of the trial court’s Rule 11 finding. While the denial of summary judgment is relevant to the inquiry, Jimmy’s Tire certainly does not stand for the proposition asserted in Pearson’s brief that surviving summary judgment “is determinative” (emphasis in original). 15 judgment cannot be taken as a dispositive ruling that Pearson’s theories had legal support. Instead, as noted by the trial court and quoted by the Board, once Pearson’s legal theories “clearly were articulated,” they “were unsupported in fact or in law.” It is also true that, as a technical matter, some of Pearson’s theories presented a matter of first impression. But the lack of a definitive holding precluding a legal theory does not mean that it cannot be frivolous.10 “Were this not the case, a patently frivolous but novel legal argument — ‘novel,’ perhaps, because no litigant would dream of bringing it with a straight face — would not be sanctionable.” Ozee v. Am. Council on Gift Annuities, Inc., 143 F.3d 937, 941 (5th 10 Pearson points to cases such as District of Columbia v. Fraternal Order of Police, Metro. Police-Labor Comm., 691 A.2d 115, 119 (D.C. 1997), as support for the position that “[w]here the applicable statute offers no clear answer and there is no case precedent contrary to the position, it cannot be said that the case has no chance of success; therefore, its assertion will not be sanctionable.” As an initial matter, the Board found, and we agree, that the applicable statute and cases did offer a clear answer. But additionally, similar to respondent’s citations to Jimmy’s Tire discussed in note 9, above, this selective quotation does not support nearly as rigid a proposition as Pearson suggests. A close reading of Fraternal Order demonstrates why respondent’s situation differs significantly; there, “[r]ather than ignoring the precedent most likely relevant, the District brought it to the court’s attention at the outset and sought to distinguish it on a plausible basis, a factor demonstrating good faith and weighing against the imposition of sanctions.” 691 A.2d at 120. Here, the Board found that Pearson had done quite the opposite, consistently combining his unbounded theories of liability with an obstinate refusal to recognize relevant portions of regulations, case law, and even the procedural history of the instant litigation. 16 Cir. 1998). We agree with the Board that this is one such case. The total damages figure is shocking in itself; simply put, Pearson asked the trial court to award him $67,292,000 because of his dissatisfaction with defendants’ dry cleaning services. But the constituent parts of that $67,292,000 total are equally troubling. Pearson asked for $90,000 to rent a car, a facially disproportionate request in response to the alleged need to patronize another dry cleaner. He claimed that his emotional distress over a few common and innocuous signs and a lost pair of pants was so severe that he was entitled to $3,000,000 in damages. Perhaps most remarkable was his request for a judgment obligating the Chungs to provide him with ongoing services and to pay him $10,000 immediately based on nothing more than his own request, a demand that the Hearing Committee called “patently non-cognizable,” was made after the defendants had already taken down the signs at the heart of the controversy, was tethered to no statutory basis, and was completely out of proportion to any likely shortcoming in dry cleaning service. These damages theories were utterly frivolous, implausible to the point of having “not even a faint hope of success,” and they violated Rule 3.1. Spikes, 881 A.2d at 1125 (internal quotation marks omitted). We agree with the Board that Pearson’s theories of liability also violated Rule 3.1. Under Pearson’s interpretation of the signs in question, “customers” 17 acting in bad faith could bankrupt any business in the District with such a commonplace sign, as he acknowledged no requirement of good faith by the customer, no limitation on the demands the customer could make, and no allowances for “basic common sense.” Pearson v. Chung, 961 A.2d at 1075. Pearson did not make the required objective inquiry into whether his liability claims had even a faint hope of success. Instead, he did the opposite, steadfastly refusing to acknowledge contrary legal authority, engaging in extensive puffery, and pressing his preferred interpretations of the signs even after they were rebuffed by his own witnesses at trial. Indeed, even in his filings in this disciplinary case, he has continued to refer to his theories as “indisputable.” As the Hearing Committee noted, “Respondent has never, to this day, made the requisite objective appraisal.” Compounding the frivolousness of his liability and damages claims, Pearson regularly exaggerated or misrepresented procedural facts, case law, and statutory support for his position. As this court noted, he had “no pertinent authority” to support his interpretation of the “Satisfaction Guaranteed” sign, which was unsupported “by law or reason.” 961 A.2d at 1076. The Board agreed with that conclusion and with the conclusion that Pearson’s interpretation of the “Same Day Service” sign “frankly defie[d] logic.” Id. at 1077. Simply put, by pursuing 18 theories of liability with no logical limit, attempting to justify those theories by misquoting and misrepresenting pertinent cases and laws, and using those theories to escalate a minor disagreement into litigation supposedly requiring 1,200 hours of his own legal research, Pearson violated his duty under Rule 3.1 to conduct a continuing objective inquiry into the merits of his positions. No reasonable attorney could have concluded that Pearson’s liability and damages claims had “even a faint hope of success on the legal merits.” Spikes, 881 A.2d at 1125 (internal quotation marks omitted). B. Rule 8.4(d) Rule 8.4(d) states that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct that seriously interferes with the administration of justice.” A violation requires improper conduct that “bear[s] directly upon the judicial process . . . with respect to an identifiable case or tribunal” and “taint[s] the judicial process in more than a de minimis way.” See In re Hopkins, 677 A.2d 55, 59–61 (D.C. 1996). “[T]he purpose of Rule 8.4 is not to safeguard against harm to the client from the attorney’s incompetence or failure to advocate. Rather it is to address the harm that results to the ‘administration of justice’ more generally.” 19 Yelverton, 105 A.3d at 427. Rule 8.4(d) seeks to protect both litigants and the courts from unnecessary “legal entanglement.” Id. Pearson v. Chung provided a textbook example of unnecessary legal entanglement. Judge Bartnoff credited the Chungs’ position that they never even lost Pearson’s pants, stating that The Court found Soo Chung to be very credible, and her explanation that she recognized the disputed pants as belonging to Mr. Pearson because of the unusual belt inserts was much more credible than his speculation that she took a pair of unclaimed pants from the back of the store and altered them to match his measurements. Pearson v Chung, No. 05CA4302B, 2007 WL 6965580 (D.C. Super. Ct. June 25, 2007). But even if the Chungs had lost the pants, they were still subjected to years of litigation-related stress, including excessive and invasive discovery and tens of thousands of dollars in attorney’s fees,11 due to Pearson’s aggressive pursuit of an issue that the Board correctly noted “more properly belonged in Small Claims court.” Frivolous actions “waste the time and resources of th[e] court, delay the 11 Though the costs were eventually paid by others, as the publicity the case garnered led to multiple efforts to raise funds on their behalf, the Chungs’ motion for Rule 11 sanctions included a request for almost $100,000 in attorney’s fees. The fact that others volunteered to share that burden does not mitigate the conduct of Pearson that required those expenditures. 20 hearing of cases with merit and cause . . . unwarranted delay and added expense.” Spikes, 881 A.2d at 1127. The Board found that Pearson’s Rule 3.1 violations unduly burdened the judicial system. But even setting aside those violations, the Board also found that the court system was burdened by his “repetitive” motions and discovery practice, some of which was explicitly barred by a previous court order, other parts of which involved “unfounded allegations against the pre-trial judge.”12 We agree with the Board’s finding that Pearson’s “litigation tactics went beyond aggressiveness and crossed the boundary into abusiveness.” These tactics, and this litigation, consumed far more resources than the issues merited for at least three parties: the defendants, the Superior Court, and this court. Here, as in Yelverton, we conclude 12 Pearson claims that he did not have sufficient notice of Disciplinary Counsel’s intent to fault him for his discovery practice, which he argues invalidates the finding of a Rule 8.4(d) violation. This argument fails for three reasons. First, it is clear that respondent violated Rule 8.4(d) even if we omit consideration of his discovery tactics. Second, the evidence of his discovery abuses did not constitute a new, free-standing claim, but instead merely provided additional support for the Rule 8.4(d) charge, of which Pearson had ample notice. He is entitled to notice of the charges against him, not to a complete list of every piece of evidence Disciplinary Counsel may rely upon. Third, the Specification of Charges refers to “extensive discovery and motions practice.” This rather vague reference was amplified when the Hearing Committee Chair reminded Pearson that he should “be sure to give us your side of the story” regarding the need for so many discovery motions. During the hearing, Pearson himself introduced into evidence his multiple motions to compel discovery. He also had the opportunity to brief all charges after the hearing. This was sufficient notice and opportunity to be heard. 21 that “respondent’s numerous meritless, repetitive, and at times vexatious motions and other filings, considered in their totality, caused more than de minimis harm to the judicial process and violated Rule 8.4(d).” 105 A.3d at 428.13 IV. Sanction In determining the appropriate sanction, we consider factors such as “(1) the seriousness of the conduct, (2) prejudice to the client, (3) whether the conduct involved dishonesty, (4) violation of other disciplinary rules, (5) the attorney’s disciplinary history, (6) whether the attorney has acknowledged his or her wrongful conduct, and (7) mitigating circumstances.” In re Martin, 67 A.3d 1032, 13 Pearson makes an additional argument, claiming that the long delay between the Pearson v. Chung litigation and the initiation of these disciplinary proceedings requires dismissal of all charges. It clearly is not an ideal practice to delay prosecutions for seven years, but even “troubling” and “inexcusable” delays, without more, will not “rise[] to a due process violation that warrants dismissal.” Saint-Louis, 147 A.3d at 1148–49. Our case law states that undue delays in prosecution of disciplinary charges must be “coupled with actual prejudice” in order to justify dismissal. Id. at 1147 (quoting In re Williams, 513 A.2d 793, 796 (D.C. 1986) (per curiam)). Because Pearson v. Chung is a matter of public record, as are the legal arguments that Pearson made, the motions that he submitted, and the damages that he demanded, we are unable to discern any impairment of Pearson’s defense that resulted from the delay. The delay, while troubling, does not rise to the level of a due process violation. Pearson’s wide-ranging brief presents numerous additional complaints. We have considered and rejected them, but see no need to extend the length of this opinion by addressing each individually. 22 1053 (D.C. 2013). The Board recommended a suspension of ninety days. Its primary reasons for departing from the Hearing Committee’s recommendation of a thirty-day suspension with a stay were that (1) Pearson’s misconduct was quite serious, as his mischaracterization of procedural facts and the facts of cases he cited compounded the problematic nature of his frivolous legal theories; (2) “Respondent’s frivolous claims had [a major impact] on the resources of the Superior Court and on the Defendants”; and (3) rather than express remorse or acknowledge his misconduct, Pearson litigated this disciplinary case in the same manner that he did Pearson v. Chung, making outlandish claims and engaging in “frivolous motions practice.” The Board stated that “Respondent’s obstinacy is a significant aggravating factor” and, quoting Yelverton, 105 A.3d at 431, faulted him for “using the same playbook that brought him into the disciplinary proceedings.” Reasoning that “[p]ast cases involving violations of Rules 3.1 and 8.4(d) have resulted in a range of sanctions, from a thirty-day suspension to an eighteen-month suspension,” the Board ultimately settled on a ninety-day suspension. We accept the Board’s recommendation that a ninety-day suspension, with no stay, is “necessary to protect the public, to promote confidence in the Bar, and to deter Respondent from similar misconduct.” Instead of accepting responsibility 23 for his actions — or even contemplating any possibility that he may have engaged in professional misconduct — Pearson has chosen at every step of the disciplinary process, including as recently as his oral argument in this appeal, to levy accusations against Disciplinary Counsel, the Board, the Hearing Committee, and this court. The ongoing nature of Pearson’s conduct indicates that a ninety-day suspension is appropriate. As we did in Yelverton, we find that respondent’s lack of disciplinary history is a mitigating factor.14 However, other mitigating factors cited there do not apply here. For example, unlike in Yelverton, we cannot say “that his actions were motivated by concern for his client.” 105 A.3d at 428. 14 Pearson complains that the Board referred to his pro se divorce litigation in Virginia when discussing his lack of disciplinary history. The Board found it “relevant” that the court ordered respondent to pay $12,000 of his former wife’s attorney’s fees and quoted admonitions from the Virginia trial judge that Pearson was “responsible for excessive[ly] driving up everything that went on here” and pursued disproportionate and “unnecessary litigation.” Pearson has not persuaded us that it was wrong for the Board to consider this matter. In any event, excluding this evidence would not impact the outcome of this case. In light of the Board’s ultimate finding that Pearson’s lack of disciplinary history was still a mitigating factor, which we adopt, the reference has no bearing on our larger conclusion that the Board’s sanction recommendation is within the “wide range of acceptable outcomes” that we should adopt. Cleaver-Bascombe, 986 A.2d at 1194. 24 We also share the Board’s perspective on the overall seriousness of respondent’s actions. We have discussed, at length, Pearson’s tendency to selectively quote, or even misquote, cases, court orders, and laws. See, e.g., supra notes 4, 9–10. We also note that, as in Yelverton, “[t]he sheer volume of respondent’s frivolous filings” is an aggravating factor, see 105 A.3d at 429, because it is reflective of the larger issue of his lack of remorse and the extent of the Rule 8.4(d) violation. “It is . . . significant that respondent fails to acknowledge the wrongfulness of his conduct in persisting in the submission of meritless and unprofessional filings, both in the trial court and on appeal to this court . . . and throughout the disciplinary proceedings.” Id. In violating multiple rules and making unfounded allegations against various members of the judiciary and participants in the disciplinary process, respondent took actions comparable to those in Yelverton and Spikes. However, there are also some unique aggravating factors and fewer mitigating factors than there were in those cases. Spikes received a thirty-day suspension. 881 A.2d at 1119. In Yelverton, we imposed a thirty-day suspension but added a fitness requirement, effectively enhancing that sanction. 105 A.3d at 417. Because the Board’s recommendation would not “foster a tendency toward inconsistent dispositions for 25 comparable conduct” and is not “otherwise . . . unwarranted,” D.C. Bar Rule XI, § 9(h)(1), we adopt it and impose a ninety-day suspension. V. Conclusion There is substantial evidence in the record to support the Board’s factual conclusions. Even if respondent’s “actions were heartfelt . . . that does not mean . . . that they were innocuous.” Yelverton, 105 A.3d at 427. For the reasons stated above, we conclude that respondent violated District of Columbia Rules of Professional Conduct 3.1 and 8.4(d) and impose the sanction of a ninety-day suspension without a stay. Accordingly, it is ORDERED that Roy L. Pearson, Jr., is suspended from the practice of law in the District of Columbia for the period of ninety days. See D.C. Bar R. XI, § 14(f) (“an order of . . . suspension shall be effective thirty days after entry”). For purposes of reinstatement, the period of respondent’s suspension shall not begin to run until such time as he files an affidavit in compliance with D.C. Bar R. XI, § 14(g). See D.C. Bar R. XI, § 16(c). So ordered.
01-03-2023
06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/2898413/
NO. 07-08-0363-CR                                                      NO. 07-08-0364-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C DECEMBER 4, 2009 ______________________________ DONALD ELIJAH MATTHEWS, JR.,                                                                                                  Appellant v. THE STATE OF TEXAS,                                                                                                  Appellee _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NOS. 57,858-A & 57,859-A; HON. HAL MINER, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.           Appellant Donald Elijah Matthews, Jr. was convicted of violating a protective order and committing arson. He contends that the evidence is both legally and factually insufficient to sustain those convictions. We disagree and affirm the judgments.           Standard of Review           The applicable standards of review are explained in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) and their progeny. We refer the parties to those cases.           Violation of a Protective Order           Appellant was initially charged with intentionally or knowingly violating the terms of a protective order issued under Chapter 85 of the Texas Family Code. The violation occurred, according to the indictment, through his intentionally or knowingly committing family violence against Lakesha Matthews (his wife) by assaulting her on or about May 10, 2008. According to appellant, the act in which he engaged on May 10, 2008, was too vague to constitute an assault. That act involved his threatening to “get” Lakesha. The utterance was made through the window of his car as he drove it next to hers early that morning.           According to the record, the protective order was issued in March of 2008 and remained effective until March of 2009. Between the date of its issuance and through May 10, 2008, appellant had not only told Lakesha that he was going to “get” her, he had also rammed his car into hers on May 6, 2008, while she was driving it. So too had he entered Lakesha’s car in April of 2008, bit her finger, made it bleed, and sat on her as he drove the vehicle across a park. Each of those instances happened after the issuance of the protective order and on or before May 10, 2008. And, because the indictment was not written in such a way as to restrict the assault to any one of those events, the record contains more than some evidence illustrating that appellant assaulted Lakesha on or before May 10, 2008, in violation of the protective order. And, the jury’s verdict to that effect is supported by more than weak evidence, is not contradicted by the great weight of the evidence, and is manifestly just. Because the conviction is supported by both legally and factually sufficient evidence, we overrule the issue.           Arson           Next, appellant attacks the sufficiency of the evidence to prove he committed arson. That is, he does not contest the evidence of a fire being started in a rear bedroom of the house. He simply suggests that the evidence fails to show that he started it. He believes this to be so since the testimony uttered by the only witness that saw him both contradicted that of the fire investigator and came from someone who disliked him. We overrule this issue as well.           The witness in question was Lakesha’s daughter, who happened to be appellant’s step-child. She testified to seeing appellant return to the house on the morning of May 10, 2008, after he said he would “get” Lakesha, hearing breaking glass, seeing some cloth-like material that was ablaze enter the rear bedroom through the window, seeing appellant at the rear window of the bedroom in which the fire started, and then seeing him run out of the back yard. Admittedly, portions of her testimony about what in the bedroom first ignited differed from that of the fire investigator who testified. So too did the investigator indicate that he believed the rear bedroom window was intact during the blaze. Yet, neither of those matters dealt with the identity of who started the fire. That is, the fire chief’s testimony did not indicate that someone other than appellant started it. Moreover, pictures of the rear window actually suggest that it was broken since all that remained was a burned, framed opening without glass.           As for the likelihood that the witness disliked appellant, that matter simply created credibility issues, as did the purported contradictions mentioned above. And, since it fell to the jury to weigh and resolve them, it could choose whether to believe the step-child when she identified appellant as the one who set the fire. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) (stating that it falls within the province of the jury to resolve credibility issues). Finally, the step-child’s testimony, if believed by the fact finder, was more than sufficient for a rational trier of fact to believe beyond a reasonable doubt that appellant started the fire with intent to destroy or damage the habitation. See Tex. Penal Code Ann. §28.02(a)(2)(A) (Vernon Supp. 2009) (stating that a person commits arson if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage a habitation knowing that it was within the limits of an incorporated city or town). And, we cannot say that any contradictions in the evidence regarding tangential issues, the witness’ supposed bias, or even testimony from appellant’s mother suggesting that appellant was home undermines in any way our confidence in the verdict.           Accordingly, the judgments of the trial court are affirmed.                                                                              Brian Quinn                                                                           Chief Justice   Do not publish. ibility under the business records exception. Appellant objected again on the basis that the State did not carry its burden to prove up the business records exception. Jail records are generally admissible under the business records exception to the hearsay rule. Jackson v. State, 822 S.W.2d 18, 30-31 (Tex. Crim. App. 1990), cert. denied, 509 U.S. 921, 113 S. Ct. 3034, 125 L. Ed. 2d 722 (1993) (holding records were admissible because they were made by one with personal knowledge at or near the time of some concrete event in the regular course of business). In this instance, appellant did not specifically object on the basis that the records were untrustworthy because the jailers were officers of the State, and the context of the exchange with the trial court does not reveal that the court understood that as the basis of appellant's objection. An objection must be made with sufficient specificity to apprize the trial court of the specific ground of the complaint, unless that ground is apparent from the context. Tex. R. App. P. 33.1(a)(1); Aguilar v. State, 26 S.W.3d 901, 905-06 (Tex. Crim. App. 2000). Appellant's general objection at trial does not comport with the rule. Consequently, he failed to preserve the complaint for purposes of appeal. Accordingly, the judgment of the trial court is affirmed. Per Curiam Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2002). 2. Indeed, the record clearly indicates that he had the opportunity to retreat. Appellant himself confessed that after Brian placed his hand in his pocket, appellant left the immediate scene of the fracas and entered his house (to obtain a weapon).
01-03-2023
09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2845647/
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-02-003-CR DANIEL ALONZO REYNA                                                                       APPELLANT A/K/A DANIEL A. REYNA V. THE STATE OF TEXAS                                                                            STATE ------------ FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY ------------ OPINION ------------ Appellant Daniel Alonzo Reyna a/k/a Daniel A. Reyna appeals from his conviction for the murder of Samuel "Sammy" Delapaz. Appellant pled not guilty, and a jury convicted him and sentenced him to life in prison. In three points, Appellant contends that the trial court erred in limiting Appellant's testimony, in admitting evidence as to Appellant's gang membership at the guilt-innocence phase, and in permitting the impeachment of a defense witness. We affirm. Background In the early morning hours of July 15, 2000, Appellant and Delapaz became involved in an altercation at Shooters, a Fort Worth bar and pool hall. Each shot the other with a gun. Appellant shot Delapaz in the hand and the head. Delapaz shot Appellant in the side. The shot to Delapaz's head ultimately caused his death. Testimony at trial conflicted as to whether Appellant or Delapaz had shot first. Marla Pyka, Delapaz's girlfriend, testified that Appellant had fired first. Appellant and several defense witnesses, including Raul Perez and Jose Chavez, testified that Delapaz had flashed his gun first and fired the first shot. Over Appellant's objection, the court allowed the State to impeach Perez with prior convictions for DWI, possession of marijuana, and evading arrest. The court admitted testimony of Maria Salinas, an officer with the Fort Worth Police Department's Gang Intelligence Unit, indicating that Appellant, Perez, and Chavez were members of Sur Trese, a criminal street gang in Fort Worth, and, as members of the same gang, might lie to protect one another. Limiting Appellant's Testimony In his first point, Appellant contends that the trial court erred in limiting his testimony concerning the victim's violent character when Appellant had raised the issue of self-defense. At trial, Appellant testified that he was scared of the victim for "a couple of reasons." The court, however, would not allow Appellant to testify as to why he was afraid of the victim. Appellant's more specific complaint is that the trial court erred in refusing to admit testimony that would have shown prior bad acts of the victim: 1) that he had been in a fight with unidentified parties at Shooters "prior" to the shooting;(1) 2) that he had just been released from the penitentiary for burglary of a habitation; 3) that he carried a gun "from time to time;" and 4) that he was a drug dealer. An appellate court reviews a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court's ruling unless the ruling falls outside the zone of reasonable disagreement. Id. Generally, a defendant in a homicide prosecution who raises the issue of self-defense may introduce evidence of the victim's violent character. Tex. R. Evid. 404(a)(2); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). The defendant may offer opinion or reputation testimony to prove the victim acted in conformity with his violent nature. Tex. R. Evid. 404(a)(2), 405(a); Torres, 71 S.W.3d at 760. Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant's fear of danger, or to show that the victim was the first aggressor. Torres, 71 S.W.3d at 760. This general rule is not without limitation. Rule 404(b) provides for the admissibility of specific bad acts only to the extent that they are relevant for a purpose other than to show character conformity. Tex. R. Evid. 404(b); Torres, 71 S.W.3d at 760. Because a victim's unambiguous, violent or aggressive act needs no explaining, evidence of the victim's extraneous conduct admitted in conjunction with his unambiguous act would have no relevance apart from its tendency to prove the victim's character conformity, and thus would be inadmissible. Tex. R. Evid. 404(b); cf. Thompson v. State, 659 S.W.2d 649, 653-54 (Tex. Crim. App. 1983) (holding that when the victim's conduct was ambiguously aggressive, prior, specific acts of violence are admissible only so far as they tend to explain the victim's conduct). Two conditions precedent must exist, therefore, before an extraneous act of the victim will be admissible to support a claim of self-defense: 1) some ambiguous or uncertain evidence of a violent or aggressive act by the victim must exist that tends to show the victim was the first aggressor; and 2) the proffered evidence must tend to dispel the ambiguity or explain the victim's conduct. See Torres, 71 S.W.3d at 762; Thompson, 659 S.W.2d at 653-54 (finding that the appellant was entitled to establish the victim's violent character to explain his ambiguously aggressive conduct of walking toward the appellant with his arms outstretched). The State argues that the trial court properly excluded testimony regarding various alleged bad acts and prior misconduct by the victim because the evidence supporting Appellant's assertion that the victim was the first aggressor was unambiguous. We agree. Unlike the victim's ambiguous act in Thompson, here the victim's conduct of allegedly flashing his gun at Appellant and of allegedly shooting Appellant first are unambiguous acts of aggression and violence that need no explanation. See Thompson, 659 S.W.2d at 654. Because of the unambiguous nature of the victim's alleged conduct, neither the first nor second conditions precedent are met. See Torres, 71 S.W.3d at 762. We hold that the proffered testimony does nothing more than show character conformity. See Tex. R. Evid. 404(b); Torres, 71 S.W.3d at 760. Accordingly, we overrule Appellant's first point. Gang Membership In his second point, Appellant contends that the trial court erred in admitting evidence at the guilt-innocence phase of trial concerning his gang membership because the prejudicial effect of admitting the evidence far outweighed its probative value. See Tex. R. Evid. 403. In particular, Appellant complains of the admission of Officer Salinas' testimony that indicated Appellant had admitted voluntarily to being a gang member as part of a police gang unit profiling program. Because Appellant failed to properly preserve error, if any, we overrule this point. In a hearing outside the presence of the jury and before the defense started its case in chief, the State suggested that if Appellant called several witnesses on his witness list, it would cross-examine them about their and Appellant's membership in the Sur Trese criminal street gang for the "limited purpose of bias regarding their testimony or motivation to lie." Appellant's only response was "[w]e will object to that." The trial court overruled the objection. Appellant did not object on the grounds of rule 403 at any time. Later the prosecution questioned several defense witnesses regarding their membership in Sur Trese, and Officer Salinas testified that the Fort Worth Police Department had identified Appellant and two other defense witnesses as gang members. Appellant's only objections were on the grounds of "speculation" and "leading the witness," based on rules 602 and 611(c), and not upon the grounds of relevance or that the probative value of the evidence was substantially outweighed by its prejudicial effect as required by rules 402 and 403. See Tex. R. Evid. 402, 403, 602, 611(c). A general objection "amounts to no objection," and does not preserve error for review. Tompkins v. State, 774 S.W.2d 195, 218 (Tex. Crim. App. 1987), aff'd, 490 U.S. 754 (1989); see Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1)(A). Here, Appellant's general objection, "[w]e will object to that," did not preserve the rule 403 complaint he asserts on appeal. See Tompkins, 774 S.W.2d at 218. We overrule his second point. Impeachment of Witness In his third point, Appellant contends that the trial court erred in permitting impeachment of defense witness Raul Perez with proof of prior misdemeanor convictions outside the scope of rule 609.(2) The State argues that Perez opened the door to impeachment because Perez's testimony left the jury with a false impression that Perez had been conducting himself as a law-abiding, hard-working, family man since abandoning his contacts with gang members. Even if Perez did not create a false impression, the State argues that any error was harmless. Perez's Testimony On direct examination, Perez testified that the victim had lifted his shirt and showed Appellant a gun tucked in the waistband of his pants. Perez said that, in response, Appellant "pulled out" his own gun. He also said that the victim fired at Appellant first. On cross-examination, the State established that Perez was Appellant's cousin; that he had a number of unusual tattoos; that he was considered to be a gang member by law enforcement authorities, though he denied being one; that he was familiar with gang signs; and that he knew "several members" of the Sur Trese gang, although he also denied that Appellant and Chavez, another defense witness, were members. On re-direct, defense counsel tried to show that Perez was no longer involved in any gang activity. Perez testified that he was "just friends" with Sur Trese gang members and had never been a gang member himself. He said that his only participation in activities with gang members was drinking beers with gang members at a party at his house in 1994 when he was in high school. Perez maintained that he had not had "anything to do" with gang members since leaving high school. Perez made several references to his youth and childishness at the time of his association with gang members. The State argues that, in particular, the following testimony by Perez opened the door to Perez's criminal history:         Q. Have you had anything to do with these [gang members] since you got out of high school?         A. No, sir.         Q. What have you been doing since you got out of high school?         A. I got -- I have a family, I have two little boys and I just recently got divorced.         Q. Have you been working since you got out of the high school?         A. Yes sir. The State argued to the trial court that the effect of this testimony left a false impression with the jury that Perez had "just been working and taking care of his family and things of that nature," and the trial court agreed. Appellant objected, countering that he had merely been trying on re-direct to "show there's no gang activity." Subsequently, Perez recalled that he had testified "about how [he] had been working and spending time with [his] family," and conceded that it was "not entirely true" because he had been doing "some other things." The State then questioned Perez about his 1996 convictions for DWI and possession of marijuana, and his 1998 convictions for DWI, driving while his license was suspended, and for evading arrest. Perez admitted that he had been convicted of each of those offenses. Standard of Review As a general rule, specific acts of misconduct may not be introduced to impeach a party or witness. See Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988); Murphy v. State, 587 S.W.2d 718, 721 (Tex. Crim. App. 1979); Medina v. State, 828 S.W.2d 268, 269-70 (Tex. App.--San Antonio 1992, no pet.). However, opposing counsel may introduce evidence about otherwise irrelevant past criminal history when a witness, during direct examination, "open[s] the door" or leaves a false impression with the jury as to the extent of either his prior arrests, convictions, charges, or trouble with the police. See Prescott, 744 S.W.2d at 130-31; see also Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App.), cert. denied, 510 U.S. 982 (1993). This exception is not limited to final convictions. See Prescott, 744 S.W.2d at 130-31. Here, the trial court expressly ruled that Perez's testimony left a false impression with the jury about his activities and law abiding behavior since his gang member affiliations, saying, "You still left the impression [Perez] hasn't been doing anything but working and going home and staying with [his] family." After reviewing the record and the overall tenor of Perez's testimony, we agree with the State that the trial court could have found that Perez left a false impression with the jury. See Delk, 855 S.W.2d at 704. Accordingly, the trial court's ruling that Perez had opened the door to the admission of evidence of his prior arrests and convictions is not outside the zone of reasonable disagreement, and we will not disturb it on appeal. See Burden, 55 S.W.3d at 615. We overrule point three. We affirm the trial court's judgment.                                                               DIXON W. HOLMAN                                                             JUSTICE   PANEL B: HOLMAN, GARDNER, and WALKER, JJ. PUBLISH [DELIVERED FEBRUARY 13, 2003] 1. Appellant states in his brief that the victim's fight with unidentified parties had occurred "days" before the shooting; however, the record shows that the alleged fight between the victim and "some of his friends" occurred sometime "prior to that night." 2. Rule 609(a) reads as follows:         (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party. Tex. R. Evid. 609(a).
01-03-2023
09-03-2015
https://www.courtlistener.com/api/rest/v3/opinions/2897869/
NO. 07-06-0218-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 14, 2008 ______________________________ KAREN GORE, APPELLANT V. JAINABA FAYE, APPELLEE _________________________________ FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2004-527,298; HONORABLE WILLIAM SOWDER, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. OPINION           Appellant Karen Gore appeals from a judgment in favor of appellee Jainaba Faye following a jury trial in a personal injury suit. Gore contends on appeal the trial court was required by section 41.0105 of the Texas Civil Practice & Remedies Code to allow evidence before the jury of payments and discounts applied on Faye’s medical bills, and erred by keeping this evidence from the jury. Finding no abuse of discretion in the court’s action, we affirm. Background           Faye and Gore were the drivers of vehicles that collided in Lubbock, Texas. Seeking recovery for her personal injuries, and alleging Gore’s negligence proximately caused her injuries, Faye brought suit against Gore.           In her amended answer to Faye’s suit, Gore plead that, pursuant to section 41.0105, Faye’s recovery for medical expenses was limited to the amounts of reasonable and necessary medical expenses “which were paid and accepted rather than the total of the charged medical expenses.” Alternatively, Gore plead, she was entitled to a credit against any medical expense damage award for amounts “not charged to [Faye], amounts written off or discounted, or, in any event, in an amount equal to the difference between the total charges and the sum which was paid and accepted as payment in full.” Gore made the same allegations in a separate paragraph of her answer addressed “to the Court only.”           At trial, Faye presented, without objection, evidence of the amounts charged by four healthcare providers for treatment of her injuries. The evidence was in the form of statutory affidavits that included opinions the services were necessary and the charges reasonable, and included itemized statements from the providers. The four providers, their charges and services were University Medical Center (UMC), $573.80 for ambulance services; Covenant Health System (Covenant), $2,690.30 for emergency medical treatment; Lubbock Diagnostic Radiology, L.L.P., (Lubbock Radiology), $248.00 for x-ray and diagnostic services; and Merritt Chiropractic, P.C. (Merritt), $4,574.00 for chiropractic treatment.           The itemized statement attached to the affidavit of Covenant’s custodian of records was redacted to obscure entries reflecting a discount of $2190.30 and a payment of $400.00 against the initial $2690.30 charge, and to obscure an entry showing the resulting “ofc balance” of $100.00. The statement attached to the affidavit from Lubbock Radiology similarly was redacted to obscure entries showing an “adjustment” of $146.94 and a payment credit of $101.46. As redacted, the statements showed the jury only the total initial charges. The statements of UMC and Merritt contained no payment credits or discounts.           The record indicates that, before and during trial, the parties and the court were conscious of and concerned with the requirements of section 41.0105, and suggests that the means of implementation of the statute were discussed with the court off the record. At a point during Faye’s case in chief, the court conducted an off-the-record bench conference. It then excused the jury, and Gore requested and was allowed to make an offer of proof concerning the payments and discounts applied to the Covenant and Lubbock Radiology charges.           Gore’s counsel explained the purpose of the offer of proof: “if the court does not allow the testimony into evidence in front of the jury, I would like to at least present it now for the court to consider after the verdict and before a judgment is entered.” The court discerned the basis of the offer was: “due to some kind of contract or an agreement with a health care provider that what was actually accepted in full is less than what was charged Plaintiff; is that correct?” Gore’s counsel agreed with this assessment.           Gore then called the records custodians for Covenant and Lubbock Radiology as witnesses for the offer of proof. Each testified that Faye’s charges were discounted pursuant to a contract between the provider and Faye’s health insurance company FirstCare. Through these witnesses, Gore offered unredacted copies of the previously admitted affidavits of services and charges of Covenant and Lubbock Radiology.           At the conclusion of the offer of proof, the court restated Gore’s position: “And then he is making a motion to offer the testimony of [the records custodians] in front of the jury.” On the court’s request for a response, Faye’s counsel voiced an objection to the testimony of the records custodians before the jury. The court then ruled: The court is going to sustain her objection and overrule you, preventing you from putting this in front of the jury. And the court’s of the opinion, at this time, until further guidance is given the court, that it is a post-verdict pre-judgment matter. And so the offer of proof will stand but I will not allow that testimony in front of the jury.             The following exchange then occurred:   [Gore’s counsel]: “Okay. And, Your Honor, in the alternative then, we would ask the court to consider the testimony post-verdict pre-judgment.”   [The Court]: “Yes, we will do that.”             * * * [Faye’s counsel]: “And, Your Honor, for clarification, defense exhibits–I don’t remember the numbers, but those include information regarding adjustments, will not be presented to the jury?   [The Court]: “That’s right. That is just for the Judge before he prepares–executes a judgment.”             At the charge conference, neither party objected to the proposed damage question which in part inquired what amount of money would compensate Faye for “reasonable expenses of necessary medical care actually incurred in the past.” The jury found each party negligent, assessed fault at 25% to Faye and 75% to Gore, and awarded Faye $250 for past physical pain, $6,391.10 for past medical expenses, and zero for past lost wages.            After receipt of the verdict and discharge of the jury the court determined it was not feasible to accurately offset the past medical charges according to Gore’s section 41.0105 evidence because the jury awarded an amount less than the total amount of charges presented by Faye’s affidavits. The court signed a judgment awarding Faye the full amount of past medical expenses found by the jury, reduced by the percentage of fault the jury attributed to Faye.           Gore moved for a new trial asserting factual and legal insufficiency of the evidence supporting the award of past medical expenses because of the limiting effect of section 41.0105 and abuse of discretion by the court for not admitting Gore’s section 41.0105 evidence before the jury. The motion for new trial was apparently overruled by operation of law and this appeal followed. Issue Presented           Gore brings a single issue on appeal: “The trial court erred in excluding properly offered exhibits and testimony concerning the amounts of medical expenses actually paid and accepted by Appellee’s health care providers as payment in full.”             As noted, the trial court admitted Gore’s section 41.0105 evidence, but only for its post-verdict consideration in fashioning a judgment. Gore’s argument in her brief makes clear that her complaint is the trial court abused its discretion by not allowing her to present the section 41.0105 evidence for the jury’s consideration in answering the past medical expense damages question. Gore’s contention is that admission of the evidence before the jury for that purpose was required by section 41.0105. She does not argue it was admissible for any purpose other than implementation of that statute.   Discussion           The admission and exclusion of evidence at trial is committed to the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). See also Dow Chemical Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001); Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488, 491 (1943) (both noting great discretion vested in trial court over conduct of trial). A trial court abuses its discretion when its ruling is arbitrary, unreasonable or without reference to any guiding rules or legal principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)           The correctness of Gore’s position that the trial court was required to admit her section 41.0105 evidence before the jury is not apparent from the language of section 41.0105. The legislature enacted the section as an addition to chapter 41 of the Civil Practice and Remedies Code, which chapter “establishes the maximum damages that may be awarded in an action” subject to its provisions. Tex. Civ. Prac. & Rem. Code Ann. § 41.002(b) (Vernon Supp. 2007). By its language the limitation on damages prescribed by section 41.0105 is mandatory. But unlike other provisions of chapter 41, section 41.0105 contains no procedural direction for its application at trial. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 41.008(a), (e) (Vernon Supp. 2007) (prescribing separate determinations of economic and other compensatory damages, and prohibiting making provisions known to jury); Tex. Civ. Prac. & Rem. Code Ann. § 41.009 (Vernon 1997) (requiring bifurcated trial on motion); Tex. Civ. Prac. & Rem. Code Ann.§§ 41.003(e) and 41.012 (Vernon 1997 and Supp. 2007) (mandating jury instructions in cases involving claims for exemplary damages).           In their appellate briefs, the parties devote a good deal of attention to the question whether introduction before the jury of evidence that Faye benefitted from her insurer’s contractual agreements with Covenant and Lubbock Radiology runs contrary to the collateral source rule. Gore contends that admission of such evidence does not violate the collateral source rule. Review of the record convinces us that disposition of this appeal does not require our evaluation of the impact of section 41.0105 on the collateral source rule. This appeal presents only the narrow procedural question whether the trial court was required to implement section 41.0105 through presentation of evidence to the jury. Even if Gore is correct that admission of her section 41.0105 evidence would not violate the collateral source rule, it is obvious that the admission of such evidence before the jury in a personal injury case involves a significant departure from existing trial practice in Texas. See, e.g., Taylor, 132 S.W.3d at 625 (“It is generally considered error for insurance coverage of either party to be mentioned by the other party during trial of a personal injury cause of action.” (citations omitted)). Without a more explicit statutory provision or guidance from our supreme court, we see no abuse of discretion in the trial court’s decision to apply section 41.0105 post-verdict.           Gore’s single issue is overruled, and the trial court’s judgment is affirmed.                                                                   James T. Campbell                                                                         Justice span.Heading2Char {mso-style-name:"Heading 2 Char"; mso-style-noshow:yes; mso-style-priority:9; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Heading 2"; mso-ansi-font-size:13.0pt; mso-bidi-font-size:13.0pt; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:Arial; mso-bidi-font-family:"Times New Roman"; color:#4F81BD; font-weight:bold;} span.Heading3Char {mso-style-name:"Heading 3 Char"; mso-style-priority:9; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Heading 3"; font-family:"Arial","sans-serif"; mso-ascii-font-family:Arial; mso-fareast-font-family:"Times New Roman"; mso-hansi-font-family:Arial; mso-bidi-font-family:"Times New Roman"; color:#4F81BD; font-weight:bold;} span.Heading4Char {mso-style-name:"Heading 4 Char"; mso-style-priority:9; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Heading 4"; 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mso-paper-source:0;} div.Section2 {page:Section2;} @page Section3 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:1.0in; mso-footer-margin:1.0in; mso-footer:url("07-08-0290.cr%20opinion_files/header.htm") f1; mso-paper-source:0;} div.Section3 {page:Section3;} @page Section4 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:1.0in; mso-footer-margin:1.0in; mso-footer:url("07-08-0290.cr%20opinion_files/header.htm") f4; mso-paper-source:0;} div.Section4 {page:Section4;} @page Section5 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-title-page:yes; mso-footer:url("07-08-0290.cr%20opinion_files/header.htm") f5; mso-paper-source:0;} div.Section5 {page:Section5;} --> NO. 07-08-00290-CR   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL B   JUNE 16, 2010     THOMAS LEWIS, APPELLANT   v.   THE STATE OF TEXAS, APPELLEE      FROM THE 211TH DISTRICT COURT OF DENTON COUNTY;   NO. F-2006-2346-C; HONORABLE L. DEE SHIPMAN, JUDGE     Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.     MEMORANDUM OPINION     A jury convicted appellant Thomas Lewis of aggravated sexual assault[1] and indecency with a child[2] and assessed punishment, enhanced by two prior felony convictions, at consecutive life sentences.  Through two points of error, appellant challenges the admission of evidence during the punishment phase of trial concerning his positive HIV status.  Concluding the trial court did not err by allowing admission of the evidence, we affirm the trial court=s judgment. Background Appellant was charged by indictment with penetrating, with his finger, the female sexual organ of a child younger than 14 years of age and not his spouse and, with the intent to arouse or gratify his sexual desire, exposing his genitals to the same child.  The victim of his offenses was a ten-year-old girl. At trial, the victim testified she stopped by her grandfather=s recently vacated apartment on her way home from school one day to see if items had been left behind.  Appellant walked by and asked if she wanted to go inside her grandfather=s apartment.  She agreed and went with appellant to retrieve the key.  Once they were inside the apartment, appellant told the girl to get into a closet.  He threatened to hit her and told her to pull down her pants.  She complied.  With the two of them sitting facing each other, appellant inserted his finger into the victim=s vagina.  While doing so, he masturbated until he ejaculated.  He then allowed the victim to leave. The victim went home, visibly upset, and told her mother and stepfather what happened.  The victim later identified appellant as the person who assaulted her. She told police appellant was wearing purple shorts when he assaulted her.  Police later found purple shorts in appellant=s home. The shorts had a semen stain and a blood stain on them.  During the punishment phase of the trial, the State introduced testimony indicating appellant told a police officer he was HIV positive.  Appellant objected to this testimony under Rules 401 and 403 of the Texas Rules of Evidence.  The trial court overruled the objection and allowed the officer to testify that appellant told her Ahe was HIV positive.@  The State highlighted this fact, along with evidence of appellant=s extensive criminal history, to the jury during closing punishment argument.  On appeal, appellant reiterates his Rule 401 and Rule 403 objections to the officer’s statement.  Tex. R. Evid. 401, 403.  Applicable Law Texas Code of Criminal Procedure article 37.07, § 3(a), governs the admissibility of evidence at a trial's punishment phase and grants the trial court broad discretion to admit evidence that it deems relevant to sentencing.  See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon 2007).  Under the plain language of the statute, during the punishment phase the State may offer evidence on any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2007).  In ascertaining what is relevant to sentencing, the focus is on what is helpful to a jury in deciding an appropriate sentence for a defendant. Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004); Rodriguez v. State, 163 S.W.3d 115, 118 (Tex. App.--San Antonio 2005), aff’d, 203 S.W.3d 837 (Tex.Crim.App. 2006). The Court of Criminal Appeals has recognized that "relevance" in the punishment context is different than "relevance" as defined in Texas Rule of Evidence 401 because sentencing presents different issues than rendering a verdict on guilt or innocence. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (fact-finder in punishment chooses a sentence within a punishment range rather than deciding facts to determine whether a defendant is guilty).  Admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy because, by and large, there are no discrete factual issues at the punishment stage.  Id.  Some of the policy reasons to be considered when determining whether to admit punishment evidence include giving complete information for the jury to tailor an appropriate sentence for the defendant; the policy of optional completeness; and admitting the truth in sentencing. Id. at 233-34 (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)). In accordance with this policy, the Court of Criminal Appeals has stated that at the punishment phase of a non-capital felony trial, evidence relating to the Acircumstances of the offense itself or . . . the defendant himself@ before or at the time of the offense may be admitted.  Miller-El v. State, 782 S.W.2d 892, 896 (Tex.Crim.App. 1990) (en banc); Stiehl v. State, 585 S.W.2d 716, 718 (Tex.Crim.App. 1979), cert. denied, 449 U.S. 1114, 101 S.Ct. 926, 66 L. Ed. 2d 843 (1981).  One such circumstance is the degree of the victim=s injury, including future consequences due to the injury, Aso long as the fact finder may rationally attribute moral culpability to the accused for that injury.@ Hunter v. State, 799 S.W.2d 356, 360 (Tex.App.BHouston [14th Dist.] 1990, no pet.).  Courts have recognized that a defendant=s HIV status is admissible as a Acircumstance of the offense@ in an aggravated assault case.[3]  See, e.g., Hunter v. State, 799 S.W.2d 356, 359 (Tex.App.BHouston [14th Dist.] 1990, no pet.). See also Suarez v. State, No. 14-03-00441-CR, 2004 WL 1660938 (Tex.App.BHouston [14th Dist.] July 27, 2004, pet. ref=d) (counsel not ineffective for failing to object to testimony about defendant=s HIV status because it was admissible as a circumstance of the offense of aggravated sexual assault of a child). Even where the trial court deems evidence relevant at the punishment stage, that evidence, upon objection, must still withstand a Rule 403 analysis to be admissible. Rodriguez, 163 S.W.3d at 119. Texas Rule of Evidence 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. The rule carries a presumption that relevant evidence will be more probative than prejudicial, therefore favoring admission. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Unfair prejudice can outweigh the probative value where the evidence has a tendency to influence a jury's decision on an improper basis. Rogers v. State, 991 S.W.2d at 266. Rule 403 requires exclusion of evidence only when there is "clear disparity" between the probative value and the degree of prejudice of the offered evidence. Jones, 944 S.W.2d at 652. Unfair prejudice does not include evidence that simply injures the opponent's case. Rogers, 991 S.W.2d at 266 (noting that injuring the opponent's case is the central point of offering evidence). A trial court=s admission or exclusion of evidence is reviewed under an abuse of discretion standard.  See Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999); Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1991) (op. on reh’g).  An abuse of discretion occurs when the trial court acts arbitrarily, unreasonably, or without reference to guiding rules or principles.  Montgomery, 810 S.W.2d at 380.  Application Appellant points to the single statement in the testimony of one police officer that appellant told her he was AHIV positive.@  Appellant then focuses on part of the State=s closing argument: When you get into punishment, you learn who that man is that you=re punishing.That=s kind of what we=ve seen here.  Now, there was a little bit more about the crime that you learned in punishment that you didn=t know in sentencing, [sic] because not only do we have an aggravated sexual assault, we have an aggravated sexual assault on a ten-year-old girl by a man who knew he was HIV positive when he went forward to commit that assault.   Think about that.  Think about the risks that he=s willing to place an innocent child in for his own pleasure, because that=s the difference we see in these crimes and this crime today. *** A ten-year-old girl should not be facing the decision of having to think about the consequences of sexual contact.  Her grandmother and mother should not have to have a conversation with her or anybody else about what does it mean that my child possibly could have HIV?  Those are questions that this little girl does not deserve to face. And those are the questions.  Her life, her future, her relationships, all are at risk because this man decided that for his own personal benefit, his moment of enjoyment, her entire life was worth risking.  That is what you are deciding on today.  Appellant contends evidence of his HIV-positive status was irrelevant absent an indication the victim actually was exposed to the virus or could have contracted it based on appellant=s actions.  He points out no other evidence concerning HIV was introduced.  There was no medical testimony presented and no medical records were introduced showing appellant had the disease.[4]  No evidence explained that the contact between appellant and the victim exposed her to a risk of HIV infection. Without such evidence, appellant argues, evidence of his mere volunteered statement that he is “HIV-positive” was irrelevant.  In contrast to the lack of such evidence here, appellant points to the evidence in Hunter, 799 S.W.2d at 360, which included transfer of ejaculate into the victim’s mouth and genital area, and partial penetration of the child’s vagina causing lacerations that bled.  Additionally, testimony explained how those events could infect the victim.  Id. at 359-60.  Only the presence of such evidence, appellant argues, makes a defendant’s HIV status a circumstance of the offense of viable concern at the punishment stage for aggravated sexual assault.  We agree with the State that the evidence was properly admitted.  Even without medical evidence to verify it, appellant’s volunteered statement has probative value to show he was infected by the HIV virus when he sexually assaulted the child, and knew it.  Such evidence is relevant as a circumstance of the offense that the jury could consider in assessing punishment.  See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (listing circumstances surrounding the convicted offense as a type of evidence admissible at punishment); Hunter, 799 S.W.2d at 360 (whether defendant was infected with AIDS virus was admissible as a Acircumstance of the offense@ at punishment stage for aggravated sexual assault). The court in Atkins v. State, No. 05-07-00586-CR, 2008 Tex.App. LEXIS 5407 (Tex.App.BDallas July 23, 2008, pet. ref=d) (mem. op., not designated for publication) found evidence of the defendant’s HIV status relevant to sentencing as a circumstance of the offense of attempted sexual performance of a child, despite the lack of evidence of any actual sexual contact.  Atkins supports the State’s argument the jury may consider, as a circumstance of the offense, that appellant’s recognized HIV-positive status placed the victim of his sexual assault at risk of infection, whether or not the evidence shows any actual transmission of body fluids in a manner likely to infect. Moreover, the record here is not devoid of evidence that appellant’s assault carried an actual risk of transmission of infection.  Appellant placed his finger inside the victim=s vagina and testimony from the nurse who conducted the sexual assault examination indicated the victim’s vaginal opening and hymen were red and irritated consistent with such contact.  Appellant also ejaculated near the victim and had a blood stain and a semen stain on the shorts he was wearing.  No such stains were found on the victim=s clothing but the nurse did indicate Aa light brown discharge from [the victim=s] vaginal area.@  While appellant contends on appeal there is no evidence the victim bled, the jury could have inferred from this evidence that she did bleed at least to a slight degree. This evidence is closer to that found in Hunter than appellant argues.  Further, as have other courts, we find the probative value of evidence of appellant’s HIV status is not substantially outweighed by the danger of unfair prejudice or distraction of the jury from its task of fashioning an appropriate sentence.  See Hunter, 799 S.W.2d at 360; Atkins, No. 05-07-00586-CR, 2008 Tex.App. LEXIS 5407 at * 19.  We note also the jury had before it evidence of appellant=s prior six criminal convictions, committed over a twenty-eight year period, and evidence of the years appellant spent in prison for each of these offenses.  The State highlighted the convictions in its closing argument.  The jury also had before it evidence that at the time of the present offense, appellant had an outstanding parole violation warrant.  We find the trial court did not abuse its discretion in allowing the police officer to testify about appellant=s statement to her concerning his HIV status.[5]  We overrule each of appellant=s two issues and affirm the judgment of the trial court.                                                                                                     James T. Campbell                                                                                                             Justice   Do not publish. [1]  See Tex. Penal Code Ann. ' 22.021 (Vernon 2007). [2]  See Tex. Penal Code Ann. ' 21.11 (Vernon 2007). [3] Other courts have characterized this type of evidence as Avictim impact evidence@ that is relevant to sentencing.  Victim impact evidence serves to show the circumstances of the offense and is relevant to sentencing under article 37.07.  See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2007); Jones v. State, 963 S.W.2d 177, 183 (Tex.App.BFort Worth 1998, pet. ref=d), quoting Murphy v. State, 777 S.W.2d 44, 63 (Tex.Crim.App. 1988); Brooks v. State, 961 S.W.2d 396, 398-99 (Tex.App.BHouston [1st Dist.] 1997, no pet.).  This type of evidence bears on the defendant=s personal responsibility and moral guilt and is thus relevant to punishment issues.  See Jones, 963 S.W.2d at 182-83, citing Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex.Crim.App. 1991) and Miller-El, 782 S.W.2d at 897.  See also Martinez v. State, No. 05-03-01243-CR, 2004 WL 2378359 (Tex.App.BDallas Oct. 25, 2004, no pet.) (mem. op., not designated for publication) (concluding evidence concerning appellant=s HIV status and awareness was evidence related to the circumstances of the aggravated sexual assault offense and was admissible as victim impact evidence).   [4]  The record reflects appellant=s counsel conceded during closing argument at the punishment phase that appellant is AHIV positive, so he=s going to be dying, maybe sooner than his normal life span would be...he=s got to be dealing with HIV, AIDS, while he=s serving the sentence.@         [5]  Given our disposition herein, we do not reach appellant=s contentions that he was harmed by the trial court=s admission of the testimony.  Tex. R. App. P. 47.1. 10
01-03-2023
09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/3059265/
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 11-10342 ELEVENTH CIRCUIT OCTOBER 13, 2011 Non-Argument Calendar JOHN LEY ________________________ CLERK D.C. Docket No. 8:09-cr-00198-SCB-TGW-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee, versus LEEOTIS WILSON, llllllllllllllllllllllllllllllllllllllllDefendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (October 13, 2011) Before HULL, PRYOR, and FAY, Circuit Judges. PER CURIAM: Leeotis Wilson appeals his 120-month sentence, imposed after he pleaded guilty to possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). On appeal, Wilson argues that: (1) the district court erred in dismissing his 28 U.S.C. § 2255 claim without addressing all of his claims of ineffective assistance of counsel; (2) the government breached the plea agreement; (3) he did not knowingly and voluntarily waive his right to appeal his sentence; (4) the district court abrogated the appeal waiver when it allowed him to file an out-of-time appeal; and (5) his sentencing counsel was ineffective and his sentence was procedurally unreasonable. For the reasons set forth below, we dismiss Wilson’s claim as to his § 2255 case; affirm as to his breach of the plea agreement argument; and dismiss his claims regarding the abrogation of the appeal waiver, ineffectiveness of sentencing counsel, and procedural reasonableness of his sentence. I. Wilson was indicted for possessing with the intent to distribute five grams or more of cocaine base. The government filed an information and notice pursuant to 21 U.S.C. § 851, asserting that it planned to seek enhanced penalties under 21 U.S.C. § 841(b)(1)(B) based on Wilson’s two prior state felony drug convictions. 2 Wilson and the government entered into a written plea agreement, which acknowledged that the statutory minimum sentence was ten years’ imprisonment and that the statutory maximum sentence was life imprisonment. The plea agreement included a sentence appeal waiver, which provided that Wilson agreed that the court had jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waive[d] the right to appeal [his] sentence or to challenge it collaterally, including but not limited to the filing of a 28 U.S.C. § 2255 petition, on any ground, including the ground that the [c]ourt erred in determining the applicable guidelines range. However, Wilson would be allowed to appeal his sentence if it: (1) exceeded the guideline range as determined by the court; (2) exceeded the statutory maximum penalty; or (3) violated the Eighth Amendment. Wilson would be released from the waiver if the government appealed his sentence. (Id.). Wilson and his attorney both signed the plea agreement. At his plea hearing, Wilson testified that he and his attorney had discussed every page of the plea agreement, and he understood each page of the agreement. Wilson understood that his mandatory minimum term of imprisonment was ten years and that his maximum sentence was life imprisonment. The magistrate reviewed the plea agreement and explained to Wilson that he could only appeal his sentence if it exceeded the guideline range as determined by the court, exceeded 3 the statutory maximum sentence of life imprisonment, or violated the Eighth Amendment. Wilson testified that he understood the appeal waiver. Additionally, the magistrate explained that Wilson could not appeal the court’s calculation of his guideline range, nor could he assert that his attorney was ineffective as to the Sentencing Guidelines. Wilson testified that he understood these restrictions, he had no questions about the appeal waiver, and he agreed to the appeal waiver freely and voluntarily. The magistrate found that Wilson pleaded guilty freely, voluntarily, and knowingly. The district court accepted the guilty plea. According to the presentence investigation report, Wilson had a guideline range of 77 to 96 months’ imprisonment. However, Wilson’s guideline range became 120 months’ imprisonment due to the § 851 enhancement. At Wilson’s sentencing hearing, his attorney stated that they did not object to the validity of the prior convictions referenced in the government’s information and notice under § 851. However, he believed that the enhanced statutory minimum sentence was unwarranted because his guideline range would have been only 77 to 96 months without the enhancement or only 24 to 30 months if a 1:1 crack to cocaine ratio was used. The court stated that it considered the advisory guideline range, 18 U.S.C. § 3553, and the mandatory minimum sentence, and it imposed a 120-month sentence. 4 After Wilson’s time to appeal his judgment expired, he filed a motion to vacate his sentence under 28 U.S.C. § 2255, in which he argued that his attorney was ineffective for failing to: (1) file a notice of appeal when Wilson requested that one be filed; (2) object to the use of Wilson’s prior convictions to enhance his mandatory minimum sentence; and (3) inform the court that Wilson’s prior convictions were actually misdemeanors for the purpose of enhancing his sentence. Wilson also requested that his sentence be reduced pursuant to the Fair Sentencing Act. The clerk filed all further pleadings related to the § 2255 motion under case number 8:10-cv-2341. The court granted the § 2255 motion, but only to the extent that Wilson was allowed to file a belated appeal in his criminal case. The court explained that: (1) the government had requested that Wilson be allowed to file an appeal; (2) this result would serve “the interest of judicial economy”; and (3) it was not making any findings as to the merits of Wilson’s ineffective assistance of counsel claims. Therefore, the court would vacate its original judgment in Wilson’s criminal case and impose the same sentence in an amended judgment. Wilson did not appeal this order. The same day, the court entered an order in Wilson’s criminal case vacating his criminal judgment, resentencing him to a 120-month sentence, and advising 5 him that he had 14 days to appeal the order. Wilson filed a notice of appeal in this case, which listed only Wilson’s criminal case number, stated “CRIMINAL CASE” under the case number, and stated that Wilson was appealing “the Amended Judgment and Sentence entered in this case.” II. We examine our jurisdiction sua sponte and review jurisdictional questions de novo. United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). A defendant must file a notice of appeal, which must “designate the judgment, order, or part thereof being appealed.” Fed.R.App.P. 3(a)(1), (c)(1)(B). Although a defendant must file a notice of appeal within 14 days of the entry of the judgment appealed, a district court may allow an out-of-time appeal as a remedy in a § 2255 case. See United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); Fed.R.App.P. 4(b)(1)(A)(i). In such a case, the district court is to vacate the criminal judgment the defendant seeks to appeal and reimpose the original sentence. Phillips, 225 F.3d at 1201. A defendant may, but is not required to, file all of his collateral challenges in a “§ 2255 motion seeking an out-of-time appeal.” McIver v. United States, 307 F.3d 1327, 1331 n.2 (11th Cir. 2002). When a defendant does raise grounds in a § 2255 motion in addition to the request for an out-of-time appeal, the preferred procedure is to dismiss the additional claims 6 without prejudice or to hold the claims in abeyance until the direct appeal is resolved. Id. Although a court is generally required to resolve all claims in a petition for a writ of habeas corpus under 28 U.S.C. § 2254, there is “equally clear precedent” stating “that collateral claims should not be entertained while a direct appeal is pending.” Id. In a procedurally distinguishable case, we addressed a jurisdictional issue similar to the one at issue here. United States v. Futch, 518 F.3d 887, 891 (11th Cir. 2008). In Futch, the defendant had been granted a resentencing due to a change in his criminal history category, but the district court had denied his § 2255 motion as to his claims regarding his conviction. Id. at 890. Following his resentencing, the defendant filed a single notice of appeal, which specified “that he was appealing the final order entered in this matter . . . and all interim orders.” Id. (quotation omitted). We held that this notice of appeal was sufficient to appeal both the new sentence and the denial of the conviction claims in the § 2255 motion. Id. at 894. We do not have jurisdiction to review Wilson’s claim as to his § 2255 motion. Wilson did not file a notice of appeal in his § 2255 case, which is required under Federal Rule of Appellate Procedure 3. See Fed.R.App.P. 3(a)(1). We do not construe the notice of appeal Wilson filed in this criminal case as a 7 notice of appeal in his § 2255 case because it: (1) listed only his criminal case number; (2) included the designation “CRIMINAL CASE” under the case number; and (3) specified that it was an appeal from the judgment in the criminal case without mentioning the order in the § 2255 case. Unlike the defendant in Futch, Wilson did not specify that he was appealing the interim orders in his case as well as the final criminal judgment. See Futch, 518 F.3d at 890. Therefore, we dismiss Wilson’s claim as to his § 2255 motion for lack of jurisdiction. III. We generally review de novo the question of whether the government breached a plea agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). However, where a defendant fails to object to an alleged breach before the district court, we review only for plain error. United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Plain error exists where (1) there is an error, (2) that is plain, (3) that affected the defendant’s substantial rights, and (4) that “seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings.” Id. A defendant may appeal his sentence based on an alleged plea agreement breach even if the plea agreement contains a sentence appeal waiver. See Copeland, 381 F.3d at 1105. The first step in determining whether the 8 government breached a plea agreement is to “determine the scope of the government’s promises.” Id. In so doing, we applied an objective standard to determine “whether the government’s actions [were] inconsistent with what the defendant reasonably understood when he” pleaded guilty. Id. (quotation omitted). Because Wilson did not object that the government breached the plea agreement before the district court, the claim is subject to plain-error review. See Romano, 314 F.3d at 1281. Wilson fails to meet the first prong of the plain error test in that there was no error because the government did not breach the plea agreement. The plea agreement unambiguously stated that Wilson’s minimum sentence was ten years and that his maximum sentence was life imprisonment. Nowhere does the agreement state that the government must explain how it determined that these were Wilson’s minimum and maximum sentences. Accordingly, the government did not breach the agreement when it failed to offer such an explanation in the plea agreement or during the plea colloquy. Therefore, we affirm as to Wilson’s argument that the government breached the plea agreement. IV. 9 We review the validity of a sentence appeal waiver de novo. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver will be enforced if it was made knowingly and voluntarily. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was made knowingly and voluntarily, the government must show either that: (1) “the district court specifically questioned the defendant” about the waiver during the plea colloquy, or (2) the record makes clear “that the defendant otherwise understood the full significance of the waiver.” Id. In Johnson, we discussed “the Eighth Circuit’s application of the ‘miscarriage of justice’ exception,” but did not purport to adopt such an exception for our Circuit. 541 F.3d at 1069 n.5. A party abandons an issue not raised in its initial brief. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). To raise an issue on appeal, the appellant should “plainly and prominently” indicate that the issue is being raised. Id. The appellant in Jernigan abandoned an issue where he made only four passing references to the issue. Id. Wilson knowingly and voluntarily waived his right to appeal his sentence. During the plea colloquy, the magistrate specifically questioned Wilson about the sentence appeal waiver, reviewed the terms of the waiver with Wilson, explained its exceptions, and explained that Wilson could only appeal his sentence if one of 10 the three exceptions was met. The magistrate further explained that Wilson could not appeal the court’s calculation of his guideline range, nor could Wilson argue that his lawyer was ineffective with respect to the Sentencing Guidelines. Wilson testified that he understood the appeal waiver, its exceptions, and the fact that he could not appeal the court’s calculation of his guideline range or argue that his attorney was ineffective with respect to the Sentencing Guidelines. He also testified that he had no questions about the appeal waiver and that he agreed to the appeal waiver freely and voluntarily. Finally, Wilson testified that he and his lawyer had discussed every page of the plea agreement and that he understood every page of the agreement. Therefore, the sentence appeal waiver was made knowingly and voluntarily. See Bushert, 997 F.2d at 1351. Wilson makes three additional arguments regarding the validity of his appeal waiver, and these arguments are meritless. First, he asserts that he did not intelligently waive his right to appeal because he did not understand why his minimum sentence was ten years rather than five years. Wilson has not explained how his lack of understanding as to how his minimum sentence was determined relates to his decision to agree to waive his right to appeal. Second, Wilson argues that the district court’s order granting his § 2255 motion supports his argument that he did not intelligently waive his right to appeal. Wilson is incorrect because 11 that order merely allowed Wilson to file an out-of-time appeal without addressing whether Wilson had intelligently waived his right to appeal. Third, Wilson argues that enforcing the appeal waiver would be a miscarriage of justice because his sentence is longer than he thought it would be based on the plea agreement. This argument is belied by the record because Wilson expressly agreed in the plea agreement and during the plea colloquy that his minimum sentence was ten years. Furthermore, even if we had adopted the “miscarriage of justice” exception to appeal waivers, Wilson has not shown that a miscarriage of justice would result in this case where he was informed of the ten-year statutory minimum sentence in both his plea agreement and during his plea colloquy and where he knowingly and voluntarily waived his right to appeal his sentence. The exceptions to Wilson’s appeal waiver do not apply because his 120-month sentence does not exceed his 120-month guideline range as determined by the court or the statutory maximum sentence of life imprisonment. Moreover, Wilson has waived any argument that his sentence violated the Eighth Amendment because, in his counseled brief, he makes only a single passing reference to the Eighth Amendment. See Jernigan, 341 F.3d at 1283 n.8. Therefore, Wilson knowingly and voluntarily waived his right to appeal his sentence, and we dismiss the appeal of his sentence. 12 V. In United States v. Howle, 166 F.3d 1166 (11th Cir. 1999), the defendant knowingly and voluntarily waived his right to appeal, but the district court nonetheless “strongly encouraged him to appeal his sentence.” Id. at 1168. This encouragement, however, did not affect the terms of the plea agreement. Id. Even if the court was trying to modify the plea agreement, the attempt was invalid. Id. at 1169. Therefore, we honored the plea agreement and dismissed the appeal without addressing its merits. Id. The district court did not abrogate Wilson’s appeal waiver. As discussed above, Wilson’s appeal waiver was knowing and voluntary. Therefore, even if the district court’s order allowing him to file an out-of-time appeal was an attempt to abrogate the appeal waiver, such an attempt was invalid. See Howle, 166 F.3d at 1169. Therefore, we will honor the plea agreement and dismiss Wilson’s appeal of his sentencing issues. VI. A defendant may not attack the effectiveness of his sentencing counsel where there is a valid sentence appeal waiver in effect that prohibits a direct or collateral challenge on any ground. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005). In Williams, the defendant waived his right to appeal his 13 sentence “on any ground” on direct appeal or collateral review. Id. at 1341 (quotation omitted). During the plea colloquy, the district court explained to the defendant in Williams “that he was waiving his right to challenge his sentence ‘directly or collaterally.’” Id. In enforcing the appeal waiver in that case, we explained that allowing a defendant to “recast[] a challenge to his sentence as a claim of ineffective assistance” would make the appeal waiver meaningless. Id. at 1342. As discussed above, Wilson knowingly and voluntarily waived his right to appeal his sentence. Wilson was specifically advised that he was waiving his right to appeal errors, including ineffective assistance of counsel, related to the Sentencing Guidelines. He testified that he understood that he was waiving this right. Accordingly, we dismiss his appeal as to his arguments that his sentencing counsel was ineffective for failing to make an argument related to the Sentencing Guidelines and that his sentence was procedurally unreasonable. Wilson also waived the right to argue that counsel was ineffective for failing to object to his § 851 sentence enhancement. Like the defendant in Williams, Wilson’s plea agreement specified that he could not appeal or seek collateral review of his sentence “on any ground.” See Williams, 396 F.3d at 1341. We thus enforce the appeal waiver and dismiss this claim because Wilson was specifically questioned 14 on his appeal waiver; he knowingly and voluntarily waived the right to appeal his sentence, including ineffective assistance claims; and to consider the merits of this claim would allow Wilson to circumvent his appeal waiver as to the application of the § 851 sentence enhancement. See id. at 1342. For the foregoing reasons, we dismiss Wilson’s claim as to his § 2255 case; affirm as to the breach of the plea agreement argument; and dismiss Wilson’s claims regarding the abrogation of his appeal waiver, ineffectiveness of sentencing counsel, and procedural reasonableness of his sentence. AFFIRMED IN PART, DISMISSED IN PART. 15
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3447882/
Affirming. In September, 1,922, appellee filed his claim in the Pike quarterly court against appellant for $25.00 because of appellant's alleged trespass upon plaintiff's lands. *Page 775 Appellant answered denying the trespass, asserting title in a described tract of land embracing, or claimed by him to embrace, the land alleged by plaintiff to have been trespassed upon, and asserting a cause of action for trespass thereon against the plaintiff by way of counterclaim. This counterclaim having raised the question of title, the cause was transferred to the Pike circuit court, and there the issues were completed, the, evidence taken and a judgment entered adjudging the plaintiff to be the owner of the small tract of land in question, and the defendant has appealed. The plaintiff after the transfer filed an amendment asserting title in himself to a described tract of land, while defendant filed an amended answer and counterclaim alleging that plaintiff claimed title through one Calvin Clark, his remote vendor, while defendant claimed title under one Bevins. He then alleges that in October, 1889, surveys were made by his vendor Bevins for the purpose of obtaining a patent upon a tract of land embracing that in controversy, and that such patents were issued to Bevins in September, 1916. He further alleges that in July, 1890, before the said patents had been issued, and after the surveys were made, Calvin Clark, plaintiff's remote vendor, caused to be filed with the register of the land office of Kentucky a caveat for the purpose of preventing the issual of the patent, or patents to Bevins, defendant's remote vendor,; and that said Clark caused a copy of such caveat to be filed in the Pike circuit court but "did not prosecute said caveat with effect, and that said caveat proceedings were dismissed from the records of the Pike circuit court." With his pleading he files a copy of the caveat, and alleges that the land described therein included the lands described in the plaintiff's petition, and then alleges "that the proceedings had in said action was an adjudication of the rights of the plaintiff's remote vendor as to the title to the land described therein which is a bar to plaintiff's prosecuting this action; that the proceedings had therein are res judicata to this action; that said caveat and the proceedings had in this court are hereby pleaded in bar of the said T.J. Roop prosecuting this action." A caveat is a notice not to do an act, given to some officer, ministerial or judicial, by a party having an interest *Page 776 in the matter. Bouvier's Law Dictionary, vol. 1, p. 291. Section 473 of our Civil Code, having special reference to the issual by the state of grants or patents to vacant or unappropriated lands, provides that where one has a survey of land to which another claims a better right, such other may enter a caveat with the proper authorities to prevent the issuing of a grant on the survey until the right be determined. It provides that upon the filing of a copy of the caveat within sixty days from its entry, with the clerk of the circuit court of the county where the land lies, it shall be treated as a petition in an ordinary action, and that no grant shall issue to the land in contest to the plaintiff or another for his use, until the caveat be dismissed or decided, and then provides, "If the plaintiff do not prosecute his caveat as herein required, or it the same be dismissed or decided against him, neither he nor any other for his use shall have another caveat against the same grant." There was no demurrer filed to the defendant's amended answer and counterclaim relying upon the caveat proceeding as a bar to this action, nor was there an objection to the filing of this pleading, although the record discloses that the plaintiff excepted to the action of the court in permitting it to be filed, and the court, with the allegations of this pleading undenied, entered a judgment for the plaintiff. Obviously the action of the court in dismissing the caveat proceeding was proper, because the court had no jurisdiction to try the issues if any were made, the caveat showing on its face that Clark, the caveator, claimed title to the land in controversy under existing patents covering the lands sought to be patented by his adversary. The land, therefore, was not vacant and unappropriated land, and the circuit court had no jurisdiction to try the proceeding. Preston v. Preston, 85 Ky. 16; Alexander v. Nolan, 88 Ky. 142; Daniel v. New Era Land Company, 137 Ky. 535. But even if the court had jurisdiction of the caveat proceeding, the pleading herein undertaking to rely upon that proceeding was insufficient as a plea in bar. The pleader contents himself with filing as a part thereof the caveat itself, and no other part of the record in that proceeding and wholly fails to allege that any issues were made in the circuit court between them, or that any final or other judgment determining the rights of the parties *Page 777 was entered in that proceeding. The allegation is only that the caveat proceeding was dismissed "from the records of the Pike circuit court," and construing the pleading most strongly against the pleader that will not be deemed an allegation that there was a judgment on the merits which operates as a bar, and especially when we have seen that the court should have dismissed the proceeding for the want of jurisdiction, which of course is not a bar. The plaintiff in this action traced his title back to the Commonwealth and to a patent issued to his remote vendor in 1823, while defendant claims under a patent issued to his vendor Bevins in the year 1916 after the dismissal of the caveat proceeding, and 27 years after his vendor had caused the surveys to be made. The evidence convincingly shows that the patent under which the plaintiff claims embraces the land in controversy, and therefore if the land was embraced in the Bevins patent, that patent to the extent of the interference was void. The allegations of the amended answer and counterclaim relying upon the caveat proceeding as a bar being insufficient, the lower court properly ignored the pleading and entered a judgment for the plaintiff on the merits. Judgment affirmed.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3447883/
Conviction of movant in the Wolfe circuit court of maintaining a public nuisance with a fine of $500 assessed by the jury. The record fails to disclose any judgment pronounced on the verdict. Therefore, the motion for an appeal is dismissed. However, the transcript filed in this court discloses no error in the court below.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3447889/
Appeal denied; judgment affirmed. *Page 854
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3447905/
Appeal denied. Judgment affirmed.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3447907/
Affirming. On a Tuesday night in August, 1924, between eight and eight-thirty o'clock p. m., in the city of Bowling Green, the appellant and defendant below, Herman Posten, shot and killed Leslie Turner, a colored man, for which he was indicted and charged with murder. Upon his trial he was convicted of voluntary manslaughter and punished by confinement in the penitentiary for a period of twenty-one years. The court overruled his motion for a new trial and from the judgment pronounced on the verdict he prosecutes this appeal and relies for a reversal solely upon the ground that the proof heard upon the trial was insufficient to sustain the verdict and that his motion for a peremptory instruction of acquittal should have been sustained; or, if not, that the verdict is flagrantly *Page 595 against the evidence. It is expressly conceded by his counsel in their brief that in all other respects the trial was free from error. The appellant is a white man and deceased was porter for a hotel in the city of Bowling Green. Close to the hour of eight o'clock on the fatal evening defend ant went to the rented residence of the deceased (who was living alone), for the purpose, as he said, of collecting a debt owed him by the deceased amounting to $40.00. He says that a short time prior thereto deceased borrowed from him $40.00 and agreed to pay within the stipulated time, which had expired, $10.00 for the use of it, and that at the time deceased owed him $50.00. No note or any memorandum of that indebtedness was made and no witness proves it except defendant. Two witnesses saw defendant and deceased at the latter's house until their departure in the latter's automobile about twenty or thirty minutes after defendant's first arrival there. It is not clear whether defendant, during that time, went into the house of Turner, but if he did it was only momentary, since he is shown to have remained outside of the house either on the pavement or on the porch of the residence of deceased until the latter started away in his automobile, which was standing immediately in front of his house; that deceased cranked his machine and got into it in the front of the wheel on the left side and requested the defendant, in substance, to get in and take a seat with him, when defendant said, "No, I will ride on the running board." They had driven on that (Adams) street some two or three hundred feet and had passed over an elevation in the street when four or five shots were heard, and almost immediately the witnesses for the Commonwealth, who testified as above, and a number of others gathered at the scene of the shooting. The automobile, which was driven by the deceased, had run into the yard of the dwelling of another witness for the Commonwealth and had run against an automobile parked in that yard and stopped. Two witnesses, who were on the porch of that residence, saw the shooting and testified that it was done by some one standing on the running board of the machine coming towards the house, but a short distance away. Two other witnesses, who were sitting on the dump of the railroad on the opposite side of the street, corroborated the first two. Deceased was dead, or practically so, and was holding the wheel with his left hand and his right one hanging by his side *Page 596 limp, he having been shot in that arm, from the effects of which it was broken. His feet were on some of the running gear of the automobile, with his head resting upon the wheel. He was shot four times, each of which, except the one in his arm, was in his side or back and produced serious and dangerous wounds. Immediately after his body was lifted out of the automobile, witnesses examined the bottom of the bed and found some empty hulls from defendant's pistol, the crank of the machine and some greasy rags, which were removed, but nothing found under them. Within a very short time the policemen arrived and they critically examined with matches and flashlights the bottom of the automobile and found nothing more than what is above stated, and they positively said that no knife was there. After the lapse of about thirty minutes and after the body of the deceased had been removed out of the automobile and within a short time a great number of people had congregated, the automobile was driven by a colored boy from that place and stopped at the city fire department and the police headquarters. Directly thereafter a fireman, who, according to the testimony, had theretofore driven a taxi-cab, as was also the business of defendant, testified that he found a long-bladed knife in the automobile lying right next to the clutch or brake, and which of course could easily have been seen by those who examined the same spot immediately after the killing. The knife that the witness claimed to have so found was open, with a keen point, the blade perfectly bright with no blood on it. The Commonwealth also proved by a witness, who is not impeached, that some weeks before the homicide witness had a conversation with defendant at a designated place in the city and that the latter inquired of witness if he had seen the deceased and was informed that deceased had "just passed me (witness), going up town," whereupon defendant said, "I want to see him," and witness asked him "For what purpose?" and received from defendant the answer, "He owes me for some stuff and he can't buy my whiskey from me and not pay me," When the witness said., "Oh, he will pay you," and then defendant replied, "He has got to pay me; he had better pay me tonight," and threatened to kill him if he would not do so. It was also proven by the Commonwealth and not denied by defendant that he immediately fled from the scene, and when an officer approached him about an hour later he ran into a corn field, and something like an hour *Page 597 and a half after the homicide he was captured. At the time of his arrest one of his ankles was freshly sprained and he had some bruised places and streaks on his right side extending from the belt up to under his arm, and on his breast was a slight wound extending barely through the cuticle, which was round and about the size of a lead pencil, with jagged edges, and there was a corresponding hole in his shirt, with raveled and jagged edges, and that wound, defendant claimed, was inflicted on him by the deceased with a knife; and this was in substance the testimony introduced by the Commonwealth, with the exception of the finding of the knife in the automobile by the fireman who was introduced by defendant. Defendant testified that he went to the house of the deceased for the purpose of collecting his debt land that Turner told him that he had some money in the house but not enough to pay it and asked defendant to go with him to some place on Center street to get the remainder of the amount due; that he agreed to that and that deceased got into the machine; when he did so he carried with him an open knife and put it under his right leg, and for that reason he (defendant) declined to take a seat by the side of deceased. He says that directly after they started he concluded to and did get off of the running board and sat on the seat by the side of the deceased, and that while he was making the change in position the automobile was stopped to enable him to do so; that as soon as he took his seat he asked deceased, "What are you going to do with that knife?" and immediately deceased reached for and obtained the knife and said, "G — d — you, I am going to show you," and commenced to strike at him, where upon he shot deceased in his necessary self-defense, and that he received the wound in the breast above described in the melee. He also testified that some week or ten days prior to the fatal evening he made another visit to the residence of deceased for the purpose of collecting his money and that Turner went to his washstand and took therefrom a pistol and said, "I will pay you when I get G — d — good and ready," whereupon defendant left and went to the police station and stayed all night because, as he said, he was frightened and afraid of deceased. Notwithstanding such fright he met deceased the next morning and informed him that he was going to the chief of police for the purpose of instituting proceedings to collect his money, when the deceased requested him not to do so because he expected to pay him soon. He *Page 598 also proved by a witness that deceased had previously made some sort of threat against him, but that testimony, like some given by defendant, was exceedingly incongruous and does not harmonize with usual and ordinary human conduct. The Commonwealth, to refute defendant's testimony about the wound in his breast having been made by deceased with a knife, not only proved the condition of the wound and the hole in defendant's shirt, but likewise proved by two reputable physicians, who examined the wound, that it was impossible for it to have been made with the knife claimed to have been found in the automobile or with any other sharp instrument. On the contrary, they testified that it was made with some sort of blunt instrument coming in contact with defendant's body at that point. The bruises on defendant's body, he says, were made when he was fleeing from the scene and going between two freight cars by his foot slipping and his falling in some manner and rubbing or brushing against some of the couplings or attachments of the cars, and at which place, we may add, he might also have received the jagged and bruised wound in his breast. We have given, in substance, all of the testimony heard upon the trial, and in all candor we must say that it is difficult for us to understand how it can be seriously contended that the verdict is even flagrantly against the evidence. However, as a basis for that argument, it is earnestly argued that since defendant testified to the facts that occurred at the immediate time of the killing and that no other witness was near enough to hear any of them or see all that occurred, his testimony should be accepted as absolutely true. That argument, however, loses sight of the fact that this court has reiterated the rule in a number of cases that the jury "was not required to accept his (defendant's) statement as to what occurred when he and Price (deceased) were the only persons present, especially in view of his self-interest and the fact that he was contradicted on other points." Johnson v. Porter, 208 Ky. 390. The case of Estepp v. Commonwealth, 187 Ky. 156, is cited in that opinion in support of the rule, and we again approved it in the cases of Simmons v. Commonwealth, 207 Ky. 570; Wilson v. Commonwealth, idem 707, and Spicer v. Commonwealth, 209 Ky. 395. However, in the Wilson case there were no facts or circumstances having a tendency to contradict the testimony of every witness who testified in the case, both *Page 599 for the prosecution and the defense, and in holding that the verdict was flagrantly against the evidence, after stating the rule as announced in the other cases cited, we said in that opinion: "But no such case is here presented, and broad as is the province of the jury in such matters we have never held that they may disbelieve all the witnesses and ignore all their evidence because of the apparent improbability of the story they tell and adopt another theory equally, if not more,improbable and based almost entirely, if not altogether, onmere suspicion." (Our italics.) We have no such case presented by this record as was manifested in the Wilson case. There are a number of circumstances contradicting the testimony of the defendant as to what occurred immediately at the time of the shooting as well as the fact that deceased started from his residence with an open knife. There is the threat of deceased, which, however, he denied; the utter improbability of his version of what occurred both at the time of the homicide and at the time when he made his first visit to the residence of deceased to collect his money. He is also contradicted upon the fact that the automobile stopped before it ran into the yard and against another automobile therein; the position of the body of deceased at the time likewise contradicts his testimony. It is also passingly strange that defendant was afraid to take his seat by the side of the deceased when he started, because of the presence of the supposed knife, and yet became courageous enough to do so before the short trip was finished, and it was equally strange that deceased would become so suddenly angered at being asked for his reasons for carrying the knife that he would attempt to murder the defendant. Likewise, it should not be overlooked that defendant fled and was not captured for the space of about one and a half hours and only then after being surrounded by officers. He is also contradicted as to what produced and how he received the wound in his breast; and yet another strange circumstance, which is inconsistent with other parts of his testimony, is that he went to the home of the deceased alone in the nighttime, armed with a pistol, after stating that he was afraid of the deceased except in the daytime, during which he had ample opportunities to endeavor to collect his debt. If he had desired to do the deceased no harm, his peaceable course would have been to approach him, unarmed, in the daytime if he was afraid of him at night, as he said he was. *Page 600 From a careful reading of this record we are convinced that this case comes under the rule announced in the Porter and Spicer cases, supra, and that the facts and circumstances which we have narrated sustained the jury in discrediting defendant's testimony as to what happened at the precise time of the killing, since the proven circumstances have a strong tendency to contradict it and to show that the homicide, instead of being committed in the exercise of the defendant's right of self-defense, was done at least, in sudden heat and passion, if not with malice aforethought. Evidently the jury thought so, else they would not have inflicted the maximum punishment for manslaughter. Their verdict rather indicates that they were impressed with the fact that the homicide was an aggravated one and we are not prepared to say, from a careful reading of the record, that they were mistaken in so believing. It results that we are not unauthorized to reverse the judgment because of the insufficiency of the evidence to sustain it, and it is accordingly affirmed.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3063353/
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT FEB., 1, 2010 No. 09-11709 JOHN LEY Non-Argument Calendar ACTING CLERK ________________________ D. C. Docket No. 06-00351-CR-08-WSD-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GILBERTO GONZALEZ, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (February 1, 2010) Before BLACK, MARCUS and ANDERSON, Circuit Judges. PER CURIAM: Mary Erickson, appointed counsel for Gilberto Gonzalez, has filed a motion to withdraw on appeal supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Gonzalez’s conviction and sentence is AFFIRMED. 2
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3813645/
On September 10, 1932, this proceeding in error was commenced by the filing of a petition in error with case-made attached complaining of a judgment rendered wherein L.R. Stith was plaintiff, appellant from a proceeding of Osage county court, and said John Pryor was defendant and appellee. The plaintiff in error herein seeks reversal of the judgment of the district court entered on the 15th day of March, 1932, affirming the proceedings of the county court of Osage county. On the 8th day of February, 1933, plaintiff in error filed brief herein. The defendant in error has filed no brief herein and has offered no excuse for the failure to do so. Upon the authority of the opinions of this court many times decided, it is not the duty of this court to search the record for some theory upon which to sustain the judgment of the lower court. The assignments of error are reasonably supported by the authorities cited. The cause is reversed and remanded, with directions to the trial court to vacate the order of affirmance entered therein.
01-03-2023
07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/1894546/
561 F. Supp. 12 (1982) MISSOURI PORTLAND CEMENT COMPANY, Plaintiff, v. WALKER BARGE FLEETING SERVICE, INC., Walker Midstream Fuel & Service Co, Defendants. Civ. A. No. 78-0106-P. United States District Court, W.D. Kentucky, Paducah Division. March 31, 1982. *13 Andrew Rothschild and James W. Herron, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., Francis T. Goheen, Paducah, Ky., for plaintiff. W. Pelham McMurry and M. Greg Rains, McMurry & Livingston, Paducah, Ky., for Walker Barge Fleeting Service. Elmer Price, Goldstein & Price, St. Louis, Mo., Henry O. Whitlow, Whitlow, Roberts, Houston & Russell, Paducah, Ky., for Walker Midstream Fuel & Service Co. FINDINGS OF FACT AND CONCLUSIONS OF LAW JOHNSTONE, District Judge. In this admiralty suit the Missouri Portland Cement Company seeks damages from Walker Barge Fleeting Service Company and Walker Midstream Fuel Service Company incurred due to the sinking of its cement transport barge, the MPC-9. The MPC-9 capsized while in the Walker Barge fleeting area on the Tennessee River near Paducah, Kentucky. Walker Barge and Walker Midstream have each filed a crossclaim against the other. This Court has jurisdiction of this action under the provisions of 28 U.S.C. § 1333. The claims of the parties are within the scope of Fed.R. Civ.P. 9(h). The MPC-9 was loaded with 1293.9 tons of dry cement at the Missouri Portland loading dock on the Ohio River near Joppa, Illinois, on August 23, 1977. The barge was towed to the Paducah area, and finally moved to the Walker Barge fleet site by the Walker Midstream's M/V William Eric. The movements of the barge, to this time, were without incident. Early on the morning of August 27, the M/V Knox, also a Walker Midstream vessel, rearranged the barges for a tow of the M/V Imogene Igert. The rearrangement included moving another barge, the BR-1, upstream and alongside of the port side of the MPC-9. Upon completion of the maneuver, the Knox left to attend other business. Less than one hour later the MPC-9 was observed to be listing hard to port, and a portion of its deck was soon awash. All attempts to rescue the distressed barge failed, and she sank quickly in calm waters. The barge ultimately was salvaged and repaired. By June, 1978, the barge had returned to service and, at the time of trial, she had made some 35 more trips. The Court must determine whether the sinking was a result of the alleged unseaworthy condition of the MPC-9 or whether it was a result of the alleged negligent *14 maneuvering of the BR-1 by the M/V Knox. Although there was testimony from witnesses present during the maneuver of the BR-1 alongside the MPC-9, the focus of the proof was upon the physical evidence regarding the barge, both before and after the sinking. A detailed statement of findings based on that evidence follows. At the time of her sinking the MPC-9 was 26 years old. Both the bow and stern rakes of the barge had been "foamed" in lieu of replating. Hatch covers were either non-existent or incapable of providing watertight protection, due to missing "dogs" or cement encrusted recesses. The door from the deck to the machinery room was not watertight. The plating of the barge was seriously worn and deteriorated. Weep holes and fractures were evident. The hull had a "washboard" appearance, caused by indentation of the hull along the barge's structural ribs. The presence of these various indicia of use and old age are not disputed by the parties. The barge had not been in dry dock for repair or maintenance for two years prior to the accident. The Court finds that the MPC-9 began to take on water soon after a hole was torn into her number two port wing tank as the M/V Knox brought the BR-1 alongside. The hole was about 12" in length and 2" in width. A bent interior rib, filed as an exhibit, indicates that there was contact, at an excessive angle and with unreasonable force, between the two barges. Thus, the Court finds that damage to the MPC-9 was partially caused by the failure of the M/V Knox to use ordinary care in maneuvering the BR-1. However the maneuvering of the BR-1 by the Knox cannot be seen as the sole cause of plaintiff's loss. The washboard effect of the hull had created a condition such that, instead of sliding smoothly along the MPC-9's port side, the BR-1 gouged into the plating, which was 40 to 60% wasted, and caught a structural rib. There was testimony, and this Court finds, that 25% wastage of plating is the maximum generally acceptable under industry standards. Plaintiff's expert testified that, judging from the interior rib, thicker plating could have been torn in such an accident. Nevertheless, the Court finds that the combination of wasted plating and the "washboarding" worked to render the barge unreasonably vulnerable to damage. When water began to flood into the wing tank, the presence of, what was in effect, a centerline bulkhead accelerated the sinking of the barge. The water was confined to a single compartment and produced a hard port list. Absent this bulkhead, the water would have filled the port and starboard hatches evenly, and the sudden list would not have occurred. After the list, water poured through the defective hatches and the pump room door. We therefore find the damage to the MPC-9 was caused by the combination of the failure of the M/V Knox to exercise ordinary care during the maneuver of the BR-1 and the failure of the plaintiff to maintain the MPC-9 in a seaworthy condition. Having reached this result as to causation, it is proper to allocate damages based upon the comparative fault of the parties. United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975). Cf., Mulzer v. J.A. Jones Construction Co., 397 F.2d 498 (7th Cir.1968). The Court concludes that the negligence of the plaintiff in allowing the MPC-9 to fall into such a state of unseaworthiness was responsible for the greatest portion of the loss suffered. Accordingly, 80% of the liability is apportioned to Missouri Portland. Having determined that part of the loss is allocable to the defendants, it is necessary to determine how liability should fall as between them. Plaintiff seeks damages on principles of bailment and collision. The damage to the MPC-9 came while she was in the Walker Barge fleeting area, and it is well settled that a fleeting operation creates a bailment situation. See, e.g., United Barge Company v. Notre Dame Fleeting & Towing, 568 F.2d 599 (8th Cir. 1978); Dow Chemical Co. v. Barge UM-23B, 424 F.2d 307 (5th Cir.1970); John I. Hay Co. v. The Allen B. Wood, 121 F.Supp. *15 704 (E.D.La.1954). Walker Barge has admitted its status as bailee; Midstream contends that it, Midstream, did not occupy such a position but instead acted "only to move barges from one part of the harbor to another." The fleeting area, where the barge movement occurred, was licensed by Walker Midstream to Walker Barge. It was Barge which paid the landowners for the mooring rights, held the permits from the Corps of Engineers, and charged $12 per day for fleeting. However, since Walker Barge did not have personnel or equipment with which to function as a fleeter, it purchased the services of Walker Midstream in operating the fleet sites. Barge looked to Midstream to tend the fleet sites, rearrange barges when river conditions and other elements might interfere with the fleeting of barges, perform pumping services, maintain wires, and to generally maintain the fleeting operation. Walker Midstream, in effect, acted as the fleeter in the stead of Walker Barge to tend properly to barges in the fleeting area. The damage to the MPC-9 occurred when the M/V Knox, a Walker Midstream vessel, was rearranging barges within the Walker Barge fleet for a tow of the M/V Imogene Igert. The charge for this type operation benefited only Midstream, and this was not one of the services Midstream had agreed to provide on behalf of Barge as bailee. Accordingly, the Court finds the negligent act of Midstream in allowing the BR-1 to collide with the MPC-9 in such a way as to contribute to the damage done to plaintiff's barge was in breach of a duty owed by Midstream while acting independently, and not while acting on behalf of Barge as bailee. Although Barge was under a duty to exercise reasonable care with the vessels it fleeted, it was not an insurer of their safety and the Court cannot say that any duty of care owed by Barge was breached by the acts of Midstream. United Barge Company v. Notre Dame Fleeting & Towing, Dow Chemical Co. v. Barge UM-23B, supra; Missouri Portland Cement Co. v. Universal Towing, 344 F. Supp. 1391 (E.D. Mo.1972); John I. Hay Co. v. The Allen B. Wood, supra. Plaintiff has established the negligence of Midstream regardless of any evidentiary presumption, whether it relates to bailees or matters of collision, see, e.g., Pacific Towboat Co. v. States Marine Corp. of Delaware, 276 F.2d 745 (9th Cir.1960); Richmond Sand & Gravel Corp. v. Tidewater Const. Corp., 170 F.2d 392 (4th Cir.1948). Accordingly, Walker Midstream, solely, must bear the loss not apportioned to Missouri Portland. Walker Midstream argued that any liability placed upon it should ultimately be borne by Barge under the concept of piercing the corporate veil, and there was evidence adduced at trial concerning the close connection between the two corporations. Yet, the test is that "... the corporate entity is disregarded only where control of the fictive corporate person achieves a result which could not otherwise have been achieved." Poyner v. Lear Siegler, Inc., 542 F.2d 955, 959 (6th Cir.1976). In this matter, there has been no indication that either Barge or Midstream dominates the other. The Court finds no grounds for shifting liability back to Barge under this theory in this matter. In considering the appropriate measure of damages the Court is guided by the following: "Restitutio in integrum" is the precept in fixing damages, and "where repairs are practicable the general rule followed by the admiralty courts in such cases is that the damages assessed against the respondent shall be sufficient to restore the injured vessel to the condition in which she was at the time the collision occurred; ..." The Baltimore, 8 Wall. 377, 75 U.S. 377, 385, 19 L. Ed. 463 (1869). The workable guides to this end, generally stated, are these. If the ship sinks and is beyond recovery, the damages are her value just before she sank, plus interest thereon until payment. If she is not a complete loss and repossession or repairs are both physically and economically feasible *16 then the reasonable cost of recovery, including repairs and an allowance for deprivation of use, is the measure. But if the reclamation expenses including repairs are not both physically and economically practicable, then it is a constructive total loss, and the limit of compensation is the value plus interest. O'Brien Bros. v. The Helen B. Moran, 160 F.2d 502 (2d Cir.1947). Hewlett v. Barge Bertie, In Re Evelyn, 418 F.2d 654, 657 (4th Cir.1969). Defendants claim that the salvage costs incurred are unreasonable largely because an alternative, less expensive method for raising the MPC-9 was submitted to plaintiff shortly after the barge sank. However, plaintiff had been requested by the Corps of Engineers to remove the barge, and the Court believes that the owner would have good reason to want the barge removed as soon as practicable. See, e.g., Tennessee Valley Sand & Gravel Co. v. M/V Delta, 598 F.2d 930 (5th Cir.1979). Plaintiff requested bids for the salvage operation and awarded the salvage contract to Valley Line Supply and Equipment Company as low bidder. From the evidence presented at the trial it is apparent that the alternative referred to came after the bid of Valley Line had been accepted and shortly before that company was to begin its salvage operation. The burden to prove that plaintiff failed to mitigate damages was upon the defendants. Tennessee Valley, supra. Here, that burden has not been sustained and thus the Court finds that the salvage costs of $133,000 incurred by plaintiff were reasonable. Plaintiff expended $178,577.61 in repairing the MPC-9. It is argued that since such a sum exceeds the value of the barge, liability is limited to the latter amount. No substantial evidence was introduced as to the value of the barge prior to its sinking. It was proved that $3,000 was offered for her after she sank, and that she was insured for $95,000. The Court, judging from other indicia of value, is of the opinion that the repairs made here were economically feasible. Evidence was presented as to plaintiff's need for this barge in the upcoming season, the lack of a market in such specialized vessels, and its inability to locate a replacement barge, whether on a rental or purchase basis. The Court finds that the use value of the barge to the plaintiff justified its expending the amount it did. See Hewlett v. Barge Bertie, supra. Marine Loss Control, Inc. was retained by plaintiff as marine surveyors after the casualty. The reasonableness of the fee charged, $5,992.50, has not been seriously contested. The parties stipulated the value of the cargo of dry cement to be $44,500, which the Court now adopts. The total proven damages are $362,070.11. Since 80% of these damages are apportioned to Missouri Portland Cement, the remainder 20%, or $72,414.02, must be awarded against Walker Midstream. To this amount pre-judgment interest at the rate of ten (10%) percent per annum, to be calculated from the date of the accident, is to be added. Federal Barge Lines, Inc. v. Republic Marine, Inc., 616 F.2d 372 (8th Cir.1980).
01-03-2023
10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4538758/
2020 IL 123972 IN THE SUPREME COURT OF THE STATE OF ILLINOIS (Docket No. 123972) THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM COTY, Appellee. Opinion filed June 4, 2020. JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Anne M. Burke and Justices Kilbride, Garman, Theis, Neville, and Michael J. Burke concurred in the judgment and opinion. OPINION ¶1 In this appeal, the State challenges the appellate court’s determination that the circuit court’s imposition of a discretionary, 50-year sentence for this intellectually disabled defendant amounts to an unconstitutional de facto life sentence, violative of Illinois’s proportionate penalties clause (Ill. Const. 1970, art. I, § 11). The appellate court held that the characteristics of the intellectually disabled, identified in Atkins v. Virginia, 536 U.S. 304, 320 (2002), mitigate culpability and should have been, but were not, adequately considered by the circuit court when defendant was resentenced. 2018 IL App (1st) 162383. In a cross-appeal, defendant argues that his sentence also violates the eighth amendment of the United States Constitution or, in any event, that the sentence is excessive. We reject defendant’s contentions and reverse the judgment of the appellate court. ¶2 BACKGROUND ¶3 Following a jury trial in the circuit court of Cook County, the defendant, William Coty, who is intellectually disabled, was found guilty of one count of predatory criminal sexual assault of a child, one count of criminal sexual assault, and one count of aggravated criminal sexual abuse for conduct committed against the six-year-old victim, K.W. 1 Because the defendant had a prior conviction for aggravated criminal sexual assault perpetrated on a nine-year-old victim, pursuant to section 12.14.1(b)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-14.1(b)(2) (West 2004)), 2 the circuit court had no discretion but to sentence defendant to the statutorily prescribed term of mandatory natural life in prison. ¶4 After his conviction and sentence were affirmed on appeal, the defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2004)), alleging that his mandatory natural life sentence was unconstitutional under the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) and the Illinois Constitution (Ill. Const. 1970, art. I, § 11). The defendant argued that the statutory scheme under which he was sentenced was facially unconstitutional because it categorically forbade the sentencing judge from considering his intellectual disability 3 and the circumstances of his offense. In the alternative, defendant asserted that the statutory scheme, as applied to him, violated the proportionate penalties clause of the Illinois 1 A full account of the trial evidence can be found in the appellate court’s original disposition. People v. Coty, 2014 IL App (1st) 121799-U. 2 Section 12-14.1(b)(2) was recodified as section 11-1.40(b)(2) (see Pub. Act 96-1551, art. 2, § 5 (eff. July 1, 2011) (recodifying 720 ILCS 5/11-1.40(b)(2))) and became effective July 1, 2011. 3 Courts below, at times, used the term “mental retardation.” We choose to refer to defendant’s condition as an “intellectual disability”; however, we will retain the term “retardation” when used in lower court proceedings and relevant case authority. -2- Constitution (Ill. Const. 1970, art. I, § 11). The circuit court dismissed the defendant’s petition, and the defendant appealed. ¶5 In a nonprecedential disposition filed pursuant to Illinois Supreme Court Rule 23(b) (eff. July 1, 2011), the appellate court reversed in part, holding the mandatory sentencing statute unconstitutional as applied. 4 People v. Coty, 2014 IL App (1st) 121799-U. The circuit court’s order dismissing the defendant’s section 2-1401 petition was vacated, and the cause was remanded for resentencing. The appellate court found that the circuit court had improperly dismissed the defendant’s petition, sua sponte, on the basis of timeliness. On the merits, the appellate court held that, while the circuit court was correct that the defendant had failed to properly state a facial challenge to the mandatory sentencing scheme under which he was sentenced to natural life in prison, it erred in finding that the defendant had also failed to state an as-applied challenge to that sentencing scheme on the basis of the Illinois Constitution’s proportionate penalties clause. The appellate court remanded for resentencing, noting, inter alia, that defendant’s “crime comprised *** a single, brief and limited encounter with the [six-year-old] victim.” Id. ¶ 77. In other words, the fact that defendant placed his finger in the vagina of a six-year-old for only a minute was, in some sense, mitigating. The appellate court also opined that defendant had “confessed and expressed remorse for his conduct.” 5 Id. 4 For reasons not apparent to us, the State did not appeal that decision. 5 We are compelled to point out that the appellate court’s conclusion is somewhat misleading, given the version of events defendant provided in his statement to authorities, which the appellate court acknowledged earlier in its disposition: “The defendant stated that on November 18, 2004, he was changing his clothes in his bedroom with his door open when K.W. walked into the room. The defendant told K.W. to leave but she would not. The defendant stated that he finished changing his clothes behind a curtain and then sat on his couch. He averred that K.W. then sat on his lap and ‘began grinding her butt on his lap.’ The defendant stated that ‘his penis was hard’ but claimed that he and K.W. were both clothed. [Defendant changed that part of his story later in his statement.] He stated that he then placed his right hand underneath K.W.’s clothes and touched her vagina. He admitted that [ ]he ‘inserted his finger into [K.W.’s] vagina up to the first joint.[’] The defendant stated that he did not move his finger inside of K.W.’s vagina and that he kept it inside only for ‘one minute.’ The defendant averred that K.W. said ‘that feels good.’ In his handwritten statement, the defendant further stated that K.W. pulled her shorts and panties down to her knees before sitting on his lap. He then stated that she was not wearing pants when she was seated on his lap. The defendant also stated that after K.W. got off his lap and pulled her pants up, she left the room and he saw her go upstairs with her parents into her grandparents’ room. The defendant then left the house out of the front door and went to his -3- ¶6 On remand, given the appellate court’s holding that section 12-14.1(b) of the Criminal Code, as applied to the defendant, violates the proportionate penalties clause of the Illinois Constitution, the sentencing judge turned to other applicable sentencing statutes. Specifically, as a Class X offender, the defendant was punishable by a sentencing range between 6 and 30 years. 730 ILCS 5/5-8-1(a)(3) (West 2004). In addition, because the victim was under 18 years of age, the defendant was further eligible for an extended-term sentence of up to 60 years’ imprisonment (id. § 5-5-3.2(c)). ¶7 On August 10, 2016, the matter came before the circuit court for resentencing. At the outset, the court acknowledged that the cause was remanded for resentencing because of defendant’s intellectual disability. The court stated: “I will indicate, first of all, *** that I was tendered a large volume of materials both by the State and Defense that included, among other things, the transcript of the original trial, and the sentencing that occurred, including the testimony of a Doctor who testified regarding William’s intellectual difficulties or disabilities. I am taking all that into account.” ¶8 Defense counsel asked the court to “take the expert opinion into account that was given at the motion to suppress statement, a copy of the transcript also.” The court responded, “I have reviewed that also.” Thereafter, the court noted that it had received a new presentence investigative report (PSI) and asked if there were any corrections or deletions to that. The State and defense both indicated there were none. The parties responded similarly when asked if they were calling witnesses. The court advised the parties: “Obviously I’m familiar with the case. I’m familiar with his background.” ¶9 For her part, the prosecutor noted, even though the appellate court characterized the sexual assault as “a single brief act of penetration, it was very disturbing and sister’s house. He also stated that he ‘felt bad that he touched the little girl’ and that he was aware that she was six years old.” 2014 IL App (1st) 121799-U, ¶¶ 22-23. While defendant did indeed admit to the conduct and express remorse, he also tried to minimize his culpability by suggesting that the six-year-old victim initiated the sexual encounter and was gratified after the fact. -4- emotionally upsetting both for the victim and especially for the victim’s family, her mom in particular.” The prosecutor continued: “This Defendant, there really—the fact that his IQ is in the 55 to 65 range, under prevailing social norms, his culpability was less than a person with normal cognitive capacity according to the Appellate Court. Nevertheless, the Defendant knew what he was doing in that he told the victim he was very careful in how he approached her and told her not to tell anyone and then left immediately when she went up to call for assistance or to tell somebody what had happened. So clearly he was aware what he had done and what he had done was wrong.” ¶ 10 On behalf of defendant, defense counsel emphasized the brevity of the encounter and suggested the encounter was not “preplanned or orchestrated. It seemed simply impulsive ***.” 6 She further observed: “Given both the nature of the crime and his disabilities, the Appellate Court found that the natural life sentence was so disproportionate as to violate the moral sense of our community, and that is a direct quote. Judge Toomin found and the Appellate Court agreed that my client suffered from, and the specific finding was that my client was mildly mentally retarded.” Counsel noted “[t]here were expert opinions elicited at the motion to suppress statements, and there was a family member who testified at his sentencing” that defendant had been “retarded since he was a baby.” Counsel opined “due to some of his intellectual shortcomings, [defendant] is, in fact, less culpable than others might be.” She asked the court, “in keeping with the Appellate Court opinion, that you give him a term of years that allows him upon sufficient punishment to resume some sort of life following incarceration.” ¶ 11 Prior to pronouncing sentence, the circuit court stated: 6 As noted in the appellate court’s original disposition, the victim, K.W., testified at trial that “defendant came into the room and sat down on the couch with her. He then started to ‘scooch’ toward her and every time she moved away, he moved closer until she could no longer move. K.W. stated that the defendant then touched her arm, her shoulder, her leg, and then ‘started messing with me down there.’ She identified that part of her body as the ‘part that [she] use[s] to go to the bathroom with.’ ” 2014 IL App (1st) 121799-U, ¶ 13. -5- “I’m going to consider today the evidence presented at trial, the pre-sentence report, the evidence offered in aggravation, mitigation, the statutory factors in aggravation, mitigation, the financial impact of incarceration, the arguments the attorneys just made here moments [a]go, and the assertions relative to the mother of the victim indicating that she still takes this case seriously, this was a serious case, and this was an offense committed by somebody whom this was not the first. He was previously sentenced to a period of natural life.” With that prologue, the court sentenced defendant, who was then 52 years old, to 50 years in prison. The sentence was to be served at 85%, and defendant was given credit for 3553 days. The term of incarceration was to be followed by a period of three years to life of mandatory supervised release. ¶ 12 Thereafter, defense counsel filed a motion to reconsider, arguing, inter alia, that (1) the sentence was excessive in light of the defendant’s background and the nature of the offense, citing the proportionate penalties clause, (2) the circuit court improperly considered in aggravation matters that were implicit in the offense, and (3) the State failed to prove eligibility for an enhanced penalty or extended term. The circuit court denied the motion, and defendant appealed. ¶ 13 On appeal, defendant contended, first, that the circuit court abused its discretion in sentencing him to a 50-year, extended-term sentence without properly considering that it was, in fact, imposing a de facto life sentence on a defendant with intellectual disabilities. Second, the defendant contended that the imposition of the de facto life sentence is unconstitutional as applied to him, under both the eighth amendment of the United States Constitution and Illinois’s proportionate penalties clause. ¶ 14 In a precedential disposition (2018 IL App (1st) 162383), the appellate court vacated defendant’s sentence and reversed and remanded for a new sentencing hearing. 7 The appellate court found no abuse of discretion because “the trial court explicitly stated it considered the evidence presented at the defendant’s trial and the parties’ arguments, both of which referenced the defendant’s disability at the time of his trial in 2006.” Id. ¶ 54. Nonetheless, the appellate court concluded that the 7 The court ordered the new sentencing hearing to be conducted by a different judge. No basis appears in the record for that action, and the appellate court offered none. -6- imposition of a 50-year de facto life sentence on this particular defendant, without the procedural safeguards of Atkins, 536 U.S. at 320, Miller v. Alabama, 567 U.S. 460 (2012), and its progeny, was a penalty so wholly disproportionate that it violated the moral sense of our community. 2018 IL App (1st) 162383, ¶ 75. The court identified the factors referenced in Atkins as relevant considerations in sentencing an intellectually disabled individual: “As Atkins articulated, those attendant characteristics include, but are not limited to, an intellectually disabled person’s diminished capacity (1) to understand and process information, (2) to communicate, (3) to abstract from mistakes and learn from experience, (4) to engage in logical reasoning, (5) to control impulses, and (6) to understand others’ actions and reactions, so as to be more susceptible to manipulation and pressure. Atkins, [5]36 U.S. at 318.” Id. ¶ 15 Without further referencing of the mandatory sentencing provision under which defendant was originally sentenced, the appellate court held that defendant’s de facto life sentence was unconstitutional as applied, as it was violative of the Illinois proportionate penalties clause. Id. ¶ 86. The appellate court noted that the record on the first remand was “void of any information about the state of the attributes of the defendant’s intellectual disability in 2016. The new PSI ordered for purposes of resentencing contained no reference whatsoever to the defendant’s intellectual disability. *** As such, the resentencing court was without an iota of evidence from which to determine whether the defendant’s cognitive ability, behavior, adaptability, or ability to comprehend the consequences of his actions had changed for better or worse in the 10 years of his imprisonment. Therefore, the trial court was without the necessary facts from which to determine whether the defendant could be restored to useful citizenship or whether he was so irretrievably depraved and of such danger of recidivism that a natural life sentence was warranted.” Id. ¶ 16 The appellate court—acknowledging that defendant’s attorney had the opportunity to, but did not, present additional evidence at the resentencing—urged the public defender, on remand, to have the defendant’s mental health evaluated and to provide the court with as much information as possible as to the defendant’s -7- behavior and progress, or lack thereof, while in prison. Id. ¶ 87. The appellate court also offered the not-so-veiled suggestion that the circuit court should redetermine defendant’s fitness before resentencing. Id. The appellate court concluded by instructing the trial court, on remand, “to give serious consideration to the attendant characteristics of the defendant’s intellectual disability and the fact that this disability ‘diminish[es] both [his] culpability and the need for retribution’ particularly in the context of this, a nonhomicide offense.” Id. (quoting People v. Gipson, 2015 IL App (1st) 122451, ¶ 74, and citing Atkins, 536 U.S. at 320). ¶ 17 In sum, the appellate court, via precedential disposition, extended the requirements of Miller and its progeny, via Atkins, to adult offenders with intellectual disabilities. ¶ 18 ANALYSIS ¶ 19 At its core, the question presented in this case is whether a sentence of life imprisonment, mandatory or de facto, is permissible for this intellectually disabled adult twice convicted of a sexual offense perpetrated upon a young child and, if the statute requiring a mandatory natural life sentence does not apply, whether and to what extent Atkins factors must be considered prior to the imposition of a de facto life sentence. ¶ 20 At the outset, we note that this court, unlike the appellate court, is not constrained in our inquiry by law-of-the-case considerations. As we noted in People v. Sutton, 233 Ill. 2d 89, 100 (2009): “The law of the case doctrine generally bars relitigation of an issue previously decided in the same case. People v. Tenner, 206 Ill. 2d 381, 395 (2002). Thus, the determination of a question of law by an appellate court in the first appeal may be binding on the court in a second appeal. Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006). However, even if the law of the case bars relitigation of the issue in the appellate court, the law of the case doctrine is inapplicable to this court in reviewing a decision of the appellate court. People v. Triplett, 108 Ill. 2d 463, 488 (1985). Because this is the first time the case has been before this court, we may review all matters which were properly raised and passed on in the course of the litigation. Triplett, 108 Ill. 2d at 488.” -8- ¶ 21 Thus, we begin at the beginning, addressing defendant’s original sentence and the legislature’s determination that an adult convicted of predatory criminal sexual assault of a child, after having been previously convicted of, inter alia, aggravated criminal sexual assault, shall be sentenced to a term of natural life imprisonment. See 720 ILCS 5/12-14.1(b)(2) (West 2004) (recodified as 720 ILCS 5/11- 1.40(b)(2)). ¶ 22 The constitutionality of a statute is analyzed according to well-established principles. “Statutes are presumed constitutional, and the party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. A court must construe a statute so as to uphold its constitutionality if reasonably possible. The constitutionality of a statute is a question of law subject to de novo review.” People v. Gray, 2017 IL 120958, ¶ 57. A defendant who has an adequate opportunity to present evidence in support of an as-applied, constitutional claim will have his claim adjudged on the record he presents. See People v. Holman, 2017 IL 120655, ¶¶ 49-50 ¶ 23 This court addressed the constitutionality of section 12-14.1(b)(2)’s mandatory- life sentencing provision—albeit not as applied to an intellectually disabled defendant—in People v. Huddleston, 212 Ill. 2d 107 (2004), wherein this court upheld the constitutionality of the statute against an as-applied, proportionate penalties challenge. Many of the observations in Huddleston and authorities cited therein are equally applicable here and require no addition or embellishment. We reference and quote them at length hereafter. ¶ 24 Though the authority of the legislature to prescribe penalties is not without constitutional limitation, this court has repeatedly recognized that the legislature has the power to prescribe penalties for defined offenses, and that power necessarily includes the authority to prescribe mandatory sentences, even if such sentences restrict the judiciary’s discretion in imposing sentences. Id. at 129 (citing People v. Miller, 202 Ill. 2d 328, 336 (2002), and People v. Taylor, 102 Ill. 2d 201, 208 (1984)). This defendant challenged his mandatory natural life sentence as violative of, inter alia, the proportionate penalties clause of the Illinois Constitution. In Huddleston this court noted: “The proportionate penalties clause provides that ‘[a]ll penalties shall be determined both according to the seriousness of the offense and with the -9- objective of restoring the offender to useful citizenship.’ Ill. Const. 1970, art. I, § 11. As this court observed in Taylor, ‘there is no indication [in our constitution] that the possibility of rehabilitating an offender was to be given greater weight and consideration than the seriousness of the offense in determining a proper penalty.’ Taylor, 102 Ill. 2d at 206. Factors to be considered in determining the seriousness of an offense include the degree of harm, the frequency of the crime, and the risk of bodily injury associated with it. People v. Hill, 199 Ill. 2d 440, 454 (2002). The legislature may perceive a need to enact a more stringent penalty provision in order to halt an increase in the commission of a particular crime. Hill, 199 Ill. 2d at 454.” Id. at 129-30. ¶ 25 The legislature perceived that need with respect to those who repeatedly commit sexual offenses against children. Addressing the first constitutional consideration, the “seriousness of the offense,” this court, in Huddleston, emphasized two factors: the degree of harm and the frequency of the crime. ¶ 26 Speaking to the former, the Huddleston court observed: “Commentators have recognized that, aside from any physical injury a child may suffer in a sexual assault, children who are sexually assaulted are subject to chronic psychological problems that may be even more pernicious. Sexual assault (rape) has been described as, ‘[s]hort of homicide, *** the “ultimate violation of self.” ’ Coker v. Georgia, 433 U.S. 584, 597, 53 L. Ed. 2d 982, 992- 93, 97 S. Ct. 2861, 2869 (1977), quoting U.S. Dep’t of Justice, Law Enforcement Assistance Administration Report, Rape and Its Victims: A Report for Citizens, Health Facilities, and Criminal Justice Agencies 1 (1975).” (Emphases in original.) Id. at 135. The impact on a child can be even more profound than that experienced by an adult. “Because of their emotional immaturity, children are exceptionally vulnerable to the effects of sexual assault. 45 Ariz. L. Rev. at 209; 39 Duq. L. Rev. at 38. Long-term follow-up studies with child sexual abuse victims indicate that sexual abuse is ‘ “grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate.” ’ 25 Am. J. Crim. L. at 87, quoting C. Bagley & K. King, Child Sexual Abuse: The Search for Healing 2 (1990). The - 10 - child’s life may be forever altered by residual problems associated with the event. 45 Ariz. L. Rev. at 209; 15 Ga. St. U. L. Rev. at 843.” Id. ¶ 27 As noted in Huddleston, the United States Supreme Court has “ ‘sustained legislation aimed at protecting the physical and emotional well- being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.’ New York v. Ferber, 458 U.S. 747, 757, 73 L. Ed. 2d 1113, 1122, 102 S. Ct. 3348, 3354 (1982). In that regard, the Court has proclaimed the ‘prevention of sexual exploitation and abuse of children *** a government objective of surpassing importance.’ Ferber, 458 U.S. at 757, 73 L. Ed. 2d at 1123, 102 S. Ct. at 3355.” Id. at 132. ¶ 28 Turning to consider the frequency of the offense and particularly the aspect of recidivism—indicative of the difficulty in rehabilitating sex offenders—the Huddleston court first shared the following observations of the Supreme Court: “As the United States Supreme Court recently reiterated in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 4, 155 L. Ed. 2d 98, 103, 123 S. Ct. 1160, 1163 (2003): ‘ “Sex offenders are a serious threat in this Nation.” McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion). “[T]he victims of sex assault are most often juveniles,” and “[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sex assault.” Id., at 32-33.’ In McKune, the Supreme Court described the risk of recidivism posed by sex offenders as ‘frightening and high.’ McKune v. Lile, 536 U.S. 24, 34, 153 L. Ed. 2d 47, 57, 122 S. Ct. 2017, 2025 (2002).” Id. at 137. ¶ 29 The Huddleston court noted that this court had recently acknowledged, in People v. Donoho, 204 Ill. 2d 159, 174 (2003), that “our legislature has responded again and again to the propensity of sex offenders to repeat their crimes and to increases in the incidence of sexual assault and abuse cases. See also People v. Stork, 305 Ill. App. 3d 714, 721 (1999) (quoting a legislative declaration referring to ‘ “the high recidivism rate - 11 - of child sex offenders” ’), quoting 90th Ill. Gen. Assem., House Bill 157, 1997 Sess.” Huddleston, 212 Ill. 2d at 137-38. “Although there is considerable debate over the degree to which treatment of sex offenders may be effective, it is clear that state legislatures may respond to what they reasonably perceive as a ‘substantial risk of recidivism.’ See Smith v. Doe, 538 U.S. 84, 103, 155 L. Ed. 2d 164, 183-84, 123 S. Ct. 1140, 1153 (2003) (‘Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class’).” (Emphasis in original.) Id. at 138. ¶ 30 Those reasonable concerns over the substantial risk of child sex offender recidivism have been addressed by means of two principal approaches: “Some statutes seek to protect children once an offender is released from state custody by monitoring or restricting his or her movement and access to children. Other enactments call for longer sentences of imprisonment, so that the offender’s opportunity to reoffend is foreclosed during the period of incarceration.” Id. ¶ 31 We are concerned here with the latter approach—a statutory approach this court found constitutional, under our proportionate penalties clause, as applied to Huddleston. After noting that “a penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community” (id. at 130), this court concluded that the application of the statutorily mandated natural life sentence did not meet that standard as applied to Huddleston (id. at 145). ¶ 32 So, how is this defendant different from Huddleston? What about this defendant specifically, or the class to which he belongs (the intellectually disabled), warrants a different result? In approaching that question, three differences come to mind, all of which have been subjects of comment in the case law: culpability, future dangerousness, and rehabilitative potential—the latter particularly important, as it is the second consideration in our proportionate penalties clause. ¶ 33 With respect to culpability, we consider and take as a given the characteristics of the intellectually disabled that the Supreme Court has identified as relevant to - 12 - sentencing in the context of capital sentencing, emphasizing at the outset that whether a defendant is subject to execution is a very different issue than whether a mandatory natural life sentence is constitutionally permissible for an adult. 8 As noted heretofore, in the context of capital punishment for an intellectually disabled defendant, the Supreme Court, in Atkins, determined that an intellectually disabled person’s culpability is lessened by reason of a diminished capacity (1) to understand and process information, (2) to communicate, (3) to abstract from mistakes and learn from experience, (4) to engage in logical reasoning, (5) to control impulses, and (6) to understand others’ actions and reactions, so as to be more susceptible to manipulation and pressure. Atkins, 536 U.S. at 318. The Court concluded those characteristics resulted in reduced culpability and precluded a sentence of death. Id. at 320. 9 Presumably, our own legislature considered those intellectual deficits in adding “intellectually disabled” to the list of mitigating factors to be considered in sentencing. See Pub. Act 86-903 (eff. Jan. 1, 1990) (adding 730 ILCS 5/5-5-3.1(a)(13)); see also Pub. Act 97-227, § 145 (eff. Jan. 1, 2012) (changing “mentally retarded” to “intellectually disabled”). ¶ 34 Although Atkins abrogated Penry v. Lynaugh, 492 U.S. 302 (1989), it did not dispute the Court’s observation therein that the defendant’s mental retardation represented a “two-edged sword” that “diminish[ed] his blameworthiness for his crime even as it indicate[d] that there is a probability” of future dangerousness (id. 8 As noted in the appellate court’s well-reasoned decision in People v. Rhoades, 2018 IL App (4th) 160457, the Supreme Court has “held ‘a capital sentence is cruel and unusual under the Eighth Amendment if it is imposed without an individualized determination that that punishment is “appropriate”—whether or not the sentence is “grossly disproportionate.” ’ ” Rhoades, 2018 IL App (4th) 160457, ¶ 24 (quoting Harmelin, 501 U.S. at 995). However, the Court declined to extend this individualized determination requirement to mandatory life sentences for adults. Harmelin, 501 U.S. at 995. “As a result, the defendant’s mandatory life sentence in Harmelin did not constitute a cruel and unusual punishment under the eighth amendment and neither does the mandatory nature of defendant’s life sentence in this case.” Rhoades, 2018 IL App (4th) 160457, ¶ 24, appeal denied, No. 124321 (Ill. Jan. 31, 2019) (addressing the same statutory provision at issue here); see also id. ¶ 14 (discussing Justice Kennedy’s concurrence in Harmelin, 501 U.S. at 997 (Kennedy, J. concurring in part and concurring in the judgment, joined by O’Connor and Souter, JJ.), which was recognized as controlling in Graham v. Florida, 560 U.S. 48, 59-60 (2010)). 9 The Court in Atkins noted that the Court had previously identified retribution and deterrence of capital crimes by offenders as the social purposes served by the death penalty. The Court observed, unless the imposition of the death penalty on a mentally retarded person measurably contributes to one or both of those goals, it is nothing more than the purposeless and needless imposition of pain and suffering and, hence, an unconstitutional punishment. Atkins, 536 U.S. at 319. The Court rejected the efficacy of capital punishment in service of those penological goals. - 13 - at 324), an observation the Court subsequently reiterated in Brewer v. Quarterman, 550 U.S. 286, 288-89 (2007). ¶ 35 Indeed, this court has held that future dangerousness of an intellectually disabled adult is a factor properly considered as an aggravator in sentencing, given an appropriate evidentiary basis. While acknowledging that an intellectual disability is a statutory factor in mitigation, this court, in People v. Heider, 231 Ill. 2d 1, 20-21 (2008), nonetheless spoke to the aggravating aspect of intellectual disability: “[A] trial court might conclude, from the evidence, that a defendant’s mental retardation rendered him dangerous to the community, and for this reason decided to increase the defendant’s prison sentence. If, for example, the evidence established that a defendant had diminished impulse control as a result of his mental deficiency, and if that lowered impulse control rendered him a threat to the community, a trial court might conclude that, because of the defendant’s future dangerousness resulting from his lack of control, the defendant should be given a greater prison sentence in the interest of protecting the public. See People v. McNeal, 175 Ill. 2d 335, 370, 367-71 (1997). However, where mental retardation indicates future dangerousness, it is not the mental retardation that is being used as the aggravating factor. Rather, it is the future dangerousness that results from the mental retardation that is the aggravator. In our view, there is nothing improper in considering the effects of mental retardation in this way, so long as the evidence supports the conclusion that the defendant poses a future danger.” 10 (Emphasis in original.) In Heider, the evidence did not support the circuit court’s characterization of the defendant as a “ ‘sexual predator *** who commits crimes against young people,’ ” because “[t]here was nothing in his prior history that even remotely resembled a violent crime or an offense of a sexual nature.” Id. at 23. ¶ 36 Here, there is. Defendant has twice committed sexual offenses against children. Sexual recidivism, and the future dangerousness it entails, was obviously a factor in the legislature’s determination that a natural life sentence is warranted for 10 Mandatory sentencing based on the commission of repeated sexual offenses against children was not at issue in Heider. - 14 - recidivists. With respect to this intellectually disabled defendant, we note that some of the very factors that the Court in Atkins found reduced culpability—diminished capacity (1) to understand and process information, (2) to communicate, (3) to abstract from mistakes and learn from experience, (4) to engage in logical reasoning, (5) to control impulses, and (6) to understand others’ actions and reactions (Atkins, 536 U.S. at 318)—are what make him a continuing danger to reoffend. ¶ 37 We turn now to the second prong of our constitution’s proportionate penalties clause and consider the prospect of rehabilitation. In Huddleston, this court concluded that defendant’s rehabilitative potential did not outweigh the legislature’s determination as to the seriousness of repeated sexual offenses and the need for a mandatory natural life sentence. That defendant experienced no intellectual deficits, a fact that would seemingly weigh in favor of greater rehabilitative potential than that of a defendant, such as this defendant, with intellectual deficits. The factors identified in Atkins logically impair rehabilitative potential, and, unlike a juvenile, whose mental development and maturation will eventually increase that potential, the same cannot generally be said of the intellectually disabled over time. ¶ 38 The Supreme Court has recognized as much. In Heller v. Doe, 509 U.S. 312, 323 (1993), the court stated: “Mental retardation is a permanent, relatively static condition [citation], so a determination of dangerousness may be made with some accuracy based on previous behavior. We deal here with adults only, so almost by definition in the case of the retarded there is an 18-year record upon which to rely.” Dr. Marva Dawkins, a clinical psychologist who examined Coty for fitness, also observed that “mental retardation is a lifelong condition,” adding, at defendant’s age, “learning is becoming more and more difficult.” ¶ 39 While the Supreme Court’s decision in Miller is based in part upon the lesser culpability of youth—a characteristic the Atkins Court pronounced shared by the intellectually disabled—the Miller Court’s decision is founded, principally, upon the transient characteristics of youth, characteristics not shared by adults who are intellectually disabled. Referencing its earlier decisions in Roper v. Simmons, 543 - 15 - U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48, 68, 75 (2010), the Miller Court enunciated the critical differences between juveniles and adults, and the bases for the Court’s decision: “Our decisions rested not only on common sense—on what ‘any parent knows’—but on science and social science as well. Id., at 569. In Roper, we cited studies showing that ‘ “[o]nly a relatively small proportion of adolescents” ’ who engage in illegal activity ‘ “develop entrenched patterns of problem behavior.” ’ Id., at 570 (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)). And in Graham, we noted that ‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds’—for example, in ‘parts of the brain involved in behavior control.’ 560 U.S., at 68. We reasoned that those findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s ‘moral culpability’ and enhanced the prospect that, as the years go by and neurological development occurs, his ‘ “deficiencies will be reformed.” ’ Ibid. (quoting Roper, 543 U.S., at 570). Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders ***.” Miller, 567 U.S. at 471-72. ¶ 40 The enhanced prospect that, as the years go by and neurological development occurs, deficiencies will be reformed—is not a prospect that applies to this intellectually disabled defendant, who was 46 years old when he committed this, his second sexual offense against a child. The rehabilitative prospects of youth do not figure into the sentencing calculus for him. ¶ 41 We note in passing—as the appellate court observed in Rhoades—that the Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957 (1991), survives Miller, as Justice Kagan made clear: “The States (along with JUSTICE THOMAS) first claim that Harmelin v. Michigan, 501 U.S. 957 (1991), precludes our holding. The defendant in Harmelin was sentenced to a mandatory life-without-parole term for possessing - 16 - more than 650 grams of cocaine. The Court upheld that penalty, reasoning that ‘a sentence which is not otherwise cruel and unusual’ does not ‘becom[e] so simply because it is “mandatory.” ’ Id., at 995. We recognized that a different rule, requiring individualized sentencing, applied in the death penalty context. But we refused to extend that command to noncapital cases ‘because of the qualitative difference between death and all other penalties.’ Ibid.; see id., at 1006 (KENNEDY, J., concurring in part and concurring in judgment). According to Alabama, invalidating the mandatory imposition of life-without- parole terms on juveniles ‘would effectively overrule Harmelin.’ Brief for Respondent in No. 10-9646, p. 59 (hereinafter Alabama Brief); see Arkansas Brief 39. We think that argument myopic. Harmelin had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders. We have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children. Capital punishment, our decisions hold, generally comports with the Eighth Amendment—except it cannot be imposed on children. See Roper, 543 U.S. 551; Thompson, 487 U.S. 815. So too, life without parole is permissible for nonhomicide offenses—except, once again, for children. See Graham, 560 U.S., at 75. Nor are these sentencing decisions an oddity in the law.” Miller, 567 U.S. at 480-81. ¶ 42 So, was the natural life sentence originally imposed on this defendant, pursuant to the mandate of the statute, unconstitutional, under our proportionate penalties clause, as applied to him? Was it, taking account of all relevant considerations— including defendant’s prior convictions for aggravated battery and attempted armed robbery and the fact that this was his second sexual offense against a child—“cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community?” See Huddleston, 212 Ill. 2d at 130. Given the foregoing, we believe the answer is no. While defendant may be less culpable, because of his disability, than the defendant in Huddleston, the characteristics of his predominantly static condition and his age make him less likely to be rehabilitated and thus more likely to reoffend. The whole point of the mandatory, natural life sentence for repeat sex offenders is to protect children by rendering it impossible for the incorrigible offender to reoffend. - 17 - ¶ 43 As this court observed in People v. Rizzo, 2016 IL 118599, ¶ 37 (quoting Miller, 202 Ill. 2d at 339, quoting People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 421-22 (1894)), “the fact that the legislature ‘has authorized a designated punishment for a specified crime’ itself says something about the ‘general moral ideas of the people.’ ” (Emphasis in original.) “The legislature’s discretion in setting criminal penalties is broad, and courts generally decline to overrule legislative determinations in this area unless the challenged penalty is clearly in excess of the general constitutional limitations on this authority.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). We decline to do so here. The penalty defendant challenged in his initial appeal was not, as applied to him, clearly in excess of the legislature’s constitutional authority to prescribe. ¶ 44 The original sentence of natural life imprisonment did not violate the proportionate penalties clause. In so holding, the appellate court erred. Defendant was not entitled to resentencing based on a violation of the proportionate penalties clause. We will speak to the procedural consequences of that error shortly. ¶ 45 However, first we address, briefly, one of the two contentions of defendant’s cross-appeal, that his sentence violates the eighth amendment of the United States Constitution. We note that appellate decisions, including the second in this case, have aptly pointed out that this court has not spoken consistently on the relationship between our proportionate penalties clause and the eighth amendment. See 2018 IL App (1st) 162383, ¶ 58; People v. Horta, 2016 IL App (2d) 140714, ¶ 62. 11 However, as the court in Horta observed, if a sentence passes muster under the proportionate penalties clause, i.e., it is found not to be “cruel, degrading, or so 11 In Horta, 2016 IL App (2d) 140714, ¶ 62, the appellate court observed: “[O]ur supreme court has not spoken consistently on whether the latter [the proportionate penalties clause] is coextensive with the former [the eighth amendment] or provides greater protections. Compare People v. Patterson, 2014 IL 115102, ¶ 106 (stating that proportionate- penalties clause is ‘co-extensive with the eighth amendment’s cruel and unusual punishment clause’), with People v. Clemons, 2012 IL 107821, ¶ 40 (stating that proportionate-penalties clause, ‘which focuses on the objective of rehabilitation, went beyond the framers’ understanding of the eighth amendment’). However, there is no dispute that the reach of the state provision is at least as great as that of the federal one. Thus, we shall limit our analysis to the proportionate-penalties clause. If defendant’s challenge succeeds on that ground, we need not decide whether it would also succeed under the eighth amendment; if it fails under the proportionate-penalties analysis, we may assume that it would not succeed as an eighth- amendment claim either ***.” - 18 - wholly disproportionate to the offense committed as to shock the moral sense of the community,” after considering “the seriousness of the offense *** with the objective of restoring the offender to useful citizenship” (emphasis added) (see Huddleston, 212 Ill. 2d at 129-30), then it would seem to comport with the contemporary standards of the eighth amendment as explained in Graham, 560 U.S. at 58. 12 To the extent that the eighth amendment requires consideration—as stated in Graham—of the “moral judgment” and “mores” of a wider, national community, we note that defendant acknowledges the State’s observation that “[c]ourts across the country that have addressed the issue *** have declined to extend Atkins to noncapital sentences or Miller to the intellectually disabled.” We take this to mean that the “moral judgment” and “mores” of the nation are not inconsistent with our own in this matter. In short, we reject defendant’s eighth amendment argument. ¶ 46 We now revisit the unusual procedural posture of this case. In light of our analysis, the mandatory natural life sentence originally imposed upon defendant, pursuant to section 12-14.1(b)(2) of the Criminal Code (720 ILCS 5/12-14.1(b)(2) (West 2004)), was constitutional as applied to him. It was the proper sentence. The original appellate panel erred in ordering resentencing. Defendant’s argument that the resentencing court abused its discretion is, in our view, moot. And, with respect to the decision of the second appellate panel, what defendant did or did not do while in prison, after the mandatory natural life sentence was imposed, is also irrelevant. ¶ 47 But there is now a 50-year de facto life sentence—which might be considered a reduced sentence—that resulted from defendant’s initial appeal. The question is whether reimposition of the original natural life sentence mandated by statute would constitute an improper increase in defendant’s sentence. The question would seem largely academic—natural life versus de facto life. 12 To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ ” Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S. Ct. 2641, 2649, 171 L. Ed. 2d 525 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 382, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Burger, C.J., dissenting)).” Graham v. Florida, 560 U.S. 48, 58 (2010). - 19 - ¶ 48 Section 5-5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5-4(a) (West 2012)) provides: “Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing.” That provision is directed to the circuit court. However, this court has spoken to a somewhat similar situation in People v. Castleberry, 2015 IL 116916, ¶ 24, where this court rejected the State’s argument that the appellate court had the authority, under Rule 615(b) (Ill. S. Ct. R. 615(b)), to increase a criminal sentence on appeal by imposition of mandatory sentencing enhancements that should have been a part of defendant’s sentence. We noted, however, that the State could seek to compel compliance with a mandatory sentencing requirement via an action for mandamus. ¶ 49 Of course, the matter of a proper sentence is neither before the circuit court nor the appellate court—it is before this court. Article VI, section 16, of the Illinois Constitution vests this court with supervisory authority over all the lower courts of this state. Ill. Const. 1970, art. VI, § 16; In re J.T., 221 Ill. 2d 338, 347 (2006). “This authority is ‘unlimited in extent and hampered by no specific rules or means for its exercise.’ ” People v. Salem, 2016 IL 118693, ¶ 20 (quoting In re Estate of Funk, 221 Ill. 2d 30, 97 (2006)). “It is ‘an “unequivocal grant of power.” [Citation.] This authority extends to “the adjudication and application of law and the procedural administration of the courts.” ’ ” Id. (quoting People v. Whitfield, 228 Ill. 2d 502, 521 (2007)). ¶ 50 We believe our supervisory authority, and the reach of our review under the authority of Sutton, 233 Ill. 2d 89, would allow us to reinstate defendant’s original sentence of natural life imprisonment. On the other hand, we could reverse the decision of the appellate court now before us, allowing the de facto life sentence to stand. The State only asks that we “reverse the appellate court’s judgment finding defendant’s sentence unconstitutional and affirm the appellate court’s judgment finding that the trial court did not abuse its discretion in sentencing defendant to fifty years in prison.” Given the parameter of the State’s request for relief, and no - 20 - practical difference between a natural life sentence and a de facto life sentence, we choose to allow the latter to stand. ¶ 51 CONCLUSION ¶ 52 For the foregoing reasons, we reverse the judgment of the appellate court, as we find no violation of defendant’s constitutional rights, and we reject the defendant’s contentions in his cross-appeal. ¶ 53 Appellate court judgment reversed. ¶ 54 Circuit court judgment affirmed. - 21 -
01-03-2023
06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/4538755/
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 18-CF-432 LORI FITZGERALD, APPELLANT, v. UNITED STATES, APPELLEE. Appeal from the Superior Court of the District of Columbia (CF3-6343-17) (Hon. Danya A. Dayson, Trial Judge) (Argued January 29, 2020 Decided June 4, 2020) Gregory M. Lipper for appellant. Eric Hansford, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Michael McCarthy, and Gregory Rosen, Assistant United States Attorneys, were on the brief, for appellee. Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and MCLEESE, Associate Judges. BLACKBURNE-RIGSBY, Chief Judge: Appellant Lori Fitzgerald, whose legal name is now Zakiya Ahmed, was convicted by a jury of several offenses arising out of a home invasion of the apartment of complainant Hunion Henderson. On appeal, appellant raises an evidentiary sufficiency challenge to her firearm-related 2 and robbery convictions and an instructional challenge to her obstruction of justice conviction. For the reasons explained below, we reverse the obstruction of justice conviction and affirm the other convictions. I. Factual and Procedural Background A. The Charges On July 11, 2017, appellant was indicted for multiple offenses arising out of a January 5, 2017, incident at the home of Henderson. She was tried by a jury in December 2017. Appellant had been indicted on seventeen counts, but, soon after opening arguments, the government dismissed the six counts that had been based on the testimony of cooperating witness Larry Kimbrugh, whom the government decided it would no longer sponsor due to inconsistencies in his statements that emerged just before and immediately after the start of trial.1 Thus, with the exception of an obstruction of justice count, which had no complaining witness, 1 Appellant’s counsel moved for a mistrial when the government announced that it would no longer be sponsoring Kimbrugh. The trial court denied the motion, ruling that any prejudice to appellant was cured by the court explaining to the jury that the counts of the indictment that had been dismissed were related to Kimbrugh and by the court permitting appellant to call Kimbrugh as a hostile witness. Appellant does not raise this issue on appeal. 3 Henderson was the complaining witness for the remaining counts, which included several violent offenses and several charges of Possession of a Firearm during a Crime of Violence (“PFCV”) pertaining to the predicate offenses:  Count 1 – Conspiracy to Commit Burglary (D.C. Code §§ 22-1805a, -801, - 4502) (2012 Repl. & 2019 Supp.)  Count 2 – Kidnapping while Armed (D.C. Code §§ 22-2001, -4502) (2019 Supp.)  Count 3 – PFCV as to Kidnapping while Armed (D.C. Code § 22-4504(b)) (2019 Supp.)  Count 6 – First Degree Burglary while Armed (D.C. Code §§ 22-801(a), - 4502) (2019 Supp.)  Count 7 – PFCV as to First Degree Burglary while Armed (D.C. Code § 22- 4504(b)) (2019 Supp.)  Count 8 – Robbery while Armed (D.C. Code §§ 22-2801, -4502) (2019 Supp.)  Count 9 – PFCV as to Robbery while Armed (D.C. Code § 22-4504(b)) (2019 Supp.)  Count 12 – Assault with a dangerous weapon (“ADW”) (D.C. Code § 22- 402) (2019 Supp.)  Count 13 – PFCV as to ADW (D.C. Code § 22-4504(b)) (2019 Supp.)  Count 16 – Threats to Injure or Kidnap (D.C. Code § 22-1810) (2019 Supp.)  Count 17 – Obstruction of Justice (D.C. Code § 22-722(a)(4)) (2019 Supp.) B. The Evidence at Trial The government’s main witness at trial was Henderson, who testified as follows. He was fifty-four years old, had several physical and mental health issues, and had been addicted to crack cocaine for decades. Appellant was a fellow 4 drug user whom Henderson had met and gotten to know in the drug scene; Henderson considered appellant, who was older than him, to be like an aunt to him and referred to her as “auntie.” During 2016, while Henderson was in and out of rehab, his health was poor, and he needed assistance at home, he invited appellant and her boyfriend, known as “Fanbone,” to live with him and take care of him. At first, appellant treated Henderson well; she would cook for him, help him pay bills, and negotiate with people to whom he owed money. However, appellant and Fanbone then began bringing other drug users to Henderson’s apartment, and using and selling drugs – including crack and heroin – in the apartment. Although Henderson did not like the drug traffic in his home, particularly because he was in public housing, he acquiesced. As Henderson’s relationship with appellant deteriorated and he came to feel that appellant did not care about him anymore, Henderson told appellant and Fanbone that he was afraid of them and uncomfortable with what was happening in the apartment, and he asked them to move out several times, but they refused to do so. At some point, Henderson talked with his family about the problems he was having at his apartment due to appellant and Fanbone’s behavior, and his brother connected him with the police. Henderson spoke to Sergeant Curt Sloan of the Metropolitan Police Department (“MPD”), telling Sergeant Sloan that there were 5 drugs in his apartment, as well as guns that an acquaintance of appellant had brought in. Henderson then told appellant that his brother had spoken to the police and that the police would be coming to the apartment; Henderson recommended that appellant and Fanbone leave, but they refused to do so. On the evening of January 4, 2017, MPD officers, including Sergeant Sloan, arrived at the apartment with a search warrant. The officers searched the premises and detained the six individuals who were inside the apartment: Henderson, appellant, Fanbone, Kimbrugh, and two others. Some of the officers took appellant and the others outside, while Henderson remained in the apartment with Sergeant Sloan. While she was outside, appellant called Henderson’s phone; Henderson answered and gave the phone to Sergeant Sloan, who told appellant not to come back to the apartment. In the very early morning hours of January 5, 2017, appellant and Henderson exchanged several text messages, in which appellant told Henderson that she needed to return to the apartment to retrieve some of her belongings, including her “papers” because she was meeting with her “case manager” the next day; her clothes and shoes; and Fanbone’s “black bank card.” Henderson responded by text message that appellant could not return because the police were watching his place 6 and he did not want to get in trouble. Appellant replied, “Let’s do it your way. As long as you give me our stuff, there won’t be a problem”; she also sent messages saying: “I’m out in the street,” “I don’t mean you harm,” and “I just want my things.” At one point, appellant asked if she should send “Rochelle or India or [her] protector.” Rochelle Gordon was Henderson’s neighbor and a friend of appellant’s, and India Frazier was a friend of appellant’s whom Henderson knew, though Henderson did not know who the “protector” was. Henderson agreed to let Gordon into the apartment to retrieve appellant’s things, but she never came. During the time that he was exchanging text messages with appellant, Henderson had let Kimbrugh into the apartment; when Kimbrugh began getting high, Henderson told Kimbrugh to leave and he did. Kimbrugh later came back and banged on the door, saying he wanted his things, and, as Henderson opened the door, three people pushed their way into the apartment: Kimbrugh, Frazier, and Steve Wilson – an acquaintance whom Henderson had met four days earlier when appellant and Fanbone had invited him to a New Year’s get-together at the apartment. Wilson hit Henderson with a gun, pointed the gun at him and ordered him to the ground, stomped on his head, kicked him in his side, threatened to shoot him, called him a “fa**ot,” and accused him of “snitch[ing] on [his] friend.” 7 Frazier asked Henderson, “[W]hy did you do that” when “[t]hey took care of [you]?” – without specifying to whom “they” referred – and also kicked him. While Henderson was on the ground, Wilson covered Henderson’s head with clothes. Although Henderson’s view was mostly obstructed, he observed Wilson, Frazier, and Kimbrugh putting items from the apartment into laundry bags and taking the bags and other things out of the apartment. Henderson listed several items that were taken: (1) some groceries from the refrigerator; (2) two TVs, one of which had been brought in by appellant and Fanbone, and the other of which had been brought in by another acquaintance; (3) some “money,” which Henderson then clarified was a “black bank card” that belonged to Fanbone and that Henderson had put in his own pocket; (4) “a chain that didn’t belong to me [Henderson]” but “belong[ed] to family members”; (5) “a ring that belonged to me [Henderson]”; and (5) other unspecified “stuff.” About ten minutes after Kimbrugh, Frazier, and Wilson had entered, appellant entered the apartment. Appellant leaned over and quietly spoke into Henderson’s ear, calling him a “snitch” and saying, “You thought I wouldn’t be able to get in. You thought you had got away,” as well as something like, “You 8 thought that you were going to get away with this, and you’re going to pay for this.” Then all four individuals left and Henderson called the police. On cross-examination, Henderson admitted that he had testified before the grand jury that appellant, upon entering the apartment after Wilson and Frazier, said to them, in reference to Henderson: “Don’t do nothing to him yet. Don’t do nothing to him.” Henderson also admitted to inaccuracies in his grand jury testimony. Before the grand jury, he had testified that the things that were taken during the incident belonged to him; however, on cross, he admitted that several items belonged to appellant, Fanbone, or others – including both TVs, the bank card, and some of the groceries in the fridge. He also appeared to admit that the chain that was taken actually belonged to Fanbone. When defense counsel pressed Henderson regarding his ownership of the items taken from the apartment, he stated that he “considers” “[e]verything in the apartment” to be his, “whether it’s [his] or not.” After the government rested,2 the defense called Rochelle Gordon, who testified that appellant contacted her in the early morning hours of January 5 and 2 After Henderson stepped down, the government called Sergeant Sloan, who testified about the January 4 raid. (…continued) 9 asked her to retrieve appellant’s clothes and belongings from Henderson’s apartment. Gordon testified that appellant showed her text messages in which Henderson requested that Gordon retrieve appellant’s things. She testified that she went to Henderson’s apartment, but, despite banging on the door and announcing herself for ten minutes, Henderson never answered, so she left. She also testified that, upon leaving the building, she saw Kimbrugh exit the building, walk to appellant’s car on the street, and talk to three people who were sitting in the car – two of whom were appellant and India Frazier, and the third of whom she did not recognize.3 In his closing argument, the prosecutor acknowledged the weaknesses in Henderson’s testimony regarding the taking of property during the home invasion, but stated: “[D]on’t get wrapped up in that. The point is that there was indiscriminate taking of property, including property of his, from him, off of his person; he referenced a ring. That is the basis for the armed robbery charge in this case.” (…continued) 3 In addition to Gordon, the defense also called three other witnesses, not relevant here. Appellant did not testify. 10 C. Jury Deliberations In instructing the jury, the trial judge followed the pattern criminal jury instructions for the District of Columbia, commonly referred to as the “Red Book.” In doing so, she included instructions on co-conspiracy liability and aiding and abetting liability as to the charged offenses. See Criminal Jury Instructions for the District of Columbia, No. 7.103 (“Co-Conspirator Liability”), No. 3.200 (“Aiding and Abetting”) (5th Ed. rev. 2019). She also included an instruction on robbery, and, at the defense’s request and without objection from the government, an instruction on the claim of right defense to robbery, stating, in part, that “if a person takes the property of another in good faith belief that she has the right to take it, the specific intent of the element of robbery is lacking.” See id. No. 4.300 (“Robbery”), No. 9.521 (“Claim of Right”). Finally, the judge included the Red Book instruction on obstruction of justice under D.C. Code § 22-722(a)(4), stating: The elements of the offense of obstructing justice, each of which the Government must prove beyond a reasonable doubt: That Zakiya Ahmed or an alleged co-conspirator or alleged principal actor injured or threatened to injure Mr. Hunion Henderson; 11 two, that Zakiya Ahmed or an alleged co-conspirator or alleged principal actor acted voluntarily, on purpose and not by mistake or accident; and three, that Zakiya Ahmed, an alleged co-conspirator or alleged principal actor injured or threatened to injure Hunion Henderson because he had given information to a criminal investigator. See Criminal Jury Instructions, No. 6.101(D) (“Obstructing Justice: Injuring witness or his property”). During deliberations, the jury announced that it had convicted on eight counts and acquitted on two counts (discussed further below). It then resumed deliberations only on the obstruction of justice count; soon thereafter, it sent a note to the trial judge seeking clarification on the obstruction count. The note stated: If we find beyond a reasonable doubt that these three facts . . . independent of each other, are true, A, Onion (phonetic) [Hunion Henderson] had given information to a criminal investigator; B, police/criminal investigators kept Zakiya from her belongings in the apartment; and three, the assault and its resulting injuries happened in an attempt to get Zakiya’s belongings that were in the apartment, 12 does that satisfy element 3 of count 17, obstruction of justice? The judge heard extensive argument from the parties regarding the proper response to the jury note.4 The judge then delivered this re-instruction to the jury, both orally and in writing: In order to prove the third element of the offense of obstruction of justice, the Government must prove beyond a reasonable doubt that Zakiya Ahmed’s actions and Mr. Henderson’s injuries came about as a result of Mr. Henderson providing information to the criminal investigator. If you find that Mr. Henderson providing information to the criminal investigator was not a reason for the injuries to Mr. Henderson, you must find the defendant not guilty of the obstruction of justice charge. 4 During this exchange, in which the judge solicited input from both sides, defense counsel stated: “[I]t’s got to be a specific intent to obstruct justice, not to get your property.” The judge did not accept this proposal. Counsel then “not[ed], just for the record,” that her request had been denied and that she was “preserving it.” When the judge asked for clarification, she stated: “[I]f the assault and its injuries happened when [appellant] was trying to get her belongings that were in the apartment, that does not satisfy the third element for obstructing justice”; she elaborated that “[t]here has to be a nexus” between the facts that the jury posited in its note, as they cannot “be independent of each other,” as the jury proposed. The judge “note[d] [the] objection” but proposed an alternative formulation, to which the government agreed, and to which defense counsel, after reviewing it, simply said “Thank you.” 13 If the criminal investigation is wholly independent from the cause of the injuries, you may not find the defendant guilty of obstruction of justice. Less than an hour later, the jury returned a guilty verdict on the obstruction charge. Ultimately, the jury acquitted appellant of the conspiracy charge, the burglary charge, and the PFCV charge related to burglary, but it convicted her of unlawful entry as a lesser-included offense of burglary while armed and convicted her of all the other charged offenses. Specifically, appellant was convicted of the following:  Count 2 – Kidnapping while Armed  Count 3 – PFCV as to Kidnapping while Armed  Count 6 – Unlawful Entry  Count 8 – Robbery while Armed  Count 9 – PFCV as to Robbery while Armed  Count 12 – ADW  Count 13 – PFCV as to ADW  Count 16 – Threats to injure or kidnap  Count 17 – Obstruction of Justice Appellant timely appealed. II. Standard of Review 14 We review the sufficiency of the evidence de novo, Nero v. United States, 73 A.3d 153, 157 (D.C. 2013), “view[ing] the evidence in the light most favorable to sustaining the judgment,” Davis v. United States, 834 A.2d 861, 866 (D.C. 2003), and “making no distinction between direct and circumstantial evidence,” Cherry v. District of Columbia, 164 A.3d 922, 929 (D.C. 2017) (citation omitted). “Judicial review is deferential, giving full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Davis, 834 A.2d at 866 (citation and internal quotation marks omitted). “The evidence need not compel a finding of guilt beyond a reasonable doubt, and it need not negate every possible inference of innocence.” Napper v. United States, 22 A.3d 758, 770 (D.C. 2011) (citation and internal quotation marks omitted). Rather, “proof of guilt is sufficient if . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Davis, 834 A.2d at 866 (citation and internal quotation marks omitted). Decisions regarding instructing the jury are committed to the discretion of the trial court and are reversed only for abuse of discretion; however, the accuracy of an instruction itself is a legal question that we review de novo. See, e.g., Brown v. United States, 139 A.3d 870, 875 (D.C. 2016); Taylor v. District of Columbia, 15 49 A.3d 1259, 1263-64 (D.C. 2012); Jordan v. United States, 18 A.3d 703, 707 (D.C. 2011); see also Fleming v. United States, 224 A.3d 213, 219 (D.C. 2020) (en banc) (“Although our terminology has not always been entirely clear on this point, we review de novo whether challenged jury instructions adequately state the law.”). With respect to re-instruction in particular, we have stated that the trial court must appropriately and effectively respond to demonstrated confusion on the part of the jury and must address, with “concrete accuracy,” any specific difficulties the jury is having in understanding the law. Colbert v. United States, 125 A.3d 326, 334 (D.C. 2015). III. Discussion A. Firearm-Related Offenses Appellant argues that the evidence was insufficient to convict her of the three charges that involved an “armed” element (kidnapping while armed, burglary while armed, and ADW) and the three PFCV charges related to those predicate crimes. In particular, she argues that the government failed to carry its burden to convict her of these six firearm-related offenses under co-conspiracy liability because the evidence was too speculative to demonstrate the mens rea required to 16 convict a co-conspirator on these counts, i.e., that it was reasonably foreseeable that Wilson would use or possess a gun during the incident.5 We disagree. In the District, the elements of co-conspiracy liability are the existence of an agreement, the commission of a substantive crime in furtherance of that agreement, and the reasonable foreseeability of the substantive crime as a consequence of the agreement. Clark, 147 A.3d at 327; Wilson-Bey v. United States, 903 A.2d 818, 840 (D.C. 2006) (en banc); see also Criminal Jury Instructions, No. 7.102 cmt. (“Conspiracy”), No. 7.103 (“Co-Conspirator Liability”).6 5 Appellant appears to acknowledge that, although the jury acquitted her of the conspiracy charge (count 1), it was entitled to convict her of other charges under co-conspiracy liability. Indeed, we have repeatedly held that jury verdicts need not be consistent with each other, and that we review each conviction independently, as if it were in a separate indictment. Clark v. United States, 147 A.3d 318, 328 n.14 (D.C. 2016); Richardson v. United States, 116 A.3d 434, 443 (D.C. 2015). 6 The foreseeability element, first articulated by the Supreme Court in Pinkerton v. United States, 328 U.S. 640, 646-48 (1946), has not been adopted by all jurisdictions. See, e.g., Matthew A. Pauley, The Pinkerton Doctrine and Murder, 4 Pierce L. Rev. 1, 4 & nn. 9 & 11 (2005). However, “[t]his court has adopted and applied the Pinkerton doctrine,” Ashby v. United States, 199 A.3d 634, 665 (D.C. 2019), which “provides that a co-conspirator who does not directly commit a substantive offense may nevertheless be held liable for that offense if it was committed by another co-conspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement.” Id. (quoting Wilson-Bey, 903 A.2d at 840) (cleaned up)). Wilson-Bey acknowledged and explained, but did not apply, Pinkerton (…continued) 17 The evidence in this case was sufficient to satisfy the foreseeability element. Henderson testified that, as a result of appellant and Fanbone’s activities, there had been drug use, drug sales, and guns in the apartment prior to the home invasion; (…continued) liability because the facts of that case did not give rise to co-conspiracy liability. See 903 A.2d at 842. However, this court has explicitly or implicitly recognized the validity and applicability of Pinkerton liability on several occasions. See, e.g., Clark, 147 A.3d at 327 (citing Wilson-Bey for the Pinkerton principle and applying it to affirm a conviction, without explicitly mentioning Pinkerton); Richardson, 116 A.3d at 442 (affirming a conviction because the “evidence was sufficient under a straightforward application of Pinkerton”); Hagans v. United States, 96 A.3d 1, 23-25 (D.C. 2014) (implicitly endorsing the trial court’s use of a Pinkerton jury instruction in a conspiracy case and discussing complications that may arise in the context of vicarious liability for hearsay statements); Baker v. United States, 867 A.2d 988, 1005 (D.C. 2005) (holding that a Pinkerton instruction may be given even without an indicted conspiracy charge); Williams v. United States, 858 A.2d 978, 983 (D.C. 2004) (recognizing the validity of a Pinkerton instruction and reversing on other grounds); Gordon v. United States, 783 A.2d 575, 581-82 (D.C. 2001) (stating that a Pinkerton instruction explains to the jury that the substantive offense committed by a co-conspirator must be reasonably foreseeable and committed in furtherance of the conspiracy); Thomas v. United States, 748 A.2d 931, 934-35 (D.C. 2000) (noting that, “[i]n several instances, this court has previously recognized Pinkerton liability generally,” and concluding that Pinkerton “does not offend the grand jury clause, even absent a conspiracy charge in the indictment”); Erskines v. United States, 696 A.2d 1077, 1080 (D.C. 1997) (discussing the validity and applicability of Pinkerton); Akins v. United States, 679 A.2d 1017, 1031 (D.C. 1996) (overruled in part on other grounds) (acknowledging the validity of Pinkerton instructions, but holding that a co-conspirator’s statement may not be introduced under any hearsay exception that is not reliability-based unless the statement is admissible as a co-conspirator’s statement made in furtherance of the conspiracy); see also Criminal Jury Instructions, No. 7.103 cmt. (“Co-Conspirator Liability”) (stating that the Red Book instruction is based on Pinkerton and citing cases in which this court has upheld Pinkerton liability). 18 indeed, that is what served as the basis for the police raid, which occurred only hours before the home invasion and for which appellant was present. Henderson also testified that appellant knew Wilson and had invited him to a get-together at the apartment. Appellant sent Henderson a text message just before the incident saying that she may send her “protector” to retrieve her things, and Gordon testified that appellant was sitting with two other people in her car outside of the apartment building when Kimbrugh went to talk to them: Frazier and another person whom she did not recognize. Henderson also testified that appellant and Wilson participated in the home invasion together, during which appellant gave Wilson and Frazier instructions with respect to Henderson (to the effect of “Don’t do nothing to him yet. Don’t do nothing to him.”). Thus, the evidence established that the nature of the incident was forcible entry into a home, and that appellant was aware that there had recently been guns and drugs sales in that home. The evidence further established that appellant knew Wilson well enough for him to assist her in forcibly retrieving her things from the apartment. The evidence could also support a reasonable inference that Wilson was the “protector” whom appellant referenced – a moniker that implies the use of force, including a weapon.7 7 Appellant is correct that this case is distinguishable in certain respects from Richardson, in which we concluded that it was reasonably foreseeable that (…continued) 19 Accordingly, viewing the evidence in the light most favorable to sustaining the judgment and giving the jury full play to draw reasonable inferences from that evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Wilson’s possession of a gun during the crime was reasonably foreseeable. We emphasize, however, that, one person’s possession or use of a weapon in the commission of a crime is not automatically imputable, under co-conspiracy liability, to others involved in the crime. To the contrary, this court must examine the facts and circumstances in each case to determine whether the evidence supported a jury instruction on co-conspirator liability for a weapon- related offense and whether a rational jury examining that evidence could find beyond a reasonable doubt that the possession or use of a weapon by one of the co- conspirators was reasonably foreseeable. In this case, we have engaged in such an (…continued) Richardson’s co-conspirator would possess a knife in furtherance of the conspiracy, and from two cases cited by the Richardson court: United States v. Willis, 899 F.2d 873, 875 (9th Cir. 1990), and United States v. Smith, 697 F.3d 625, 635 (7th Cir. 2012). Richardson, 116 A.3d at 441. Unlike in Richardson and Willis, there was no evidence in this case that appellant and Wilson lived together or were close associates, and unlike in Smith, this case did not involve a bank robbery. But we have never required the presence of those or any other specific factors to conclude that possession or use of a weapon was reasonably foreseeable. Rather, as explained below, we look to the evidence presented to the jury in each case to determine whether it was sufficient to support a finding of reasonable foreseeability. 20 examination, and we conclude that the evidence was sufficient to sustain the convictions on the firearm-related offenses under co-conspirator liability.8 B. Robbery Appellant argues that, given Henderson’s contradictory testimony regarding his ownership of the items that were taken from the apartment, as well as the jury instruction on the claim of right defense, the evidence was insufficient to convict her of robbery. We are not persuaded. We have previously explained that robbery is a specific intent crime, requiring the government to prove that a defendant acted with the specific intent to steal. See, e.g., Bell v. United States, 950 A.2d 56, 69 (D.C. 2008); Simmons v. United States, 554 A.2d 1167, 1169 (D.C. 1989); Criminal Jury Instructions, No. 4.300 cmt. (“Robbery”).9 A claim of right defense asserts that a defendant had a 8 Because we hold that the firearm-related convictions can be sustained under co-conspiracy liability, we do not reach appellant’s argument that these convictions could not have been sustained only under aiding and abetting liability. 9 More recently, however, we have expressed concern regarding the use of specific intent and general intent as categories of mens rea. See Carrell v. United States, 165 A.3d 314, 323-34 & nn. 26 & 27 (D.C. 2017) (en banc). 21 good faith belief in his or her right to take an item, which negates the intent element of robbery. Criminal Jury Instructions, No. 9.521 (“Claim of Right”). Thus, this defense, if credited by the jury, will render the evidence insufficient to convict a defendant of robbery because the government will have failed to prove the mens rea element of the crime. See, e.g., Smith v. United States, 330 A.2d 519, 521 (D.C. 1974).10 Because appellant did not testify, the direct evidence of her good faith belief is limited, though her text messages indicated her intent to retrieve her own belongings from the apartment (including papers and clothing). Nevertheless, Henderson’s testimony served as circumstantial evidence of appellant’s belief 10 The claim of right issue in this case is complicated by the fact that there was no evidence that appellant herself took any property from Henderson’s apartment; rather, Henderson’s testimony was that Frazier, Wilson, and Kimbrugh took the property. (Because actual taking is an element of robbery, appellant was necessarily convicted of robbery under either co-conspiracy liability or aiding and abetting liability, both of which were presented to the jury – and neither of which appellant challenges as to the underlying robbery count, as her vicarious liability challenge to the robbery conviction pertains only to its “while armed” component, as discussed above.) The question is therefore whether appellant had a good faith belief that she had a right to take the property that was actually taken (in this case, by others). See Criminal Jury Instructions, No. 9.521 cmt. (“A defense of claim of right must relate to the items taken.”); cf. Robertson v. United States, 429 A.2d 192, 195 n.5 (D.C. 1981) (permitting a claim of right defense when the amount taken was less than the amount of the alleged debt owed by the robbery victim, but not when the amount taken was greater than the amount of the alleged debt). 22 regarding the items that were taken. While Henderson disclaimed ownership of certain items (such as a TV that belonged to appellant and Fanbone, a TV that belonged to another acquaintance, and a bank card and a chain that belonged to Fanbone), he also stated that the ring and some of the groceries in the refrigerator belonged to him – and the prosecutor specifically emphasized the ring in his closing argument. Moreover, while Henderson asserted that he considered everything in the apartment to be his, whether or not he actually owned it, we have often reiterated that it is the province of the jury to weigh evidence and that a jury may credit portions of a witness’s testimony and discredit others. See, e.g., Hughes v. United States, 150 A.3d 289, 305 (D.C. 2016). Finally, the volume and variety of items that were taken – Henderson testified that Wilson, Frazier, and Kimbrugh started putting things in laundry bags and taking them out of the apartment – could support a reasonable inference on the part of the jury that items were taken indiscriminately, including items actually owned by Henderson. As noted, the evidence need not negate every possible inference of innocence or compel a finding of guilt. In light of Henderson’s testimony and the reasonable inferences that could be drawn from that testimony, the evidence was sufficient for the jury to conclude that appellant lacked a good faith belief in her right to take at least some of the items taken from Henderson’s apartment. Thus, 23 there was sufficient evidence for a reasonable jury to reject the claim of right defense and find beyond a reasonable doubt that the requisite mens rea for robbery was present. Appellant’s robbery conviction must stand. C. Obstruction of Justice Finally, appellant argues that the trial court erred in its response to the jury’s question about the obstruction of justice count. She asserts that the trial court’s response to the jury note was legally incorrect and that this incorrect response clearly influenced the jury’s verdict. Because the trial court’s re-instruction in response to the jury note constituted a substantive articulation of the applicable law, we review its legal accuracy de novo. See supra Section II. Reviewing under this standard, we agree with appellant.11 11 The government argues that appellant forfeited this argument by agreeing to the trial judge’s response to the jury note, see supra note 4, and that this court should therefore review the claim only for plain error. We disagree. Counsel’s “thank you” appears to have been a simple showing of deference to the trial judge after the judge had “note[d] [her] objection” and ruled against her. Under the circumstances, this exchange was sufficient to preserve the objection. Cf. In re Ty.B., 878 A.2d 1255, 1263 (D.C. 2005) (“To require counsel . . . to object again would be to require a pointless formality.” (cleaned up)). We therefore review this claim squarely, rather than for plain error. 24 Appellant was charged under subsection (a)(4) of the obstruction statute, which states that a person commits obstruction if she “[i]njures or threatens to injure any person or his or her property on account of the person or any other person giving to a criminal investigator in the course of any criminal investigation information related to a violation of any criminal statute.” D.C. Code § 22- 722(a)(4). The Red Book instruction, which the trial court read to the jury and included in the written jury instructions, is a relatively straightforward rendering of the text of § 22-722(a)(4) into discrete elements, though it substitutes the word “because” for the phrase “on account of:” The elements of the offense of obstructing justice, each of which the government must prove beyond a reasonable doubt, are that: 1. [Defendant] [injured] [complainant]; 2. [Defendant] acted voluntarily, on purpose, and not by mistake or accident; and 3. [Defendant] [injured] [complainant] because [s/he] had given information to a criminal investigator. Criminal Jury Instructions, No. 6.101(D) (bracketed material cleaned up).12 The first and second elements address actus reus and mens rea, respectively. The 12 The Red Book is, of course, not law, but it aims to accurately reflect the law. See, e.g., Thurston v. United States, 779 A.2d 260, 262 (D.C. 2001). 25 dispute here centers around the third element, which goes to motive.13 Our case law has substantively addressed (a)(4) twice, each time only briefly. In Mayhand v. United States, we repeated the “on account of” language from the statute: while we reversed the conviction in that case based on the admission of inadmissible hearsay, we noted that the evidence would have been sufficient to convict under (a)(4) because the evidence – including the inadmissible hearsay – “provided a sufficient basis for a reasonable fact-finder to infer that [the appellant] had threatened to injure [the complainant] and had done so ‘on account of’ the information [the complainant] gave to law enforcement.” 127 A.3d 1198, 1204, 1212 (D.C. 2015). In McCullough v. United States, however, we clarified that retaliation satisfies the motive element. 827 A.2d 48, 58 (D.C. 2003). The evidence in that case showed that the co-conspirators killed an acquaintance after 13 At trial and in her briefing before this court, appellant used the term “specific intent” to refer to this element, though that term may confuse more than it clarifies, as the intent (mens rea) element of obstruction of justice is not at issue here. We note that our case law has not addressed the mens rea element of (a)(4), but has recognized that two other subsections of D.C. Code § 22-722 require specific intent: (a)(2), which pertains to interfering with witnesses in official proceedings, Crutchfield v. United States, 779 A.2d 307, 325 (D.C. 2001), and (a)(6), which pertains to impeding “the due administration of justice in any official proceeding,” Hawkins v. United States, 119 A.3d 687, 695 (D.C. 2015). We also note, as mentioned above, see supra note 9, the concern we have expressed in recent years regarding the use of specific intent and general intent as categories of mens rea. See Carrell, 165 A.3d at 323-34 & nn. 26 & 27. 26 one of the conspirators confirmed to others that the acquaintance had become a government informant and was planning to serve as a witness; we therefore concluded that (a)(4) “was satisfied because [the informant] was killed in retaliation for giving information to the police about criminal activity. Id.14 It is clear that the trial court’s response to the jury note went beyond the statute, the Red Book instruction, and our case law. The trial court stated that the third element of (a)(4) would be satisfied if the government proved that “Zakiya Ahmed’s actions and Mr. Henderson’s injuries came about as a result of Mr. Henderson providing information to the criminal investigator,” and that appellant must be acquitted if “Mr. Henderson providing information to the criminal investigator was not a reason for the injuries to Mr. Henderson” or “the criminal investigation [was] wholly independent from the cause of the injuries” (emphasis added). These formulations do not clearly refer to appellant’s motive or identify motive as the link between appellant’s actions and Henderson’s injury. Accordingly, the re-instruction cannot be squared with the statute, which requires that a defendant “[i]njure[]. . . [a] person . . . on account of the person or any other 14 In another case, Wynn v. United States, we noted briefly, in our analysis of (a)(6), that (a)(4)’s reference to criminal investigations includes police investigations. 48 A.3d 181, 190 (D.C. 2012). 27 person giving [information] to a criminal investigator,” D.C. Code § 22-722(a)(4) (emphasis added); with the Red Book instruction, which requires that a defendant “injure[] complainant because he had given information to a criminal investigator,” Criminal Jury Instructions, No. 6.101(D) (emphasis added and brackets omitted); or with McCullough, which found obstruction where a defendant killed the victim “in retaliation for” the victim giving information to police, 827 A.2d at 58 (emphasis added). While the trial court’s response contemplates a causal relationship between Henderson’s police cooperation and Henderson’s injuries, as well as a causal relationship between appellant’s action and Henderson’s injuries, it omits motive, which is a necessary element of the crime. Appellant’s actions that injured Henderson must have been motivated by Henderson giving information to the police. Under the trial court’s formulation, even if appellant’s sole motive in going to Henderson’s apartment was to retrieve her belongings – meaning appellant (and her co-conspirators) did not injure Henderson “on account of,” “because of,” or “in retaliation for” Henderson giving information to the police – appellant would still be guilty of obstruction because Henderson’s injuries indirectly resulted from a chain of events that involved Henderson talking to the police, the police raiding the apartment, appellant being put out of the apartment without her belongings, 28 appellant later returning with others to forcibly retrieve her things from the apartment, and Henderson being injured during the retrieval incident. But (a)(4) does not criminalize all injuries that result in some way from a complainant providing information to a criminal investigator; it only criminalizes injuries that were motivated by that provision of information.15 While the trial court was understandably attempting to clear up the jury’s confusion, as required by our case law, it made a substantive statement of law that was not consistent with applicable authorities. Thus, reviewing de novo for legal accuracy, we conclude that the trial court’s response to the jury note was error. Nor was the error harmless. The trial court’s re-instruction permitted the jury to conclude that, if there was any connection between Henderson giving information to the police and Henderson’s injury – no matter how attenuated or mediated – the third element of (a)(4) was satisfied. In other words, the jury 15 According to the trial court’s formulation of the jury instruction, other scenarios in which the requisite motive was absent could potentially amount to obstruction. For instance, if one of the officers who participated in the police raid on Henderson’s apartment had used excessive force in detaining Henderson and had injured him, that officer could be guilty of obstruction – even if the officer was completely unaware that Henderson had given information to the police – because Henderson giving information to the police was “a reason” for Henderson’s injuries, Henderson’s injuries were “a result” of his giving that information, and the information and his injuries were not “wholly independent.” We do not think this is the type of conduct at which (a)(4) is aimed. 29 instruction permitted the jury to convict appellant even if it found that appellant did not take any action to injure Henderson that was motivated by – i.e., taken on account of, because of, or in retaliation for – Henderson’s contact with the police. Under these circumstances, we cannot say, with fair assurance, that the verdict was not substantially swayed by the error. Shelton v. United States, 983 A.2d 979, 983 (D.C. 2009) (“To find an instructional error harmless, we must be satisfied ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’” (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946) (cleaned up)). Accordingly, we reverse on this count. IV. Conclusion For the reasons discussed, we conclude that the evidence was sufficient to support appellant’s convictions on the firearm-related charges under co-conspiracy liability and sufficient to support appellant’s robbery conviction despite the claim of right defense, and we therefore affirm those convictions. However, we conclude that the jury re-instruction on obstruction of justice constituted legal error and the error was not harmless; we therefore reverse the obstruction of justice conviction. 30 So ordered.
01-03-2023
06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/127300/
537 U.S. 1202 WYNNv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. No. 02-7983. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3063019/
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 31, 2010 No. 09-15263 JOHN LEY Non-Argument Calendar CLERK ________________________ D.C. Docket No. 09-60922-CV-CMA VOZZCOM, INC., a Florida corporation, Plaintiff-Appellant, versus GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, a Foreign Profit Corporation d.b.a. Great American Insurance, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (March 31, 2010) Before TJOFLAT, WILSON and COX, Circuit Judges. PER CURIAM: Vozzcom, Inc., a cable and broadband outsourcing company, appeals the grant of summary judgment in favor of Great American Insurance Company of New York for Vozzcom’s claim for declaratory relief seeking a determination that Great American has a contractual obligation to cover defense costs of a lawsuit filed against Vozzcom by one of its former employees. We affirm. Vozzcom had an employment practices liability policy with Beazley Insurance Company, which covered defense costs in suits by Vozzcom employees for violations of wage and hour laws. In June 2007, Claudio Teixeira, a former Vozcomm cable installer, sued Vozzcom alleging it denied him overtime compensation in violation of the Fair Labor Standards Act (“FLSA”). Beazly paid the costs associated with defending the Texeira suit. Vozzcom’s insurance policy with Beazley then expired, and it obtained a similar policy from Great American, which covered the period from January 1, 2008 through December 31, 2008. In January 2008, Fransisco DaSilva, another former cable installer, sued Vozzcom. The allegations of the DaSilva complaint were similar to the allegations of the Texeira complaint. Vozzcom sought coverage for the defense of the Dasilva lawsuit from both Beazley and Great American. Both companies denied coverage, and Vozzcom defended the Dasilva claim at its own expense. It then filed suit against Beazley and Great American seeking a declaratory judgment 2 as to each company’s obligations under the insurance policies. The court granted summary judgment in favor of Vozzcom as to Beazley, and against Vozzcom as to Great American. Vozzcom, Inc. v. Beazley Ins. Co., No. 08-62044-CIV, 2009 WL 3486308, (S.D. Fla. June 17, 2009). It found that the allegations in the Taixeira and Dasilva claims were “related” and were to be considered filed at the same time. Id. at *9. The court held that the Great American policy did not afford coverage for the Dasilva action because it was deemed to have been filed “long before Great American’s policy came into effect.” Id. But, it concluded the Beazley policy did afford coverage because the DaSilva action was filed within the policy’s sixty-day window that covered claims filed after the insurance policy expired. Id. at *8. In January 2009, Richard Elliot, another former cable installer, sued Vozzcom. The allegations in the Elliot complaint are similar to those made in Texeira and DaSilva. Vozzcom requested coverage from Great American for the defense of the Elliot lawsuit. Great American denied coverage, and Vozzcom filed this suit for declaratory relief. Both parties moved for summary judgment. The district court concluded that Great American was not obligated under its policy with Vozzcom to pay the costs of defending the Elliot lawsuit. (R. 1-30 at 16.) So, it granted summary judgment in favor of Great American and denied Vozzcom’s motion for summary judgment. (Id.) Vozzcom appeals. 3 The insurance policy provides that multiple claims “involving the same Wrongful Act or Related Wrongful Acts” are to be considered a single claim and shall be deemed to have been made on the date on which any such claim was first made or on which any such act was reported under this policy or other policy providing similar coverage. (R.1-1 at 22, 35; see also id. at 19 (defining Wrongful Act and Related Wrongful Act).) We look to the allegations in the complaint to determine whether Great American has a duty to insure. See Jones v. Florida Ins. Guar. Ass’n, Inc., 908 So. 2d 435, 442-43 (Fla. 2005) (noting that a duty to insure arises “when the complaint alleges facts that fairly and potentially bring the suit within the policy coverage.”) We find that the allegations in the Elliot action are nearly identical to and, at the very least, are “related” to those in the Teixeira and DaSilva actions. (Compare R.1-21 at Ex. A (Teixeira complatint) with R.1-21 at Ex. B (DaSilva complaint) and R.1-21 at Ex. E (Elliot complaint).) The plaintiffs in all three cases are former cable installers who worked for Vozzcom during the same approximate time period, and the complaints allege similar facts and FLSA violations. Therefore, we conclude that, under the terms of the policy, the Teixeira, DaSilva, and Elliot actions are to be considered a single claim. That claim was first made, at the latest, in June 2007 when the Teixeira lawsuit was filed. The Great American policy period started well after the Teixeira lawsuit was filed, so Great American is under 4 no duty to defend the Elliot action. Having concluded that the Elliot claim should be deemed to have been made before the insurance policy became effective, we need not consider whether the claim is excluded under other provisions in the insurance policy. We hold that the district court did not err in holding that Great American is not obligated to defend the Elliot action and by granting summary judgment in its favor. AFFIRMED. 5
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3056797/
Case: 10-15035 Date Filed: 09/28/2012 Page: 1 of 24 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 10-15035 ________________________ D.C. Docket No. 1:09-cr-20295-PAS-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee, versus RAUL S. RAMIREZ, llllllllllllllllllllllllllllllllllllllllDefendant - Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (September 28, 2012) Before TJOFLAT, PRYOR and RIPPLE,* Circuit Judges. PER CURIAM: Raul Ramirez appeals his convictions and sentences for one count of * Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by designation. Case: 10-15035 Date Filed: 09/28/2012 Page: 2 of 24 conspiracy to commit health care fraud, 18 U.S.C. § 1349; twelve counts of health care fraud, id. § 1347; and three counts of money laundering, id. § 1957. Ramirez argues that the district court erred when it refused to dismiss his indictment, failed to conduct competency hearings sua sponte, and made several evidentiary rulings at trial. Ramirez also argues that the district court erred when it sentenced him. All of Ramirez’s arguments lack merit. We affirm. I. BACKGROUND Ramirez owned R.A. Medical Center, a medical clinic in Miami, Florida, and served as its executive director. From February 2004 to April 2005, R.A. Medical paid Medicare beneficiaries to visit the clinic and billed Medicare for infusion and injection treatments for HIV. Dr. Joseph Barata worked at R.A. Medical and his Medicare provider number was used to submit claims to Medicare. In 2005, the government filed a civil forfeiture action against Ramirez and alleged that he had billed Medicare for medically unnecessary and unperformed procedures. In February 2006, while the civil forfeiture case was pending, Ramirez was injured in a car accident. According to Ramirez, he sustained six herniated disks, four of which protruded into his spinal cord; an injury to his head; pain, numbness, tremors, and headaches; and a loss of physical strength and mental acumen. Ramirez settled the civil case with the government. Case: 10-15035 Date Filed: 09/28/2012 Page: 3 of 24 Ramirez was indicted on April 2, 2009, and the charges at issue in this appeal involve the same conduct that was at issue in the civil forfeiture proceeding. Before trial, Ramirez filed a letter labeled “Secured Party Creditor” with the district court in which he moved the court to dismiss the indictment. The district court held a hearing on the motion, during which Ramirez stated that he was “a secured party creator [sic] and sovereign.” He also stated that, because he was an independent sovereign, the district court lacked jurisdiction over him, and he moved the district court to dismiss the indictment. The district court denied the motion and ordered a magistrate judge to hold a competency hearing. The magistrate judge ruled that Ramirez was competent to stand trial. At trial, the government produced evidence that Ramirez had manipulated blood samples of his patients as part of a scheme and artifice to defraud Medicare. R.A. Medical sent blood samples of its patients to Mercy Laboratory for testing. Two lab technicians who tested blood samples from R.A. Medical at Mercy Laboratory, Marisol Prendes and James Vaden, testified that, in their opinion, R.A. Medical manipulated some of the blood samples in a centrifuge. The government argued that R.A. Medical manipulated the blood because it wanted the blood tests of the patients to show a decreased blood platelet count so that R.A. Medical could justify billing Medicare for expensive medications. Case: 10-15035 Date Filed: 09/28/2012 Page: 4 of 24 Dr. Michael Wohlfeiler, a Miami physician who specializes in the treatment of HIV/AIDS, corroborated this theory with expert testimony. Dr. Wohlfeiler examined the medical records of patients who received treatment from both a primary care physician and R.A. Medical. He testified that the results of blood tests conducted at R.A. Medical were inconsistent with the results of blood tests conducted at other locations. For example, a sample from a patient collected at Cedar Springs Medical established that the patient had a platelet count of 198,000, a normal level, but seven days later, the results from a sample collected by R.A. Medical from the same patient showed that the platelet count was 47,000. Dr. Wohlfeiler explained that there was no legitimate medical explanation for those types of drops in platelet levels within ten days. He also explained that a critical value platelet count is rare for HIV patients. In addition to testifying about discrepancies in the blood samples, Dr. Wohlfeiler testified that many of the treatments provided to patients at R.A. Medical did not make medical sense. The jury convicted Ramirez of each charge in the indictment. At the sentencing hearing, Ramirez called Dr. Jorge Betancourt, a psychiatrist who began treating Ramirez in November 2007. Dr. Bentancourt testified that Ramirez had been referred to him due to the concerns of another physician about Ramirez’s cognitive deterioration. Dr. Betancourt saw Ramirez six times and diagnosed him with post-traumatic stress disorder. Case: 10-15035 Date Filed: 09/28/2012 Page: 5 of 24 The district court applied a two-level enhancement because the offense involved the conscious or reckless risk of death or serious bodily injury. Dr. Wohlfeiler testified that patients treated at R.A. Medical were put at great risk by the practices of the clinic. Dr. Wohlfeiler also testified that files of R.A. Medical that he reviewed did not establish that patients at R.A. Medical received appropriate monitoring and treatment. The district court also applied a two-level obstruction of justice enhancement. In applying the enhancement, the district court relied on testimony that Ramirez gave during a September 12, 2006, deposition in the related forfeiture case. During the deposition, Ramirez testified that Dr. Barata treated a patient on May 25, 2004, but the testimony at trial established that Dr. Barata was in Spain on that date. At the sentencing, Ramirez argued that he had not intentionally lied under oath because he had physical and mental difficulties during the deposition as a result of his car accident. But the district court found that Ramirez had lied under oath during his deposition. After applying the two enhancements, Ramirez’s total adjusted offense level was 36 with a criminal history category I, and Ramirez’s advisory guideline range was 188 to 235 months of imprisonment. The district court sentenced Ramirez to 120 months of imprisonment for the conspiracy to commit health care fraud and 5 Case: 10-15035 Date Filed: 09/28/2012 Page: 6 of 24 the substantive health care fraud counts and a consecutive term of 90 months for the money laundering counts. II. STANDARDS OF REVIEW Several standards of review govern this appeal. We review the denial of a motion to dismiss an indictment for an abuse of discretion. United States v. Clarke, 312 F.3d 1343, 1345 n.1 (11th Cir. 2002). We review the finding that a defendant is competent to stand trial for clear error. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006). We review for abuse of discretion the failure of a district court to conduct a competency hearing sua sponte. United States v. Williams, 468 F.2d 819, 820 (5th Cir. 1972). We review evidentiary rulings for abuse of discretion. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). If an error was not preserved, we review for plain error. United States v. Langford, 647 F.3d 1309, 1325 n.11 (11th Cir. 2011). We review for clear error the factual findings underlying a sentencing enhancement, and we accord great deference to the credibility determinations of the district court. United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002). We review the application of law to those facts de novo. Id. We review the reasonableness of a sentence for abuse of discretion. United States v. Livesay, 587 F.3d 1274, 1278 (11th Cir. 2009). 6 Case: 10-15035 Date Filed: 09/28/2012 Page: 7 of 24 III. DISCUSSION We divide our discussion into four parts. First, we address whether the district court abused its discretion when it refused to dismiss the indictment. Second, we address whether the district court abused its discretion when it did not conduct a competency hearing sua sponte. Third, we address whether the evidentiary rulings of the district court require reversal. Fourth, we address whether the district court erred when it sentenced Ramirez. A. The District Court Did Not Abuse Its Discretion When It Refused to Dismiss the Indictment. Ramirez argues that his due process rights were violated when the government delayed bringing an indictment against him for four years. The government responds that any delay in bringing the indictment was reasonable due to the complex nature of Medicare fraud prosecutions. Ramirez’s argument fails. The statute of limitations is the primary safeguard against the government bringing stale criminal charges, United States v. Marion, 404 U.S. 307, 322, 92 S. Ct. 455, 464 (1971), but when a defendant establishes substantial prejudice, due process may require the dismissal of an otherwise timely indictment if the delay was the product of a deliberate act by the government to gain a tactical advantage, United States v. Foxman, 87 F.3d 1220, 1222 (11th Cir. 1996). Because Ramirez 7 Case: 10-15035 Date Filed: 09/28/2012 Page: 8 of 24 does not argue that the applicable statutes of limitations barred his prosecution, he shoulders the burden of “show[ing] that pre-indictment delay was deliberate for the purpose of tactical advantage.” United States v. Thomas, 62 F.3d 1332, 1339 (11th Cir. 1995). To meet this burden, Ramirez must establish either that the government acted in “bad faith” by intentionally delaying the prosecution to cause Ramirez prejudice or that “the government ma[de] a judgment about how it [could] best proceed with litigation to gain an advantage over the defendant and, as a result of that judgment, [the] indictment [was] delayed.” Foxman, 87 F.3d at 1223 n.2. Even if we assume that Ramirez suffered substantial prejudice from the failure of the government to indict him earlier, Ramirez failed to establish that the delay was the product of bad faith or a deliberate design by the government to gain a tactical advantage. In his opening brief, Ramirez makes the conclusory assertion that “[t]he government deliberately delayed the indictment for four years, even though it was aware of substantially the same witnesses and documents which were available in 2005 and 2009,” but he fails to identify facts that would tend to prove that the government acted in bad faith or made a deliberate decision to gain a tactical advantage over him that led to the delay. In his reply brief, Ramirez argues that the representation of the government that the delay was due to the 8 Case: 10-15035 Date Filed: 09/28/2012 Page: 9 of 24 complexity of the case “does not truly explain the delay,” but the government does not bear the burden of explaining the reason for the delay. As the district court explained, Ramirez’s “claim of any Government intent to obtain a tactical advantage is speculation.” The district court did not abuse its discretion when it refused to dismiss the indictment for preindictment delay. B. Ramirez Was Competent to Stand Trial. Ramirez argues that the magistrate judge erred when he found that Ramirez was competent to stand trial, but Ramirez does not dispute that he failed to object to this pretrial ruling as required by Federal Rule of Criminal Procedure 59(a). Accordingly, we lack jurisdiction to address this argument. See United States v. Schultz, 565 F.3d 1353, 1359–62 (11th Cir. 2009). Ramirez argues too that the district court should have conducted an inquiry into his competency sua sponte both during trial and before sentencing. A defendant has a due process right not to be tried or convicted while incompetent. Drope v. Missouri, 420 U.S. 162, 171–72, 95 S. Ct. 896, 903–04 (1975). For a defendant to be competent to stand trial, he must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] ha[ve] a rational as well as factual understanding of the proceedings against him.” United States v. Rahim, 431 F.3d 753, 759 (11th Cir. 2005) (alterations in 9 Case: 10-15035 Date Filed: 09/28/2012 Page: 10 of 24 original) (quoting Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995)). The district court must conduct a hearing sua sponte to determine whether a defendant is competent “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(a). A district court must conduct a competency hearing sua sponte when the information known to the district court is “sufficient to raise a bona fide doubt regarding the defendant’s competence.” Tiller v. Esposito, 911 F.2d 575, 576 (11th Cir. 1990). We consider three factors in deciding whether the district court violated the due process rights of the defendant by failing to hold a competency hearing sua sponte: “(1) evidence of the defendant’s irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior medical opinion regarding the defendant’s competence to stand trial.” Id. It is clear from the record that the district court did not abuse its discretion by failing to conduct a competency hearing sua sponte. Ramirez argues that his statements to the the district court that he was an “independent sovereignty” free from the jurisdiction of the federal courts and that 10 Case: 10-15035 Date Filed: 09/28/2012 Page: 11 of 24 as a “secured party creditor” he was protected from prosecution is evidence of irrational behavior and incompetence, but at least two of our sister circuits have rejected similar arguments. See, e.g., United States v. Brown, 669 F.3d 10, 18–19 (1st Cir. 2012); United States v. James, 328 F.3d 953, 955 (7th Cir. 2003). As Judge Easterbrook explained in James, the assertion of a ludicrous legal argument by a defendant does not evince mental incompetence sufficient to preclude the government from prosecuting the defendant: Many litigants articulate beliefs that have no legal support—think of tax protesters who insist that wages are not income, that taxes are voluntary, or that only foreigners must pay taxes; or think of homeowners who contend that because their property can be traced to a land grant signed by President Fillmore their mortgages can’t be foreclosed. Sometimes these beliefs are sincerely held, sometimes they are advanced only to annoy the other side, but in neither event do they imply mental instability or concrete intellect so deficient that trial is impossible. 328 F.3d at 955 (citation omitted). Ramirez’s desire not to be prosecuted by the United States does not establish his incompetence. Ramirez also argues that his demeanor during the court proceedings suggests that he was incompetent to stand trial, but this argument lacks merit. Before the defense presented its case, the district court placed Ramirez under oath and asked him whether he understood his right to testify on his own behalf or not to do so. The district court questioned Ramirez about his interactions with his 11 Case: 10-15035 Date Filed: 09/28/2012 Page: 12 of 24 lawyer. Ramirez responded to each of these inquiries with rational answers, and he informed the district court both that he understood the rights he was waiving and that he knew that he would not be able to complain about his decision to do so if he were convicted. And Ramirez did not hesitate to bring to the attention of the district court issues that were important to him. Ramirez advised the district court that he allegedly had not received the kosher meals that he requested. He also notified the district court that he did not believe that he was being treated well by the United States marshals while in their custody. In the light of Ramirez’s rational responses to the questions of the district court and his ability and willingness to bring to the attention of the district court several personal issues, we cannot conclude that Ramirez’s demeanor during the court proceedings gave the district court any reason to think that Ramirez was not competent to stand trial. Expert testimony established that Ramirez was competent to stand trial and that he was likely malingering to make himself look mentally unstable. Dr. Miller testified during the competency hearing that, when she evaluated Ramirez, he was able to engage in complex conversation with clear and coherent thinking. Dr. Miller testified that Ramirez scored in the competent range on the Georgia Court Competency Test. Dr. Miller also testified that the testing results and her observations established that Ramirez was malingering. Although Ramirez 12 Case: 10-15035 Date Filed: 09/28/2012 Page: 13 of 24 presented the testimony of an attorney who had represented him in an earlier civil proceeding that Ramirez had memory problems and was unable to organize his thoughts, the testimony of a lawyer is not medical opinion. The magistrate judge acknowledged the testimony of Ramirez’s civil lawyer, but credited Dr. Miller’s testimony. Ramirez also argues that the district court erred when it did not inquire sua sponte into whether he was physically competent to stand trial. Ramirez argues that his need to “be excused from trial [for one day] to attend a preoperative surgical consult” about his colon cancer and the fact that he had surgery two weeks after he was convicted “should have given the court pause as to whether Ramirez was able to effectively assist counsel during trial.” We have explained that “a defendant who is ‘mentally competent’ within the meaning of 18 U.S.C. § 4244 et seq. may yet be ‘physically incompetent’–unable, by virtue (for example) of a painful physical condition or the temporary effects of narcotics, to participate effectively in his own defense,” United States v. Schaffer, 433 F.2d 928, 930 (5th Cir. 1970), but as the district court observed, at “no time did [Ramirez] mention that his cancer diagnosis was an issue in either the continued progress of the trial or his ability to take the stand.” There is no evidence that Ramirez’s physical condition impaired his ability to consult with his attorney or to understand the 13 Case: 10-15035 Date Filed: 09/28/2012 Page: 14 of 24 charges against him. The district court did not abuse its discretion by not conducting a hearing sua sponte into whether Ramirez was physically competent to stand trial. C. The Evidentiary Rulings of the District Court Do Not Require Us to Reverse Ramirez’s Convictions. We divide our discussion of Ramirez’s arguments about evidentiary rulings into four parts. First, we address Ramirez's argument that the district court abused its discretion when it admitted evidence of lab reports over Ramirez's objection. Second, we address Ramirez's argument that the district court improperly admitted the expert testimony of four witnesses. Third, we address Ramirez's argument that the district court abused its discretion when it admitted summary charts of evidence. Fourth, we address Ramirez's argument that we should apply the cumulative error doctrine. 1. The District Court Did Not Abuse Its Discretion When It Admitted Evidence of the Lab Reports. Ramirez argues that the district court abused its discretion when it admitted lab results from Mercy Laboratory because there was “a total breakdown in the chain of custody” relative to the vials of blood underlying the lab results. The government argues that the district court did not abuse its discretion because chain of custody objections go to the weight rather than the admissibility of evidence. 14 Case: 10-15035 Date Filed: 09/28/2012 Page: 15 of 24 We agree with the government. Ramirez’s argument that the lab reports were not authenticated because there were gaps in the chain of custody fails. Federal Rule of Evidence 901 provides that evidence is properly authenticated when there is “evidence sufficient to support a finding that the item in question is what the proponent claims it is.” Fed. R. Evid. 901(a). After a party has presented sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be, the evidence should be admitted and the trier of fact is permitted to determine whether the proffered evidence is what it purports to be. United States v. Caldwell, 776 F.2d 989, 1001–02 (11th Cir. 1985). “[G]aps in the chain of custody affect only the weight of the evidence and not its admissibility.” United States v. Roberson, 897 F.2d 1092, 1096 (11th Cir. 1990). The district court did not abuse its discretion when it admitted evidence of the lab reports over Ramirez’s objection that there were problems with the chain of custody. 2. Although the District Court Erroneously Admitted Expert Opinion Evidence, the Error Was Harmless. Ramirez makes four arguments about the admission of expert testimony against him. First, Ramirez argues that the district court erred when it allowed Prendes to offer expert opinion about the manipulation of blood samples by R.A. 15 Case: 10-15035 Date Filed: 09/28/2012 Page: 16 of 24 Medical. Second, Ramirez argues that the district court erred when it allowed Vaden to offer expert opinion about the blood samples. Third, Ramirez argues that the district court erred when it allowed Vicki Nelson, a registered nurse, to offer medical opinion about the treatment of patients by R.A. Medical. Fourth, Ramirez argues that the district court erred when it allowed Ellen Lapp, an agent with the Federal Bureau of Investigation, to offer medical opinion about the treatment of patients by R.A. Medical. a. Prendes’s Testimony Was Inadmissible as Lay Opinion, but the Admission of This Testimony Was Harmless Error. Ramirez argues that Prendes’s testimony about the lab reports was improper lay opinion testimony because it was not rationally based upon her perception; it was not helpful; and it was based on scientific, technical, or other specialized knowledge within the scope of Rule 702. The government responds that Prendes’s testimony was admissible lay opinion testimony because “Prendes . . . drew upon past experiences to explain the different results and help the jury understand them.” Prendes’s opinion that Ramirez manipulated blood in a centrifuge was inadmissible as lay opinion testimony. Federal Rule of Evidence 701 provides that “[i]f the witness is not testifying as an expert, the witness’ testimony in the 16 Case: 10-15035 Date Filed: 09/28/2012 Page: 17 of 24 form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. Prendes testified that the blood results from the lavender and yellow-topped vials showed significantly different values for blood from the same person. Prendes then testified that, in her opinion, this type of manipulation could be carried out by putting blood into a centrifuge. Prendes testified that, in her opinion, the lavender-topped vials had been spun inside the centrifuge to cause the red blood cells to fall to the bottom. The explanation of a medical lab technician that the white blood cell count of blood can be manipulated by separating the blood into different layers in a centrifuge constitutes “scientific, technical, or other specialized knowledge.” Id. 701(c). The district court abused its discretion by admitting this evidence under an incorrect legal standard. The government argues that the admission of Prendes’s testimony was a harmless error because there was “other evidence that the blood was manipulated,” and we agree. As the government argues, Dr. Wohlfeiler, “testified at length about the different blood results when he compared blood tests from other hospitals and 17 Case: 10-15035 Date Filed: 09/28/2012 Page: 18 of 24 laboratories with the [R.A. Medical] results and concluded the [R.A. Medical] results were not ‘legitimate’ and had to have been ‘tampered with to give a certain result.’” Dr. Wohlfelier was a highly creditentialed expert who had published numerous works about HIV, including an article in the New England Journal of Medicine, and he provided overwhelming evidence that Ramirez had “manipulate[d] blood samples of Medicare beneficiaries before sending them for laboratory testing” as part of his scheme and artifice to defraud Medicare. b. Vaden’s Testimony Was Inadmissible as Lay Opinion Testimony, but Ramirez Fails to Meet His Burden Under Plain Error Review. Ramirez argues that Vaden’s testimony about the lab reports was improper lay opinion testimony because it was not rationally based upon his perception; it was not helpful; and it was based on scientific, technical, or other specialized knowledge within the scope of Rule 702. The government responds that Vaden’s testimony was admissible lay opinion testimony because “Vaden drew upon past experiences to explain the different results and help the jury understand them.” Because Ramirez did not object to Vaden’s testimony, we review for plain error. No plain error occurred. Like Prendes, Vaden testified that the lavender and yellow-topped tubes contained different platelet values and that, in his opinion, this difference could have resulted from the lavender-topped vials being placed 18 Case: 10-15035 Date Filed: 09/28/2012 Page: 19 of 24 into a centrifuge. Vaden’s testimony constituted expert opinion, and the district court abused its discretion by admitting it under Rule 701. But Ramirez offers no argument that the error affected his substantial rights. c. Nelson’s Testimony Was Inadmissible as Lay Opinion Testimony, but the Admission of This Testimony Was Harmless. Ramirez argues that the district court erred when it allowed Vicki Nelson, a registered nurse, to offer “medical opinion about the treatment [that R.A. Medical] provided to its patients.” Ramirez argues that, “[b]ecause Nelson [was a] fact witness[], and because [she] gave medical opinions beyond any demonstrated area of expertise, [Nelson’s] testimony was improper.” The district court erred when it admitted Nelson’s testimony, but the admission of Nelson’s medical opinion about Ramirez’s treatment of patients at R.A. Medical was harmless. As the government argues, “Dr. Wohlfeiler . . . testified that the dosage of certain medications should be changed as a patient’s weight changed which was not done at” R.A. Medical. “Dr. Wohlfeiler. . . testified that [HIV medication] was given without medical justification.” In the light of Dr. Wohlfeiler’s testimony, the admission of Nelson’s medical testimony was harmless. d. The District Court Did Not Err When It Admitted Agent Lapp’s Testimony. 19 Case: 10-15035 Date Filed: 09/28/2012 Page: 20 of 24 Ramirez argues that the district court erred when it allowed Ellen Lapp, an FBI agent, to offer “medical opinion about the treatment [that R.A. Medical] provided to its patients.” The government responds that Agent Lapp did not offer expert opinion testimony. Ramirez did not object to Agent Lapp’s testimony on the ground that she offered impermissible expert testimony, so we review for plain error. Langford, 647 F.3d at 1326 n.11. No plain error occurred. In his brief, Ramirez does not identify any portion of Agent Lapp’s testimony in which Agent Lapp offered opinion testimony. Ramirez cites to the first two pages of Agent Lapp’s testimony, in which Agent Lapp described her background in law enforcement and her participation in the investigation of R.A. Medical. When asked at oral argument to identify Lapp’s expert testimony, Ramirez’s lawyer stated that the “extent” of this testimony was a single statement by Lapp that “the Mercy lab reports had discrepancies.” 3. The District Court Did Not Abuse Its Discretion When It Admitted Summary Evidence. Ramirez argues that the “government . . . violated [his] rights when it admitted several inflammatory charts and another summary exhibit into evidence, rather than limiting these items to demonstrative evidence,” but we disagree. Federal Rule of Evidence 1006 permits parties to use charts or other exhibits to 20 Case: 10-15035 Date Filed: 09/28/2012 Page: 21 of 24 summarize voluminous materials if a summary would be helpful to the jury. Fed. R. Evid. 1006. Whether to permit the use of summary evidence lies within the discretion of the district court. United States v. Richardson, 233 F.3d 1285, 1293 (11th Cir. 2000). Although Ramirez states that the charts that the government introduced into evidence were “misleading,” he fails to explain how the district court abused its discretion when it admitted the charts. Ramirez does not dispute that all of the data underlying the charts was admitted into evidence and that he had an opportunity to cross-examine the witnesses who testified about the charts. No abuse of discretion occurred. 4. The Cumulative Error Doctrine Does Not Apply. Ramirez argues that we should apply the cumulative error doctrine to reverse his convictions because the district court “made many grave errors . . . [that in] combination substantially prejudiced Ramirez during his trial,” but we again disagree. Under the cumulative error doctrine, even if individual judicial errors would not be sufficient to warrant reversal, the defendant may have been denied a fair trial when the effect of all the errors is evaluated cumulatively. United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009). “In addressing a claim of cumulative error, we must examine the trial as a whole to determine whether the appellant was afforded a fundamentally fair trial.” Id. (quotation 21 Case: 10-15035 Date Filed: 09/28/2012 Page: 22 of 24 omitted). Although the district court erred when it admitted the opinion testimony of Prendes, Vaden, and Nelson, the opinion testimony of those witnesses was cumulative of Dr. Wohfeiler’s opinion testimony that reports produced by R.A. Medical regarding blood samples were illegitimate and that R.A. Medical improperly treated patients. Dr. Wohfeiler was a recognized expert in the field of HIV; Prendes, Vaden, and Nelson were not. Ramirez was not deprived of a fundamentally fair trial. D. The District Court Did Not Err When It Sentenced Ramirez. Ramirez presents three different arguments about his sentence. He challenges two enhancements applied by the district court, and he argues that his sentence is unreasonable. Ramirez argues that the district court clearly erred when it applied a two-level enhancement for obstruction of justice, U.S. Sentencing Guidelines Manual § 3C1.1, but the record establishes otherwise. Section 3C1.1 provides that “[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.” Id. Ramirez 22 Case: 10-15035 Date Filed: 09/28/2012 Page: 23 of 24 argues that his deposition testimony from the civil forfeiture proceeding should not have been used to support the enhancement under section 3C1.1 because he was experiencing physical and mental problems during the deposition due to the 2006 car accident. The only evidence presented at the sentencing hearing about Ramirez’s mental state during the deposition in the forfeiture case was the testimony of Dr. Betancourt, and he found that Ramirez’s impairment of memory was minor. Ramirez also challenges the two-level enhancement based on the finding that his offense involved a “conscious or reckless risk of death or serious bodily injury,” id. § 2B1.1(b)(14)(A), but this argument fails. Ramirez argues that the application of the enhancement was improper because “[t]here was no testimony that any patient was actually harmed” by the infusions that he gave to patients, but we rejected an identical argument in United States v. Mateos, 623 F.3d 1350, 1371 (11th Cir. 2010). As we explained in Mateos, “[e]ven though there was no evidence that any patient was actually harmed from the treatments, the enhancement was nevertheless appropriate because the Guidelines provision focuses on the defendant’s disregard of risk rather than on the result.” Id. at 1371. Ramirez argues too that the his sentence is “procedurally and substantively unreasonable,” but we disagree. The district court considered the relevant 23 Case: 10-15035 Date Filed: 09/28/2012 Page: 24 of 24 sentencing factors and adequately explained the reasons for imposing the sentence, and Ramirez’s 210-month sentence is substantively reasonable. Contrary to Ramirez’s representations to the Court, the district court explicitly stated that it had considered Ramirez’s diagnosis with cancer, the statements of Ramirez’s wife, and Ramirez’s contributions to the community in reaching its sentence, but the district court reasonably ruled that the serious nature of Ramirez’s offense, Ramirez’s disregard for the safety of his patients, and the need to provide adequate deterrence and protect the public outweighed these mitigating circumstances. The district court did not abuse its discretion when it sentenced Ramirez to 210 months of imprisonment, which was in the middle of the guidelines range of 188–235 months. IV. CONCLUSION We AFFIRM Ramirez’s convictions and sentence. 24
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10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/1001641/
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-1198 GEORGE G. WILLIAMS, Plaintiff - Appellant, versus KENNETH S. APFEL, Commissioner of Social Security, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Jillyn K. Schulze, Magistrate Judge. (CA- 99-510-S) Submitted: May 11, 2000 Decided: May 16, 2000 Before MURNAGHAN, LUTTIG, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. George G. Williams, Appellant Pro Se. Charlotte Mary Connery-Aujla, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: George G. Williams seeks to appeal the district court’s order dismissing his action filed pursuant to 42 U.S.C.A. § 405(g) (West Supp. 1999) seeking a review of a final decision of the Commission- er of Social Security. We dismiss the appeal for lack of juris- diction because Williams’s notice of appeal was not timely filed. When the United States is a party, all parties are accorded sixty days after entry of the district court’s final judgment or order to note an appeal, see Fed. R. App. P. 4(a)(1), unless the district court extends the appeal period under Fed. R. App. P. 4(a)(5) or reopens the appeal period under Fed. R. App. P. 4(a)(6). This appeal period is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). The district court’s order was entered on the docket on De- cember 3, 1999. Williams’s notice of appeal was filed on February 14, 2000. Because Williams failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2
01-03-2023
07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/3056806/
Case: 11-14911 Date Filed: 09/26/2012 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 11-14911 Non-Argument Calendar ________________________ D.C. Docket No. 4:11-cr-10004-JEM-2 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee, versus YASMANY SANTANA, llllllllllllllllllllllllllllllllllllllllDefendant - Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (September 26, 2012) Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges. PER CURIAM: Case: 11-14911 Date Filed: 09/26/2012 Page: 2 of 6 Yasmany Santana appeals his eighty-four-month sentence, which the district court imposed after he pleaded guilty to conspiracy with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846. On appeal, Santana argues that the district court improperly calculated his criminal history and imposed an unreasonable sentence. I. We turn first to Santana’s argument that the district court miscalculated his criminal history. Santana’s Pre-Sentence Report (PSR) assigned him a criminal history category of V based on a total of eleven criminal history points. Two of those eleven points stemmed from a 2009 Florida conviction for trespassing for which Santana spent 103 days in jail. See U.S.S.G. § 4A1.1(b). Santana filed an objection to the PSR arguing that his 2009 conviction did not support the two- point enhancement. He noted that his sentence for the 2009 conviction was only for “time served,” and that he received credit for the 103 days he had spent in jail prior to the imposition of the sentence. He argued that a “time served” sentence could not be counted under U.S.S.G. § 4A1.2(c)(1), and that the sentence did not exceed sixty days under § 4A1.1(b). The district court rejected this argument at the sentencing hearing. On appeal, Santana argues for the first time that his sentence of 103 days 2 Case: 11-14911 Date Filed: 09/26/2012 Page: 3 of 6 was illegal under Florida law, because his 2009 trespass conviction was a second- degree misdemeanor subject to a maximum punishment of sixty days imprisonment.1 He claims that, because his sentence would be illegal under Florida law, his sentence cannot be equivalent to a 103-day sentence. We review a district court’s factual findings for clear error and its application of the sentencing guidelines to those facts de novo. United States v. McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). However, we review objections to sentencing calculations raised for the first time on appeal for plain error. United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). This standard requires 1) an error; 2) that is plain; 3) that affects a substantial right of the defendant; and 4) that undermines the public integrity of judicial proceedings. See id. at 831–32. Section 4A1.1(b) adds two criminal history points for “each prior sentence of imprisonment of at least sixty days.” U.S.S.G. § 4A1.1(b). Section 4A1.1(c) adds one point for any prior sentence that falls below the threshold of § 4A1.1(b). See id. § 4A1.1(c). However, § 4A1.2(c)(1) excludes from an offender’s criminal history certain misdemeanors and petty offenses, including trespassing, if the term of probation was less than one year or if the prison sentence was for less than thirty days. See id. § 4A1.2(c)(1). Thus, a trespassing 1 See Fla. Stat. § 810.08(2)(a); see also id. § 775.082(4)(b). 3 Case: 11-14911 Date Filed: 09/26/2012 Page: 4 of 6 misdemeanor conviction only earns points under § 4A1.1(b) if it carries a sentence of at least thirty days. Santana did not address the alleged illegality of his 103-day sentence under Florida law in front of the district court. Therefore, we review his argument for plain error. Bennett, 472 F.3d at 831–32. The government concedes that Santana’s 2009 trespass conviction carried a maximum sentence of sixty-days imprisonment under Florida law. Nevertheless, the government contends that even if Santana’s 2009 trespass conviction did not warrant a two-point enhancement under § 4A1.1(b), it would still merit a one-point enhancement under §§ 4A1.1(c) and 4A1.2(c)(1). Even with this adjustment in place, Santana would have a criminal history of ten instead of eleven points, which would still place him in a criminal history category of V. See U.S.S.G. Ch. 5 Pt. A. Therefore, even assuming the district court erred in assigning Santana two criminal history points under § 4A1.1(b),2 any such error did not affect Santana’s substantial rights, so it did not constitute plain error. 2 We pause to express doubt that the district court erred in assigning two points under § 4A1.1(b). Florida law permits a “term of imprisonment not exceeding 60 days” for second- degree misdemeanors, including trespassing. Fla. Stat. § 775.082(4)(b) (emphasis added). The sentencing guidelines impose two criminal history points for each prior sentence “of at least sixty days.” U.S.S.G. § 4A1.1(b) (emphasis added). Therefore, even if we were to read Santana’s prior sentence of 103 days as imposing the sixty-day statutory maximum under Fla. Stat. § 775.082(4)(b), the conviction would still result in a two-point enhancement under § 4A1.1(b). 4 Case: 11-14911 Date Filed: 09/26/2012 Page: 5 of 6 In response, Santana seems to argue that we should deem his 2009 sentence as being less than thirty days because the 103-day time-served sentence exceeded the statutory maximum under Florida law. However, he cites no authority to support this proposition, and we do not find this argument compelling. See United States v. Phillips, 120 F.3d 227, 231 (11th Cir. 1997) (“[I]n sentencing a defendant a district court cannot ignore . . . a prior conviction that has not been invalidated in a prior proceeding, unless there was an unwaived absence of counsel in the proceedings resulting in that conviction.”). II. We turn next to Santana’s argument that his sentence was procedurally and substantively unreasonable. In reviewing the reasonableness of a sentence, we first determine whether the district court committed procedural error. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We then evaluate the substantive reasonableness of the sentence under an abuse of discretion standard. Id. Santana argues that his sentence is procedurally unreasonable because the district court failed to correctly calculate his criminal history, and because it failed to consider the nature and circumstances of the offense, pursuant to 18 U.S.C. § 3553(a)(1). As we explained above, we reject that the alleged error regarding 5 Case: 11-14911 Date Filed: 09/26/2012 Page: 6 of 6 Santana’s criminal history category constitutes reversible error. As to § 3553(a)(1), Santana argues that the district court erred by refusing to consider the relative responsibility of his co-defendant, thereby resulting in an unfair sentencing disparity. In fact, the district court did consider the relative roles of Santana and his co-defendant, but concluded that the co-defendant’s relative responsibility was ultimately immaterial to Santana’s sentence. The court explained that Santana deserved a higher sentence than his co-defendant in light of his violation of parole and criminal history. Therefore, we find Santana’s allegation of procedural error to be without merit. For the same reason, we reject Santana’s argument that the district court’s sentence was substantively unreasonable because the court failed to give sufficient weight to the relative role of the defendants under § 3553(a)(1). III. For these reasons, we AFFIRM the district court. 6
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3063029/
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-12531 ELEVENTH CIRCUIT MARCH 30, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK D. C. Docket No. 08-00255-CR-ORL-35DAB UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALBERTO DELGADO, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (March 30, 2010) Before EDMONDSON, CARNES and ANDERSON, Circuit Judges. PER CURIAM: Defendant, while on federal probation, was arrested for reckless driving. The Federal Sentencing Guidelines recommended three to nine months imprisonment. The District Court sentenced Defendant to a 12-month imprisonment and three years of supervised release. Defendant appeals the District Court's upward departure from the sentencing guidelines. We see no reversible error; we affirm. We review a sentence imposed by a district court under a deferential abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 591 (2007). Defendant was on federal probation for drug-related offenses when he was arrested for reckless driving. According to a deputy sheriff who saw the entire incident, Defendant attempted to veer into another vehicle, a red Toyota, six or seven times. After opening his door to yell at the driver of the Toyota, Defendant drove off at a high rate of speed -- in the estimation of the deputy, exceeding 100 miles per hour while weaving through traffic. The deputy followed Defendant home, where Defendant was arrested. At the time of his arrest, Defendant told police that the driver of the red Toyota was his ex-girlfriend and the mother of his children. He also said that he 2 was racing another vehicle driven by her current boyfriend. At a hearing before a magistrate judge, Defendant claimed that his reckless driving was a result of engine trouble and denied knowing the driver of the red Toyota. Defendant also denied telling the police officer anything about his ex- girlfriend or her current boyfriend. The magistrate judge found that Defendant's testimony was "unworthy of belief." The magistrate judge's report and recommendation said that Defendant had violated his probation. At the sentencing hearing in District Court, Defendant accepted the magistrate judge's report and recommendation without objection. The District Court then calculated the sentencing guidelines range, again without objection. Defendant did object to the 12-month sentence. Defendant contends that the District Court exceeded the guideline recommendation because the District Court thought Defendant was harassing his ex-girlfriend. According to Defendant, this reason was an improper one to extend the sentence because it was an unreasonable interpretation of the facts. The belief that Defendant's history with his ex-girlfriend was a reason for departing upwards was supported some by the final condition on the Supervised Release form: "The defendant is to have no contact with the victims, Joanie Benitez and Peter Martinez." The government had brought up a series of Defendant's past domestic 3 disturbance incidents during the sentencing hearing, none of which were supported by evidence or police reports. Defendant contends that the District Court improperly considered these allegations when the District Court determined Defendant's sentence. The District Court, in an oral explanation of the sentence, explicitly stated that it considered all of the section 3553(a) factors. It then stated which factors led it to exceed the guideline recommendation. The District Court concluded that Defendant (1) was a danger to the community, (2) demonstrated a lack of candor to both the magistrate judge and the District Court, and (3) showed no remorse for his acts. The District Court did not mention Defendant's past relationships, other than to order Defendant to stay away from his ex-girlfriend. We first review the District Court for procedural error. Gall v. United States, 128 S. Ct. 586, 597 (2007). In Gall, the Supreme Court taught that reliance on clearly erroneous facts would be a procedural error. Id. We see none. Defendant has not presented sufficient evidence for us to determine that the District Court relied on clearly erroneous facts. The plain language of the District Court shows that it did not rely on the identity of the driver of the red Toyota in determining Defendant's sentence. If the District Court had relied on the identity of the driver, the Court, as the finder of 4 fact, was entitled to disbelieve Defendant's testimony and credit his statement to the police officer at the time of Defendant's arrest. See, United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999)(en banc) ("As the Supreme Court has recognized, a trial court's choice between 'two permissible views of the evidence' is the very essence of the clear error standard of review." (internal citation omitted)). And because the District Court was entitled to believe that Defendant was being truthful when he was arrested, relying on that statement would not be reliance on a clearly erroneous fact. Next we assess the substantive reasonableness of the sentence. Gall, 128 S. Ct. at 597. Based on the three factors the District Court mentioned during the sentencing hearing, we see no abuse of discretion by the District Court in deviating upwards from the guidelines. Because we cannot say that the District Court failed to follow the proper sentencing procedures or abused its discretion in the substantive reasonableness of the sentence, we affirm the District Court's sentence. AFFIRMED. 5
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3235652/
This appellant was tried and convicted for the offense of operating a motor vehicle while drunk or intoxicated on a certain public highway designated in the complaint. The trial resulted in his conviction as charged, and the jury assessed a fine of $100. As additional punishment, the court sentenced the defendant to 90 days' hard labor for the county. From the judgment of conviction, this appeal was taken. Several exceptions were reserved to the court's rulings upon the admission of evidence, but no error appears in this connection; the alleged objectionable testimony related to the res gestæ thus rendering it admissible. That the accused was driving the automobile (a motor vehicle) upon the occasion in question, and upon the designated public highway, is without dispute. The sole question to be determined therefore was whether he was intoxicated at that time. The fact that there was a more or less disastrous accident at the time would not of itself be sufficiently conclusive that the defendant was intoxicated. But here there was other evidence by several witnesses which tended to show that he was intoxicated; therefore a jury question was presented, and the court properly submitted the case to the jury. We are of the opinion that the evidence was ample to justify the verdict of the jury. Throughout the entire trial we discover no error of a reversible nature in any ruling of the court. It appears that the accused was accorded a fair and impartial trial, and, no error appearing, the judgment of conviction from which this appeal was taken will stand affirmed. Affirmed. *Page 620
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3056811/
Case: 11-15318 Date Filed: 09/26/2012 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 11-15318 Non-Argument Calendar ________________________ Agency No. A088-524-602 QIULING LIN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (September 26, 2012) Before HULL, MARTIN and ANDERSON, Circuit Judges. PER CURIAM: Qiuling Lin, a Chinese national, appeals the Board of Immigration Case: 11-15318 Date Filed: 09/26/2012 Page: 2 of 6 Appeals’s (“BIA”) denial of her second motion to reopen her removal proceedings. She contends that the BIA should have granted her motion based on ineffective assistance of counsel, arguing that her submissions were sufficient to comply with the procedural requirements. She also argues that the BIA should have granted her motion because of changed country conditions in China. I. We review the BIA’s denial of a motion to reopen for abuse of discretion. Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008). This review is limited to determining whether the BIA has exercised its administrative discretion and whether the exercise of that discretion was arbitrary or capricious. Id. When the BIA did not expressly adopt the immigration judge’s (“IJ”) reasoning, we review only the BIA’s decision. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). If a party fails to make an argument in its opening brief, we deem that argument abandoned. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Here we conclude that the BIA did not abuse its discretion in denying Lin’s motion to reopen because, on this record, no exception to the timeliness and numerosity requirements applies. A party may file only one motion to reopen, which must be filed “no later than 90 days after the date on which the final administrative decision was rendered 2 Case: 11-15318 Date Filed: 09/26/2012 Page: 3 of 6 in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Such motions are disfavored. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Among the grounds upon which an alien may rely in such a motion is ineffective assistance of counsel. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005). Here, Lin filed a second motion to reopen her immigration proceedings in May 2011. This was nearly two years after the IJ rendered a decision in July 2009 and, therefore, exceeded the time limitation set forth in 8 C.F.R. § 1003.2(c)(2). Further, because Lin had already filed one motion to reopen, her 2011 motion was also numerically barred. 8 C.F.R. § 1003.2(c)(2). These time and numerical limitations are not subject to equitable tolling in this case.1 See Abdi, 430 F.3d at 1150. There are, however, several exceptions to the one motion and ninety day limit. See generally 8 C.F.R. § 1003.2(c)(3). 1 Citing Abdi and Anin v. Reno, 188 F.3d 1273 (11th Cir. 1999), the government argues that the ninety day filing time is mandatory and jurisdictional. We need not decide that question because Lin’s second motion to reopen in this case was filed in May 2011, a year and ten months after the IJ’s July 15, 2009 decision. This motion accused Lin’s attorney of ineffective assistance of counsel for failing to appeal that July 2009 decision. We cannot conclude that the BIA abused its discretion in denying a motion to reopen that is so untimely (based on conduct almost two years before) and one which provides no adequate explanation of the reasons for the extended delays. Thus, we need not evaluate whether the BIA correctly applied Lozado in holding that Lin’s attorney did not render ineffective assistance. See Matter of Lozado, 19 I. & N. Dec. 637 (BIA 1988). For the same reason, there is no need for the remand which Lin seeks to develop evidence of prejudice from counsel’s performance. 3 Case: 11-15318 Date Filed: 09/26/2012 Page: 4 of 6 II. The time and numerical limitations discussed above do not apply to a motion to reopen with new evidence “based on changed circumstances arising in the country of nationality . . . if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). An alien seeking to show that such evidence is material, however, “bears a heavy burden and must present evidence that demonstrates that, if the proceedings were opened, the new evidence would likely change the result in the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256–57 (11th Cir. 2009). A change in personal circumstances alone does not entitle an alien to this exception. Zhang, 572 F.3d at 1319. The BIA has the discretion to deny a motion to reopen for at least three reasons: (1) failure to establish a prima facie case for asylum or withholding of removal; (2) failure to introduce evidence that was material and previously unavailable; and (3) a determination that despite statutory eligibility for relief, an alien was not entitled to a favorable exercise of discretion. Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir. 2007). The BIA is not required to discuss every piece of evidence presented. See Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (reviewing an IJ’s 4 Case: 11-15318 Date Filed: 09/26/2012 Page: 5 of 6 denial of an application for withholding of removal after the BIA adopted the decision without opinion). Rather, it must only “consider the issues raised and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Id. (quotation omitted). However, the BIA is required to give reasoned consideration to the evidence and make “adequate findings.” See Mezvrishvili v. U.S. Att’y Gen., 467 F.3d 1292, 1295 (11th Cir. 2006) (remanding case for the BIA to make adequate findings). First, Lin has abandoned any arguments about the BIA’s conclusions regarding authentication of village documents, the notice addressed to her, and letters submitted by relatives on her behalf, because she failed to make them in her brief. Access Now, Inc., 385 F.3d at 1330 (“[T]he law is by now well settled in this Circuit that a legal claim or argument that has not been briefed before the court is deemed abandoned and its merits will not be addressed.”). Regarding the other materials, including State Department cables and various 2010 reports, we conclude that the BIA did not abuse its discretion in concluding that these documents did not show changed country conditions. The State Department cables, for example, do not provide any information to show that the country conditions in China have changed between 2009 and 2011. Lin submitted government cables showing that “China’s coercive practices 5 Case: 11-15318 Date Filed: 09/26/2012 Page: 6 of 6 include involuntary abortion to control fertility and regulate the population” and that a program in China supported or participated “in the management of a program of coercive abortion resulting from China’s birth limitation policies and practices.” But this cable appears to have been drafted and sent in 2002; thus, it cannot show any changed conditions between 2009-2011. Additionally, the 2010 Commission Report submitted by Lin shows that coercive practice “continue in China,” which does not meet Lin’s heavy burden of demonstrating that conditions have changed.2 We hold that the BIA did not abuse its discretion by denying Lin’s second motion to reopen. PETITION DENIED. 2 Lin also argues that the BIA failed to address some of her evidence she submitted when making its asylum determination based on religious persecution. But again, the BIA is not required to discuss all evidence presented, and we hold that the BIA “announce[d] its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Tan, 446 F.3d at 1374. 6
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3056967/
Case: 10-13045 Date Filed: 09/04/2012 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____________________________ No. 10-13045 _____________________________ D. C. Docket Nos. 4:09-cv-90064-CDL-GMF ; 4:05-cr-00021-CDL-GMF-1 MICHAEL ANTONIO NATSON, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. _________________________________________ Appeal from the United States District Court for the Middle District of Georgia _________________________________________ (September 4, 2012) Before PRYOR and EDMONDSON, Circuit Judges, and BOWDRE,* District Judge. EDMONDSON, Circuit Judge: * Honorable Karon O. Bowdre, United States District Judge for the Northern District of Alabama, sitting by designation. Case: 10-13045 Date Filed: 09/04/2012 Page: 2 of 17 This case raises the question of the timely filing by a pro se prisoner of a section 2255 motion. Natson (serving a term of imprisonment without the possibility of parole) had until 4 September 2009 to file a timely motion. His motion -- which he signed and he dated 3 September 2009 -- was not received by the district court until 23 September 2009. In Houston v. Lack, 108 S. Ct. 2379 (1988), the Supreme Court decided pro se prisoner notices of appeal to federal courts of appeals are to be considered filed at the moment the notice is delivered to prison authorities for forwarding to the courts.1 No one in this case disputes this point of law: the law is certain. And in cases like Washington v. United States, 243 F.3d 1299 (11th Cir. 2001), this Court extended the Houston time-of-filing rule to pro se prisoner motions to vacate: 28 U.S.C. § 2255. No one in this case disputes this point of law either; the law is certain. In the Houston opinion (Houston, by the way, involved a state prisoner), the Supreme Court wrote that prison authorities “have well-developed procedures for 1 In Houston, the Supreme Court described the question that the Court was then deciding this way: The question we decide in this case is whether under Federal Rule of Appellate Procedure 4(a)(1) such notices are to be considered filed at the moment of delivery to prison authorities for forwarding or at some later point in time. Id. at 2381 (emphasis added). 2 Case: 10-13045 Date Filed: 09/04/2012 Page: 3 of 17 recording the date and time at which they receive papers for mailing.” Houston, 108 S. Ct. at 2384-85. To us, this observation in the opinion -- part of the policy grounds suggested to explain the decision to allow delivery to prison officials as a filing -- is a statement of a fact making up the case then before the Houston court.2 We do not read these quoted words to have been a legal order commanding that the Federal Executive Branch’s Bureau of Prisons must create or maintain a specific kind of record: a contemporaneous mail-received-from-prisoner log for each and all federal places of incarceration. We also do not understand Houston to have held (or said) that an inquiry about the time -- the specific date -- of delivery to prison officials is something other than a question of fact. Nor do we understand Houston to hold (or say) that no evidence would be competent to establish the fact of time of delivery, except a contemporaneous mail-received-from-prisoner log (or that such logs could never be disputed). Most important, we do not understand the Supreme Court in Houston to hold (or say) that factual representations, about timing, by convicted 2 The opinions of the Supreme Court are not the United States Code. Every sentence in a Supreme Court opinion is not law. Only the holdings of Supreme Court decisions are law. And the reasoning of Supreme Court opinions is not the holding of the Supreme Court decision. “There is, of course, an important difference between the holding in a case and the reasoning that supports that holding.” Crawford-El v. Britton, 118 S. Ct. 1584, 1590 (1998). For background, see Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821) (Marshall, CJ.). 3 Case: 10-13045 Date Filed: 09/04/2012 Page: 4 of 17 felons must be accepted -- as a matter of law -- as accurate, unless the Executive Branch has one particular piece of evidence in hand to refute the prisoner’s claim.3 The legal position we express today does not oppose our Circuit’s precedent. In Washington v. United States, a case relied on by Petitioner, our Court faced a case in which the Government offered “no evidence to support a conclusion that” the pertinent 2255 motion was delivered to prison authorities at a date later than the prisoner-petitioner said and signed. Washington, 243 F.3d at 1301. Thus, Washington decided nothing -- could decide nothing, really -- about what kinds of evidence could be lawfully used to determine a contest about when a petition had, in fact, been delivered to prison authorities. In the Washington opinion, we wrote (and we accept today) that the Government had the burden to prove the date a petition was delivered was a date other than the date claimed by the prisoner-petitioner; we then added that “[a]bsent evidence to the contrary in the form of prison logs or other records, we will assume that” the prisoner’s 3 There was no question of these issues presented in Houston. Per Federal Rule of Appellate Procedure 4(c)(1) and the Rules Governing Section 2254 Cases and 2255 Proceedings, we accept that the inmate’s declaration (or notarized statement) is competent evidence to support a judicial finding of timeliness. But we do not understand such declarations, in themselves, to be entirely controlling -- as a matter of law -- for the question of timeliness, when the substance of the declaration is challenged by other parties and other evidence. 4 Case: 10-13045 Date Filed: 09/04/2012 Page: 5 of 17 motion was delivered to prison officials the day the Petitioner says he signed it.4 Id. (emphasis added). In the present case (unlike Washington), the Government did present, in district court, evidence to support a conclusion that the motion was delivered at a later date than Petitioner claims. The evidence was competent to establish untimely filing. Although the Government did not present a log of when the motion was delivered to prison authorities, the Government’s evidence includes prison mailing records. Given the evidence -- including records, the district court found that, in fact, the motion was not delivered to prison officials when Petitioner represents that it was, but later. The petition was dismissed as untimely. We see no reversible error. In support of its motion to dismiss, the Government presented a declaration from M.P., supervisor of the pertinent prison’s mailroom. M.P. gave evidence of the prison’s routine practice. M.P. declared (under penalty of perjury) that, pursuant to prison procedure, prison staff brought outgoing mail to the post office 4 In Garvey v. Vaughn, 993 F.2d 776 (11th Cir. 1993), we extended the Houston rule to Federal Tort Claims Act cases and to section 1983 cases, that is, the complaints are deemed filed when delivered to prison officials by a pro se prisoner. Garvey decided nothing about what kinds of evidence are competent or are not competent to establish, in fact, when the complaints were delivered. Nothing in the appellate opinion indicates that the pertinent governments actually challenged the date that the prisoners contended were the dates that they delivered the complaints. 5 Case: 10-13045 Date Filed: 09/04/2012 Page: 6 of 17 for mailing within 24 hours of receipt from a prisoner. Because Natson’s motion was delivered to the post office on 18 September, M.P. inferred that Natson must have given it to prison staff no earlier than 17 September. Prison records also demonstrated that prison staff delivered certified mail from other prisoners to the post office nine times between 3 September and 18 September. Based on the records and on the prison’s mailing-within-24-hours routine practice, M.P. indicated that -- contrary to Natson’s signature date -- Natson did not give his motion to prison staff to be mailed on 3 September. Beyond Natson’s own certification of time about his motion, Natson presented no evidence; for example, he did not offer evidence that the customs and practices in September 2009 for, or records of, forwarding prisoner mail were incorrectly described by the prison staff. On this record, the motion to dismiss was granted. We accept that, at the moment prison authorities received Petitioner’s 2255 motion, the motion was filed; that principle is the bright line legal rule of Houston. But in the light of all the evidence, we see no clear error in the district court’s factual determination that Natson delivered his motion to prison authorities sometime after 4 September 2009. Thus, the district court properly dismissed 6 Case: 10-13045 Date Filed: 09/04/2012 Page: 7 of 17 Natson’s motion as untimely. AFFIRMED.5 5 To help avoid future disputes of this nature, we strongly encourage prison authorities to adopt procedures to make a record of the date a prisoner delivers outgoing mail to prison staff for mailing. Petitioner says such a procedure was adopted after September 2009 at his place of imprisonment. We understand, of course, that it is highly improbable any record can be made which could not contain an error or which could not be improperly manipulated by someone under some set of circumstances. So, mail logs are inherently just evidence of a date; to us, even a contemporaneous mail-received-from-prisoner log would not necessarily be, as a matter of law, conclusive proof in every case. (We appreciate that -- as a practical matter -- actual contests about the accuracy of dates set out in such a log might be uncommon.) 7 Case: 10-13045 Date Filed: 09/04/2012 Page: 8 of 17 BOWDRE, District Judge sitting by designation, dissenting: I respectfully dissent. The majority views the issue as a factual determination; I view it as a question of the appropriate legal standard required to rebut the presumption that the date a pro se prisoner signed his § 2255 motion is the date he delivered it for filing. Because the district court failed to follow the legal standard that requires proof of the actual date Natson delivered his motion to the prison officials when finding it untimely filed, the decision should be reversed. The district court failed to adhere to the bright-line rule for determining the filing date for pro se prisoners expressed by the United States Supreme Court when it established the mailbox rule in Houston v. Lack, 487 U.S. 266 (1988). By affirming the district court’s decision, the majority opinion accepts legally insufficient evidence based on an affidavit that provides information about general prison procedures and a log of when the prison official mailed other prisoners’ filings, but that is totally devoid of proof of when Natson actually delivered his motion to the prison for mailing. In so doing, the majority appears to replace the Houston bright-line test with an uncertain one. Instead of enforcing the burden placed on prison officials to prove the actual date of prisoner delivery to the prison for filing with evidence in the form 8 Case: 10-13045 Date Filed: 09/04/2012 Page: 9 of 17 of “prison logs or other records” as required by Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001), the district court improperly shifted the burden to the pro se prisoner who, as the Supreme Court recognized, is “unlikely to have any means of proving it” and for whom any evidence “will be hard to come by [while] confined to his cell.” See Houston, 487 U.S. at 271, 276. The majority perpetuates this error in noting that Natson failed to present evidence rebutting the M.P. declaration. Such burden shifting turns Houston upside down. Bright-line Rule Requires Record of Receipt of Prisoner Mail The Supreme Court decision in Houston established the date the pro se prisoner delivers his document to the prison official for mailing as the “bright- line” mailbox rule for filing purposes. 487 U.S. at 275. The evidentiary standard necessary to prove or disprove that date lies at the heart of this appeal. Since Houston, procedural rules and case law have fleshed out in part how a pro se prisoner can establish the date of delivery. See Fed. R. App. P. 4(c)(1); Rules Governing § 2254 Cases, Rule 3(d), 28 U.S.C.A. foll. § 2254; Washington, 243 F.3d at 1301. In its “bright-line” focus on the date of delivery to prison officials as the date of filing for pro se prisoners, the Supreme Court noted that prison authorities 9 Case: 10-13045 Date Filed: 09/04/2012 Page: 10 of 17 have well-developed procedures for recording the date and time at which they receive papers for mailing and . . . can readily dispute a prisoner’s assertions that he delivered the paper on a different date. Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright- line rule, not an uncertain one. Houston, 487 U.S. at 275 (emphasis added). The expectation that prisons would have “well-developed procedures” with mail logs for prisoner mail expressed in Houston in 1988 was not a new idea for the Supreme Court and was not limited to its evaluation of the state prison system. Indeed, in 1964 when the Supreme Court made “the jailer . . . in effect the clerk of the District Court,” Justice Stewart noted in his concurring opinion that government counsel had advised at oral argument “that procedures have now been inaugurated at the federal prisons to make certain that the exact time of receipt will be marked on all papers that are filed with the authorities for mailing.” Fallen v. United States, 378 U.S. 139, 144–45 (1964) (Stewart, J., concurring) (emphasis added).1 1 Fallen involved a federal prisoner’s timely-dated but late received letter requesting an appeal. The letter bore the date two days before the expiration of the time to file an appeal, but it was received by the clerk of court four days late. The envelope bore no postmark “nor any indication of the time at which the envelope came into the hands of the prison officials.” 378 U.S. at 144. The Court found that the prisoner “had done all that could reasonably be expected to get the letter to its destination” on time, refused to “read the Rules so rigidly as to bar a 10 Case: 10-13045 Date Filed: 09/04/2012 Page: 11 of 17 This Court in Washington recognized the presumption of the mailbox rule that the prisoner delivered the motion to prison authorities on the date he signed it— “[a]bsent evidence to the contrary in the form of prison logs or other records.” 243 F.3d at 1301. The Court placed the burden squarely on the “prison authorities to prove the date a prisoner delivered his documents to be mailed.” Id. (citing Garvey v. Vaughn, 993 F.2d 776, 781 (11th Cir. 1993) (emphasis added)). Although the Court did not elaborate on precisely what “prison logs or other records” can refute the presumption afforded the pro se prisoner’s signature date, the Supreme Court’s reasoning concerning the purpose of the mailbox rule, as well as its historical development within this Circuit, demonstrate that the proffered evidence should directly address the point at issue: when did the pro se prisoner actually deliver the paper to the prison authorities for filing? The Garvey decision of this Circuit recognized that “Houston places the burden of proof for the pro se prisoner’s date of delivering his document to be filed in court on the prison authorities, who have the ability to establish the correct date through their logs.” 993 F.2d at 781 (emphasis added) (footnote omitted). The effectiveness of the bright-line mailbox rule requires prisons to use procedures by which they log or otherwise record receipt from pro se prisoners of determination of his appeal on the merits,” and reversed the dismissal of the appeal. Id. 11 Case: 10-13045 Date Filed: 09/04/2012 Page: 12 of 17 outgoing mail. The critical date hinges on that receipt from the prisoner—not the date the prison delivers the mail to the post office, but the date the prisoner delivers the mail to the prison for filing. Prison authorities bear the burden to prove the date the prisoner delivered the document to them. Such proof should be of the kind the Supreme Court contemplated when it discussed the reasons for creating the mailbox rule: contemporaneous logs or records of the date the prisoner entrusted his papers to the prison to be mailed. The logical record or log to establish the date the prisoner delivered his document would be a mail receipt log or other record documenting the actual delivery date. Evidence based only on general procedures, speculation, and inferences eviscerates the bright-line rule the Supreme Court intended the mailbox rule to be. See Houston, 487 U.S. at 275 (“Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright-line rule, not an uncertain one.”); see also Garvey, 993 F.2d at 780 (explaining that Houston establishes a bright-line rule that “states an equitable, standardized method for measuring time restrictions so that requisite time limitations for filing do not preclude the incarcerated petitioner’s equal access to the courts”) (footnote omitted). 12 Case: 10-13045 Date Filed: 09/04/2012 Page: 13 of 17 The government in its brief admitted that it had “no records showing the date of receipt of Natson’s mailing.” Without such records to verify the date Natson actually delivered his motion for mailing, the prison officials failed to meet their burden to overcome the presumption that the date he signed it was the date he delivered it for filing purposes. See Washington, 243 F.3d at 1301. The evidence proffered in this case falls short of the legal standard required to establish the date Natson entrusted his motion to the prison officials for filing. A declaration that relies on the date of the certified mail stamp affixed by the Post Office, the outgoing mail log, and general prison procedures to infer that Natson’s motion “would have been provided to BOP staff . . . no earlier than September 17, 2009”2 fails to meet the legal standard to establish when Natson actually delivered his motion to prison officials. Accepting such backward 2 M.P.’s declaration was equivocal at best, full of speculation and inferences. After stating that the certified mail log showed that Natson’s parcel “was taken to the United States Post Office for mailing on September 18, 2009” and reciting the standard procedure for posting mail within twenty-four hours of receipt, he then concluded: Therefore, the certified mail which was posted by Petitioner on September 18, 2009, would have been provided to the BOP staff (by Petitioner’s dropping it in the inmate outgoing mail depository) no earlier than September 17, 2009. Had Petitioner provided his mail to BOP staff on September 3, 2009, as the date he provided on his petition would suggest, it would have gone out on September 4, 2009. (emphasis added). 13 Case: 10-13045 Date Filed: 09/04/2012 Page: 14 of 17 reasoning as legally sufficient proof of the date the pro se prisoner delivered his motion creates uncertainty and perpetuates the opportunity for manipulation and delay by prison officials—the very concerns that led the Supreme Court to adopt the mailbox rule in the first place. See Garvey, 993 F.2d at 780 (“As defendants in a pro se prisoner’s civil rights action, prison officials ‘may have every incentive to delay,’ and even if he suspects delay by prison authorities, the pro se prisoner is helpless to investigate or prove such dilatoriness.” (quoting Houston, 487 U.S. at 271)); see also Sanders v. United States, 113 F.3d 184, 187 (11th Cir. 1997) (recognizing the ability of prison officials to block a pro se prisoner’s access to court by manipulating mail as “one of the main concerns” addressed in Houston). Even without any bad intent, prisoner mail can get misplaced or dropped, or any number of events beyond the control or knowledge of the prisoner can result in the mail not being timely posted by the prison officials after a prisoner relinquishes control over the document. The beauty of the mailbox rule envisioned by the Supreme Court lies in its straightforward application as it has evolved: in his notice of appeal or § 2255 petition, the pro se prisoner certifies under penalty of perjury the date the document was placed in the prison mailing system. See Fed. R. App. P. 4(c)(1); Rules Governing § 2254 Cases, Rule (3)(d), 28 U.S.C.A. foll. § 2254. That date 14 Case: 10-13045 Date Filed: 09/04/2012 Page: 15 of 17 becomes the presumptive date of filing unless the prison officials can prove the prisoner actually delivered it on some other date by producing a log or other record reflecting the date of actual delivery. The majority opinion converts this simple bright-line test into hazy shades of gray by accepting as legally sufficient evidence something less than a record of the actual date Natson delivered his motion into the custody of the prison. Burden of Proof Does Not Shift to Pro Se Prisoner in His Cell The district court and the majority opinion erroneously expected Natson to rebut the evidence presented in M.P.’s declaration. The majority opinion hints that the burden shifts to the prisoner without citing any authority. Expecting an incarcerated prisoner to be able to offer evidence refuting a prison official’s recitation of customs and practices for posting prisoner mail creates an unprecedented and virtually impossible burden in stark contrast to the rationale expressed by the Supreme Court when it adopted the mailbox rule. The Supreme Court recognized the unique situation of pro se prisoner litigants in Houston. Unlike other litigants, they cannot personally deliver their legal documents to the court clerk or even to the Postal Service; they cannot follow through on their delivery, or take any precautions to ensure the court receives them. 487 U.S. at 270–71. 15 Case: 10-13045 Date Filed: 09/04/2012 Page: 16 of 17 Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped “filed” on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk’s failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access -- the prison authorities -- and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice. Houston, 487 U.S. at 271–72 (italics in original; underline added). The Supreme Court’s recognition of the pro se prisoner’s lack of control and of his inability to prove the reason for any delay demonstrates that shifting the burden to the prisoner to rebut the prison’s proffered evidence contravenes the intent of Houston. Of course, if the majority adhered to the bright-line rule of Houston, it would have no reason to suggest that a pro se prisoner needs to refute an affidavit 16 Case: 10-13045 Date Filed: 09/04/2012 Page: 17 of 17 based on general prison procedures, a log of outgoing mail, and inferences. As the Supreme Court noted: The prison will be the only party with access to at least some of the evidence needed to resolve such questions-one of the vices the general rule is meant to avoid-and evidence on any of these issues will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay. Houston, 487 U.S. at 276. Shifting the burden to the pro se prisoner to rebut evidence that does not even meet the legal standard created by the bright-line mailbox rule stands the rationale of Houston on its head. Because the district court did not require proof in the form of a log or other record of the actual date Natson delivered his motion to the prison for mailing and improperly shifted the burden back to him, it deviated from the bright-line test established in Houston. I would reverse. 17
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3224058/
Appellant was convicted of the offense of violating the prohibition laws by having whisky in his possession. The evidence was sufficient to support the verdict returned. The statement made by counsel for appellant in brief on this appeal that the trial was had in the court below during the absence of said counsel cannot avail here, even though true, for a number of reasons, but specifically because nothing in the record bears out the said statement, and it is only to the record we are authorized to look. We find nowhere any prejudicial error, and the judgment is affirmed. Affirmed.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/127344/
537 U.S. 1205 TIPTONv.KENTUCKY. No. 02-8053. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE SUPREME COURT OF KENTUCKY. 2 Sup. Ct. Ky. Certiorari denied.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3056981/
Case: 11-13134 Date Filed: 09/04/2012 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 11-13134 ______________________ D.C. Docket No. 1:10-cr-20527-JAL-2 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee, versus RENE DE LOS RIOS, llllllllllllllllllllllllllllllllllllllllDefendant - Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (September 4, 2012) Before BARKETT and PRYOR, Circuit Judges, and BATTEN, ∗ District Judge. PER CURIAM: Rene De Los Rios appeals his convictions and sentences for one count of ∗ Honorable Timothy C. Batten, Sr., United States District Judge for the Northern District of Georgia, sitting by designation. Case: 11-13134 Date Filed: 09/04/2012 Page: 2 of 6 conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1347, and four counts of submission of false Medicare claims, in violation of 18 U.S.C. §§ 287, 2. His convictions resulted from his role as medical director at Metro Med, an HIV infusion clinic. He prescribed specific HIV drugs that carried a high Medicare reimbursement rate to patients who did not require the drugs but whose blood test results were engineered to indicate a need for them. As a result, Metro Med fraudulently collected over eleven million dollars from Medicare. De Los Rios appeals two of the district court’s evidentiary rulings as well as the district court’s inclusion of a deliberate ignorance clause in the jury instructions. He also appeals his sentence of 235 months in prison, arguing that it is substantively unreasonable. We find no reversible error. As to the evidentiary claims, we are satisfied that the court did not abuse its discretion and violate Fed. R. Evid. 404(b) when it admitted extrinsic evidence that De Los Rios engaged in similar fraudulent conduct while he was medical director at J&F, a second HIV infusion clinic.1 This record supports the conclusion that the extrinsic evidence was sufficient to prove, under the applicable standard of a preponderance of the evidence, 2 that De Los Rios committed the acts alleged and 1 We review for abuse of discretion the district court’s decision to admit extrinsic evidence as relevant under Fed. R. Evid. 404(b). United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). 2 See United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (stating that, in order for extrinsic evidenced to be admitted under Fed. R. Evid. 404(b), the applicable standard of proof is 2 Case: 11-13134 Date Filed: 09/04/2012 Page: 3 of 6 that the extrinsic evidence was more probative than prejudicial. Nor do we find abuse of discretion in the exclusion of a resignation letter that De Los Rios claims that he wrote to the owner of Metro Med in 2005. The district court excluded the letter as hearsay, determining that it was an out-of-court statement offered for the truth of the matter asserted. De Los Rios responded at trial that the letter constituted a business record. Notwithstanding this assertion at trial, De Los Rios now argues on appeal that the letter constitutes an exception to the hearsay rule because he contends the letter was not offered for the truth of the matter asserted. He also claims that, by virtue of its exclusion, he suffered a violation of his Sixth Amendment right to defend himself. We need not address whether the letter was hearsay or not, as the exculpatory content was already admitted through De Los Rios’s testimony. Moreover, De Los Rios fails to explain the relevance of the letter to his defense nor his failure to produce it during reciprocal discovery. We find no reversible error in the district court’s failure to admit the letter into evidence. We also reject De Los Rios’s claim that the district court erred in including a deliberate ignorance jury instruction. We apply a deferential standard of review to a district court’s jury instructions. United States v. Puche, 350 F.3d 1137, 1148 that “there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question.”) 3 Case: 11-13134 Date Filed: 09/04/2012 Page: 4 of 6 (11th Cir. 2003). We should reverse only if “left with a substantial and [ineradicable] doubt as to whether the jury was properly guided in its deliberations.” Id. (quotation omitted). Based on this record, we cannot say that there is a substantial doubt that the jury was properly instructed. Finally, De Los Rios challenges his 235-month sentence, arguing that the sentence was substantively unreasonable. We review the reasonableness of a guidelines sentence for abuse of discretion. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We vacate a sentence only if “left with the definite and firm conviction that the district court committed a clear error of judgment . . . by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Id. at 1191 (quotation omitted). It is uncontested here that the guidelines range was properly calculated and that the district court considered the 18 U.S.C. § 3553(a) sentencing factors. 3 Thus, we review the substantive reasonableness of a sentence, examining the totality of the circumstances and inquiring into whether the § 3553(a) factors support the sentence. 3 Section 3553(a) provides that a district court shall consider the following facts when sentencing a defendant: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with training, medical care, or correctional treatment; (3) the kinds of sentences available; (4) the sentencing guidelines’ range; (5) pertinent Sentencing Commission policy statements; (6) the need to avoid unwarranted sentencing disparities among similarly situated defendants with similar records; and (7) the need to provide restitution to victims. 4 Case: 11-13134 Date Filed: 09/04/2012 Page: 5 of 6 United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). “The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotations and alteration omitted). De Los Rios claims that the district court erred when it weighed the statutory sentencing factors of 18 U.S.C. § 3553(a) because it inappropriately emphasized the need to deter Medicare fraud in South Florida and failed to adequately take into account De Los Rios’s age, health, and lack of criminal history. The record does not support this contention. The district court noted De Los Rios’s age, health, and also his previously admirable history as a medical doctor who made his way as an emigrant to this country. The district court weighed those factors against the gravity of his crime, which included a conscious choice to violate his Hippocratic Oath, his basic ethical obligation as a doctor, in favor of monetary goals. The district court considered that, as the medical director and doctor at Metro Med, De Los Rios was required by Medicare to honestly bill for the clinic’s services. In failing to do so, the district court noted that De Los Rios violated public trust over a sustained two-year period. The district court also found it significant that, far from accepting responsibility for his offense, De Los Rios lied during his testimony. Finally, the district court weighed the need for deterrence in the context of a high 5 Case: 11-13134 Date Filed: 09/04/2012 Page: 6 of 6 level of Medicare fraud in South Florida. We cannot find that the district court’s consideration and weighing of the § 3553 factors constituted an abuse of discretion. AFFIRMED. 6
01-03-2023
10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3448135/
Affirming. The appellee instituted suit against the appellants to recover damages for the death of a two year old child killed by a freight train at a public crossing in McCreary county. The trial in the lower court resulted in a verdict and judgment against appellants for $3,000. This appeal is prosecuted, so we are told in the brief filed in behalf of appellants, on the sole ground that appellee failed to make out a case of liability against either of the appellants. The appellant Wilson Potter was the engineer on the train which ran over and killed the child, and he was sued jointly with the railroad company, and the verdict was against both of them. The accident occurred on April 6, 1926, at a country road crossing about one mile north of Whitley City at a place called Marshes Siding. At the point where the accident happened, the railroad track runs nearly north and south. The train contained 42 cars and was traveling north. There is a slight curve in the tracks, and the wings of the railroad fence tended to prevent a clear view of the crossing and the road near the crossing; but it is substantially established by the proof that the track was almost straight for more than 2,300 feet, and that the crossing was visible for substantially that distance. The *Page 387 parents of the child were keeping a store in a building facing the country road which was 81 feet from the crossing. The child was playing in the store and had left the store without the knowledge of its parents a very short time before the accident. It wandered onto the track at the crossing, and some of the witnesses testified that it was crawling on its all fours, while other witnesses saw it when it was sitting near the west rail, but between the rails. The lower court eliminated every issue except whether those in charge of the train discovered the peril of the child on the track in time to have avoided the injury by the exercise of ordinary care on their part. It is not necessary to determine whether the lower court was in error in thus restricting the issues, unless it should be necessary to reverse the cause. We find this statement in the brief filed on behalf of appellants: "We insist that this case should be reversed because the evidence on behalf of the plaintiff was not sufficient to take the case to the jury; and, even if sufficient to authorize a submission to the jury, that the evidence is not sufficient to sustain the verdict and judgment. If it cannot be reversed on these grounds, we do not ask for a reversal on any other ground, and we waive all other grounds of reversal." This leaves nothing for our consideration other than the proof. The trainmen all testified that, upon the discovery of the child on the railroad track, the alarm whistle was blown, and all the brakes on the train were immediately applied to their full capacity, and the train was stopped as soon as it was humanly possible to stop it, but not in time to prevent the death of the child. There seems to be no evidence in the record that the train could have been stopped sooner by the application of the instrumentalities used for that purpose. It is argued by counsel for appellants that the only evidence showing, or tending to show, the failure to exercise ordinary care to prevent the injury of the child after the discovery of its peril, is the proof of statements made by the appellant Potter, immediately after the death of the child and at the place of the accident. Three witnesses testified concerning statements made by the engineer. One was the father of the child, who is the administrator of its estate, and one of the two beneficiaries entitled to participate in the recovery; another was *Page 388 Charles Lyons, a convict confined in the state penitentiary; and another was Oscar Bell, who at one time had been an employe of the railroad company, but who was not employed at the time he testified. Gilreath testified that within three or four minutes after the accident the engineer came back to the place where the child was struck, and while he (Gilreath) was holding the bleeding form of his child in his arms, the engineer said to him that he saw the child when he was back up at the signals, and could have stopped, but he thought it would go on across the crossing. He also testified that the engineer said the child was on the crossing when he saw it. He stated that some one asked the engineer why he did not blow the whistle, and the engineer replied that if he "blowed the whistle it would frighten the child," or words to that effect. Charles Lyons testified that at the same time and place he heard the engineer say he could have stopped, but he thought the baby would go on across the track. The testimony of Oscar Bell related to a conversation with the engineer a day or two after the accident. His statement was that he heard the engineer say substantially that which was testified to by Gilreath and Lyons. The testimony of Bell was incompetent as against the railroad company, but was competent as against the engineer. When a statement is made at a place removed from the accident and some time thereafter, that is, after the mind has returned to its normal state, it cannot be regarded as a part of the res gestae. Cincinnati, N. O. T. P. R. Co. v. Martin, 146 Ky. 260, 142 S.W. 410; Bevins' Administrator v. Chesapeake O. R. Co., 190 Ky. 501, 227 S.W. 794. Evidence of statements made by an agent, not a part of the res gestae and which were made after the transaction is over, is not competent against his principal. Vicksburg Meridian R. Co. v. O'Brien,119 U.S. 99, 7 S. Ct. 118, 172, 30 L. Ed. 299. The trial court excluded all of the evidence of the plaintiff, R.M. Gilreath, concerning the alleged statements of the engineer from the consideration of the jury. Evidently the court so ruled because of the opinions of this court in the cases of Louisville N. R. Co. v. Rowland's Administrator,215 Ky. 663, 286 S.W. 929; Combs v. Roark, Administrator, 206 Ky. 454, 267 S.W. 210. The evidence of Gilreath, Lyons, and Bell is attacked with vigor by counsel for appellants because of proof in the record showing that the engineer did not leave his engine *Page 389 and go to the place where the child was struck, and because of the evidence tending to show that Charles Lyons was not present. While the evidence is rather strong tending to show that the engineer did not leave his engine, yet it was a question for the jury to determine whether he did so. It was also a question for the jury to determine from the evidence whether Charles Lyons was present and whether the evidence he gave was true. We not only have the statement of the witnesses who testified that the engineer said, at the place and time of the accident, that he could have stopped the train in time to have prevented the death of the child as tending to show negligence, but there were other witnesses who testified that the train gave three or four short blasts some 200 feet or more away from the crossing and did not give any other signal. If the blasts of the whistle had been continued as the trainmen claimed they were, the child might have been frightened from the track. It was a question for the jury to determine whether the trainmen gave only three or four blasts of the whistle or whether the blasts were continued up to the crossing. There was also evidence that the view of the crossing was unobstructed for more than one-third of a mile, and at least two of the trainmen testified that they were looking ahead, and the jury may have reached the conclusion that if these trainmen were looking ahead they must have seen the peril of the child. There was also testimony that the steam was shut off at the cattle guard, which was some distance further south than the point where the alarm signals were given, and that after shutting off the steam it was turned on again. The jury may have considered this evidence as corroborating the proven statement of the engineer that he saw the child but thought it would cross the track before its life was endangered. At least, it tends to show that the steam was cut off for some reason or other and then turned on again before the alarm signals were given. The evidence is not very strong showing, or tending to show, that the trainmen did not exercise ordinary care to prevent the injury after discovering the peril of the child; but there was evidence amounting to more than a mere speculative possibility that they did not do so. It was evidence of substance and relevant consequence tending to induce conviction and having the quality of proof. Such evidence measures up to the principle defining what is meant by the scintilla rule in the cases of Wigginton's Ex'r v. Wigginton, 194 Ky. 385,239 S.W. 455; Langford's *Page 390 Executor v. Miles, 189 Ky. 515, 225 S.W. 246; Poll v. Patterson, 178 Ky. 22, 198 S.W. 567. The evidence in this case tending to show negligence after the discovery of the peril of the child amounts to more than a conjecture or suspicion. It is contended by counsel for appellants in their brief that the testimony of Lyons and Gilreath, as to the alleged statements of the engineer, is so unreasonable and at variance with direct evidence in the case as not to constitute something of substance carrying the quality of proof or having fitness to induce conviction, and for that reason was not sufficient to authorize a submission of the case to the jury. We cannot agree with their contention. The statements of Potter, if made, are not unreasonable, although they are at variance with testimony of other witnesses. A mere variance with the testimony of other witnesses does not of itself render the statements unreasonable. It may be that he discovered the peril of the child in time to have avoided the accident, but relied upon his judgment that the child would get off of the track before the train reached the crossing. On the whole case, we have reached the conclusion that there was sufficient evidence to support the verdict of the jury. Judgment affirmed.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2792516/
No. 13-1123 - State v. Keith D. FILED April 9, 2015 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Davis, J., dissenting: In this appeal, the defendant argued that he should have been allowed to withdraw his guilty plea. The defendant states that he was not informed, prior to entering the plea, that he would be subject to being sentenced to life in prison under the habitual offender statute. The majority opinion rejected the argument and held that the defendant did not have a right to know that he would be sentenced to life in prison prior to the acceptance of his guilty plea. For the reasons set out below, I dissent. At the outset, it is important to understand that the parties and the majority opinion all agree that, at the time the trial court accepted the defendant’s guilty plea, the defendant had no knowledge that he would be subject to being sentenced to life in prison under the habitual offender statute. Therefore, the controlling issue in this case was whether the defendant had a right to be informed of the possible life sentence under the habitual offender statute prior to the trial court’s acceptance of his guilty plea. The defendant had a right to be so informed. As I will show, the defendant should have been informed of the possible life sentence by the prosecutor or the trial court. 1 To begin, it has been recognized that “sentence enhancements based on a defendant’s prior convictions are generally regarded as a consequence of which the defendant must be advised before pleading guilty.” Marquez v. Hatch, 146 N.M. 556, 560, 212 P.3d 1110, 1114 (2009). The opinion in Marquez explained the general procedure that a trial court should follow when it learns, either prior to a plea hearing or after a plea hearing, that a defendant will be subject to a possible habitual offender sentence enhancement. We realize that it may be difficult for the district court to accurately inform a defendant of potential sentence enhancements before the existence and validity of the defendant’s prior convictions have been established through a supplemental information proceeding. Such difficulties are not insurmountable and do not relieve the court of its obligation to adequately inform the defendant of sentencing enhancements based on prior convictions that will almost certainly result from a guilty or no contest plea. Certainly, if the district court is aware of the defendant’s prior convictions that would require a sentence enhancement if subsequently requested by the State, the court should inform the defendant of the maximum potential sentence, including enhancements. If the defendant enters a guilty or no contest plea without being advised of possible sentence enhancements and then the possible existence of prior convictions comes to light when the State files a subsequent supplemental information seeking to enhance the defendant’s sentence based on those prior convictions, the court should conduct a supplemental plea proceeding to advise the defendant of the likely sentencing enhancements that will result, and determine whether the defendant wants to withdraw the plea in light of the new sentencing enhancement information. Marquez, 146 N.M. at 562, 212 P.3d at 1116 (internal citations omitted). The majority opinion in the instant case wrongly relied upon the per curiam 2 decision in State ex rel. Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002), for the proposition that a defendant does not have to be informed of a possible habitual offender sentence enhancement before a court may accept a guilty plea. I do not believe that Appleby stands for such a proposition. In fact, the majority opinion has incorrectly made it appear that Appleby supports such a result. In footnote 6 of Appleby the following facts were set out: We also note that the State says that it specifically informed Mr. Appleby’s trial counsel that, if he was convicted, the State would seek a recidivist sentence, and that discovery was apparently provided to Mr. Appleby that included a list of Mr. Appleby’s prior convictions. We additionally note that at a bond hearing on October 31, 2001, the Prosecuting Attorney told the trial judge, in the presence of Mr. Appleby and counsel, “I do not believe that two to six is the maximum sentence he may be facing. And in fact, this Court has often indicated that DUI three is an act of violence, and I contend that there’s a possibility of a much steeper sentence. . . .” Appleby, 213 W. Va. at 512, 583 S.E.2d at 809. Therefore, it is quite clear from footnote 6 in Appleby that before the defendant entered his guilty plea he was fully aware that the State would seek to enhance his punishment under the habitual offender statute. In the instant case, the majority opinion stated that the facts set out in footnote 6 of Appleby had absolutely no impact on the decision in that case because those facts were in a footnote. This is a tragic attempt to distinguish reality from reality. Obviously, the fact that the defendant in Appleby was aware before he entered a guilty plea that the prosecutor was going to file a recidivist information against him had an impact on this Court’s decision 3 in the case. The facts set out in footnote 6 of Appleby were not set out as floral decorations. Those facts were material and relevant to the disposition of the case. Those facts were set out to show all of the facts this Court considered in reaching its conclusion in the Appleby case. Far from supporting the majority opinion in the instant proceeding, I believe Appleby supports my position: the defendant in this case had a right to be informed about the possible habitual offender enhancement of his sentence before entering his guilty plea. Under Appleby, this critical information could have been provided by the prosecutor prior to the plea hearing. Insofar as the prosecutor failed to alert the defendant of its intentions, I believe that the trial court was obligated under our Rules of Criminal Procedure to inform the defendant of the possible habitual offender enhancement of his sentence. Prior to a trial court’s acceptance of a guilty plea, Rule 11(c)(1) of the West Virginia Rules of Criminal Procedure imposes a mandatory duty on the court to inform a defendant of “the maximum possible penalty provided by law.” (Emphasis added.) This requirement from Rule 11(c)(1) also is contained in Rule 3.172 of Florida’s rules of criminal procedure. The Florida Supreme Court construed its Rule 3.172 in the case Ashley v. State, 614 So. 2d 486 (Fla. 1993). In Ashley, the defendant argued that his conviction on a nolo contendere plea should be vacated, because the trial court did not inform him that his 4 sentence could be enhanced under Florida’s habitual offender statute. The Florida Supreme Court agreed with the defendant that the requirement under Rule 3.172, that a trial court inform a defendant of “the maximum possible penalty provided by law,” includes informing a defendant about the consequences of the application of the habitual offender statute. The court addressed the matter as follows: Because habitual offender maximums clearly constitute the “maximum possible penalty provided by law”. . . the plain language of rule 3.172 require[s] that before a court may accept a guilty or nolo plea from an eligible defendant it must ascertain that the defendant is aware of the possibility and reasonable consequences of habitualization. To state the obvious, in order for the plea to be “knowing,” i.e. , in order for the defendant to understand the reasonable consequences of his or her plea, the defendant must “know” beforehand that his or her potential sentence may be many times greater what it ordinarily would have been under the guidelines and that he or she will have to serve more of it. We note that this view is endorsed by courts, commentators, and the American Bar Association. Ashley, 614 So. 2d at 489. See also United States v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008) (concluding that the district court erred by failing to inform the defendant before accepting his plea that he would face an enhanced statutory minimum sentence if he had qualifying prior convictions); United States v. Castro-Gomez, 233 F.3d 684, 687 (1st Cir. 2000) (setting aside guilty plea because of failure to inform defendant of impact of prior convictions on sentence); Carter v. State, 812 So. 2d 391, 394 (Ala. Crim. App. 2001) (reiterating that a defendant must be advised of any applicable habitual offender enhancements before accepting plea); State v. Melone, 299 Mont. 442, 2 P.3d 233, 236 5 (2000) (recognizing that the court must advise a defendant of the maximum penalty, including any persistent felony offender enhancements that might apply); Hudson v. Warden, Nevada State Prison, 117 Nev. 387, 22 P.3d 1154 (2001) (determing that a discrepancy regarding information the defendant was given regarding sentence enhancements for prior convictions rendered the plea invalid). As can be seen from the above analysis, courts around the country recognize that a defendant has a right to be informed of a possible habitual offender sentence enhancement before entering a guilty plea. To the extent that the prosecutor in this case did not inform the defendant, prior to the court’s acceptance of the plea, that a recidivist information would be filed against him, then I believe Rule 11(c)(1) imposed a duty upon the trial court to inform the defendant of the possible enhancement of his sentence under the habitual offender statute. Based upon the foregoing, I respectfully dissent. 6
01-03-2023
04-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/3448137/
Reversing. At a sale in a mortgage foreclosure suit, the farm of C.C. Cape was reported as having been sold to his son-in-law, A.W. Leach, for $493.46. The commissioner's deed was executed June 25, 1938. On September 21st following, Leach deeded the land to James A. Loy for the recited consideration of $800. Within the month Cape sued Leach and Loy to set aside the deed and to have it adjudged that Leach held title to the land in trust for the plaintiff, and that he be required to convey it to him upon the payment of the purchase price and accrued interest. Several amended petitions made additional allegations and set up different reasons why the plaintiff was entitled to have the land. Also for interlocutory orders preserving his possession and rights. A legal tender of the amount to Leach was made in court. The court adjudged the plaintiff entitled to no relief and dismissed his petition. He appeals. We may say at once that the evidence proves that *Page 663 Loy had actual knowledge that Cape claimed the land and that Leach held title for him. Therefore, the title which Loy acquired was no better than that which Leach had in so far as the appellant's rights are concerned. It is not unusual at a judicial sale for one person to purchase land and take title for another under an agreement to hold same for his use and benefit until some condition may arise or adjustment be made; but when the existence of such a constructive trust is dependent upon parol evidence it must be proved clearly and convincingly. Clark v. Smith, 252 Ky. 50,66 S.W.2d 93. The sufficiency of the evidence to establish such a trust is the only question before us. The home of the appellant and his wife, where they had reared a large family, was being sold under foreclosure of a small mortgage. It is manifest that his children could have taken care of the situation for him. Not long before, Cape had undertaken to secure some relief from his debts through one of the federal farm relief plans, known as the Frazier-Lempke Act, 11 U.S.C.A., Section 203, a limited bankruptcy, though this was abandoned. For this reason it was thought better that he should not appear as the purchaser of the land or as principal in the sale bond. Leach had been elected sheriff, and, as is sometimes said, was a "man of parts." The appellant testified positively and persuasively that it was agreed that Leach would bid in the property and that he and another son-in-law would sign the bond as sureties. They did so. Before the bond matured his son, Joe Cape, raised the money on his own individual and unsecured credit and tendered it to Leach. A deed was prepared but Leach insisted that the old gentleman should have only a life estate, his statements indicating that perhaps in the end his, Leach's, wife might not receive all that was coming to her. The deed was not acceptable to Cape and his son. Every one of the several children who testified sustained the claim of their father in one respect or another, particularly as to conversations and admissions of Leach as to what had been done as to arrangements being made to pay him off and for transferring the title to him. Three disinterested witnesses testified that Leach had told them he had bought the place to give the old gentleman a chance. Two of these admissions stood undenied and the other was contradicted weakly. *Page 664 Leach wrote a letter to one of his wife's sisters, apparently in response to a statement that she had been told by a friend that he was going to "kick out" her father and mother from their home. He was indignant and expressed his anger in having been talked about so much. He wrote that he was ready "to sign this over" whenever she disclosed the name of her friend, and that unless she did so by return mail her mother and father would have no home. Leach testified that he had no agreement with Cape prior to the sale of the farm about buying it for him. The day before Cape had asked Leach to sign the purchase money bond as surety, but having been elected sheriff, and knowing that he would have to make a bond, he did not want to get mixed up in it. However, the next day he bought the place for himself as a personal investment for the amount of the debt. His was the only bid made. Afterward he told the old gentleman that if he could get his money when the sale bond became due he could have it, and he testified that he had insisted with tears in his eyes that Cape should raise the money. Nobody ever tendered him the money and he never told anybody that he had bid in the property for his father-in-law. He did sign a deed to the old gentleman and his wife giving them a home during their lifetime and the remainder to his son, Joe Cape, who was paying Leach off, but this deed was not acceptable as the old man and Joe both wanted it conveyed to the former. There is some corroboration of Leach's version of the negotiations with Joe Cape as to the conveyance, but upon the principal questions Leach stands alone. In our opinion the record establishes the plaintiff's claims clearly and convincingly and shows that Leach took an unconscionable and fraudulent advantage of his father-in-law. The judgment is reversed with directions to sustain the prayer of the petition. *Page 665
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2897370/
NO. 07-08-0195-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 6, 2008 ______________________________ IN RE JESSE BLAKE WELTY, RELATOR _________________________________ FROM THE 181 ST DISTRICT COURT OF RANDALL COUNTY; NO. 19,358-B; HONORABLE JOHN B. BOARD, JUDGE _______________________________ MEMORANDUM OPINION ________________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. By this original proceeding Relator, Jesse Blake Welty, seeks to be released from his present confinement in the Randall County Jail.  On January 24, 2008, Relator was held in “contempt” for violation of a condition of the appearance bond he filed in the underlying criminal case, and he was ordered into custody for a term of ten days.   On May 5, 2008, Relator filed his Petition for Writ of Habeas Corpus.   We dismiss for want of jurisdiction. This Court is obligated to determine, sua sponte , its jurisdiction in each case.   Welch v. McDougal, 876 S.W.2d 218, 220 (Tex.App.–Amarillo 1994, writ denied).  That jurisdiction is established by various constitutional and statutory provisions.   Ex Parte Lewis, 663 S.W.2d 153, 154 (Tex.App.–Amarillo 1983, no pet.). The Texas Constitution grants this Court original jurisdiction only where specifically prescribed by law.   Tex. Const. art. 5, § 6.   Relator purports to invoke the jurisdiction of this Court pursuant to § 22.221(d) of the Texas Government Code, which provides that the court of appeals, or a justice of the court of appeals, “may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case.”  Tex. Gov’t Code Ann. § 22.221 (Vernon 2004) (emphasis added).  As such, that provision does not grant this Court original jurisdiction to issue a writ of habeas corpus in a criminal proceeding.   Ex Parte Hawkins, 885 S.W.2d 586, 588 (Tex.App.–El Paso 1994, no pet.). Article 11.05 of the Texas Code of Criminal Procedure Annotated (Vernon 2005) lists the courts which are authorized to issue a writ of habeas corpus stemming from a criminal proceeding.  Absent from that list are the courts of appeals.   Greenville v. State, 798 S.W.2d 361, 362 (Tex.App.–Beaumont 1990, no pet.).  This Court’s habeas corpus jurisdiction in criminal matters is appellate only.  Denby v. State , 627 W.W.2d 435 (Tex.App.–Houston [1st Dist.] 1981, original proceeding), cert denied, 462 U.S. 1110, 103 S. Ct. 2461, 77 L. Ed. 2d 1338 (1983).  Thus, we have no jurisdiction to entertain Relator’s petition.   Accordingly, Relator’s Petition for Writ of Habeas Corpus is dismissed for want of jurisdiction. Per Curiam
01-03-2023
09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2892608/
NO. 07-03-0139-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MARCH 21, 2005 ______________________________ MICHAEL W. BROWN, APPELLANT V. JANIE COCKRELL, ET AL., APPELLEE _________________________________ FROM THE 181ST DISTRICT COURT OF POTTER COUNTY; NO. 90,609-B; HONORABLE JOHN B. BOARD, JUDGE _______________________________ Before QUINN and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Michael W. Brown, a prison inmate acting pro se , filed a complaint alleging that Ninfa Islas, an employee of the Texas Department of Criminal Justice, wrongfully confiscated and converted postage stamps belonging to Brown having a value of $15.13, and further alleging that Islas and Chris Wieck, also a TDCJ employee, misused a State form by not ensuring that two correctional guards witnessed the inventorying of his property.  Brown’s complaint also names Janie Cockrell, Director of the Texas Department of Criminal Justice, alleging she has failed to provide a procedure whereby prisoners can gather evidence to substantiate claims against prison guards.  With the complaint, Brown filed an affidavit of inability to pay costs. The trial court dismissed the suit before service of process pursuant to Chapter 14 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)-(b) (Vernon 2002).  Brown appeals the dismissal.  We affirm the trial court’s order. When an inmate files a lawsuit and an affidavit of inability to pay costs, the suit  may be dismissed if the court finds it is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.002.  In determining whether a claim is frivolous or malicious, the court may consider whether it has no arguable basis in law.  Id. , § 14.003(b)(2). Trial courts have broad discretion to determine whether a case should be dismissed under Chapter 14. Retzlaff v. Texas Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex.App.–Houston [14 th Dist.] 2002, pet. denied); Montana v. Patterson , 894 S.W.2d 812, 814-15 (Tex.App.–Tyler 1994, no writ).  We will not interfere with the exercise of that discretion absent proof the trial court abused its discretion, acting arbitrarily or unreasonably in light of all the circumstances in the case, without reference to any guiding rules and principles. Lewis v. Johnson , 97 S.W.3d 885, 886-87 (Tex.App.–Corpus Christi 2003, no pet.). The Texas Department of Criminal Justice–Institutional Division is a governmental unit of the State of Texas. See Tex. Civ. Prac. & Rem. Code Ann. §101.001(3)(A) (Vernon Supp. 2004).  In Texas, a governmental unit is immune from suit and liability unless the State consents. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003); Tex. Dep’t of Criminal Justice v. Miller , 51 S.W.3d 583, 587 (Tex. 2001). Governmental immunity from suit defeats a court’s subject matter jurisdiction. Whitley , 104 S.W.3d at 542. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. Id. Although appellant’s petition does not specifically state whether his claims against Islas and Wieck are brought in their individual or official capacities, it does identify them as correctional officers and guards, and suggests the actions of which he complains were taken in the course of their employment.  Suits against government employees in their official capacity are in fact claims against the government. Ware v. Miller , 82 S.W.3d 795, 800 (Tex.App.–Amarillo 2002, pet. denied); Friona Indep. Sch. Dist. v. King , 15 S.W.3d 653, 657 n.3 (Tex.App.–Amarillo 2000, no pet.). See Brandon v. Holt , 469 U.S. 464, 471 (1985). Brown’s claim of misuse of a State form and references to the Texas Tort Claims Act indicate he is attempting to allege that the officers’ use of tangible personal property caused him personal injury, thereby placing his claim within the Tort Claims Act’s waiver of the State’s immunity from suit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997).  Although the paper on which a form is printed is tangible, Brown’s claim that he lost his postage stamps because State employees misused the form by failing to ensure that it was completed correctly does not fall within the Tort Claims Act’s waiver of immunity for at least two reasons.  First, the substance of Brown’s complaint is that guards did not witness the inventory of his property, permitting his stamps to be confiscated improperly.  The loss of the stamps was not “caused by” the use of the tangible form.  See University of Tex. Med. Branch v. York , 871 S.W.2d 175, 178-79 (Tex. 1994 ); Russell v. Texas Dep’t of Human Resources , 746 S.W.2d 510, 513 (Tex.App.–Texarkana 1988, writ denied).  Second, section 101.021(2) of the Tort Claims Act waives immunity with respect to claims for personal injury and death.  Brown’s complaint involves loss of property.         To the extent Brown’s complaint simply seeks recovery for the confiscation of his stamps, we note that this court, among others, has applied the doctrine of de minimis non curiat lex to affirm the dismissal as frivolous of suits brought by inmates over the claimed confiscation by prison employees of property having insignificant value.   See Hammonds v. Camp , 2004 WL 769373, at *2 (Tex.App.–Amarillo April 12, 2004, no pet.); Smith v. Velasquez , 1995 WL 217206, at *3 (Tex.App.–Houston [1 st Dist.] April 13, 1995, writ denied), cert. denied , 516 U.S. 1054, 116 S. Ct. 725, 133 L. Ed. 2d 677 (1996);   Smith v. Stevens , 822 S.W.2d 152 (Tex.App.–Houston [1 st Dist.] 1991, writ denied).   See also Thompson v. Mannix , 814 S.W.2d 811, 812 (Tex.App.–Waco 1991, no writ) (finding trial court could have invoked doctrine). Further, where the purpose of a proceeding against state officials is to control an action of the State or subject it to liability, it is a suit against the State within the rule of immunity of the State from suit. Griffin v. Hawn , 161 Tex. 422, 424, 341 S.W.2d 151, 152 (1960).  The trial court reasonably could have concluded that Brown’s claims asserted against the director of the TDCJ, complaining of her failure to adopt or implement policies and procedures, fall in that category.  There is nothing in Brown’s pleadings to indicate that a waiver of immunity or legislative consent applies to his complaint against the director. See generally Tex. Civ. Prac. & Rem. Code Ann. § 107.001-.002.  Without a waiver of immunity or legislative consent, the trial court lacked subject matter jurisdiction to hear the suit and did not abuse its discretion in dismissing it. Finding the trial court’s dismissal of appellant’s suit was not an abuse of its discretion, we affirm its order. James T. Campbell         Justice
01-03-2023
09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/127349/
537 U.S. 1206 JOHNSONv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. No. 02-8084. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/1474212/
701 F. Supp. 886 (1988) SIERRA CLUB, et al., Plaintiffs, v. John O. MARSH, Jr., et al., Defendants. Civ. No. 88-0116-B. United States District Court, D. Maine. September 30, 1988. On Motion For Stay October 19, 1988. Supplemental Memorandum November 7, 1988. *887 *888 *889 Edward F. Lawson, Weston, Patrick, Willard & Redding, Boston, Mass., Tybe A. Brett, Portland, Me., for plaintiffs. Thomas G. Reeves, Chief Counsel, Legal Div. Me. Dept. of Transp., Augusta, Me., for Maine Dept. of Transp. Daniel S. Goodman, U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., Michale Dubose, Asst. U.S. Atty., Bangor, Me., for U.S. MEMORANDUM DECISION ON MOTION FOR PRELIMINARY INJUNCTION CYR, Chief Judge. This is the third round of litigation over the proposed development of a marine dry cargo terminal on Sears Island in Penobscot Bay. The plaintiffs, Sierra Club and two of its members, seek declaratory and injunctive relief suspending the permits recently issued for the Sears Island project by the United States Army Corps of Engineers [the Corps] and the United States Coast Guard [the Coast Guard], and enjoining funding of the project by the Federal Highway Administration [FHWA]. In addition to the federal defendants, plaintiffs join the Maine Department of Transportation [MDOT], the proponent of the project, as a defendant. *890 I. BACKGROUND Sears Island is an uninhabited, undeveloped, and mostly forested 940-acre island located in upper Penobscot Bay, near Searsport, Maine. The island is connected to the mainland by a gravel bar which is submerged except at low tide and is covered by no more than four feet of water at high tide. Pursuant to a Port Planning and Development Program established in 1976, MDOT targeted the Searsport area for potential development of a modern seaport facility capable of competing with new port facilities outside Maine.[1] The proposed MDOT Sears Island marine dry cargo terminal itself would involve the development of approximately 50 acres near the western shore of the island.[2] The overall project includes provisions for the development of a 160-acre industrial park adjacent to the terminal. The preferred design envisions a 27-acre marginal wharf with two ship berths, having the potential for future expansion to 35 acres and 6 berths. Access to the mainland would require construction of a 2.3 mile-long, two-lane highway, including a 1,200' causeway and a 1.5 mile railroad spur along the length of the gravel bar connecting the island and the mainland. MDOT considered alternative sites for the proposed port, including two sites on nearby Mack Point, near the mainland end of the proposed Sears Island causeway. Unlike Sears Island, Mack Point is already 50% developed, and further development of Mack Point would require working around existing industrial and port facilities. MDOT rejected both of the alternative sites on Mack Point as impracticable in light of the overall project purposes. The configurations of the Mack Point alternatives and the preferred Sears Island site are depicted in Appendix A. Plaintiff Sierra Club has commenced two previous actions relating to the proposed Sears Island port development. In Sierra Club v. Marsh, 769 F.2d 868, 877-78 (1st Cir.1985) (Sierra Club I), the First Circuit held that the federal defendants โ€” the Corps and FHWA โ€” erred in finding that the project would have no significant environmental impacts necessitating the preparation of an environmental impact statement [EIS] pursuant to the National Environmental Policy Act [NEPA], 42 U.S.C. ง 4332. The First Circuit concluded that the combined impacts resulting from the construction of the causeway and the port (which the Corps and FHWA had addressed) and the likely industrial development which the port facility would attract (which was not adequately considered) were significant enough to require preparation of an EIS. Consequently, further construction and funding of the project were enjoined, but not before substantial clearing and grading had been done at the proposed Sears Island terminal site and approximately 303,000 cubic yards of dredged material (approximately 60% of the total required to complete the initial one-berth terminal called for in phase I of the proposed project) had been removed. See Final EIS, at iv. In Sierra Club v. Secretary of Transportation, 779 F.2d 776 (1st Cir.1985) (Sierra Club II), the First Circuit held that the Coast Guard had acted arbitrarily and capriciously in issuing a permit under the General Bridge Act of 1946, 33 U.S.C. ง 525(b), for construction of a "bridge" along the 1,200' gravel bar between Sears Island and the mainland. The court ruled that by including a 2-foot diameter pipe through the planned causeway MDOT had not transformed the "causeway," for which *891 the permitting process is more searching,[3] into a "bridge." Thus, the permit under the General Bridge Act was found to be invalid. The First Circuit expressed no opinion as to whether Sierra Club would have a private right of action to challenge a causeway permit issued by the Coast Guard under the proper statute, i.e., section 9 of the River and Harbors Appropriation Act of 1899, 33 U.S.C. ง 401.[4] In response to these First Circuit decisions, the federal defendants commenced the preparation of an EIS. FHWA was designated the lead agency in the EIS process. See 40 C.F.R. งง 1501.5 & 1508.16. Other federal agencies participating in the EIS process were funding agencies, such as the Economic Development Administration [EDA] and the Federal Rail Administration [FRA]; permitting agencies, such as the Corps and the Coast Guard; and environmental or resource agencies, such as the Environmental Protection Agency [EPA], the Fish and Wildlife Service [FWS], and the National Marine Fisheries Service [NMFS]. FHWA delegated its responsibility for preparation of the EIS to MDOT, which in turn engaged two private consultants, Normandeau Associates, Inc., and Economic Research Associates.[5] Pursuant to 40 C.F.R. ง 1507, FHWA published a notice of intent to prepare an EIS for the Sears Island project, see 50 Fed.Reg. 35400 (Sept. 4, 1985), and Normandeau Associates prepared a "scoping" document preliminarily identifying the subject matter of the EIS. On December 5, 1985, a scoping meeting was held among all agencies participating in the EIS process. A second meeting was held on February 12, 1986, at which the participating agencies discussed the scope of the EIS treatment of the purpose and need of a cargo terminal, alternatives to the Sears Island site, the affected environment, the environmental consequences of alternatives, and mitigation measures. A preliminary draft EIS [DEIS] was distributed among the cooperating agencies on April 23, 1986, in preparation for an EIS progress report meeting on May 12, 1986, at which there was criticism of the MDOT decision to reject both Mack Point sites as impracticable alternative sites for the project. It was suggested that the Mack Point alternatives be carried through the full impact analysis, at the same level as the Sears Island site. In addition, disagreement was expressed, principally by FWS, concerning the MDOT proposal for analyzing secondary impacts, which were to be limited to currently viable development proposals.[6] The DEIS was issued on July 7, 1986, and a public hearing on the DEIS was held *892 August 21, 1986. FHWA described the meeting as follows: Approximately 100 persons attended the hearing with 12 making prepared statements. As anticipated, most of those speaking were from the local community and were in favor of the projects for two main reasons. One was the belief that construction of the facility would spur the local depressed economy by providing jobs. The second was expressed primarily by shipping interests and was based on the strong belief that the existing port facilities at Mack Point are outmoded, overcrowded and unsafe. As also anticipated, the Sierra Club strongly denounced the project as unneeded and based on erroneous or misleading and/or incorrect data in the DEIS. Actually, the Sierra Club's contentions were clearly stated and appropriately referenced to applicable sections of the DEIS. This will facilitate efforts in responding to Sierra Club concerns. It is important to note that no new issues were introduced and oddly enough, very few environmental concerns were voiced by opponents. FHWA File Memorandum by William Richardson (Aug. 22, 1986). EPA continued to express its disapproval of the rejection of the Mack Point alternatives. Whereupon, MDOT decided that the FEIS would include a full analysis of the impacts of the Mack Point alternatives. See State of Maine Inter-Departmental Memorandum by David A. Ober (Dec. 17, 1986).[7] Meanwhile, EPA hired a consultant, Temple, Barker and Sloane [TBS], to prepare a study on the practicability of the Mack Point alternatives. At a meeting on May 14, 1987, representatives of MDOT, FHWA, EPA, and the Corps discussed apparent conflicts between the conclusions of TBS (which concluded that, given market demand, Mack Point would be adequate at least through the year 2000) and Booz-Allen and Hamilton [Booz-Allen] (which concluded that, based on market potential, Mack Point could not practicably handle forecasted cargo volumes). A preliminary FEIS was issued in late August 1987, and despite continued opposition by FWS, NMFS and EPA, the FEIS was approved by FHWA on October 9, 1987. After receiving additional comments on the FEIS from environmental agencies and Sierra Club,[8]inter alia, on December 18, 1987 FHWA issued its Record of Decision *893 [ROD] finally approving the Sears Island project. Prior to issuing permits under section 404 of the Clean Water Act, 33 U.S.C. ง 1344, and subsequent to issuance of the FEIS, the Corps conducted further review of the MDOT permit application. On December 1, 1987, and again on February 19, 1988, the Corps held meetings with EPA, FWS and NMFS to discuss opposition to the selection of Sears Island. Notwithstanding the failure to resolve differences with the environmental agencies, on March 14, 1988 the Corps Division Engineer issued the Corps ROD approving the MDOT application for a permit for the Sears Island project. EPA sought formal review of the Division Engineer's decision by the Assistant Secretary of the Army, who gave final Corps approval for the project on May 11, 1988.[9] On July 22, 1988, the Coast Guard issued its ROD permitting MDOT to construct the causeway to Sears Island. II. PRESENT PROCEEDINGS Plaintiffs filed a three-count complaint for injunctive and declaratory relief on May 19, 1988. A fourth count was added by the amended complaint filed on August 16, 1988, joining the Coast Guard as a defendant. Upon learning that MDOT planned to resume project construction on August 29, 1988, plaintiffs filed their motion for preliminary injunctive relief on August 12, 1988. Hearing was held on the motion for preliminary injunction on September 8, 1988.[10] Count I alleges that the Coast Guard acted arbitrarily and capriciously in issuing a permit for construction of the causeway to Sears Island without congressional approval. Plaintiffs specifically challenge the Coast Guard determination that the causeway construction site is a "river or other waterway, the navigable portions of which lie wholly within" Maine, under 33 U.S.C. ง 401. Review is sought pursuant to the Administrative Procedure Act [APA], 5 U.S.C. ง 706(2)(A). Count II alleges that the Corps permit violates the Clean Water Act, 33 U.S.C. ง 1344(b)(1), and EPA regulations, 40 C.F. R. ง 230.10(a)(1), in that Mack Point offers practicable alternatives to the Sears Island site which would have less impact on the aquatic environment. Count III alleges that the Corps violated its own regulations by: (1) issuing a permit without first undertaking independent review of information provided by MDOT and its consultants, as required by 33 C.F.R. ง 302.4(a)(1); (2) failing to provide adequate review of the need for the project and of reasonable alternatives, as required by 33 C.F.R. ง 302.4(a)(2); and (3) failing to consider the cumulative effect on wetlands alterations, as required by 33 C.F.R. ง 320.4(b)(3). Count IV alleges that FHWA and the Corps failed to comply with EIS procedures prescribed by NEPA and its companion regulations. Plaintiffs contend that significant additional information regarding the environmental impacts of the Sears Island project โ€” including information that a six-berth facility would require development of 124 acres of upland, rather than the 50 acres stated in the FEIS โ€” was received and relied on subsequent to FHWA approval of the FEIS. Plaintiffs assert that this new information necessitated preparation of a supplemental EIS. Plaintiffs further allege that FHWA violated NEPA by: (1) responding inadequately *894 to comments on the DEIS; (2) failing to make independent evaluation of the EIS, which was prepared by MDOT's consultants; (3) failing to obtain "conflict of interest" disclosure statements for certain MDOT contractors involved in preparation of the EIS; (4) failing to consider alternative means of providing employment in the Searsport area; (5) failing to give proper consideration to secondary impacts of the project; (6) improperly incorporating key documents by reference; and (7) failing to consider construction of a two-berth facility as an alternative. The Corps is charged with noncompliance with NEPA by: (1) adopting an FEIS prepared by MDOT; (2) failing to make an independent evaluation of the EIS and of the information submitted by MDOT; (3) basing its permit decision on significant new information not part of the EIS; and (4) relying on studies and analyses conducted after the FEIS had been prepared. III. MOTION FOR PRELIMINARY INJUNCTION In the First Circuit, a plaintiff must satisfy four criteria in order to be entitled to a preliminary injunction. The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction. Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981) (quoting Women's Community Health Ctr., Inc. v. Cohen, 477 F. Supp. 542, 544 (D.Me.1979) (Gignoux, J.)). As concerns alleged NEPA violations, plaintiffs contend that the criteria for preliminary injunctive relief are to be applied less rigidly. In Essex County Preservation Association v. Campbell, 536 F.2d 956, 962-63 (1st Cir.1976), the First Circuit noted that in "certain `exceptional cases,'" especially those involving "serious and substantive deficiencies in the EIS or equivalent study," "it is not necessary to balance the equities in issuing an injunction based on noncompliance with NEPA requirements." 536 F.2d at 962 (emphasis in original). Nevertheless, the court rejected the argument that a NEPA violation per se, regardless of its character, necessitates preliminary injunctive relief even in the absence of proof of irreparable harm. Id. And the court went on to state that, in the case of "`technical noncompliance' ... where the court found that the EIS was `comprehensive,' `well documented,' and covered `all the environmental consequences ...,' ... it is not improper for a court to weigh competing considerations in deciding the appropriateness of injunctive relief." Id. at 962-63. In a more recent NEPA case, Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983), the government argued that, notwithstanding a NEPA violation (failure to file a supplemental EIS), there would be no irreparable injury to the plaintiff because oil exploration would not begin prior to a judicial resolution on the merits. The First Circuit responded that the government's argument ignored an important feature of NEPA. NEPA is not designed to prevent all possible harm to the environment; it foresees that decisionmakers may choose to inflict such harm, for perfectly good reasons. Rather, NEPA is designed to influence the decisionmaking process; its aim is to make government officials notice environmental considerations and take them into account. Thus, when a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered. Id. at 952 (citations omitted). Thus, setting aside agency action after a full judicial review of the merits would not necessarily undo the harm to the administrative decisionmaking process; "[t]he agency as well as private parties may well have become committed to the previously chosen course of action, and new information โ€” a new EIS *895 โ€” may bring about a new decision, but it is that much less likely to bring about a different one." Id. (emphasis in original). By its decision in Watt, the First Circuit did not mean "to say that a likely NEPA violation automatically calls for an injunction; the balance of harms may point the other way." Id. (emphasis in original). However, a plaintiff seeking a preliminary injunction on the basis of an alleged NEPA violation "cannot be stopped at the threshold by pointing to additional steps between the governmental decision and environmental harm." Id. (emphasis in original). The defendants argue that Watt has been undermined by the Supreme Court. In Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987), outer continental shelf [OCS] oil leases were challenged as having been issued without compliance with section 810 of the Alaska National Interest Lands Conservation Act [ANILCA], 16 U.S.C. ง 3120. Speaking to the appropriateness of preliminary injunctive relief, the Supreme Court made clear that courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief," 107 S.Ct. at 1402 (emphasis added), unless Congress has "foreclosed the traditional discretion possessed by an equity court ...," id. at 1403 n. 9 (emphasis added). Thus, when determining whether to issue a preliminary injunction, courts are to focus less "on the [ANILCA] statutory procedure ... than on the underlying substantive policy the process was designed to effect." Id. at 1403. The Court opined that the Ninth Circuit's position in Amoco, that "`irreparable damage is presumed when an agency failed to evaluate thoroughly the environmental impact of a proposed action' .., is contrary to traditional equitable principles.... The environment can be fully protected without this presumption." Id. at 1404. Amoco relied on Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982), which had reversed a First Circuit decision overturning a district court denial of injunctive relief against discharging Navy ordinance into coastal waters during weapons training. The district court had determined that there would be no appreciable harm to the environment from continued discharge of ordinance into the waters pending efforts by the Navy to obtain the required permit under the Federal Water Pollution Control Act [FWPCA], 33 U.S.C. ง 1251 et seq. In reversing the district court, the First Circuit held that "`[w]hether or not the Navy's activities in fact harm the coastal waters, it has an absolute statutory obligation to stop any discharges of pollutants until the permit procedure has been followed, ...'" Id. at 311, 102 S.Ct. at 1802. Thus, the First Circuit seemed to be of the view that the equitable discretion of the district court to balance the competing interests of the parties had been curtailed. But the Supreme Court held that "[t]he integrity of the Nation's waters, ... not the permit process, is the purpose of the FWPCA," id. at 314, 102 S.Ct. at 1804, and thus the district court, absent a showing of injury to water quality, had not abused its equitable discretion by denying injunctive relief. In Watt, the First Circuit distinguished Weinberger by noting that whereas the FWPCA "focuses upon the `integrity of the Nation's waters, not the permit process,' ... NEPA does the converse." 716 F.2d at 952 (citing Weinberger, 456 U.S. at 314, 102 S.Ct. at 1804). It is impossible to escape the conclusion that Amoco severely undercuts the distinction attempted in Watt. The statute at issue in Amoco, section 810 of ANILCA, 16 U.S.C. ง 3120, is intended to "minimize adverse impacts upon subsistence uses and resources" resulting from the removal of Alaskan lands from federal ownership. See 16 U.S.C. ง 3120(a)(3); Amoco, 107 S.Ct. at 1399. The Court went on the say that Section 810 does not prohibit all federal land use actions which would adversely affect subsistence resources but sets forth a procedure through which such effects must be considered and provides that actions which would significantly restrict subsistence uses can only be undertaken if they are necessary and if the *896 adverse effects are minimized. There is no clear indication in ง 810 that Congress intended to deny federal district courts their traditional equitable discretion in enforcing the provision nor are we compelled to infer such a limitation. Amoco, 107 S.Ct. at 1403 (emphasis added). The Court observed that, "[l]ike the First Circuit in Romero-Barcelo, the Ninth Circuit erroneously focused on the statutory procedure rather than on the underlying substantive policy the process was designed to effect โ€” the preservation of subsistence resources." Id. The Court made clear that absent a showing of irreparable injury to subsistence resources, a preliminary injunction would be inappropriate.[11] Like section 810 of ANILCA, NEPA does not prohibit all undertakings significantly affecting the environment, but establishes a procedural framework in accordance with which significant environmental impacts and appropriate alternatives are to be considered. See 42 U.S.C. งง 4332(C) & (E). Although the procedural component of the NEPA looms large, NEPA establishes "`significant substantive goals for the Nation.'"[12]Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S. Ct. 497, 499, 62 L. Ed. 2d 433 (1980) (per curiam) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460 (1978)). Moreover, as with section 810 of ANILCA, compliance with NEPA can be obtained "through the simple means of an order to the responsible federal official to comply," Amoco, 107 S.Ct. at 1403 n. 8. And, as with section 810, there is no clear indication in NEPA that "Congress intended to deny federal courts their traditional equitable discretion," id. at 1403.[13] The *897 First Circuit recognized in Watt that the balance of harms must be considered even in the face of a likely NEPA violation; that is, that a NEPA violation per se does not warrant an injunction. Amoco in turn appears to preclude preliminary injunctive relief predicated on a likely NEPA violation[14] unaccompanied by a showing of irreparable environmental injury. Of course, where there is a likelihood of irreparable environmental injury, it is still necessary to balance the competing harms, weigh the public interest, and consider the likelihood of success on the merits before determining the appropriateness of preliminary injunctive relief. Under Amoco and Watt it now appears that: 1. all criteria for determining the appropriateness of extraordinary equitable relief, see Bellotti, supra, are to be weighed by the court, unless NEPA evinces a clear congressional intent to foreclose such discretion; 2. the finding of a likely violation of NEPA procedure, without more, raises no presumption of irreparable injury, nor does it diminish the need to determine the likelihood of irreparable environmental harm in the absence of preliminary injunctive relief; (a) where irreparable environmental harm is sufficiently likely, the court shall consider the remaining criteria for preliminary injunctive relief;[15] or (b) if no irreparable environmental harm is likely to result from the activity sought to be enjoined, the court should conclude, see Bellotti, supra at 1009 ("a plaintiff must satisfy four criteria in order to obtain a preliminary injunction"), that no preliminary injunctive relief may issue, see also Amoco, 107 S.Ct. at 1403. There having been no attempt to demonstrate that NEPA evinces any congressional intent to foreclose exercise by the courts of their traditional equitable discretion, and the court being unable to discern such an intendment from the statute, the court turns to a consideration of the criteria for preliminary injunctive relief. A. Likelihood of Irreparable Environmental Injury Plaintiffs allege that two activities would cause irreparable injury: (1) construction of the causeway, and (2) dredging of the channel and the port terminal site. Once these habitats have been disturbed, the plaintiffs contend, "the damage cannot realistically be undone." MDOT concedes that construction of the causeway, which MDOT represents will take at least three months, and dredging of the pier area and the channel, which is already 60% completed, are the only phases of the project which could be accomplished pending a decision on the merits of plaintiffs' claims for permanent injunctive relief and declaratory relief.[16] In reliance upon these MDOT representations for present purposes, the court turns its attention to a consideration of the likelihood that irreparable environmental harm would result from construction of the causeway and dredging of the port terminal site. The construction of the causeway involves filling 3.7 acres of intertidal wetlands with 15,000 cubic yards of material, see FEIS, at 4-8, 4-31, 4-43, 4-80, which would entail elimination of habitat used by shorebirds during seasonal migrations, FEIS, at 4-8; some temporary suspension of fill material during the six hours of daily contact with tidal water, FEIS, at 4-31; elimination of tidal exchange over gravel *898 bar, which is a minimal impact due to the normally low volume tidal exchange occurring over the bar in its natural state, FEIS, at 4-39 โ€” 4-42; temporary destruction of substrate material for algae and benthic fauna, which will recolonize on the armor stone protection for the causeway, although in a reduced area, FEIS, at 4-47, 4-49; and possible loss of some soft-shell clam habitat, for which MDOT is constructing replacement habitat, FEIS, at 4-52; Corps permit, at 4. The plaintiffs contend that these alterations constitute irreparable environmental injury. On the other hand, MDOT represents that the causeway can be removed and that the affected intertidal habitat can be restored if the Sears Island project is enjoined following a determination on the merits. See Affidavit of W. Reid, Jr., at ถ 36 (Aug. 29, 1988) (stating, inter alia, that the causeway "could be removed ... and the original substrate type, elevation, and grade be reestablished.")[17] At the hearing, the plaintiffs responded to evidence and representations that environmental damage could be undone in this manner by noting that the area affected by the proposed causeway construction contains resources which are of at least regional and state significance,[18] and that proceeding with construction of the causeway pending a final decision on the merits would constitute foolhardy public policy.[19] In the absence of any evidence that removal of the causeway is either impracticable or that it would not substantially restore the environmental status quo, the court concludes that the plaintiffs have failed to make a showing of irreparable environmental injury. See Amoco, 107 S.Ct. at 1404. There has been no challenge to the MDOT representation, upon which the court relies in its disposition of the motion for preliminary injunctive relief, that the removal of the causeway and the restoration of the affected habitat, with all their attendant costs, are nonetheless practicable.[20] In contrast to the fill work required in the construction of the causeway, dredging of the pier area and channel may result in somewhat more permanent environmental alteration. The environmental impacts resulting from the proposed dredging activity would include increased turbidity of the water during construction, FEIS, at 4-27, clearly an impermanent impact; removal of habitat of certain aquatic organisms, which are likely to recolonize the affected habitat, at least in part, once dredging has been completed, FEIS, at 4-42, 4-43, 4-47, 4-49 โ€” 4-56; and impacts on marine life and water quality resulting from disposal of the dredged material at the approved disposal site off Rockland, FEIS, at 4-61โ€”4-68. In addition, the FEIS and the construction *899 permits contain environmental impact minimization procedures and conditions, as well as mitigation requirements. See Appendices "B" & "C". The proposed dredging would be a resumption of the dredging activity which was suspended in consequence of the First Circuit decision that the earlier Corps permits were invalid. See 769 F.2d at 882. MDOT submits uncontroverted evidence that the area affected by the earlier dredging activity at the Sears Island site already has experienced recolonization by benthic fauna. See Affidavit of W. Reid, Jr., at ถ 46 (Aug. 29, 1988). Additionally, the Corps permit itself prohibits dredging between July 1 and October 31, as a means of protecting the habitat of molting lobster. See Corps permit, at 4-B. A resumption of dredging activity may effect some alteration of the ecosystem of Sears Island and its nearby environs. However, environmental change is not necessarily tantamount to injury, much less irreparable environmental injury. See, e.g., Appendices B & C infra. In consideration of the seasonal restrictions imposed by the Corps on dredging activity, the minimal or impermanent nature of all of the environmental impacts, the demonstrated biologic recolonization of the same dredging area, the minimization requirements and the fact that all environmental impacts were considered by the Corps before permitting resumption of the dredging, the court concludes that the plaintiffs have made no showing of any likelihood of irreparable environmental injury from the proposed dredging. B. Balance of Harms The defendants have shown that the delays occasioned by a preliminary injunction would entail substantial additional project costs, on a monthly basis (approximately $81,000), even "assuming [that] all projects fell into place without significant scheduling problems," Affidavit of R. Hunter, at ถ 11 (Aug. 29, 1988). Where, as here, it has not been shown that irreparable environmental injury is likely to result, and the plaintiffs are financially unable to post security,[21]see Fed.R.Civ.P. 65(c), the substantial direct costs of delaying the project weigh heavily against plaintiffs and in favor of defendants. Defendants assert that there are only two dipper dredges on the East Coast of the type required for this project. Although the Corps permit prohibits dredging prior to October 31, MDOT represents that it must make a commitment by October 1 in order to be assured the availability of a suitable dredge. Moreover, whatever increased costs would be occasioned MDOT by delays due to the unavailability of a suitable dipper dredge would likely go uncompensated were defendants to succeed on the merits. The MDOT claim of lost business opportunities occasioned by project delay is somewhat more problematic, at least as concerns its quantification. Defendants cite Half Moon Bay Fishermans' Marketing Association v. Carlucci, 847 F.2d 1389 (9th Cir.1988), in which the Ninth Circuit found that the economic loss resulting from inability to accommodate a super containership by a specific date outweighed the environmental harm of dredging an adequate channel for the ship, even though the ship had not firmly committed to using the port if it were to be suitably dredged in a timely manner. See id. at 1397-98. The anticipated use of Sears Island by interested industrial customers and tenants, as well as shippers, is considerably more conjectural, there being no evidence of any firm commitment to construct any industrial *900 facility, and no specific port call date to which to relate the claimed costs of further project delays. Nevertheless, unless the court is to disregard, as unreliable, all of the evidence of likely future industrial development and port usage projected by consultants, MDOT, and various other agencies, it must be recognized that lost business opportunities, as well as the far less speculative loss of construction jobs and wages, will be a concomitant of further project delays, although the amount of such economic loss is impossible to forecast on the present record. The injury to which plaintiffs point as a counterbalance to the economic harm to MDOT from further delay of the project is that plaintiffs would be unable to navigate their sailboats at high tide over the gravel bar along which the causeway would be constructed. The present record reveals sketchy, nonspecific evidence that plaintiff O'Neal has "frequently sailed ... in the area around Sears Island ... [and has] had occasion at high tide to sail across the bar between Stockton Harbor and Long Cove where the causeway is proposed to be constructed."[22]See Affidavit of W. O'Neal, at ถ 3. The record further supports the related finding that lobster fishermen in the area avoid the bar even at high tide due to the danger of running aground on the bar. See Coast Guard Record of Decision, at 5. C. The Public Interest As the defendants are federal and state agencies, the "public interest" inquiry relates closely to the "balance of harms." As the Supreme Court has observed in a similar context, where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff. 456 U.S. at 312-13, 102 S.Ct. at 1803 (quoting Yakus v. United States, 321 U.S. 414, 440, 64 S. Ct. 660, 674, 88 L. Ed. 834 (1944)); see also Amoco, 107 S.Ct. at 1404. Given plaintiffs' inability to post meaningful security, the absence of any likelihood of irreparable injury to any plaintiff or of irreparable permanent injury to the environment they seek to protect, and, therefore, the absence of any significant basis for delaying a project which offers substantial local and state-wide economic benefits, the court finds that the public interest weighs heavily against preliminary injunctive relief.[23] D. Likelihood of Success on the Merits[24] 1. Standing The defendants forge a double-edged attack on plaintiffs' standing. First, the defendants contend that the plaintiffs fail the test enunciated in Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Second, the defendants argue more narrowly that the plaintiffs have no private right of action, under section 9 of the Rivers and Harbors Appropriations Act, 33 U.S.C. ง 401 [RHA], to *901 challenge the causeway permit issued by the Coast Guard. In Morton, Sierra Club brought suit against the United States Forest Service for its actions in promoting a recreational development known as the Mineral King project. Like the present plaintiffs, Sierra Club had sought review under section 10 of the APA, 5 U.S.C. ง 702, which affords a right of judicial review to "[a] person suffering legal wrong because of agency action within the meaning of the relevant statute...." 5 U.S.C. ง 702. Morton held that the Sierra Club lacked standing. Although Sierra Club had alleged harm to cognizable interestsโ€”aesthetic and environmental well-beingโ€”it lacked standing because it failed to allege that it or its members would be affected in any of their activities by the project. Morton, 405 U.S. at 734-35, 92 S.Ct. at 1365-66. "Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents." Id. at 735, 92 S.Ct. at 1366 (footnote omitted). The amended complaint alleges that "[m]embers of the Sierra Club use and enjoy the natural and recreational resources of the Upper Penobscot Bay and Searsport area, and their interests in these resources are being, and will be, adversely affected by the defendants' unlawful actions." Amended Complaint, at ถ 7 (emphasis added). The individual plaintiffs in turn assert aesthetic and recreational interests in the Sears Island area, see Amended Complaint, at ถถ 8, 9; Affidavit of W. O'Neal (Sept. 8, 1988); Affidavit of P. Tenney (Sept. 8, 1988).[25] Specifically, plaintiff O'Neal attests that he has "frequently sailed on the waters of the northern Penobscot Bay in the area around Sears Island," has "had occasion at high tide to sail across the bar between Stockton Harbor and Long Cove where the causeway is proposed to be constructed," and that the causeway "will preclude [him] from navigating directly from his mooring in Stockton Harbor to Long Cove and Searsport." Affidavit of W. O'Neal, at ถถ 3, 4. Plaintiff Tenney states that "[d]evelopment of the island will interfere with the natural beauty of the island which I have enjoyed for many years," that she has "boated around the island many times," and that she is "concerned about the possible change in the undisturbed mood of the Upper Penobscot Bay and interference with sailing activities caused by the development of Sears Island." Affidavit of P. Tenney, at ถถ 2-4. The defendants contend that plaintiffs' allegations are too general and that the amended complaint should be dismissed for lack of standing. The defendants cite to Wilderness Society v. Griles, 824 F.2d 4 (D.C.Cir.1987), an action challenging a Bureau of Land Management decision to increase the acreage of federal land to be transferred from federal to state or native American ownership under the Alaska Native Claims Settlement Act and the Alaska Statehood Act. There the court held that Wilderness Society and Sierra Club members had insufficient standing to challenge a motion for summary judgment. See id. at 16-17. Although it was clear that additional federal lands were to be transferred, the plaintiffs had not identified any specific lands they wished to use which would be subject to the challenged transfer policy. See id. at 12. "[I]n order to show sufficient likelihood of injury, a plaintiff must adduce facts that reveal how his planned behavior will be injured by the challenged governmental action and third-party response." Id. at 15. The present record may be similarly deficient. Although the two individual plaintiffs allege in general terms some past usage and enjoyment of Sears Island and its environs, there is no allegation that any plaintiff plans or intends to do so in the future. Moreover, there is no specific factual allegation or evidence as to the plaintiffs' past usage of the Sears Island area, such as would enable the court to make the *902 essential determination "whether the plaintiff has ... shown that his intended behavior will be injured as a direct or indirect result of the challenged governmental action," id. at 12. Griles noted the difference, delineated in United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973), between the showing of injury required to resist a motion to dismiss, as distinguished from a motion for summary judgment, on standing grounds. In SCRAP, the plaintiffs challenged railroad rate increases, alleging that the rate increases would result in decreased use of non-recycled raw materials and increased destruction of virgin timber, extraction of non-renewable resources, and disposal of recyclable materials, which in turn would cause injury to the plaintiffs because of higher consumer costs and lower enjoyment of their intended use of the forests, rivers, streams, mountains and other natural resources. See 412 U.S. at 680-81 n. 9, 93 S.Ct. at 2412 n. 9. Despite the railroads' contention that the plaintiff's could never prove causation and that their allegations were a ploy to avoid the need to show some injury in fact, the Court held that the plaintiffs' allegations were sufficient to withstand a motion to dismiss. Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings in which the appellees alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected. If, as the railroads now assert, these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. Id. at 688-89, 93 S.Ct. at 2416 (footnotes omitted).[26] The Griles court harmonized the different results reached in SCRAP and Morton. In SCRAP, the Court found that a complaint should not have been dismissed for lack of standing even though plaintiff had alleged injury only due to its members' use and enjoyment of natural resources "surrounding the Washington Metropolitan area." 412 U.S. at 678, 93 S.Ct. at 2411. The Court held that despite its lack of specificity, this allegation was enough to survive a motion to dismiss. The main thrust of the SCRAP opinion, however, was to distinguish Sierra Club, in which plaintiff had alleged a truly generalized interest in conservation and the environment. Plaintiff's allegation in SCRAP that its members actually used and enjoyed the natural resources in question brought it within the personal injury circumscription that the Court had delineated in Sierra Club. But in a critical footnote, the SCRAP court acknowledged that on a motion for summary judgment plaintiff might have had to show injury with greater specificity, i.e., to name the specific forests that it uses and enjoys that would be affected by the challenged action. Id. at 689-90 n. 15, 93 S.Ct. at 2417 n. 15. And the Court has since reiterated that SCRAP indeed might have come out differently had it been decided on a motion for summary judgment. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 45 n. 25, 96 S. Ct. 1917, 1927 n. 25, 48 L. Ed. 2d 450 (1976). In sum, while a motion to dismiss may be decided on the pleadings alone, construed liberally in favor of the plaintiff, a motion for summary judgment by definition entails an opportunity for a supplementation of *903 the record, and accordingly a greater showing is demanded of the plaintiff. 824 F.2d at 16. Under Federal Rule of Civil Procedure 12(b), if "matters outside the pleading are presented to and not excluded by the court, the motion [to dismiss] shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). At this juncture, looking only to the pleadings, the court must accept, as true, plaintiffs' allegations that they use and enjoy the natural and recreational resources in the vicinity of Sears Island and that plaintiffs' interests in those resources will be adversely affected by defendants' actions. Under Morton โ€” SCRAP โ€” Griles, these allegations are sufficient to resist defendants' motion to dismiss. The court is not satisfied that all parties have been afforded a reasonable opportunity to present all material pertinent to a motion for summary judgment on the ground of lack of standing. Accordingly, plaintiffs' affidavits are excluded pending development of the record and the filing of an appropriate motion for summary judgment pursuant to Local Rule 19(b) (D.Me.1987). See Griles, 824 F.2d at 16-17. A scheduling order shall issue as soon as practicable, outlining pertinent issues relating to further litigation of the merits of all claims. *904 APPENDIX A *905 APPENDIX B CORPS PERMIT RESTRICTIONS AND MITIGATION REQUIREMENTS The Corps permit contains the following special conditions: 1. Periodic maintenance dredging initially will be allowed for ten years, as required, upon 60 days notice to the Corps and receipt of written authorization. Dredged material must be disposed at an upland site; disposal in ocean waters or wetlands requires a separate permit. 2. Disposal of dredged material must be supervised by the Corps. 3. Disposal of dredged material at the Rockland site must occur at a specified buoy, and the scow must come to a complete halt prior to discharge. 4. The Coast Guard Marine Safety Officer must be notified prior to the start of the project. 5. Compliance with OSHA safety standards is mandated. 6. All wetlands disturbed during construction must be restored to their approximate original elevation and condition, and measures to protect wetlands and waterways from soil erosion runoff are to be implemented during construction. 7. Adequate sedimentation and erosion control devices are required during construction. 8. No temporary fill may be placed in water or wetlands, unless authorized. Any temporary fill which may be authorized shall be placed on geotextile fabric at the existing wetland grade and shall be completely removed and properly disposed of upon completion of the project. The temporary fill areas shall be restored. 9. A copy of the permit shall be present at the worksite. 10. Construction of 4.14 acres of replacement soft-shell clam habitat is required. 11. There must be construction of facilities capable of preventing the discharge of sediment, grease and oil associated with storm drainage into any waterway or wetland. 12. A five-year environmental study must be conducted on the environmental effects of the causeway. 13. No dredging is permitted from July 1 to October 31, in order to protect molting lobster and minimize other environmental impacts. 14. Disposal of dredged materials shall be avoided during the two-hour period of maximum flood-tide currents, and only one scow may discharge material at a time. APPENDIX C DREDGING IMPACTS 1. The initial two-berth phase of the project will require dredging of 45 acres of deepwater habitat. 2. Causeway construction impacts 1.6 acres of freshwater wetlands (which has already occurred), described as scrub-shrub wetland which previously may have provided habitat for shorebirds, waders, and waterfowl, Corps Compliance Review, at 4; it will also disturb 3.7 acres of intertidal habitat, which is soft-shell clam habitat, but see Appendix B, at ถ 10. 3. Disposal of dredged material at the Rockland site will result in a dispersal 1,700 meters wide. The dredged material, consisting of glacial till, sand, silt and clay, was tested and found to be uncontaminated. Therefore, there will be no release of contaminants upon disposal. The water is 225 feet deep at the disposal site, and there is no stratification in the depth profile. The water at the disposal site is characterized by low turbulence and dispersion. Corps Compliance Review, at 5. 4. The Corps concludes that "[t]he temporary impacts from dredging and disposal were found to dissipate quickly," Corps ROD, at 26, which includes temporary increases in turbidity, Corps Compliance Review, at 3. 5. The Corps concludes that the tidal exchange affected by the causeway is 1-3% of the total tidal exchange between Long Cove and Stockton Harbor. Thus, any *906 changes in the chemical and physical characteristics of the area will be negligible. Corps ROD, at 27. The FEIS contains the following additional specifics regarding dredging impacts: 1. While dredging is taking place, the amount of fine sediment in the water will increase noticeably in the vicinity of the scoop. However, the spoil material will be relatively cohesive and will settle quickly, thus minimizing dispersal. Although resuspension of bottoms materials may increase nutrient concentrations, the increase will be slight. FEIS, at 4-27โ€”4-28. 2. Based on chemical analysis of the dredged material, no significant release of toxic organic compounds, pesticides or heavy metals is anticipated. FEIS, at 4-29. 3. The greatest concern during disposal of dredging spoils is turbidity. However, suspended sediment concentrations are likely to be near background levels within two hours of disposal. FEIS, at 4-30. 4. Impacts from placing fill material for the causeway will be minimized by using granular fill material containing very few suspendable fines and by placing filter fabric and protective armor stone. The filled material will not be exposed to water more than 50% of the time. FEIS, at 4-31. 5. During dredging and filling, the potential impacts on aquatic organisms are: (1) habitat removal; (2) changes in sediment type; (3) increased turbidity; (4) chemical contamination; (5) oxygen reduction; and (6) burial by suspended sediments. 6. Turbidity affects phytoplankton production, which can decrease primary productivity in the vicinity of dredging, but the prohibition of dredging during the peak period of phytoplankton productivity will minimize this impact. Impacts on zooplankton, whose feeding apparatus can clog during periods of high turbidity, will be minimized as well by the seasonal dredging restrictions. FEIS, at 4-46. 7. The benthic fauna which will lose habitat include blue mussels, periwinkle snails, and barnacles. FEIS, at 4-48. 8. The rock relief preferred by lobsters is virtually nonexistent around the Sears Island project site. The prime lobster areas are located south of the project site, and thus dredging impacts on lobster will be minimal. The prohibition against dredging between July 1 and October 31 further minimizes this impact. FEIS, at 4-53. 9. Finfish species will be temporarily disturbed and displaced during dredging, but will return. Suspended sediments can reduce fish egg hatching in the immediate vicinity. FEIS, at 4-53โ€”4-54. 10. The nearest seal haulout ledge is one mile from the Sears Island site, too far away to be affected significantly. The lowest seal counts occur from October to May, thus the dredging impacts on seals will be reduced. FEIS, at 4-55. 11. Upland, near-shore and open-water disposal sites were considered. The upland alternative would be costly, would require a large amount of land, and the spoils would be of low utility as fill material because of the water content. Coastal disposal was rejected because costly dewatering of the materials would be required. ON MOTION FOR STAY The plaintiffs move for a stay pending appeal of the order entered September 30, 1988. The state and federal defendants object. The criteria for determining a motion for stay pending appeal parallel those applicable to a motion for preliminary injunction. [T]he applicable standards for a party seeking such a stay are 1) a strong showing that he is likely to succeed on the merits, 2) a showing that unless a stay is granted he will suffer irreparable injury, 3) a showing that no substantial harm will come to the other interested parties, and 4) a showing that a stay will do no harm to the public interest. Ainsworth Aristocrat International Pty. Limited v. Tourism Company of the Commonwealth of Puerto Rico, 818 F.2d 1034, 1039 (1st Cir.1987) (emphasis in original; footnote omitted); cf. Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st *907 Cir.1981) (criteria for preliminary injunction). The court first examines the likelihood that plaintiffs will succeed on the merits of their appeal, bearing in mind that the plaintiffs would have to convince the First Circuit that the court's denial of preliminary injunctive relief was "clearly erroneous or clearly the result of an error of law." Conservation Law Foundation of New England v. Andrus, 623 F.2d 712, 714 (1st Cir.1979). The plaintiffs' overriding contention is that the court wrongly invalidated the holding of Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983). Their arguments are (1) that, unlike NEPA, see Watt, 716 F.2d at 952, the ANILCA statute at issue in the pivotal case of Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987), is substantive, not procedural, and thus that the focus in Amoco on substantive harm to the environment does not bear on Watt's emphasis on harm to the NEPA process; and (2) that the First Circuit does not adhere to the Ninth Circuit's view, held erroneous in Amoco, that all that need be shown to obtain preliminary injunctive relief is a violation of the procedures mandated by an environmental statute. Rather, the plaintiff's contend, Watt reflects an appropriate balancing of harm to the NEPA process against harm to the defendants. The plaintiffs are correct that the First Circuit has not abandoned the equitable requirement that the balance of harms and the public interest be considered even upon a showing of irreparable harm to the NEPA process. See Watt, 716 F.2d at 952. This court acknowledged as much in its earlier ruling, see pages at 894-895, and proceeded to address the likelihood of irreparable environmental harm, the balance of harms and the public interest, id. at 897-900. Plaintiffs present no new argument that the court's syndesis of Amoco and Watt was errant. As to the likelihood of irreparable injury, the plaintiffs do not challenge the court's finding of no irreparable environmental harm, a finding which itself required denial of preliminary injunctive relief under the court's Amoco/Watt analysis. Rather, the plaintiffs rest on their contention that the alleged NEPA procedural violations are sufficient in themselves to mandate preliminary injunctive relief. Even assuming that harm to the NEPA process remains an appropriate consideration under Amoco, and that the alleged NEPA violations did occur, the court is unpersuaded that any such NEPA violations tip the equitable balance the other way absent any irreparable harm to the environment. The court remains persuaded on the previous record that the defendants would sustain substantial injury should a stay issue pending appeal. But the state defendants now submit an affidavit attesting to daily costs of $55,000 in suspension-of-work expenses, and one-time remobilization costs of $350,000 should the work suspension extend for more than five days. See Affidavit of Michael J. Murray, ถ 7 (Oct. 17, 1988). These substantial, and almost certainly unrecoverable,[1] costs of delay in the construction of portions of the project which themselves pose no significant risk of irreparable harm to the environment, increase the disproportionate harm which the defendants would sustain in the event of a stay pending appeal. Finally, although a showing of significant harm to the NEPA process itself would weigh in favor of the plaintiffs' position with respect to the public interest should the plaintiffs prevail on appeal, in the absence of concomitant environmental harm it seems highly unlikely that the public interest would be better served by the delay of a public project offering substantial economic benefit with no significant permanent injury to the environment. Accordingly, plaintiffs having failed to demonstrate irreparable environmental harm, or that either the balance of harms *908 or the public interest[2] favors a stay pending appeal, the motion is DENIED. SO ORDERED. SUPPLEMENTAL MEMORANDUM CYR, Chief Judge. In its earlier ruling denying the request for preliminary injunctive relief, see `Memorandum Decision on Motion for Preliminary Injunction,' due to time constraints the court did not consider one of the four criteria established by Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981). The court now undertakes to do so in the context of this supplemental memorandum, with a view to focusing further litigation of the merits of the four claims brought by the plaintiffs. I. PLAINTIFFS' RIGHT TO ASSERT VIOLATION OF RHA SECTION 9 A. Private Right of Action Under Section 9 of RHA The Supreme Court has held that no private right of action exists under section 10 of the River and Harbor Act (RHA). California v. Sierra Club, 451 U.S. 287, 294-95, 101 S. Ct. 1775, 1779-80, 68 L. Ed. 2d 101 (1981). On that authority the Second Circuit correctly held, in Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1033-34 (2d Cir.1983), that section 9 of the RHA likewise creates no private right of action. B. Right of Action Under Section 10 of APA for Violation of Section 9 of RHA Plaintiffs are proceeding not only against the alleged violator under section 9 of the RHA, but simultaneously under section 10 of the Administrative Procedure Act (APA), 5 U.S.C.A. ง 702, against the permitting agency (i.e. the Coast Guard). The defendants argue that the plaintiffs lack standing under the APA to assert a violation of section 9 of the RHA, because plaintiffs' interests are not within the zone of interests protected by section 9 of the RHA. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 829, 25 L. Ed. 2d 184 (1970); Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 639 (5th Cir.1983). ("For [the plaintiffs] to have standing under APA Section 10, they must suffer injury in fact and the alleged injury must be to an interest arguably within the zone of interests to be protected or regulated by the statutes that the agencies were claimed to have violated.") Defendants urge the court to accept the view that section 9 of the RHA was intended only to prevent the obstruction of interstate commerce in navigable waters, and not navigational interests of a recreational nature, or environmental interests. Defendants point to the Supreme Court's statement, in California v. Sierra Club, 451 U.S. at 295, 101 S.Ct. at 1780, that "the legislative history supports the view that the Act was designed to benefit the public at large by empowering the Federal Government to exercise its authority over interstate commerce with respect to obstructions on navigable rivers caused by bridges and other similar structures." On the other hand, it does not appear that the quoted language from California v. Sierra Club was intended by the Court to exclude consideration of the environmental consequences of "obstructions on navigable rivers caused by bridges and other similar structures," id. Rather, as has been observed by the Fifth Circuit, the Coast Guard can deny a permit under section 9 on considerations of "conservation of natural resources, fish and wildlife, air and water quality, esthetics, scenic view, historic sites, ecology, and other public interest aspects of the waterway," Zabel v. Tabb, 430 F.2d 199, 214 n. 26 (5th Cir.1970) (quoting Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution, H.Rep. No. 91-917, 91st Cong.2d Sess. (1970)); see also United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151, 1158 (1st Cir.1987) (noting regulation of pollution *909 under section 10 of the RHA by the Corps); Save Our Wetlands, 711 F.2d at 640. It has not been shown that the environmental consequences of the proposed Sears Island causeway are not within the zone of interests protected by section 9 of the RHA. II. MERITS OF THE RHA CLAIM UNDER COUNT I Plaintiffs contend that the Coast Guard violated section 9 of the RHA, 33 U.S.C. ง 401,[1] by issuing MDOT a permit to construct a causeway from Sears Island to Kidder Point without the consent of Congress. Congressional consent is required unless the causeway is "built under the authority of the legislature of [a] State across [a] river[] ... [or] other waterway[] the navigable portions of which lie wholly within the limits of a single State ...," 33 U.S.C. ง 401. Plaintiffs assert that the proposed causeway would not cross "a river[] [or] other waterway[]" and that these particular waters are not "wholly within the limits of a single State." Under the principle of ejusdem generis, plaintiffs argue that the generic term "waterways" must be read as akin to the more specific term "rivers" in the phrase "rivers and other waterways." The principle of ejusdem generis holds that "where general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated." Harrison v. PPG Industries, Inc., 446 U.S. 578, 588, 100 S. Ct. 1889, 1895, 64 L. Ed. 2d 525 (1980). Thus, plaintiffs contend that the waters between Sears Island and Kidder Point are not a waterway because those waters are not characteristic of a river. The Corps, on the other hand, defines "rivers and waterways" as "waterbodies" under 33 C.F.R. ง 320.2(a), a less restrictive term than plaintiffs urge upon the court. First, the court has difficulty with the premise of plaintiffs' argument, because it has not been made clear that the waters between Kidder Point and Sears Island do not have the characteristics of a tidal river. More importantly, plaintiffs would appear to gain nothing by demonstrating that the terms "rivers and other waterways," appearing in the second sentence of section 401, do not apply to these waters. For if that is the case, it would seem that there is no requirement of congressional consent for construction of this causeway, under the first sentence of section 401. In other words, unless the terms "rivers and other [navigable] waterways" apply to these waters, or unless these waters are covered by the terms "port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States," see section 401 (emphasis added),[2] section 401 would not *910 require congressional consent for the construction of this causeway. Plaintiffs argue also that the waters between Sears Island and Kidder Point are not wholly within the State of Maine.[3] Seemingly to the contrary, in United States v. Maine, 469 U.S. 504, 513, 105 S. Ct. 992, 998, 83 L. Ed. 2d 998 (1985), the Supreme Court held that "waters up to three miles seaward of the coastline are also within a State's boundary...." Cf. 43 U.S.C. ง 1301(c). For present purposes, the court finds that the waters between Sears Island and Kidder Point "lie wholly within" the State of Maine. It appears that the plaintiffs are not likely to succeed on the merits of their claim that the Coast Guard violated the APA by treating the waters over which the causeway is to be built as "a river[] [or] other waterway[] the navigable portions of which lie wholly within the limits" of Maine.[4] III. MERITS OF THE CWA CLAIM UNDER COUNT II The gist of the Clean Water Act [CWA] claim is that the Corps improperly based its decision to grant a permit under CWA section 404, 33 U.S.C. ง 1344, on MDOT's contention that a six-berth facility is the appropriate scale for use in evaluating practicable alternative sites for the project. Plaintiffs contend that realistic port usage projections suggest a need for no more than a two-berth facility. Plaintiffs therefore argue that Mack Point would offer a practicable alternative site for the port on the basis of any realistic cargo volume forecasts. In addition, plaintiffs argue that the Corps failed to make an independent review of the information prepared by MDOT and its consultants. Section 404(b) of the CWA, 33 U.S.C. ง 1344(b), requires that Corps permits for the discharge of dredged or fill materials into navigable waters be issued according to EPA guidelines published at 40 C.F.R. Part 230. These EPA guidelines state: Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. (1) For the purpose of this requirement, practicable alternatives include, but are not limited to: (i) Activities which do not involve a discharge of dredged or fill material into the waters of the United States or ocean waters; (ii) Discharges of dredged or fill material at other locations in waters of the United States or ocean waters: 40 C.F.R. ง 230.10(a)(1). An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered. 40 C.F.R. ง 230.10(a)(2). Plaintiffs challenge the section 404 permit on the ground that the Corps failed to *911 make independent verification of MDOT's data concerning Mack Point as a practicable alternative port site. Plaintiffs rely on Van Abbema v. Fornell, 807 F.2d 633 (7th Cir.1986), which involved a challenge to a Corps permit for the construction of a coal transloading facility on the Mississippi River. The Seventh Circuit stated that, in conducting its public welfare review under 33 C.F.R. ง 320.4(a) prior to issuance of a Corps permit,[5] "[t]he Corps certainly may utilize reports and facts derived from outside reports and sources ... but the Corps is responsible for the independent verification of specifically challenged information obtained from applicants or outside consultants." 807 F.2d at 639. Specific challenges to a report used by the Corps in its public interest review require specific responses or a determination that the report is not being relied upon in its challenged aspects.... When the Corps receives particularized objections to material upon which it importantly relied in its review, the Corps must undertake some independent effort to verify or discredit the challenged material. Id. at 640 (emphasis added). See also Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir.1986); State v. Hudson, 665 F. Supp. 428, 442 (E.D.N.C.1987). The information on which the Corps relied in concluding that Mack Point is not a practicable alternative was prepared by MDOT and its consultants, and was specifically challenged by EPA and its consultant, TBS. Booz-Allen, MDOT's consultant, based projected cargo volumes for the proposed terminal on the assumption that vessel service, port costs, and ocean costs would be equal to those at competing ports. See Booz-Allen & Hamilton, Study of the Market Potential and Direct Benefits of New Port Development at Searsport, at 4, Plaintiffs' Appendix, at 245 (April 1987) (Booz-Allen Study). "Potential cargo was defined as cargo that originates or is destined within the Searsport cost effective hinterland but is exported/imported via other U.S. and/or Canadian ports." Booz-Allen Study, at 6. TBS raised specific challenges to Booz-Allen's assumptions. TBS concluded that "[b]ased on current and emerging economic and competitive trends within the New England region and the maritime industry it is unlikely [that the Booz-Allen assumptions] can be met in Searsport for containerized and breakbulk cargoes." TBS, A Review of Current and Future Dry Cargo Handling Capabilities at Mack Point, at 5, MDOT Appendix, at 423 (April 1987) (TBS Review). Although stated in general terms, this conclusion is followed by a more specific discussion of weaknesses perceived by TBS in Booz-Allen's assumptions. See TBS Review, at 5-7. Under Van Abbema (the court is not aware of any First Circuit precedent), "[t]he Corps may rely on reports prepared by outsiders or applicants, but .. [] when such information is specifically and credibly challenged as inaccurate, the Corps has an independent duty to investigate." Van Abbema, 807 F.2d at 642. After requesting further clarification from MDOT and Booz-Allen regarding their assumptions, the Corps responded to the TBS objections by referring to existing or new information provided by MDOT and Booz-Allen. See Corps Record of Decision, at 20-21. For example, with respect to the TBS objections to Booz-Allen's comparison of operational costs of Sears Island and Mack Point, the Corps relied on a Booz-Allen market feasibility study and transportation costs analysis; with respect to the TBS contention that bogies could reduce handling limitations between shipside and backland storage areas at Mack Point, the Corps referred to Booz-Allen's conclusion that the use of bogies would require additional space and would result in slower and *912 more expensive operations; in refuting the TBS conclusion that operational limitations would not render Mack Point impracticable, the Corps referred exclusively to Booz-Allen's conclusions regarding operational limitations; and with respect to the TBS forecast of cargo volumes which would be handled in the foreseeable future, the Corps relied on Booz-Allen's contrary projections, on Booz-Allen's belief that their forecasts are conservative, and on additional studies conducted by the state. Although the Corps may rely, even exclusively, on information provided by MDOT and its consultants, see Hintz, 800 F.2d at 834, the parties should invite the court's attention to evidence of Corps efforts to verify Booz-Allen's and MDOT's assumptions and conclusions relating to the practicability of the Mack Point alternative, and evidence that the Corps itself analyzed or verified MDOT's and its consultants' data.[6] The Corps "may not reflexively rubber stamp" the information and conclusions of an applicant and its consultants. Save Our Wetlands v. Sands, 711 F.2d 634, 642 (5th Cir.1983). But the Corps may rely on, and even adopt, the work of a permit applicant as long as it independently reviews and verifies the work. Thus, where the Corps spends considerable time reviewing the applicant's submissions, considers additional data from other sources, applies its own knowledge and expertise, and conducts its own independent field studies, a finding that an independent review and verification was conducted is likely warranted. Id. at 643. Although the Corps appears to have spent considerable time addressing the objections of EPA, FWS and NMFS, and responding to the TBS challenges to Booz-Allen's assumptions, the parties should point out what actions were undertaken by the Corps as the predicate for its "deferral" to the professional judgment and expertise of MDOT and its consultants. The plaintiffs advance the related argument that the Corps should defer to EPA's conclusion that the Mack Point site is a practicable alternative. EPA's opposition to the Sears Island alternative is well-documented on the administrative record. See Plaintiff's Appendix, at 16-24, 32-42. EPA concluded that the Corps set out from the beginning to justify the Sears Island alternative, and to build a record against the practicability of the Mack Point alternative, by falsely inflating the proposed new port's growth potential,[7] hence the need for an expandable facility. *913 The Corps public interest review regulations require that the Corps give full consideration to the views of the environmental agencies in deciding whether to issue a permit. 33 C.F.R. ง 320.4(c). "Under these regulations the Corps is not bound to agree with the conclusions reached by these resource agencies, but simply required to listen to and consider their views in the decisionmaking process." Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1054 (2d Cir.1985). Although the objections of EPA, FWS and NMFS to the project may have suggested a heightened duty on the part of the Corps to provide independent review and verification of the submissions of MDOT and its consultants, the Corps was well within its rights in rejecting demands to adopt the view of the EPA. The plaintiffs argue also that the decision as to whether Mack Point is a practicable alternative should have been based on a consideration of the nonexpandable two-berth facility proposal for which the permit was granted, and not on a consideration of the six-berth facility envisioned at maximum build-out. The Corps concedes that the aquatic resources adversely affected by development of the Sears Island terminal are more valuable than those at Mack Point. See Corps ROD, at 25. Thus, there is no dispute that EPA regulations require the Corps to deny the Sears Island permit if Mack Point is a practicable alternative. See 40 C.F.R. ง 230.10(a)(1). The "practicability" determination, however, must be made in light of "cost, existing technology, and logistics in light of overall project purposes." 40 C.F.R. ง 230.10(a)(1). The Corps describes the project as "[c]onstruction of a dry cargo terminal ... as part of a long range port development plan to meet the marine shipping needs of the State of Maine and the employment needs of the local area." Corps ROD, at 1. "The project purpose is to construct a modern port facility that is efficient and expandable to meet both current and future needs of the State." Id. at 17. The parties should address whether under the CWA the "practicability" of an alternative is to be measured against these (or some other) general project goals, see Van Abbema, 807 F.2d at 638, or against the scope of the proposed project in its initial phase. Cf. Roosevelt Campobello International Park Commission v. USEPA, 684 F.2d 1041, 1046 (1st Cir.1982) (discussed infra with regard to consideration of "reasonable alternatives" under NEPA). Subsidiary issues which should be discussed include the extent to which it is the prerogative of the applicant to prescribe the type, dimensions and goals of the project to be evaluated under the CWA; whether, by proposing a two-berth facility, with the capacity for expansion to six berths, MDOT is entitled to have the Corps evaluate exactly that proposal under the CWA; or whether the Corps must evaluate the present and future economic assumptions, inter alia, upon which MDOT based its proposal, with a view to assessing their economic viability, thereby enabling the agency (and the reviewing court) to distinguish legitimate project typing and scoping from pretextual proposals designed to render otherwise "reasonable ("practicable") alternatives" unnecessary of consideration by the Corps under the CWA. IV. NEPA CLAIMS The National Environmental Policy Act (NEPA) is a basic national charter for protection of the environment, 40 C.F.R. ง 1500.1 (1987), which mandates "a rather finely tuned and `systematic' balancing" of environmental considerations. Calvert Cliffs' Coordinating Committee v. U.S. Atomic Energy Commission, 449 F.2d 1109, 1113 (D.C.Cir.1971). See also Silva v. Lynn, 482 F.2d 1282, 1284 (1st Cir.1973). The Environmental Impact Statement (the EIS) is at the heart of the NEPA process. An "action-forcing" device, the EIS is designed to serve at least three purposes: First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values NEPA seeks to safeguard. To that end it must "explicate fully its course of inquiry, its analysis and its reasoning." Second, it serves as an environmental *914 full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project. .... [Therefore,] [i]t cannot be composed of statements "too vague, too general and too conclusory." ... [Third,] and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug. A conclusory statement "unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind" not only fails to crystallize issues, but "affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives." ... Moreover, where comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response. Silva, 482 F.2d at 1284 (citations omitted). See Conservation Law Foundation v. General Services Administration, 707 F.2d 626, 632 (1st Cir.1983). Judicial assessment of NEPA compliance implicates both the substantive and the procedural aspects of the administrative action. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980). An administrative decision "may be set aside `only for substantial procedural or substantive reasons mandated by statute.'" Baltimore Gas and Electric Co. v. National Resource Defense Council, 462 U.S. 87, 97, 103 S. Ct. 2246, 2252, 76 L. Ed. 2d 437 (1983) (quoting Vermont Yankee Nuclear Power Corp v. N.R.D.C., 435 U.S. 519, 558, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460, (1978)). Substantively, the reviewing court must determine whether the agency action was "arbitrary, capricious [or] an abuse of discretion" under the Administrative Procedure Act (APA), 5 U.S.C. ง 706(2)(A). Sierra Club v. Marsh, 769 F.2d 868, 871 (1st Cir.1985) (Sierra Club I). See also Baltimore Gas & Electric, 462 U.S. at 98, 103 S.Ct. at 2252. Judicial review is to be narrow in scope. The court is to determine whether the agency gave "good faith" consideration to the environmental consequences of the proposed action, but may not pass judgment on the balance struck by the agency. Grazing Fields Farm, 626 F.2d at 1072; Roosevelt Campobello Int'l Park v. United States Environmental Protection Agency, 684 F.2d 1041, 1045 (1st Cir.1982). The court must also evaluate the level of administrative compliance with the NEPA procedures. Because Congress has prescribed the procedures to be followed for the vindication of NEPA's substantive goals, the requirement of a properly detailed EIS is in no sense a pointless technicality, even where the agency in fact has considered the environmental factors in good faith. Grazing Fields Farm, at 1072-73. In the First Circuit, it is clear that only serious procedural violations warrant setting aside an EIS. Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 3 (1st Cir.1981); Essex County Preservation Ass'n v. Campbell, 536 F.2d 956, 962-63 (1st Cir.1976).[8] Plaintiffs contend that the EIS process for the Sears Island project has been disrupted. They allege that the defendants violated NEPA's substantive goals by producing a FEIS which merely rationalized a decision made long ago, rather than one based on a "good faith consideration" of the environmental consequences. The defendants prepared a detailed 500-plus page EIS, well over the normal 300 pages suggested by the CEQ for complex EIS's. 40 C.F.R. ง 1502.7 (1987). Many environmental studies were commissioned, including 16 in response to comments on the DEIS. FEIS, Vol. I, at ix-xi, 12-1 to 12-7 (general discussion of literature considered). Plaintiffs *915 nonetheless argue that the defendants failed to follow some of the NEPA regulations governing the content and preparation of an EIS,[9] and that the failure to do so, combined with the "track record of the defendants in dealing with the Sears Island project," demonstrates that the defendants violated their duty of good faith. A. Use of Contractors Plaintiffs assert that preparation of the EIS did not meet the standards necessary to protect the "objectivity and integrity of the NEPA process," Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed.Reg. 18026, 18031 (1981) (CEQ Forty Questions);[10] specifically, plaintiffs challenge the involvement of Normandeau Associates, TYLIN/HBA, Olko Engineering and BAH. Plaintiffs allege in their amended complaint three violations involving the alleged use of interested contractors in the preparation of the EIS. Plaintiffs argue that the FHWA did not select the contractors involved, that some of those involved in preparation of the EIS were not included in the list of preparers, and that no conflict-of-interest statements were obtained from the preparers, all in violation of 40 C.F.R. งง 1506.5(c) and 1502.17. The regulations clearly contemplate that the lead agency be involved in the process of choosing a contractor who prepares the EIS: It is the intent of these regulations that the contractor be chosen solely by the lead agency, or by the lead agency in cooperation with cooperating agencies, or where appropriate by a cooperating agency to avoid any conflict of interest. 40 C.F.R. ง 1506.5(c) (1987). The lead agency "must select the consulting firm, even though the applicant pays for the cost of preparing the EIS." CEQ Forty Questions, 46 Fed.Reg. at 18033. The NEPA conflict-of-interest regulation requires that the EIS include a list of preparers, 40 C.F. R. ง 1502.17 (1987), and the NEPA regulations require that those "preparing significant background papers" be included in the EIS list of preparers, 40 C.F.R. ง 1502.17 (1987). The list of preparers names only Normandeau Associates, Economic Research Associates (ERA), MDOT and FHWA. As defendants correctly note, however, the FHWA "approved" MDOT's contracts with Normandeau Associates and ERA, but did not approve MDOT's contracts with TYLIN/HBA, BAH, or Olko Engineering. Nor are the latter three consultants included *916 in the list of preparers. The defendants contend that NEPA regulations do not require that these three consultants be listed because they did not prepare the EIS, but merely provided information to the EIS preparers. TYLIN/HBA, BAH and Olko Engineering all provided background reports for the EIS.[11] The parties have not discussed the procedural or environmental significance of the alleged failure to list these consultants as preparers, nor the importance of their input in the EIS process. Although further treatment of these matters may be warranted, for present purposes it appears highly unlikely that extraordinary equitable relief can be predicated on a failure to list these consultants as preparers, absent some showing of consequence to the integrity of the process or the environment. See Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987). The regulation governing the use of outside contractors requires also that the agency obtain disclosure statements from the preparers "specifying that they have no financial or outside interest in the project." 40 C.F.R. ง 1506.5(c) (1987). The CEQ interprets the terms "financial or other interest ... broadly to cover any known benefits other than general enhancement of professional reputation." CEQ Forty Questions, 46 Fed.Reg. at 18031. The CEQ states that firms with interest in the outcome of the project should be disqualified from participation in the EIS, while a disclosure statement in the DEIS "should clearly state the scope and extent of a firm's prior involvement" if the consulting firm was "involved in developing initial data and plans." Id. The defendants argue that the failure to obtain conflict-of-interest statements was at most a "technical" violation of NEPA, with no resulting harm because neither Normandeau Associates nor ERA had an actual conflict of interest.[12] The defendants cite to affidavits executed by Dr. William Berry of Normandeau Associates and Frank Mahady of ERA. Other evidence in the record appears to contradict Dr. Berry's denial of a conflict of interest.[13] The exact nature and significance of any such conflicts of interest should be addressed by the parties. B. FHWA Verification Plaintiffs challenge the adequacy of the guidance given MDOT in the preparation of the EIS. Plaintiffs argue that a particularly close evaluation of the EIS was called for because the firms involved in the evaluation of the Mack Point site may have had a conflict of interest. In Essex County, the First Circuit stated that "considerable caution should be exercised" when possibly-interested parties are involved in EIS *917 preparation. Essex County, 536 F.2d at 960. See also Sierra Club v. Sigler, 695 F.2d 957, 963 (5th Cir.1983) (use of EIS preparers involved in the design of the favored alternative described as "troubling"; the court should carefully review to be sure the agency did not "rubber stamp" the EIS.) NEPA provides that a federal agency may delegate preparation of an EIS to a state agency only if: (i) the State agency or official has statewide jurisdiction and has the responsibility for such action, (ii) the responsible Federal official furnishes guidance and participates in such preparation, (iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and (vi) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written, assessment of such impacts and views for incorporation into such detailed statement. 42 U.S.C. ง 4332(2)(D) (1982). The regulations go on to say that "[i]t is the intent of this paragraph that acceptable work not be redone, but that it be verified by the agency." 40 C.F.R. ง 1506.5(a) (1987) (emphasis added). The defendants argue that the level of FHWA review at least matched that considered adequate by the First Circuit in Essex County. However, Essex County, as well as the other cases relied on by the defendants,[14] either were decided prior to the promulgation of the regulation requiring verification, or relied on preregulation cases without considering the effect of the new requirement. Four federal courts, the Second, Fifth and Ninth Circuits, and the U.S. District Court for the District of Columbia, have addressed what agency action is required to verify outside work. See Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir.1986) (construing the Corps regulation requiring verification); Save Our Wetlands v. Sands, 711 F.2d 634 (5th Cir.1983) (same); Sierra Club v. United States, 701 F.2d 1011 (2d Cir.1983) (same); Foundation on Economic Trends v. Lyng, 680 F. Supp. 10 (D.D.C.1988) (construing NEPA verification requirements). In Hintz, the Corps "requested reports and supplemental reports from [the applicant], consulted various federal and state resource agencies [and] requested additional supplemental reports." The Hintz court held that the Corps, which "is not a business consulting firm," is not required to conduct its own study of alternatives, but is required to study the information provided by the applicant, and to seek "the expert views of resource agencies involved," Hintz, 800 F.2d at 835-36. In Sands, Corps personnel reviewed the information submitted by the applicant, studied data from the area, and sought staff biologist review. The Corps conducted its own investigation concerning the effects of electrical transmission lines on wildlife and studied the effects of the project on Southern bald eagles. Corps personnel also flew over the area. The court held that "the evidence that the Corps reviewed, verified, and supplemented the consultant's reports is sufficient to fulfill the Corps' obligations under federal regulations." Sands, 711 F.2d at 643. In Lyng, the U.S. District Court for the District of Columbia found that the agency met its duty of independent verification by "conduct[ing] independent statistical analysis of raw data, specify[ing] testing protocol, and submit[ting] certain materials to the National Veterinary Services Laboratory *918 for confirmation." Lyng, 680 F.Supp. at 15 n. 4. The record indicates that FHWA personnel participated in the preparation of the EIS. Defendant Richardson met with representatives of MDOT, the Coast Guard, and the Corps to "discuss EIS preparation and permitting procedures." MDOT Appendix, at 15. The FHWA approved the use of ERA and Normandeau Associates, the only consultants regarded as "preparers." FHWA representatives participated in the "scoping" procedure. Federal Defendants' Appendix, at 3-21. FHWA representatives met with MDOT and Corps personnel to discuss the draft outline. Federal Defendant's Appendix, at 25. FHWA representatives met also with MDOT personnel throughout the process, to monitor the progress of the EIS and to provide input. Id. at 30-33, 35-39, 55-57. Defendant Richardson (FHWA Division Administrator) toured Mack Point with MDOT and federal officials as part of their consideration of Mack Point as an alternative site. MDOT Appendix, at 89-92. FHWA "specialists" reviewed both the DEIS and the FEIS to insure compliance with the applicable laws. See, e.g., Federal Defendants' Appendix, at 33, 57. Defendant Richardson circulated the FEIS, with detailed responses to comments received on the DEIS. The parties should address the respects in which the FHWA failed (or not) in its duty of independent verification of the EIS in the circumstances of this case. C. Secondary Impacts Plaintiffs challenge the adequacy of the FEIS discussion of the secondary impacts of the Sears Island project. Concerns over the secondary impacts of the project are not new to this litigation. In Sierra Club I, the First Circuit required that an EIS be prepared because the Corps EA "fail[ed] to consider adequately the fact that building a port and causeway may lead to further industrial development of Sears Island and that further development will significantly affect the environment." 769 F.2d at 877. The Corps concluded that, "because the secondary development being considered is `light dry industrial[,] there should be no significant air or water quality impacts from this type of industrial operation.'" Sierra Club I, 769 F.2d at 881. But the First Circuit found that this conclusion was not "supported or explained, nor [did] the record indicate why this [was] so." Id. at 881. The present FEIS devotes 47 pages to a discussion of the proposed industrial park as a secondary project impact. FEIS, Vol. I, at 4-108 to 4-154. The secondary impact analysis is based on assumptions about the scale of the development, the phasing of the development, the commuting distance of the industrial employees, and the types of industry expected to locate in the industrial part. The four industry types assertedly targeted for the proposed industrial park adjacent to the port terminal are: fabricated metal products; non-electrical machinery and equipment; electrical and electronic machinery and equipment; and transportation equipment. FEIS, Vol. I, at 4-109, 4-130. The FEIS environmental analysis is predicated on the assumption that "these industries would not be expected to have large steam demands; combustion of fuels would be primarily for space heating, and that the "industries targeted would ... [not] have major water use and discharge requirements." FEIS, Vol. I, at 4-117, 4-120. Plaintiffs find two faults with the FEIS secondary impact analysis. First, they argue that the FEIS does not include sufficient documentation of the assumption that only the four targeted "light" industries will locate at the industrial park. The assumption regarding these four types of target industry is predicated on the 1983 Municipal Response Plan For the Industrial Development of Sears Island (Mallar Report), prepared by Mallar Development Services for the Town of Searsport. The parties should discuss in detail the adequacy of the bases for all of the assumptions underlying the secondary impact analysis in the EIS. Plaintiffs argue also that the EIS neglects to discuss the possible impacts of *919 "heavy industry," which plaintiffs suggest is a reasonably foreseeable development.[15] Plaintiffs point to earlier proposals for developing Sears Island, and to existing development plans for the Searsport area, as evidence of the foreseeability of "heavy industry" development. Plaintiffs point to the following FEIS information as evidence that heavy industry is likely to be located in the Sears Island industrial park: (1) Table A-2 states that Searsport is "one of two areas recommended for `cluster development' of heavy industry;" (2) page 2-3 states that the Advisory Committee on Coastal Development and Conservation has "recommended that heavy industry be located either in the Portland-South Portland area or the Searsport-Stockton Springs-Penobscot area (emphasis added);" and (3) a September 2, 1986 letter from the State Development Office commenting on the number of surveys which have been conducted on the land use plans and secondary impacts of the Sears Island project and noting that "the park is intended for heavy industry." FEIS, Vol. II, at S-2. Other portions of the record mention existing studies, or earlier plans for the development of Sears Island, which discuss location of heavy industry in the area. The FEIS notes that previous development proposals include a nuclear or coal-fired power plant or an aluminum smelter.[16] FEIS, Vol. I, at 4-109; Sierra Club I, 769 F.2d at 872. The FEIS discusses the Coastal Conservation and Development Committee recommendations for cargo port development and heavy industry location. FEIS, Vol. I, at A-5. These recommendations are considered "essentially a preliminary master plan for the coastal zone of Maine." Id. One MDOT criterion for determining the preferred location of the cargo terminal was compatibility with the Coastal Committee recommendations. NEPA regulations require that the EIS identify all indirect impacts known or "reasonably foreseeable". 40 C.F.R. ง 1508.8(b) (1987). Although "the agency is not required to engage in speculation," appropriate inquiry and investigations may include "likely purchasers [of land] and development trends in the area or similar areas in recent years." Sierra Club I, 769 F.2d at 879 (quoting CEQ Forty Questions, 46 Fed.Reg. at 18031). From the FEIS it appears that the MDOT and FHWA were aware of existing studies and previous plans for Sears Island and the Searsport area which at least considered heavy industrial development for the area. The parties should discuss in detail whether or not the agency decision to evaluate the environmental impact of only the four target industries in the Sears Island industrial park was "arbitrary or capricious." D. Reasonable Alternatives Plaintiffs argue also that the FEIS fails to discuss all reasonable alternatives. Plaintiffs point in particular to an alleged need to consider methods for stimulating the economy of Waldo County, other than by means of a dry cargo terminal, and an alleged need to consider the construction of a nonexpandable two-berth facility.[17] *920 Under NEPA, federal agencies are required to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative use of available resources," 42 U.S.C. ง 4332(2)(E) (1982), even if an EIS is not required. If an EIS is required, the agency must prepare a detailed statement considering the environmental consequences of the proposed action. 42 U.S.C. ง 4332(2)(C) (1982). Alternatives to the proposed action must be included in the EIS. 42 U.S.C. ง 4332(2)(C)(iii) (1982). Consideration of alternatives is "the heart of the environmental impact statement."[18] 40 C.F.R. ง 1502.4 (1987). The NEPA regulations provide the following guidance with respect to the EIS discussion of reasonable alternatives: Based on the information and analysis presented in the sections on the Affected Environment (ง 1502.15) and the Environmental Consequences (ง 1502.16), [the EIS] should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. In this section agencies shall: (a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated. (b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits. (c) Include reasonable alternatives not within the jurisdiction of the lead agency. (d) Include the alternative of no action. (e) Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference. (f) Include appropriate mitigation measures not already included in the proposed action or alternatives. 40 C.F.R. ง 1502.14 (1987). In addition, the agency is to adopt procedures for requiring that the alternatives considered by the decisionmaker are encompassed by the range of alternatives discussed in the relevant environmental documents and that the decisionmaker consider the alternatives described in the environmental impact statement. If another decision document accompanies the relevant environmental documents to the decisionmaker, agencies are encouraged to make available to the public before the decision is made any part of that document that relates to the comparison of alternatives. 40 C.F.R. ง 1505.1 (1987). The Supreme Court has spoken in broad terms about the need to discuss alternatives in the EIS. As should be obvious even upon a moment's reflection, the term "alternatives" is not self-defining. To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility. As the Court of *921 Appeals for the District of Columbia Circuit has itself recognized: "There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of `alternatives' put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies โ€” making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed." Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 15-16, 458 F.2d 827, 837-838 (1972). See also Life of the Land v. Brinegar, 485 F.2d 460 (CA9 1973), cert. denied, 416 U.S. 961 [94 S. Ct. 1979, 40 L. Ed. 2d 312] (1974). Common sense also teaches us that the "detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved. Vermont Yankee, 435 U.S. at 551, 98 S.Ct. at 1215. In the First Circuit there are three requirements to "preserve an alternatives issue for review." Roosevelt Campobello, 684 F.2d at 1047. First, the alternative must either appear reasonable and appropriate at the time the EIS was drafted or have been suggested during the comment period. Id. Second, the intervenor must make more than a "facially plausible suggestion, rather [he] must offer tangible evidence that an alternative [] might offer a `substantial measure of superiority'" to the preferred alternative. Id. at 1047 (quoting Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221, 1228 (1st Cir.1979)). Third, the suggested alternative must be reasonable, given the primary objectives of the project applicant. Roosevelt Campobello, 684 F.2d at 1047. The CEQ narrowly construes the primary objectives of a project applicant. Reasonable alternatives are those "that are practical or feasible from the technical and economic standpoint and using common sense rather than simply desirable from the standpoint of the applicant."[19]CEQ Forty Questions, Fed.Reg. at 18026 (emphasis added). In the First Circuit economic concerns are recognized as important in defining the primary objectives of the applicant. Roosevelt Campobello, 684 F.2d at 1047; Silva, 482 F.2d at 1287. In Roosevelt Campobello, the First Circuit viewed the primary objectives of the proposed oil refinery project as "a port with deep water near shore in order to accommodate [oil supertankers]." 684 F.2d at 1047. The refinery would not have been economically feasible if it could not take advantage of the economies of scale available with supertankers. Therefore, limiting the alternatives discussed to those areas with deep water access met the duty to consider all alternatives "reasonable and appropriate." Id. In Silva, 482 F.2d at 1287, the First Circuit discussed the economic feasibility of a suggested alternative and the balancing of the project needs vis-a-vis the environmental consequences. There the court stated that It is not too much to require an explanation why a lesser aggregation of housing units on the property would be either economically unsound or, as a policy matter, would represent less of a benefit in *922 terms of low and middle cost housing needs than would be justified by the costs associated with the disadvantages to the environment.[20] (Emphasis added.) Plaintiffs argue that the FEIS should have evaluated the alternative of constructing a nonexpandable two-berth facility.[21] The comment was clearly presented in a timely fashion. FEIS, Vol. II at P-14; Letter from Elizabeth Higgens of the EPA, Plaintiffs' Appendix, at 205. The defendants argue that the proposal of a two-berth facility as a "reasonable alternative" distorts the scope of the project proposed by the applicant. The Corps considers the project applied for as "an initial 2 berth facility (Phases 1 and 2) with expansion potential to a six berth future facility (Phases 3 and 4)." Corps ROD, Federal Defendants' Appendix, at 202 (emphasis added). The EIS describes the project as having two goals: The proposed general cargo terminal at Sears Island comprises one component of the State of Maine's larger strategy to improve the efficiency of its transportation system through selected infrastructure and other investments, consistent with the State's goals of preserving and enhancing its invaluable environmental resources. This strategy is intended to ensure the long term viability and expansion of the State's economy, especially in specific regions where chronic unemployment and underemployment warrant public action to help mitigate social disadvantages. FEIS, Vol. I, at 1-1. The defendants maintain that an important objective of the project is construction of a facility expandable so as to accommodate the projected growth of marine traffic at the terminal. They do not consider a two-berth facility capable of meeting this goal. Plaintiffs argue that the two-berth alternative is reasonable because sufficient information exists to indicate that a six-berth facility may not be necessary or even economically feasible. Plaintiffs point to the TBS cargo projections, which conclude that the BAH cargo estimates are flawed in that they rely on unsupportable assumptions. Even if the BAH cargo estimates are accurate, plaintiffs submit that a two-berth facility could handle high cargo estimates through the year 2010. Plaintiffs also characterize the chances of the cargo facility ever achieving full buildout as "totally speculative," noting that funding for *923 the third berth and beyond has yet to be approved. The role of the court is not to determine which expert to believe, TBS or BAH, but rather to determine whether the decision to discuss only the two-berth expandable facility was too unreasonable to permit it to stand. A port project, like a highway, airport, or other infrastructure improvement, is designed to meet the needs of the state well into the future. In this situation the capacity to expand may be analogous to the need for deep water in Roosevelt Campobello. The parties should address whether, under NEPA, the reasonableness of any alternative is to be measured against general project goals similar to those enunciated in the FEIS, cf. Van Abbema, 807 F.2d at 638, or against the scope of the proposed project in its initial phase. Subsidiary issues which should be discussed include the extent to which it is the prerogative of the applicant to prescribe the type, dimensions and goals of the project under NEPA; whether by proposing a two-berth facility, with the capacity for expansion to six berths, MDOT is entitled to have exactly that proposal evaluated under NEPA; or whether the present and future economic assumptions upon which MDOT based its proposal must be evaluated with a view to assessing their economic viability, thereby enabling the reviewing agency (and court) to distinguish legitimate project typing and scoping from pretextual proposals designed to render otherwise "reasonable alternatives" unnecessary of evaluation in the EIS. NOTES [1] Other industrial development proposals for Sears Island included a nuclear-powered electricity generating plant, a coal-fired power plant, a petroleum refinery, and an aluminum reduction plant. See Sierra Club v. Marsh, 769 F.2d 868, 872 (1st Cir.1985). [2] The final EIS [FEIS] included the 50 acre estimate for the terminal. However, during the five-month interval between the FHWA approval of the FEIS and the issuance of the Corps permit, MDOT consultants revised the acreage requirements of the ship loading and unloading facilities to 124 acres at full buildout. The estimates for a two-berth and a four-berth terminal are 68 and 100 acres, respectively. See Letter from Olko Engineering, Plaintiffs' Appendix, at 131. [3] The court noted that, [h]ad the permit application been for a causeway, the Coast Guard would have had to consider whether the causeway crossed an intrastate or interstate waterway, whether congressional or state approval was necessary, and whether such approval existed. By treating the causeway as a bridge, the Coast Guard avoided answering those questions. 779 F.2d at 783. [4] Moreover, the First Circuit saw "no need ... to make any holdings about what would have been required had the Coast Guard treated the structure as a causeway" or to express an opinion "as to whether the consent of Congress was required for the approval of causeway construction and whether the Department of Transportation Act of 1966 did or did not provide the necessary approval." 779 F.2d at 784. [5] Only Normandeau Associates and Economic Research Associates are listed in the EIS Table of Preparers. However, T.Y. Lin International/Hunter-Ballew Associates, Olko Engineering and Booz-Allen and Hamilton, Inc. were also hired by MDOT and provided reports which were used in preparing the EIS, including reports on suggested designs for the Sears Island and Mack Point terminals. [6] EPA followed up the meeting with written comments to FHWA on the preliminary DEIS. The letter noted EPA's view that "the decision by FHWA and Maine DOT that there are no reasonable alternatives to the original proposal and that the EIS will address only the Sears Island site in detail is not consistent with the Council on Environmental Quality's regulations ... and cannot be substantiated by ... the record." Letter from Elizabeth A. Higgins to William Richardson (May 30, 1988), at 1. EPA expressed its fundamental disagreement "with the approach of evaluating only the secondary growth likely to occur as a result of the cargo terminal while not evaluating potential development due to the newly created access to the island." Id. at 5. [7] MDOT identified the following necessary steps in analyzing the Mack Point alternatives: Advise consultants that they should begin all planning necessary to revise the E.I.S., and particularly instruct ERA to initiate an analysis of secondary impacts for Mack Point. Aside from this they would be advised that the general basis for revision would be existing data and information, including that which is currently being developed by the team. It will be necessary to do some rescoping with the Corps and perhaps other permitting and funding agencies to insure that the concept above is acceptable i.e. use existing and available data and information for the most part. We would restructure and strengthen Section I (needs) as currently planned. Section II would be totally different, but simplified, and probably conclude by eliminating all alternatives except for two sites in Searsport. The preferred site would continue to be identified here. Section III should be revised and simplified now by compiling most of the highly technical and/or scientific data into a separate technical backup document. This should be done in any event. Section IV would be overhauled by bringing in most of the comparative data related to Mack Point-Sears Island into the section. This would essentially be totally redone and provide all the detailed analysis clearly supporting the preferred alternative also identified in Section II. Mitigation would probably be expanded to include those measures adaptable to Mack Point as well as a full evaluation of secondary impacts. State of Maine Inter-Departmental Memorandum by David A. Ober (Dec. 17, 1986). [8] FWS objected to the FEIS on the basis that significant issues remained as to the need for the marine cargo terminal, alternative methods of stimulating economic and industrial development, alternative marine terminal sites and layouts, water quality, wetland and other Clean Water Act compliance matters and related issues pertaining to the selection of the least environmentally damaging practicable alternative. Letter from Gordon Beckett to William F. Lawless (Nov. 20, 1987). Sierra Club raised similar objections. See Letter from Priscilla A. Chapman to William Richardson (Nov. 19, 1987). [9] Under Corps regulations, "the initial decision [is] made by the district engineer; objections by other federal agencies [may] lead to successive reviews by the division engineer, the chief of engineers, and the Assistant Secretary of the Army." Sierra Club v. United States Corps of Engineers, 701 F.2d 1011, 1021 (2d Cir.1983). See 33 C.F.R. ง 325.8. [10] The hearing on the motion for a preliminary injunction was originally scheduled for August 18, 1988. The defendants, without objection by plaintiffs, moved for a continuance, stating that no foreseeable harm would occur at least through September 11, 1988. In aid of its jurisdiction, the court stayed construction of the project pending a decision on the motion for preliminary injunction. In any event, no dredging can take place until October 31, 1988, due to a special restriction in the Corps permit. Corps permit, at 4-B. [11] Justices Stevens and Scalia, concurring in the judgment, were of the view that it was unnecessary to decide whether the Ninth Circuit had applied the proper standard for issuing a preliminary injunction because the Court had held that section 810 did not apply to the OCS. See 107 S.Ct. at 1409. [12] The substantive goals of the NEPA are set forth in 42 U.S.C. ง 4331: (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may โ€” (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. [13] Amoco points to the Endangered Species Act as an example of a statute which forecloses the traditional equitable discretion of the federal courts. See 107 S.Ct. at 1403 n. 9 (citing TVA v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978)). [14] The preliminary injunctive relief claims under ง 404 of the Clean Water Act and ง 9 of the Rivers and Harbors Act โ€” the other statutes at issue in this case โ€” require a showing of irreparable environmental harm even under the First Circuit's analysis in Watt. [15] As the Supreme Court stated in Amoco, "[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." 107 S.Ct. at 1404. [16] MDOT further represents that, as distinguished from dredging, the filling of 25.1 acres of marine habitat in connection with the construction of the pier facilities will not be commenced until after the causeway has been completed. [17] Although the court does not consider the affidavits submitted by the parties as they pertain to the defendants' motion to dismiss, see Fed.R.Civ.P. 12(b), "submission of affidavits in support of or opposition to a preliminary injunction is both customary and appropriate." Bracco v. Lackner, 462 F. Supp. 436, 442 n. 3 (N.D.Cal.1978) (citing C. Wright and A. Miller, 11 Federal Practice and Procedure ง 2949). [18] The intertidal habitat at the gravel bar along which the causeway to Sears Island would be constructed has been classified as borderline Class Aโ€”Class B habitat under the Penobscot Bay Conservation Plan [PBCP] prepared by the Maine Department of Inland Fisheries and Wildlife (December 1986). See Plaintiffs' Appendix, at 163. According to the PBCP, Class A habitat should not be degraded through alteration or development of intertidal or submerged lands and should not experience any change in the type, or increase in the intensity, of existing uses. See BPCP, at 24. Class B habitat should be maintained in sufficient quality and quantity to support all indigenous wildlife species and should not experience change in existing use, although an increase in the intensity of use is approved. See PBCP, at 25. [19] The public policy considerations are more appropriately addressed to Congress, which has not determined that risk to the environment warrants curtailment of the traditional equitable discretion of the federal courts in such matters. Compare note 13 supra. See also Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S. Ct. 1396, 1402-04, 94 L. Ed. 2d 542 (1987). [20] The court notes that the reparability of any environmental alterations may pertain as well to the supervening concern of the equity court that extraordinary injunctive relief is to be withheld where there is an adequate remedy at law. See Amoco, 107 S.Ct. at 1402-03. [21] In determining whether to require a bond, the court must consider the possible loss to the enjoined party, the hardship that a bond requirement would impose on the movant, and the impact that a bond requirement would have on the enforcement of a right. See Crowley v. Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers, 679 F.2d 978, 1000 (1st Cir.1982), rev'd on other grounds, 467 U.S. 526, 104 S. Ct. 2557, 81 L. Ed. 2d 457 (1984). Although the present finding of no irreparable injury obviates consideration of the bond requirement in this case, the court notes that plaintiffs' financial inability to post security would increase the risk of loss to defendant MDOT, which is appropriately considered in weighing the competing harms. [22] The individual plaintiffs claim injury to their ability to sail around Sears Island, see Affidavit of W. O'Neal, at ถ 4 (Sept. 8, 1988), and to the aesthetic appeal of views of Sears Island, the nesting habits of herons on Islesboro due to increased shipping traffic, and injury to the "undisturbed mood" of the Upper Penobscot Bay, see Affidavit of P. Tenney, at ถถ 2-4 (Sept. 8, 1988). Only the alleged injury to the plaintiffs' boating interest is threatened by construction work occasioned by the present denial of preliminary injunctive relief. [23] Plaintiffs point to a countervailing public interest in conforming official conduct with NEPA procedures. But the Supreme Court, in Amoco, severely curtailed the public-interest weight to be accorded such considerations in cases involving violations of the procedures of such statutes as ANILCA and NEPA, unless accompanied by a sufficient showing of irreparable environmental harm. See Amoco, 107 S.Ct. at 1404. [24] Due to time constraints, and the fact that plaintiffs have been unable to satisfy the other criteria for preliminary injunctive relief, the court does not now consider the merits of plaintiffs' claims, except as to the issue of standing. [25] Although the amended complaint does not allege that the two individual plaintiffs are Sierra Club members, the original complaint and the affidavits of the individual plaintiffs do so state. [26] In response to the railroads' objection that the allegations were too imprecise because "no specific `forest' was named," the Court noted in SCRAP that the railroads could have moved for a more definite statement under Federal Rule of Civil Procedure 12(e) or employed "normal discovery devices." 412 U.S. at 689-90 n. 15, 93 S.Ct. at 2417 n. 15. [1] Plaintiffs are unable to post any significant security. [2] Due to time constraints, the court has not yet ruled on the likelihood of success on the merits, but is in the process of drafting a scheduling order focusing the further litigation of the merits. [1] 401. Construction of bridges, causeways, dams or dikes generally; exemptions It shall not be lawful to construct or commence the construction of any bridge, causeway, dam, or dike over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for (1) the bridge or causeway shall have been submitted to and approved by the Secretary of Transportation, or (2) the dam or dike shall have been submitted to and approved by the Chief of Engineers and Secretary of the Army. However, such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Secretary of Transportation or by the Chief of Engineers and Secretary of the Army before construction is commenced. When plans for any bridge or other structure have been approved by the Secretary of Transportation or by the Chief of Engineers and Secretary of the Army, it shall not be lawful to deviate from such plans either before or after completion of the structure unless modification of said plans has previously been submitted to and received the approval of the Secretary of Transportation or the Chief of Engineers and the Secretary of the Army. The approval required by this section of the location and plans or any modification of plans of any bridge or causeway does not apply to any bridge or causeway over waters that are not subject to the ebb and flow of the tide and that are not used and are not susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce. 33 U.S.C.A. ง 401 (1983). [2] See note 1 supra. [3] Plaintiffs cite to The Passaic Bridges, 70 U.S. (3 Wall.) 782, 16 L. Ed. 799 (1861), in which the Court, in finding that the Passaic River lies wholly within New Jersey, noted that the Passaic "is no highway to other States; no commerce passes thereon from States below the bridge to States above." 70 U.S. at 792. This language appears to evidence a focus primarily upon rivers running between states, rather than upon the coastal waterways of a single state. On the other hand, plaintiffs point out that it may be more reasonable to read the phrase: "rivers and other waterways the navigable portions of which lie wholly within the limits of a state", as not including the navigable waters of Penobscot Bay leading to coastal and international waters through which interstate commerce flows. [4] Nor are plaintiffs likely to be able to show irreparable injury resulting from a violation of RHA ง 9, inasmuch as this court is expressly empowered to order removal of the causeway under section 12. 33 U.S.C.A. ง 406. Cf. United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151 (1st Cir.1987) (upholding district court restorative order for violation of Clean Water Act). [5] The Corps considers the practicability of alternatives to dredging and filling activities as part of the public interest review mandated by 33 C.F.R. ง 320.4(a). "For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such permit would not comply with the [EPA's] 404(b)(1) guidelines." 33 C.F.R. ง 320.4(a)(1). Review of project alternatives during the public interest review is further required under 33 C.F.R. ง 320.4(a)(2)(i). [6] There is evidence that the Corps "deferred" to the professional judgment and expertise of MDOT's consultants. For example, the Corps ROD states: "In order to address the practicability of the Mack Point alternative, the Corps of Engineers requested a clarification of existing technical information contained in the record from the applicant. This information was prepared by the applicant's engineering consultants who have years of experience in the area of port engineering and who are recognized experts in this field." Corps ROD, at 19. And the ROD later states: "The Corps of Engineers accepts the professional judgment of the State, FHWA and their consultants concerning the engineering and operational requirements of this project." Corps ROD, at 22. An internal Corps memorandum to defendant Rhen states: The main issues revolve around differences of opinion between EPA's consultant and the State and their consultants. EPA refuses to recognize or accept the applicant's professional judgments. EPA's consultant questions the applicant's assumptions, operational requirements, and professional judgments about other non-practicable alternatives. We acknowledge these professional differences of opinion, have addresses (sic) the Agencies' comments in the ROD, and defer to the expertise of the State Director of Ports and his consultants. Memorandum from C. Godfrey to Col. Rhen (Feb. 17, 1988). [7] The EPA did not employ its most formidable weapon: its veto power over the project under 33 U.S.C. ง 1344(c), which allows the EPA Administrator "to prohibit the specification of any area as a disposal site ... whenever he determines that the discharge ... into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas ..., wildlife, or recreational areas." 33 U.S.C. ง 1344(c); see also Bersani v. Robichaud, 850 F.2d 36, 40 (2d Cir.1988). The EPA rarely uses its veto power under ง 1344(c). Although the Corps processes approximately 11,000 permit applications annually, EPA has vetoed only five Corps permits. Bersani, 850 F.2d at 40. [8] In Conservation Law Foundation, 707 F.2d at 632, the First Circuit evaluated NEPA procedural compliance under a "rule of reason" standard. How, if at all, this standard varies in application from the "arbitrary and capricious" standard is not clear. [9] Plaintiffs' contentions in these regards fall into four categories: (1) that the defendants failed to follow the proper procedures for employing contractors to prepare the EIS; (2) that the FHWA was insufficiently involved in the EIS process; (3) that the EIS inadequately discusses the secondary impacts of the project; and (4) that the EIS fails to discuss all reasonable alternatives. In their supporting memorandum, however, plaintiffs did not pursue their contentions that the FHWA failed to respond adequately to comments on the DEIS, failed to prepare a Supplemental EIS addressing significant new information on the acreage requirements of a six-berth facility, and improperly incorporated key documents by reference. The plaintiffs failed also to focus on the allegations in the amended complaint that the Corps violated NEPA and its regulations, as well as the CWA, in accepting the FEIS and failing to require a supplemental EIS. [10] There is some apparent disagreement as to the deference to be accorded the CEQ Forty Questions. For instance, in Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 682 (D.C. Cir.1982), the court considered that portion of the CEQ Forty Questions relating to mitigation measures. The court held that "the `Forty Questions' publication ... is merely an informal statement not a regulation and we do not find it to be persuasive authority." In Sierra Club I, the First Circuit cited to various sections of the CEQ Forty Questions in interpreting NEPA and its regulations. See Sierra Club I, 769 F.2d at 870, 874, 877, 879 (including a citation to the section disapproved in Cabinet Mountains Wilderness). Although the D.C.Circuit distinguished Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S. Ct. 2335, 2341, 60 L. Ed. 2d 943 (1979), on the ground that it involved regulations which were subject to the notice and comment procedures, the Supreme Court noted that the CEQ was "created by NEPA and charged in that statute with the responsibility to `review and appraise the various programs and activities of the Federal Government in light of the policies set forth ... in [the] Act," id. at 358, 99 S.Ct. at 2341. The Court found therefore that the "CEQ's interpretation of NEPA is entitled to substantial deference." Id. [11] HBA prepared at least four reports, including a comparative analysis of the designs of dry-cargo terminals at Mack Point and Sears Island, and BAH prepared five reports, including a study of the effect the "no action" alternative would have on cargo volumes at Searsport and the state in general. EIS, Vol. I, at 12-6, 12-2, and x. TYLIN/HBA also organized the strategy for responding to comments to the DEIS. Although discounted by the MDOT because no actual writing or editing was involved, TYLIN/HBA was responsible for coordinating the response to the DEIS comments, including identifying the important issues and assigning the follow-up research. Olko Engineering's level of participation is somewhat less clear. But they served, at a minimum, on the EIS review team and were involved in answering the questions of the Corps. [12] Defendants argue also that this regulation only applies to those highly unique situations in which a contractor independently prepares an EIS for the state which the state in turn adopts as its own. The MDOT cites the FHWA Director of Environmental Policy for authority on this point, but provides no other authority for so narrowly construing this section. Plaintiffs argue that such a unique situation may never exist, because NEPA, when delegating the responsibility for preparation of the EIS to a preparer outside the agency, requires the delegating agency to guide the outside preparer and to participate in the EIS process. [13] The record indicates that on July 15, 1983, a document titled "Sears Island Maine Dry Cargo Searsport, Maine, Vol. I Preliminary Design Report" was prepared for MDOT by Hunter-Ballew Associates "in association with" Olko Engineering and Normandeau Associates. (Plaintiffs' Appendix, at 192). The plaintiffs also cite to the November 1983 environmental assessment (EA) summary prepared by these consultants, which identified Sears Island as the preferred alternative. Plaintiffs' Supplemental Appendix, at 9. [14] Conservation Society v. Secretary of Transportation, 531 F.2d 637, 639 (2d Cir.1976); Lange v. Brinegar, 625 F.2d 812, 818-19 (9th Cir.1980) (analyzing a 1972 EIS with a 1975 supplement); Friends of Endangered Species v. Jantzen, 596 F. Supp. 518, 526-27 (N.D.Cal.1984) (relying on pre-1979 cases without considering new regulation). [15] Plaintiffs challenge only the types of industries evaluated in the EIS. They do not appear to argue that the EIS inadequately evaluates the impacts of the industries actually discussed. [16] The FEIS excludes these industries from its analysis of the environmental impacts of secondary development for the following reasons: (1) the proposals relate to past plans and are unrelated to the present project; (2) the "scale of these sorts of investments would dwarf the cost of the preferred alternative and therefore proceed independently;" and (3) the present action would not "preclude separate environmental review should such large scale projects become feasible sometime in the future." FEIS, Vol. I, at 4-109 to 4-110. [17] Plaintiffs suggest that the FEIS should discuss industrial parks, governmental subsidies, and inland development projects as alternatives to the port project. FEIS, Vol. II, at F-5; Plaintiffs' Appendix, at 223-24. According to the FEIS, the Sears Island project has two goals: (1) to improve the efficiency of Maine's transportation system by creating a modern port facility and (2) to create jobs in an economically depressed area. Plaintiffs have not suggested even a facially plausible alternative for improving the economy of Waldo County that would meet both of the goals of the project planners. [18] Consideration of alternatives under NEPA is different than under the CWA. Under the CWA, consideration of "practicable alternatives" is mandated by EPA wetlands regulations promulgated pursuant to the Act. 40 C.F.R. ง 230.10(a) (1987). The criteria for determining whether an alternative is practicable under the EPA wetlands regulations are similar to the factors for determining whether an alternative is reasonable under NEPA; consideration of cost, existing technology, and logistics in light of overall project purposes would seem to be required under both. Compare 40 C.F.R. ง 230(a)(2) (1987) with CEQ Forty Questions, Fed.Reg. at 18026, and Roosevelt Campobello, 684 F.2d at 1047. The effect of the determination, however, is different under the two acts. Under NEPA, a determination that an alternative is reasonable requires that the agency examine fully the environmental impacts of that alternative in the EIS, even though the alternative may ultimately be rejected. Under the EPA wetlands regulations, a determination that an alternative is practicable requires the agency to select that alternative over any other, including a preferred alternative, which would have greater adverse impact on the aquatic ecosystem, so long as the "practicable alternative" does not have other significant adverse environmental consequences. For more detailed evaluation of the CWA, see Part III supra. [19] The Fifth Circuit defines reasonable alternatives as follows: At the outset we note that the evaluation of "alternatives" mandated by NEPA is to be an evaluation of alternative means to accomplish the general goal of an action; it is not an evaluation of the alternative means by which a particular applicant can reach his goals. In the current proposal the general goal is to deliver coal from mine to utility. Louisiana Wildlife Federation v. York, 761 F.2d 1044, 1048 (5th Cir.1985). [20] The CEQ Forty Questions supports the Silva holding. Where a comment to the DEIS raises "an alternative which is a minor variation of one of the alternatives discussed in the draft EIS but not given any consideration by the agency," the agency "should develop and evaluate the new alternative, if it is reasonable, in the final EIS." CEQ Forty Questions, 46 Fed.Reg. 18035 (emphasis added). However, the agency would not be required to circulate a supplemental DEIS for an alternative qualitatively within the spectrum of alternatives already discussed. One of the examples was a DEIS for an urban housing project, which discussed alternatives of constructing 2,000, 4,000 or 6,000 units, where a commentator suggested consideration of 5,000 units in a different configuration. [21] There is disagreement as to whether the two-berth alternative is discussed in the FEIS. Plaintiffs note that one reason for rejecting Mack Point as an alternative site was that Mack Point was a less suitable location for a six-berth facility. The FEIS section on "comparison of alternatives is limited to the impacts associated with the full build out of Mack Point, Sears Island and Long Cove." FEIS, Vol. I, at 2-7. The section evaluating the environmental consequences of the different sites states, "[in] all cases impacts relate to the full development of the terminal unless specifically stated otherwise." FEIS, Vol. I, at 4-1. The state defendants argue that a two-berth facility was considered, but that the consideration focused on a two-berth facility with certain characteristics, most notably its expandability to six berths. MDOT noted that although the CEQ regulations provide "that `connected' and/or `cumulative' actions should be considered in one impact statement" they considered it "unclear whether the agencies would have been required to consider the environmental impact of the full, six-berth project." Therefore, MDOT argues that the discussion of the environmental effects of the full build-out exceeded NEPA requirements. The federal defendants did not address this point, focusing instead on the unreasonableness of the plaintiffs' proposed alternative. The federal defendants argue that the two-berth proposal was not reasonable "in light of the purpose described by the applicant."
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6759 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus HERBERT GRAHAM, Defendant - Appellant. Appeal from the United States District Court for the Eastern Dis- trict of North Carolina, at Wilmington. Malcolm J. Howard, Dis- trict Judge. (CR-95-69-H, CA-97-147-7-H) Submitted: November 5, 1998 Decided: November 19, 1998 Before ERVIN, LUTTIG, and MOTZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Herbert Graham, Appellant Pro Se. Robert Edward Skiver, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Herbert Graham seeks to appeal the district court’s order de- nying his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the dis- trict court. United States v. Graham, Nos. CR-95-69-H; CA-97-147-7- H (E.D.N.C. Mar. 23, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2231 ROBERT MCBRIDE, Plaintiff - Appellant, v. COMMONWEALTH OF VIRGINIA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:08-cv-00367-RBS-JEB) Submitted: April 22, 2009 Decided: May 6, 2009 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert McBride, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert McBride appeals the district court’s orders dismissing this action challenging the constitutionality of a Virginia statute and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. McBride v. Commonwealth of Virginia, No. 2:08-cv-00367- RBS-JEB (E.D. Va. filed Sept. 9, 2008, entered Sept. 11, 2008; filed Sept. 23, 2008, entered Sept. 25, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GIANCARLO INCALZA,  No. 04-57119 Plaintiff-Appellee, D.C. No. v.  CV-03-06720- FENDI NORTH AMERICA, INC., MMM Defendant-Appellant.  OPINION Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding Argued and Submitted December 7, 2006—Pasadena, California Filed March 6, 2007 Before: Stephen Reinhardt, Melvin Brunetti, and Alex Kozinski, Circuit Judges. Opinion by Judge Reinhardt 2511 2514 INCALZA v. FENDI NORTH AMERICA COUNSEL Gene C. Schaerr, Winston & Strawn LLP, Washington, D.C. and Laura R. Petroff and Jennifer Rappoport, Winston & Strawn LLP, Los Angeles, California, for the appellant. Carney R. Shegerian and Donald Conway, Shegerian & Asso- ciates, Inc., Beverly Hills, California, for the appellee. OPINION REINHARDT, Circuit Judge: We consider whether, in this case, the Immigration Reform and Control Act of 1986 (IRCA) preempts California labor laws that forbid employers from firing an employee without good cause. We also consider whether the district court abused its discretion in denying defendant’s motion for a new trial. In both instances, our answer is No. I. FACTUAL AND PROCEDURAL HISTORY In June of 1990, Giancarlo Incalza, a native and citizen of Italy with two years of business education, began working as INCALZA v. FENDI NORTH AMERICA 2515 a sales associate for Fendi in Rome. Approximately six months after his employment started, Fendi offered him a sales position in its New York City store. Paola Fendi, the head of the company, assured him that his employment would be secure as long as he continued to perform well. Incalza accepted the offer and moved to the United States on an E-1 visa secured with Fendi’s assistance. Incalza worked at Fendi’s New York store from 1990 until 2000. During this period, the company renewed his visa sev- eral times. Management also made further assurances to him regarding his job security. In August, 2000, Incalza was promoted to manager of Fendi’s Beverly Hills store. During his tenure in Beverly Hills, he consistently received positive performance reviews. There was considerable evidence, however, that his supervi- sor, Robert King, did not like him and would have liked to replace him. In mid-2002, French nationals purchased a majority interest in Fendi. In January, 2003, Fendi’s immigration counsel, Andrew Lerner, advised his client that, because the company was now French-owned, the E-1 visas issued to Italian nation- als were no longer valid. Lerner explained that this affected two employees: Incalza and Mauricio Graziani. He also informed Fendi that H1-B visas were probably available to both Graziani and Incalza. He told the company that Graziani and Incalza were essentially in the same situation, although he thought that Graziani might have a slightly easier time obtain- ing an H1-B visa because he had some post-secondary educa- tion and had previously received an H1-B visa. Lerner was unaware at the time that Incalza also had two years of post- secondary education. In any event, he explained that, for a fee, the company could get a determination within fifteen days regarding whether the two employees would be able to qualify for H1-B visas. Lerner did not provide any advice 2516 INCALZA v. FENDI NORTH AMERICA regarding whether or not to terminate either Incalza or Gra- ziani. Although Lerner offered to investigate further, Fendi did not accept his offer. Instead, it requested that he file an H1-B petition on behalf of Graziani, but not Incalza. Graziani was granted an H1-B visa, and remained on Fendi’s payroll with- out interruption. King, in the presence of the human resources director, fired Incalza on January 20, 2003, telling him, falsely, that nothing could be done to remedy his visa problems. Incalza then requested that he be allowed to take an unpaid leave of absence. He explained that he was planning to marry his fian- cée, an American citizen, the following month and would be eligible for a green card. King, however, repeated that the immigration problem could not be resolved, and that a leave of absence was not an option. Incalza then wrote Fendi a letter on February 28, 2003, ask- ing that it give him back his former job once his visa issue was resolved. In a follow-up phone conversation, the human resources director told Incalza that Fendi would not re-hire him. Incalza then married his fiancée on March 27, 2003 and received work authorization as the spouse of an American cit- izen in April. At the time of his marriage, Fendi still had not filled his position. In early April, Fendi hired Grace Varella, a non-Italian, as manager of the Beverly Hills store. Incalza filed an action in California Superior Court claim- ing that he was wrongfully terminated 1) in violation of an implied contract that he would be fired only for good cause, and 2) because of his Italian heritage, in violation of the Fair Employment and Housing Act, CAL. GOV’T CODE §§ 12900- 12960.1 Fendi removed the case to federal court on the basis 1 Incalza also raised a number of other claims, but all were dismissed or voluntarily withdrawn prior to trial and are not at issue in this action. INCALZA v. FENDI NORTH AMERICA 2517 of diversity jurisdiction, and filed a motion for summary judg- ment. It argued that Incalza’s claims lacked merit because it was compelled by IRCA to terminate him when it discovered that his E-1 visa was no longer valid. It further argued that California law, to the extent it required a different result, was preempted. The district court denied the motion. At the trial, Incalza introduced evidence that 1) Fendi’s pol- icy is not to terminate employees without good cause, 2) the custom of the fashion industry is not to terminate employees without good cause, 3) Incalza was employed at Fendi for thirteen years, and 4) Fendi management gave Incalza oral assurances of continued employment. A four-day jury trial followed. The jury found for Incalza on the implied contract claim, but for Fendi on the discrimina- tion claim. It awarded Incalza $1,088,440. The jury was instructed that Fendi could discharge an employee in good faith and for a fair reason, but that it should find for Incalza if it found that the stated reason was simply a pretext. Fendi moved for a new trial, and the district court denied the motion. Fendi appealed. II. DISCUSSION A. Conflict Preemption [1] California law provides remedies to workers who are terminated in violation of an express or implied agreement that they will not be discharged without good cause. Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1100-01 (Cal. 2000). The California legislature has made clear that this rule applies to illegal immigrants as well as other employees. Under Califor- nia law, “[a]ll protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” CAL. CIV. CODE 2518 INCALZA v. FENDI NORTH AMERICA § 3339(a); CAL. LAB. CODE § 1171.5(a); CAL. GOV’T CODE § 7285(a). Additionally, California law provides that “[f]or purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or dis- covery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.” CAL. CIV. CODE § 3339(b); CAL. LAB. CODE § 1171.5(b); CAL. GOV’T CODE § 7285(b). [2] Federal law, however, forbids employers from know- ingly employing unauthorized aliens. Specifically, under IRCA, it is “unlawful for a person or other entity, after hiring an alien for employment in accordance with [the Act], to con- tinue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8 U.S.C. § 1324a(a)(2). [3] Conflict preemption2 occurs when either 1) it is not “possible to comply with the state law without triggering fed- eral enforcement action,” Jones v. Rath Packing Co., 430 U.S. 519, 540 (1977), or 2) state law “stands as an obstacle to the accomplishment and execution of the full purposes and objec- tives of Congress,” Volt Info. Science, Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. 468, 477 (1989) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Ten- 2 “Preemption can occur in one of three ways: express preemption by statute, occupation of the field, or conflict between state and federal regu- lation.” U.S. v. 4,432 Mastercases of Cigarettes, More Or Less, 448 F.3d 1168, 1189 (9th Cir. 2006) (quoting Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev. Comm’n, 410 F.3d 492, 495 (9th Cir. 2005), cert. denied, 126 S. Ct. 2887 (2006)). Neither party suggests that IRCA expressly preempts state labor laws protecting undocumented employees. Nor do the parties argue that field preemption applies. Thus, conflict preemption is the only type of preemption at issue in this case. INCALZA v. FENDI NORTH AMERICA 2519 sion between federal and state law is not enough to establish conflict preemption. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984). We find preemption only in “those situations where conflicts will necessarily arise.” Goldstein v. California, 412 U.S. 546, 554 (1973). A “hypothetical con- flict is not a sufficient basis for preemption.” Total TV v. Palmer Communications, Inc., 69 F.3d 298, 304 (9th Cir. 1995). The parties agree that there is no conflict between Califor- nia law and IRCA as applied to an employer who is required to terminate an employee by IRCA and does so in order to comply with that statute. Under such circumstances, the employer can obey both laws because compliance with IRCA provides good cause, as defined by California law, for termi- nating unauthorized aliens. The point of contention that pri- marily divides the parties is whether federal and state law conflict when an employer who is required by federal law to terminate an unlawful alien does so, not because of IRCA, but for reasons that are unlawful under state law, and is required to pay damages for the violation of state law. The district court agreed with Incalza and held that state and federal law do not conflict under such circumstances because California law requires only that the employer pay damages for the vio- lation of state law, not that it employ an alien in violation of federal law. Thus, the district court ruled, the employer can obey both laws by terminating the employee, as required by federal law, and, where the motive for the termination is con- trary to state law, paying damages, as required by such law. [4] We need not reach the question decided by the district court, however. There is no conflict in the case before us for a narrower reason. Here, not only was Incalza not discharged because of his unauthorized employment status, but Fendi could lawfully have taken action other than discharge, and been in compliance with IRCA. That Fendi itself recognized that discharge was not required is evidenced by its decision to 2520 INCALZA v. FENDI NORTH AMERICA continue to employ Graziani while obtaining an H1-B visa for him. [5] It was possible for Fendi to obey federal law in this case without creating a conflict with state law because there were remedies short of discharge that were permissible under fed- eral law. Fendi could have granted Incalza’s request for tem- porary, unpaid leave so that he could resolve his work authorization problems.3 IRCA requires that an employer not “continue to employ” workers if it discovers that they are unauthorized, but does not bar an employer from suspending an employee or placing him on unpaid leave for a reasonable period while he remedies the deficiency in his status. We read the IRCA implementing regulations as deeming an individual “employed” only if he is performing work and receiving remuneration for that work. The regulations define employ- ment as “any service or labor performed by an employee for an employer within the United States.”4 8 C.F.R. § 274a.1(h). An employee is defined as “an individual who provides ser- vices or labor for an employer for wages or other remunera- tion.” 8 C.F.R. § 274a.1(f). Thus, an entity does not “continue to employ” an alien in violation of 8 U.S.C. § 1324a(a)(2) 3 Fendi suggests that a loss of work authorization by Incalza could not be considered temporary because “[a]s a factual matter, Incalza’s ‘tempo- rary’ lack of work authorization lasted five months beyond the date he was terminated, and was [remedied] based on his marriage.” This argument is disingenuous. Had Fendi applied for an H1-B visa on Incalza’s behalf, his visa problem might well have been largely resolved within 15 days. Even without Fendi’s assistance, Incalza would have obtained a work permit earlier had he not been terminated. Incalza was compelled to delay his wedding as a result of his termination. Thus, Fendi’s actions were respon- sible for the duration of the break in Incalza’s work authorization. Had Fendi taken immediate action, it is possible that it could have obtained work authorization for Incalza so quickly that it would not even have been required to put him on leave. See New El Rey Sausage Co. v. INS, 925 F.2d 1153, 1156-57 (9th Cir. 1991). This is precisely what happened with Graziani, for whom Fendi obtained an H1-B visa. 4 The regulation also includes some exceptions, which are not relevant here. INCALZA v. FENDI NORTH AMERICA 2521 unless that individual is continuing to perform a service or labor for the employer for which it is providing remuneration. The employment status of an employee placed on leave with- out pay is, in effect, suspended during the period that he is neither working nor receiving pay.5 8 U.S.C. § 1342a(a)(2). [6] Placing employees on unpaid leave for a reasonable period is consistent with the purpose of IRCA, as reflected in the implementing regulations. Cf. Volt Info. Science, Inc., 489 U.S. at 477. In passing IRCA, Congress wished to stop pay- ments of wages to unauthorized workers, which act as a “magnet . . . attract[ing] aliens here illegally,” and to prevent those workers from taking jobs that would otherwise go to cit- izens. P.L. 99-603, IMMIGRATION REFORM AND CON- TROL ACT OF 1986 H.R. REP. 99-682(I), at 46, as reprinted in 1986 U.S.C.C.A.N. at 5650. If an alien is not working and is not being paid, IRCA’s purposes are not con- travened. Moreover, allowing employers to place employees on unpaid leave furthers Congress’s secondary purpose of pro- tecting the rights of lawful alien workers. It affords employers a means of preserving the seniority and other benefits of law- ful workers whose work authorization has been questioned or who lack adequate documentation. Concern with protecting such workers from discrimination based on national origin engendered by IRCA’s employer sanctions was repeatedly expressed by members of Congress.6 See, e.g., 132 CONG. 5 Fendi relies on the definition of the term “employ” in the implementing regulations of the Family Medical Leave Act (FMLA) to argue that employees on leave remain employed. That definition is irrelevant, how- ever, because the definition of “employ” can vary from statute to statute. See Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 1349-50 (1992) (differentiating between the definition of “employ” under ERISA and under the Fair Labor Standards Act). The “textual asymmetry between the two statutes precludes reliance” on FMLA to interpret the term in IRCA. Id. at 1350. 6 So great was Congress’s concern that it wrote protections against dis- crimination for lawful aliens into IRCA and created an Office of Special 2522 INCALZA v. FENDI NORTH AMERICA REC. 31640 (1986) (statement of Rep. Bryant) (“Many Ameri- cans are concerned that employer sanctions will lead to increased discrimination against Hispanics and other Ameri- cans who are legally here and entitled to work. I am very sen- sitive to that concern. And I have worked hard to put the maximum protections against discrimination into the bill.”). Allowing employers to place employees on leave without pay while problems or concerns with their immigration status are resolved protects lawful employees from discharges by employers who, concerned with liability under IRCA, would otherwise terminate those employees first and ask questions later. See New El Rey Sausage Co. v. INS, 925 F.2d 1153, 1157 (9th Cir. 1991) (noting that a requirement that employ- ers immediately terminate employees without allowing the employees time to gather documents to prove their immigra- tion status might raise constitutional concerns). Unpaid leave also permits individuals to obtain a different form of work permit to meet changed conditions or renew a permit that has expired as a result of the employer or employee’s inadvertent failure to file for renewal in sufficient time or as the result of the agency’s failure to act promptly upon an application due to the overwhelming backlog it frequently confronts. Fendi also argues that Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), requires that it terminate Incalza immediately, regardless of the circumstances. Hoffman describes IRCA as requiring that “if an employer unknow- ingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker’s undocu- mented status.” Id. at 148. Fendi argues that the Court in Hoff- Counsel in the Justice Department “for the purpose of investigat[ing] and prosecuting any charges of discrimination due to an unlawful immigration-related employment practice.” 132 CONG. REC. 31632 (1986); see also 8 U.S.C. § 1324b (detailing the duties of the “Special Counsel for Immigration-Related Unfair Employment Practices”). INCALZA v. FENDI NORTH AMERICA 2523 man held that the phrase “continue to employ” in 8 U.S.C. § 1324a means “compelled to discharge immediately.” Hoff- man, however, did not address the question of terminating employees whose work authorization problems could be expeditiously resolved by renewing an expired application or changing the form of an existing permit. To the contrary, it dealt with undocumented aliens working in a factory without any basis for, or prospect of, obtaining legal status. Unpaid leave would have accomplished absolutely no purpose in their cases. We read Hoffman as instructing that, as a general rule, individuals who are indisputably not authorized to work must be discharged immediately. An individual who has an oppor- tunity to switch from an E-1 visa to an H1-B visa, or some other form of work authorization, is, however, another matter, as is an individual whose status is either unclear or disputed. Hoffman did not consider the question whether employees who are able to resolve their work authorization problems within a short time may be suspended or granted leave with- out pay for the interim period. We conclude, for the reasons stated above, that such a practice is fully consistent with IRCA. See also Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1114-15 (10th Cir. 2006) (finding that an employer who placed an employee on leave without pay while his immigra- tion status was being clarified could defend itself in a subse- quent Title VII suit on the basis that it did so to comply with IRCA). Finally, Fendi argues that, under Hoffman, IRCA preempts California law to the extent that the state law authorizes the payment of damages to aliens who are not authorized to work in this country. We need not decide here what damages would be available to a worker who is not authorized to work. Incalza, except for a short period principally resulting from his employer’s actions, has been authorized to work at all times. He is currently working in the United States lawfully, although he is earning much less money than he did at Fendi. Under these circumstances, damages, even damages for lost 2524 INCALZA v. FENDI NORTH AMERICA wages, do not create a conflict between immigration law and California law.7 [7] In sum, we hold that Fendi was not required by IRCA to terminate Incalza because it could have suspended him or placed him on leave without pay for a reasonable period while he was obtaining a change in work authorization to which he was entitled. Thus, in this case, California law does not con- flict with federal law; it was possible to comply with and sat- isfy the purposes of both. Accordingly, we affirm the district court’s conclusion that California labor laws, as applied to Incalza, are not preempted by IRCA. B. Sufficiency of the Evidence Fendi argues that the jury’s decision that it lacked good cause to discharge Incalza is not supported by the evidence. In Fendi’s view, Incalza must both show cause to think Fendi’s explanation for terminating him was false and prove that it fired him for some other particular reason. Fendi fur- ther argues that, because the jury found for it on the discrimi- nation claim, Incalza did not prove that it had a particular unlawful reason, and, thus, did not demonstrate pretext. [8] Under California law, an employer has good cause to terminate an employee if it has “fair and honest reasons, regu- lated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual.” Cotran v. Rollins Hudig Hall Int’l, 948 P.2d 412, 422 (Cal. 1998). The district court concluded that there was sufficient evidence from which the jury could have decided that Incalza was fired because of King’s personal ani- 7 To the extent that a small part of the damages awarded by the jury may cover a period for which Incalza might have been placed on leave without pay, and for which recovery may be questionable, no separate issue is raised by Fendi, and, thus, we need not review the record to determine that specific amount. INCALZA v. FENDI NORTH AMERICA 2525 mosity towards him or because King otherwise generally wished to replace him as manager of the Beverly Hills store. A district court’s decision to deny a motion for a new trial is reviewed for abuse of discretion. Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989). Such motion may be granted on insufficiency of evidence grounds “only if the verdict is against the ‘great weight’ of the evidence, or ‘it is quite clear that the jury has reached a seri- ously erroneous result.’ ” Venegas v. Wagner, 831 F.2d 1514, 1519 (9th Cir. 1987) (quoting Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th Cir. 1984)). [9] The district court summarized the evidence demonstrat- ing that Incalza’s manager, King, wanted to get rid of Incalza. Specifically, King had recommended against promoting Incalza to manage the Beverly Hills store in the first place. King also testified that he had concerns regarding Incalza’s “negativity” and regarding the impact of Incalza’s attitude on the store and the staff. Additionally, King testified that Incalza did not show initiative. King’s testimony was directly contradicted by the testimony of Incalza’s prior manager and by Incalza’s consistently high performance reviews. King also insisted that Incalza’s visa problems could not be remedied, even after Incalza reminded him that he would soon be eligi- ble for a green card due to his upcoming marriage, and even though Fendi did, without difficulty, resolve the status of a similarly situated employee, Graziani. As such, the district court held that the “jury could have concluded that King did not favor installing Incalza as Beverly Hills store manager in the first place, and that he was looking for an excuse to remove him from the position.” In light of the evidence in the record regarding King’s dislike of Incalza and Fendi’s dispa- rate treatment of Graziani, we hold that the district court did not abuse its discretion in denying Fendi’s motion for a new trial. 2526 INCALZA v. FENDI NORTH AMERICA III. CONCLUSION We hold that California law, as applied in this case, is not preempted by IRCA. We also hold that the district court did not abuse its discretion in finding that the jury’s verdict was supported by sufficient evidence because Incalza met his bur- den of proving pretext. AFFIRMED.
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NO. 07-03-0524-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MARCH 21, 2005 _______________________________ IN THE INTEREST OF BRITTANY NICOLE SANDERS _______________________________ FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 63,497-D; HON. DON R. EMERSON, PRESIDING _______________________________ Opinion _______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Gail Wayne Sanders (Sanders) appeals from an order establishing his parentage as father of Brittany Nicole Sanders and ordering him to pay retroactive child support of $52,400, attorney's fees, and court costs. Though not contesting paternity, he nonetheless attacks the trial court's 1) failure to execute findings of fact and conclusions of law supporting its determination, 2) award of $52,400 as retroactive support, and 3) award of $8,000 as attorney's fees. We affirm the judgment of the trial court. Background The dispute before us involves the attempt by Rolisa Carol Utzman to establish that Sanders was the father of her child Brittany and obtain retroactive child support. Brittany was born on November 30, 1984, and Rolisa and Sanders continued to have a relationship through 1991. Throughout this time and continuing through the date of trial, Sanders was married to another person. After an evidentiary hearing, the trial court found that the amount of net resources available to Sanders beginning January, 1991, and continuing through May of 2003, was in excess of $4,000 per month. It also concluded that Sanders' retroactive child support was $400 per month for the same period and that he owed Utzman a total of $52,400. Issue One - Findings of Fact Sanders' first issue involves the trial court's failure to timely execute findings of fact and conclusions of law. The record discloses that he did ask the trial court to execute findings of fact and conclusions of law per Texas Rule of Civil Procedure 296. And, though the trial court did not comply with the request within the time parameters established by the applicable rules of procedure, it nevertheless executed a set on March 22, 2004. Those findings have also been made part of the appellate record. Furthermore, Sanders has not contended that they are deficient; nor has he asked for an opportunity to re-brief the issues in view of the findings and conclusions. It is clear that we may remedy the trial court's failure to execute findings and conclusions by abating the appeal, remanding the cause, and directing the trial court to issue same. Lubbock County Cent. Appraisal District v. Contrarez, 102 S.W.3d 424, 426 (Tex. App.-Amarillo 2003, no pet.). Since the trial court effectuated that remedy sua sponte, we cannot but hold that Sanders' complaint has become moot. Thus, we overrule the first issue. Issue Two - Retroactive Child Support Through his second issue, Sanders contends that the trial court abused its discretion in ordering him to pay $52,400 as retroactive support. This is allegedly so because the award lacks evidentiary support and the trial court failed to reduce the sum by the support he had already paid. Moreover, the award supposedly lacks evidentiary support because the evidence fails to illustrate that his net resources exceeded $4000 per month as found by the trial court. We overrule the issue. We review the decision of the trial court under the standard of abused discretion. See In re Tucker, 96 S.W.3d 662, 668 (Tex. App.-Texarkana 1998, no pet.) (stating that the courts of appeal review an award of retroactive child support for an abuse of discretion); Garza v. Blanton, 55 S.W.3d 708, 710 (Tex. App.-Corpus Christi 2001, no pet.) (stating that whether to award retroactive support and the amount awarded lies within the discretion of the trial court). Furthermore, whether it properly exercised its discretion depends upon not only whether it acted with reference to guiding rules and principles, In re Hamer, 906 S.W.2d 263, 265 (Tex. App.-Amarillo 1995, no writ), but also whether the decision enjoys evidentiary support. See id. at 265 n.1 (holding that while the existence of evidence supporting the trial court's decision is not an independent ground of attack, it is nonetheless an indicia to consider when determining if the trial court abused its discretion). Moreover, we are obligated to view the evidence in the light most favorable to the trial court's decision and indulge in every presumption favoring the judgment. In re Tucker, 96 S.W.3d at 664-65. Next, should the trial court decide to award retroactive support, it is then free to turn to the child support guidelines found in Chapter 154 of the Family Code to help in ascertaining the amount of the award. See Tex. Fam. Code Ann. §154.131(a) (Vernon 2002) (stating that the "child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered"). And, while compliance with those guidelines is not mandatory, In re Valadez, 980 S.W.2d 910, 913 (Tex. App.-Corpus Christi 1998, pet. denied), it must nonetheless "consider" the "net resources" of the father during the relevant time period and whether 1) the mother of the child had made any previous attempts to notify the father of his paternity, 2) the father had knowledge of his paternity, 3) the order of retroactive child support will impose an undue financial hardship on the father or his family, and 4) the father provided actual support or other necessaries before the filing of the action. Tex. Fam. Code Ann. §154.131(b) (Vernon 2002). Finally, the term "net resources" means all the income received by the obligor, id. §154.062(b), but not his losses. In re Grossnickle, 115 S.W.3d 238, 248 (Tex. App.-Texarkana 2003, no pet.); Fanning v. Fanning, 828 S.W.2d 135, 150 (Tex. App.-Waco 1992), rev'd on other grounds, 847 S.W.2d 225 (Tex. 1993) (involving the similarly worded predecessor to §154.062(b) of the Family Code). The evidence of record contains both the joint tax returns filed by Sanders and his wife during the years 1991 through 2001 and a summary of those returns. They illustrate that the couple had income totaling $1,261,748 for the ten-year period. Moreover, dividing the sum by ten results in an average annual income approximating $126,175. See Norris v. Norris, 56 S.W.3d 333, 341-42 (Tex. App.-El Paso 2001, no writ) (holding that the trial court did not abuse its discretion in determining monthly resources by averaging the obligor's income over a period of time). And, while Sanders testified that most of the income was earned by his wife or from her separate property, the trial court was free to disbelieve him. (1) So, it could well have decided to attribute the entire amount to him. (2) Next, given an average annual income of $126,175, and in view of the guidelines appearing in §154.061 of the Family Code (which guidelines are used in calculating net monthly income), one could reasonably conclude from the record before us (and assuming that the trial court discredited his testimony about who generated the income) that Sanders net monthly income was around $7170 for that ten-year period. Finally, the latter sum does exceed $4000 per month, as found by the trial court. So, we reject Sanders' argument that there "is insufficient evidence of Appellant's resources to support the judgment . . . ." (3) We next address Sander's attack upon the finding wherein the trial court determined that "the percentage applied to the first $6,000.00 of . . . Sanders' net resources for child support by the actual order rendered is 16 percent." This argument is premised upon the allegation that the trial court found Sanders' net resources "to be $4,000.00 not $6,000.00." However, the pertinent finding actually states that his net resources were "in excess of $4,000.00 per month," not simply $4000. Furthermore, the calculations made earlier in this opinion could have supported a finding that his income approximated $7000 per month. Additionally, 16 percent of $7000 and $6000 is $1120 or $960, respectively, and both sums are far more than the $400 monthly support obligation that the court applied retroactively. So, in essence, we cannot see how he was or is harmed by the finding, assuming it is inaccurate. Sanders also posits that the trial court needed to enter findings required by the Family Code. The findings in question involved some explanation justifying the trial court's decision to simply not set the support obligation at 20 percent of Sanders' net resources. Yet, this argument is premised upon the acceptance of Sanders' testimony that his net resources were actually far less than $4000 per month. As stated before, the trial court was entitled to disbelieve him and conclude that his resources were actually greater than that amount. We next consider the suggestion that the trial court erred in failing to give Sanders credit for the child support he paid between 1991 and 2001. This argument is founded upon that portion of the Family Code requiring the trial court to consider whether the obligor provided actual support or other necessaries to the child before suit was initiated. Tex. Fam. Code Ann. §154.131(b)(4) (Vernon 2002). And, we reject it for several reasons. First, §154.131(b)(4) does not expressly require the trial court to credit an obligor with past support payments. It simply states that the trial court "shall consider" whether the obligor provides support or necessaries in ordering retroactive support. Tex. Fam. Code Ann. §154.131(b)(4) (Vernon 2002). Moreover, the plain meaning of the word "consider" encompasses the act of thinking about or contemplating something. Merriam-Webster's Collegiate Dictionary 265-66 (11th ed. 2003). And, requiring one to think or contemplate about a particular act is a far cry from ordering that the particular act be done. Furthermore, inherent in the term is the concept of discretion; that is, while the person told to think about doing something may have to think about it, the directive leaves the decision whether to do the thing up to him. And, given this interpretation, we cannot say that the trial court failed to consider Sanders' prior efforts at support. For instance, the trial court could have considered whether the houses and car given Rolisa by Sanders were actually intended to be child support. In so contemplating the matter, it could have recalled the evidence illustrating that Sanders was living with Rolisa at the time while still married to his wife. And, had it so recalled that evidence, it could have also concluded that maybe the house and car were actually provided to facilitate the extramarital relationship, and not to help out his daughter. Additionally, our analysis of the record (as discussed above) uncovered evidence that would have supported a finding that Sanders actually had monthly net resources exceeding $6000, not just $4000. And, to the extent that the trial court was authorized to presumptively order an obligor to pay 20% of his net resources as child support (as previously argued by Sanders), it could have found Sanders' retroactive obligation to be $1200 per month, as opposed to simply $400. (4) Indeed, if it only found that Sanders' resources were $4000 per month, the trial court could have ordered him to pay $800 per month in retroactive support. Yet, it merely ordered him to pay $400. Given this, we cannot say that the trial court failed to "consider" Sanders' prior attempts at support in determining the amount of retroactive support to award. Attorney's Fees In his next and last issue, Sanders alleges that the trial court erred in awarding counsel for Brittany's mother attorney's fees of $8000. This was purportedly error because the recipient of the fees did not segregate the amount incurred in prosecuting the action to establish parentage from that related to obtaining retroactive support. Moreover, such segregation purportedly was required because Sanders admitted to paternity immediately after he was sued. We overrule the issue. Statute provides for the recovery of attorney's fees incurred in establishing parentage. Tex. Fam. Code Ann. §160.636(c) (Vernon 2002). Furthermore, attorney's fees may be awarded in any suit arising under Title 5 of the Texas Family Code. Tex. Fam. Code Ann. §106.002(a) (Vernon Supp. 2004-05). Proceedings to recover retroactive child support fall under Title 5. See e.g. Tex. Fam. Code Ann. §154.009(a) (Vernon 2002) (a provision allowing the court to order a parent to pay retroactive child support and falling under chapter 154 of Title 5 of the Family Code). Thus, attorney's fees may be awarded in a suit to recover retroactive support. So, because fees are recoverable in both a suit to establish parentage and to obtain retroactive fees and those were the two claims Brittany's mother pursued, neither she nor her attorney were obligated to segregate the fees as alleged by Sanders. Having overruled all issues, we affirm the judgment of the trial court. Brian Quinn Justice 1. Indeed, the trial court expressly questioned the credibility of Sanders' testimony at trial. This may be due to the evidence that even though his estranged wife supposedly owned the assets generating the income he, nonetheless, exercised extensive control over them and had income generated by them sent to his own address. 2. While authority holds that a trial court cannot arbitrarily allot a percentage of community income to one spouse or another, see e.g., Powell v. Swanson, 893 S.W.2d 161, 163-64 (Tex. App.-Houston [1st Dist.] 1995, no writ), we again note that the trial court had before it evidence indicating that Sanders, as opposed to his wife, operated the businesses which generated the income and had much of that income sent to his own mailing address. Furthermore, he had sufficient monies to allegedly buy homes for his child's mother, renovate those homes, buy $70,000 worth of ostriches, buy and give cars to the mother of his child, and buy a quarter of a million dollars worth of cars while supposedly having little income of his own. This provides some evidence upon which the trial court could have reasonably allotted the income appearing on the tax returns to Sanders. 3. In so holding we again note that business losses (other than those suffered by a self-employed individual) are excluded when determining an obligor's net resources. In re Grossnickle, 115 S.W.3d 238, 248 (Tex. App.-Texarkana 2003, no pet.); Fanning v. Fanning, 828 S.W.2d 135, 150 (Tex. App.-Waco 1992) rev'd in part on other grounds, 847 S.W.2d 225 (Tex. 1993). So, while the tax returns indicated that Sanders had little income for tax purposes due to losses he suffered, that does not mean that he had little income for purposes of determining his child support obligation. See Powell v. Swanson, 893 S.W.2d 161, 163 (Tex. App.-Houston [1st Dist.] 1995, no writ) (noting the difference between calculating resources for income tax purposes and calculating them for purposes of child support). And, to the extent he posits that various of the losses were actually losses experienced while self-employed, the trial court could have rejected the proposition that he was self-employed. Sanders did admit to being the vice-president of Cottonwood Cove Investment Corporation, a corporation through which he conducted many business transactions. Furthermore, while he also suggests that his auto and real estate businesses were his own, he fails to cite us to evidence illustrating that they were sole proprietorships as opposed to corporations. And, if they were the latter, then he cannot be considered self-employed when operating them, given the separate identity of a corporate entity. 4. Twenty percent of $6000 is $1200.
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537 U.S. 1210 LUIS-ARIAS, AKA ARIAS, AKA DIONICIO-GALVANv.UNITED STATES. No. 02-8172. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 2 C. A. 9th Cir. Certiorari denied. Reported below: 42 Fed. Appx. 925.
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537 U.S. 1210 WILLIAMSv.CAIN, WARDEN. No. 02-8169. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied.
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-09-00001-CR ______________________________ JOHN WESLEY WALSH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 14,971 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION John Wesley Walsh appeals from his verdict of burglary of a habitation. See TEX . PENAL CODE ANN . § 30.02 (Vernon 2003). The sentence was imposed October 15, 2008. Walsh filed a motion for new trial November 17, 2008, by hand delivering it to the District Clerk of Upshur County. He filed his notice of appeal December 30, 2008. Walsh had thirty days after the day sentence was imposed to file a notice of appeal, or to timely file a motion for new trial and thereby extend his time to file a notice of appeal. See TEX . R. APP . P. 21.4, 26.2(a)(1). The thirty days expired Friday, November 14, 2008. Walsh filed his motion for new trial November 17, 2008, by hand delivery. It was not timely. His notice of appeal was thus due on or before November 14, 2008, but was not filed until December 30, 2008. A late notice of appeal invokes the appellate court's jurisdiction only if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996). Further, when a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Id. (citing Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993)). The Texas Court of Criminal Appeals interprets Rule 26.3 of the Texas Rules of Appellate Procedure strictly to require an appellant in a criminal case to file his or her notice of appeal and a 2 motion for extension of time within the fifteen-day period for filing a late notice of appeal. Id. at 522–26; see TEX . R. APP . P. 26.3. The Texas Court of Criminal Appeals has expressly held that, without a timely-filed notice of appeal or motion for extension of time, we cannot exercise jurisdiction over an appeal. See Olivo at 522; see also Slaton v. State, 981 S.W.2d 208, 209 n.3 (Tex. Crim. App. 1998). This appeal is untimely brought, and we are without jurisdiction to hear this case. We dismiss this appeal for want of jurisdiction. Jack Carter Justice Date Submitted: February 18, 2009 Date Decided: February 19, 2009 Do Not Publish 3
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537 U.S. 1210 BRUTONv.ASHCROFT, ATTORNEY GENERAL, ET AL. No. 02-8179. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 2 C. A. D. C. Cir. Certiorari denied. Reported below: 48 Fed. Appx. 336.
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Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 1-22-2009 Doe v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-4953 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Doe v. Atty Gen USA" (2009). 2009 Decisions. Paper 2005. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2005 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 06-4953 & 07-1701 JOHN DOE,1 Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals (No. A25-445-939) Immigration Judge: Annie S. Garcy Argued November 17, 2008 Before: SCIRICA, Chief Judge, FUENTES and HARDIMAN, Circuit Judges. (Opinion Filed: January 22, 2009) Laura E. Neish, Esq. (Argued) Charles E. Stewart, Esq. Zuckerman Spaeder 1540 Broadway, Suite 1604 New York, NY 10036-0000 Attorneys for Petitioner 1 In light of Petitioner’s legitimate concerns about his safety in Haiti, we have chosen to replace Petitioner’s name with a pseudonym throughout this Opinion. Kevin J. Conway, Esq. (Argued) Richard M. Evans, Esq. United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044-0000 Attorneys for Respondent FUENTES, Circuit Judge: Petitioner John Doe, a native and citizen of Haiti, entered the United States as a refugee and later became a lawful permanent resident. On April 17, 2006, Doe was charged with removability. Following a hearing, the immigration judge (“IJ”) denied relief and ordered Doe removed pursuant to 8 U.S.C. § 1337(a)(2)(B)(i). Approximately two weeks later, Doe filed a pro se Motion to Reopen his case in order to file an asylum claim. The IJ denied the Motion and the Board of Immigration Appeals (“BIA”) affirmed. Doe promptly filed a petition for review of the BIA’s decision. On December 4, 2006, before we had the opportunity to review his Motion to Reopen, Doe filed a second Motion to Reopen with the BIA, offering evidence that was not available during the original hearing before the IJ. The BIA denied the second Motion to Reopen and Doe again filed a timely petition for review. We now consider both appeals. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we will deny both petitions for the reasons that follow.2 2 We pause to express our appreciation to pro bono counsel, Ms. Laura E Neish and Mr. Charles E. Stewart, both of Zuckerman Spaeder, for representing Doe in this appeal. 2 I. Because we write exclusively for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of this case. On September 16, 2005, Doe was convicted of aggravated sexual contact in the third degree, and was charged with removability. The IJ, however, was not convinced that the evidence supported the charge. The Government then withdrew the charge and substituted two drug convictions from 2000 and 2001. Doe conceded the facts behind the drug convictions, and the IJ ordered Doe removed. The IJ laid out Doe’s appellate options, but he chose to waive his appellate rights rather than prolong his detention. Approximately two weeks after the IJ’s decision, Doe decided he did want to appeal the removal order and filed a Motion to Reopen his asylum claim. On July 6, 2006, the Motion to Reopen was denied by the IJ, and Doe sought review of the decision with the BIA twice: once directly after the IJ rendered her decision, and once after submitting new evidence. Both petitions for review are discussed below. II. “We review the BIA’s denial of a motion to reopen for abuse of discretion, and review its underlying factual findings related to the motion for substantial evidence.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (internal citation omitted). This standard of review grants broad deference to the decisions of the BIA. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003); see Sevoian v. Ashcroft, 290 F.3d 166, 173 (3d Cir. 2002) (“No statute or regulation creates any circumstance in which a motion to 3 reopen must be granted. This implies that motions to reopen remain discretionary motions, which the Board or Immigration Judge has ‘broad discretion’ to grant or deny.” (internal quotation marks and citations omitted)). Thus, we should reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Fadiga v. Att’y Gen U.S., 488 F.3d 142, 153 (3d Cir. 2007). III. On November 3, 2006, the BIA rejected Doe’s appeal of the IJ’s decision not to reopen his immigration proceedings. According to the relevant immigration regulations, a motion to reopen shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. 8 C.F.R. § 1003.2(c)(1) (emphasis added). The BIA correctly noted that Doe had failed to present any evidence with his initial Motion to Reopen—such as evidence of changed circumstances—that was not available during the pendency of his hearing before the IJ. To the contrary, all of the evidence presented by Doe with his Motion to Reopen predated his initial hearing—in some instances by more than a decade. Accordingly, the BIA’s denial of Doe’s appeal of his first Motion to Reopen was not an abuse of discretion. 4 Doe also argues that his waiver of his appellate rights during his hearing was not knowing and voluntary. In particular, he states that he experienced difficulty obtaining a lawyer due to restrictive phone rules at the institution where he was detained, and thus was denied the benefit of counsel. “It is well-established that an alien at an immigration hearing has some form of right to counsel. It is equally well-settled, though, that ‘there is no Sixth Amendment right to counsel in deportation hearings.’” Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003) (citing Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002)). Rather, any arguments based on a denial of counsel must be grounded in the Fifth Amendment’s due process guaranty. Uspango, 289 F.3d at 231. “Where an alien claims a denial of due process because he was prevented from making his case to the BIA or the IJ, he must show (1) that he was prevented from reasonably presenting his case and (2) that substantial prejudice resulted.” Fadiga, 488 F.3d at 155 (internal quotation marks omitted). Here, Doe cannot show that he was prevented from reasonably presenting his case. The IJ repeatedly explained to Doe the ramifications of his decision to waive his right to appeal. On numerous occasions, the IJ asked Doe if he wanted more time in order to consult with a lawyer, offering to postpone her final determination in order for Doe to obtain legal assistance. The IJ even asked Doe if he wanted to take the I-589 asylum form with him to the detention center in order to give the matter more thought. Doe, however, evidently desired to get the proceedings over with and expedite his release from detention. Waiver of appeal to avoid further detention is one of the principal policy 5 reasons behind permitting a petitioner to waive appellate remedies in an immigration hearing: Achieving immediate finality of an Immigration Judge’s decision is important, especially for a detained alien who has no interest in appeal and wishes only to depart. Waiver of appeal permits the execution of a removal order prior to expiration of the 30-day appeal period, thereby sparing the alien additional time in custody and taxpayers the expense of needless detention. In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (B.I.A. 2006). Doe acknowledged that the IJ had informed him of the ramifications of his actions, and further acknowledged that he had made a mistake in not listening to the IJ. Accordingly, the BIA’s did not abuse its discretion in determining that Doe’s waiver of his appellate rights was both knowing and voluntary.3 IV. On December 13, 2006, Doe filed a second Motion to Reopen with the BIA.4 3 Doe cites only one case for the proposition that the sort of phone obstruction he allegedly experienced was an “undo curtailment of the privilege of representation,” and thus constituted a violation of due process: Chlomos v. U.S. Dep’t of Justice, 516 F.2d 310 (3d Cir. 1975). In Chlomos, however, the immigration hearing officer proceeded with the case “despite Chlomos’s repeated requests for his lawyer.” Id. at 313. In Doe’s hearing, the IJ bent over backward to ensure that Doe had the legal representation he desired—she referred him to a legal services provider and repeatedly offered to postpone the proceedings so that Doe could obtain representation. The IJ proceeded to a final decision when she did because Doe wanted her to—he expressed a desire to be done with the process, to be released from detention, and to go back to Haiti. Quite simply, the facts of Chlomos are not on point. 4 In his December 4, 2006 Motion, Doe also petitioned for reconsideration of the BIA’s November 3, 2006 ruling. The BIA denied this Motion, correctly noting that Doe 6 Unlike his previous Motion to Reopen, this Motion included evidence that could not have been presented at his initial hearing. Specifically, Doe presented evidence of legal proceedings related to a family member and argued that those proceedings would provoke his adversaries in Haiti into issuing reprisals. On February 9, 2007, the BIA rejected Doe’s second Motion to Reopen, holding that Doe’s allegations of potential harm were too general, consisting of mere conjecture and speculation. In particular, the BIA expressed doubt that Doe had properly connected any personal threat of harm to the previously-mentioned legal proceedings: “[Doe] has provided no evidence that the [legal proceedings], which w[ere] premised on the activities perpetrated by [his adversaries] at the time of the military coup in Haiti, ha[ve] resulted in any new threats of harm to the respondent or his [family] since [they were] issued . . . Even if we were to accept the respondent’s contention that [his adversaries] continue their acts of violence to this day, we will not speculate as to the possibility that the respondent could be subjected to persecution on account of his [family’s legal proceedings], as it would be mere conjecture. (App. 4.) This determination was not an abuse of discretion. We agree with the BIA that the evidence presented by Doe does not demonstrate how his adversaries might realistically connect him with his family’s legal proceedings. Without such evidence, the BIA is surely correct–it is mere speculation that his adversaries would harm him because had not pointed to any additional legal arguments, changes in law, or overlooked aspects of the case that would warrant such a reconsideration. Accordingly, for the reasons already detailed in Part III of this Opinion, the BIA did not abuse its discretion in denying Doe’s original Motion to Reopen. See Borges v. Gonzalez, 402 F.3d 398, 404 (3d Cir. 2005) (noting that motions to reconsider are also reviewed for abuse of discretion). 7 of the acts of related family members. Accordingly, the BIA’s denial of Doe’s second Motion to Reopen was not an abuse of discretion. V. For the foregoing reasons, we deny Doe’s petition and affirm the decisions of the BIA. 8
01-03-2023
10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3047565/
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE DUTRA, a minor, by and  through his Guardian; COMMENCEMENT BAY GUARDIANSHIP SERVICES; MISTY M. DUTRA, No. 05-36146 individually and as natural mother of Jose Dutra, a minor,  D.C. No. CV-04-05025-RBL Plaintiffs-Appellees, OPINION v. UNITED STATES OF AMERICA, Defendant-Appellant.  Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding Argued and Submitted July 28, 2006—Seattle, Washington Filed March 5, 2007 Before: J. Clifford Wallace, Kim McLane Wardlaw, and Raymond C. Fisher, Circuit Judges. Opinion by Judge Wardlaw 2421 DUTRA v. UNITED STATES 2423 COUNSEL John McKay, United States Attorney for the Western District of Washington, Seattle, Washington; Darwin P. Roberts, Assistant United States Attorney for the Western District of Washington, Seattle, Washington, for the defendant-appellant. James L. Holman, Law Offices of James L. Holman, Tacoma, Washington; J. William Ashbaugh, Stafford Frey Cooper, Seattle, Washington, for the plaintiff-appellee Jose Dutra. John C. Galbraith, Law Office of John C. Galbraith, Tacoma, Washington, for the plaintiff-appellee Misty M. Dutra. OPINION WARDLAW, Circuit Judge: The United States appeals the district court’s judgment awarding damages in this Federal Tort Claims Act (FTCA) action brought by Jose Dutra, by and through his guardian, Commencement Bay Guardianship Services, and Misty Dutra, individually and as mother of Jose (“Appellees”), for injuries sustained during Jose’s delivery. The United States contends that the district court erred when it refused the government’s request to enter a judgment that provides for the periodic pay- ment of Jose’s future economic damages, pursuant to Wash. Rev. Code § 4.56.260. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand. [1] The district court erred in failing to apply § 4.56.260 2424 DUTRA v. UNITED STATES after the United States requested it to do so. Here, the FTCA requires the district court to apply Washington law. See 28 U.S.C. § 2674; see also id. § 1346(b). Under Washington law, in certain personal injury actions for future economic dam- ages, “the court or arbitrator shall, at the request of a party, enter a judgment which provides for the periodic payment . . . of the future economic damages.” Wash. Rev. Code § 4.56.260(1) (emphasis added); Cornejo v. State, 788 P.2d 554, 560 (Wash. App. 1990). The United States properly invoked § 4.56.260 by stating in its trial brief, submitted sev- eral weeks before trial, “The United States respectfully requests that the court award future medical damages pursuant to Rev. C. Wash § 4.56.020 which provides for the award of future economic damages as follows,”1 and then quoting the full text of § 4.56.260. The record belies Appellees’ conten- tion that the United States requested the district court to impose a reversionary trust but did not invoke the Washington periodic payment statute. A reversionary trust is one possible mechanism to effectuate the periodic payment of future medi- cal expenses; it is not an alternative remedy, nor is it inconsis- tent with § 4.56.260. [2] We reject Appellees’ argument that even if the United States properly invoked § 4.56.260, the statute is incompatible with federal law because the FTCA prohibits the United States from making periodic payments. The FTCA authorizes courts to craft remedies that approximate the results contem- plated by state statutes, and nothing in the FTCA prevents dis- trict courts from ordering the United States to provide periodic payments in the form of a reversionary trust. See 28 U.S.C. § 2674; United States v. Olson, 126 S. Ct. 510, 513 (2005). Nor did the United States waive its right to invoke § 4.56.260, regardless of whether its estimation of the cost to 1 Appellees do not challenge and the record supports the government’s claim that it intended to refer to § 4.56.260 and that its reference to § 4.56.020 was inadvertent, and that the district court understood the United States to be referring to § 4.56.260. DUTRA v. UNITED STATES 2425 fund Jose’s life care plan satisfied § 4.56.260(2)’s criteria for payment plan proposals. Until the district court requests pro- posals from each party, neither party is obligated to offer a proposal that complies with § 4.56.260(2). [3] After the United States requested that the district court apply § 4.56.260, the district court was required to solicit pay- ment plan proposals from each party, see Wash. Rev. Code § 4.56.260(2); select and, if necessary, modify the proposal that “best provides for the future needs of the claimant,” id.; and “enter a judgment which provides for the periodic pay- ment in whole or in part of the future economic damages,” id. § 4.56.260(1). On remand, the district court is instructed to properly apply the statute. REVERSED AND REMANDED.
01-03-2023
10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/996982/
Case: 12-50973 Document: 00512296017 Page: 1 Date Filed: 07/03/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 3, 2013 No. 12-50973 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RONALD GERARDO FALLAS-GARO, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-1289-1 Before REAVLEY, JOLLY, and OWEN, Circuit Judges. PER CURIAM:* Ronald Gerardo Fallas-Garo appeals the within-guidelines, 41-month sentence imposed for his guilty plea conviction of illegal reentry. He contends that his sentence is substantively unreasonable because it is greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors. We review the substantive reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 12-50973 Document: 00512296017 Page: 2 Date Filed: 07/03/2013 No. 12-50973 reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Fallas-Garo’s arguments that the district court failed to account for the age of his prior conviction and the nature of the instant offense are unavailing. See United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011); United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). The district court was aware of the impact of Fallas-Garo’s prior drug conviction on the calculation of the guidelines range and his motive for reentering the United States but nonetheless imposed a sentence at the bottom of the guidelines range. Fallas-Garo has failed to show that the district court did not consider a factor that should have received significant weight, gave significant weight to a factor that it should not have so weighted, or made “a clear error of judgment” when it balanced the relevant factors. Cooks, 589 F.3d at 186. Cooks, 589 F.3d at 186. He has thus failed to rebut the presumption of reasonableness that we apply to his within-guidelines sentence. See Campos-Maldonado, 531 F.3d at 338. As Fallas-Garo concedes, his argument that the presumption of reasonableness should not be applied to his sentence because United States Sentencing Guidelines § 2L1.2, the illegal reentry Guideline, double counts prior convictions and lacks an empirical basis is foreclosed. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v. Mondragon- Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). The judgment of the district court is AFFIRMED. 2
01-03-2023
07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/3049254/
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JANUARY 6, 2011 No. 08-15868 JOHN LEY ________________________ CLERK D. C. Docket No. 08-14036-CV-WPD HAROLD LEE HARVEY, JR., Petitioner-Appellant, versus WARDEN, UNION CORRECTIONAL INSTITUTION WARDEN, FLORIDA STATE PRISON, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL OF FLORIDA, Respondents-Appellees. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (January 6, 2011) Before TJOFLAT, CARNES and WILSON, Circuit Judges. TJOFLAT, Circuit Judge: Harold Lee Harvey, Jr. is an inmate on Florida’s death row, having been convicted of two counts of first-degree murder in 1986. This case comes to us after seventeen years of post-conviction proceedings in the Florida courts, including two evidentiary hearings and two appeals to the Florida Supreme Court. Before this court, Harvey appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Southern District of Florida. Each of his four claims for relief focuses on the constitutional deficiency of his trial counsel during both the guilt and penalty phases of his trial. Part I discusses the facts of Harvey’s crime and the procedural history. Part II discusses the relevant standard of review and general principles for claims of ineffective assistance of counsel. Part III addresses Harvey’s claim that trial counsel failed to strike a biased juror. Part IV addresses Harvey’s claim that trial counsel conceded Harvey’s guilt during his opening statement to the jury without Harvey’s consent. Part V addresses Harvey’s two claims that trial counsel did not conduct an adequate investigation into mitigation evidence, with part V.A discussing trial counsel’s social history investigation and part V.B discussing trial counsel’s mental health investigation. Part VI concludes. I. 2 The Florida Supreme Court described the facts of Harvey’s crime as follows: On February 23, 1985, Harold Lee Harvey met with Scott Stiteler, his codefendant at trial, and drove to the home of William and Ruby Boyd, intending to rob them. Upon their arrival, Stiteler knocked on the front door. In the meantime, Harvey grabbed Mrs. Boyd as she was walking around from the side of the house and took her into the house where Mr. Boyd was located. Harvey had a pistol and Stiteler was holding Harvey’s AR-15 rifle which had recently been converted into an automatic weapon. Harvey and Stiteler told the Boyds they needed money. Mr. Boyd then went into the bedroom and got his wallet. Sometime during the course of the robbery, Harvey and Stiteler exchanged guns so that Harvey now had possession of the automatic weapon. After getting the money from the Boyds, Harvey and Stiteler discussed what they were going to do with the victims and decided they would have to kill them. Sensing their impending danger, the Boyds tried to run, but Harvey fired his gun, striking them both. Mr. Boyd apparently died instantly. Harvey left the Boyds’ home but reentered to retrieve the gun shells. Upon hearing Mrs. Boyd moaning in pain, he shot her in the head at point blank range. Harvey and Stiteler then left and threw their weapons away along the roadway. On February 27, 1985, Harvey was stopped for a driving infraction in Okeechobee County and subsequently placed under arrest for the Boyds’ murders. He was read his Miranda rights at that time. He was then transported to the Okeechobee County Sheriff’s Department and again read the Miranda warning. Harvey was questioned and interrogated, and after speaking with his wife, gave a statement in which he admitted his involvement in the Boyds’ murders. Harvey v. State, 529 So. 2d 1083, 1084 (Fla. 1988). 3 On March 7, 1985, an Okeechobee County grand jury indicted Harvey and Stiteler on two counts of first-degree murder, under both premeditation and felony murder theories. The two defendants were tried separately. Harvey’s trial and 1993 post-conviction proceedings took place in the Circuit Court for Indian River County1; Harvey’s 1998 post-conviction proceedings took place in the Circuit Court for Okeechobee County. The court appointed Robert Watson, a private attorney, to represent Harvey.2 Admitted to the bar in 1979, Watson began his career with the Public Defender’s office3 and worked there until 1981. During his time there, he represented defendants in ten capital murder cases, always as second chair. Following his appointment, Watson requested and received funds for private investigators and mental health examinations. He also moved the court to 1 Okeechobee County and Indian River County are part of the Nineteenth Judicial Circuit of Florida. The indictment was returned to the Okeechobee County Circuit Court. Judge Dwight Geiger, a judge of the Nineteenth Judicial Circuit, was assigned to the case. He presided throughout the trial and post-conviction proceedings. Judge Geiger transferred the venue for Harvey’s trial from Okeechobee County to Indian River County due to pre-trial publicity. 2 Harvey was originally represented by the Office of the Public Defender, which was appointed on March 7, 1985. The Public Defender withdrew from Harvey’s representation citing conflict of interest because it also represented Harvey’s co-defendant, Stiteler. Watson was appointed on March 25, 1985. Watson represented Harvey unassisted. He moved to appoint co-counsel for Phase I (guilt-phase) on August 20, 1985. The court denied his request on August 29, 1985. 3 Watson was an assistant in the Officer of the Public Defender for the Nineteenth Judicial Circuit. 4 suppress Harvey’s post-arrest confession to the police.4 The court held an evidentiary hearing on the motion on June 11 and 12, 1986, and denied the motion on June 13, 1986, before the court concluded the final day of jury selection. Jury selection began on June 9 and ended on June 13, 1986. Marlene Brunetti was chosen as an alternate juror on June 13, 1986. Her voir dire exposed potential biases but Watson did not move to strike her with a peremptory challenge or for cause.5 During the trial, a juror took ill and Brunetti was seated on the jury. Harvey’s trial began on June 13, 1986, immediately after jury selection concluded.6 In his opening statement to the jury, Watson conceded the facts of the murder, but said that Harvey was not guilty of first-degree murder because he committed the homicides without premeditation and after the robbery had already taken place. Instead of first-degree murder, the evidence would show that he was 4 Watson filed three motions to suppress Harvey’s statement: the first motion was filed on June 7, 1985; the second motion was filed on October 9, 1985, and amended the June 7 motion; the third motion was filed on January 29, 1986, and raised different grounds for suppression. Watson filed several other pre-trial motions not pertinent here. 5 Harvey’s first ineffective-assistance claim centers on Watson’s decision to seat Brunetti. Part III provides Brunetti’s voir dire in detail. 6 According to the trial transcript, Brunetti was seated during a court session beginning at 2:00 p.m. on June 13, 1986. Opening statements began during a court session beginning at 2:45 p.m. on the same date. 5 guilty of second-degree murder.7 Watson presented no evidence during the guilt phase of the trial and maintained his concession strategy in his closing argument to the jury. The jury unanimously convicted Harvey of two counts of first-degree murder. The penalty phase for the murder counts began two days later, before the same jury. The State, in its case in chief, relied on the evidence it presented during the guilt phase and the testimony of two witnesses to prove aggravating factors. A prison inmate named Hubert Bernard Griffin testified that, while incarcerated in a jail cell adjacent to Harvey’s (prior to Harvey’s trial), he saw that Harvey had written threatening language on the walls of his own cell: “If I can’t kill it then its already dead.” George Miller, a corrections officer in the same jail corroborated Griffin’s testimony; he had seen the same writing. Watson, in Harvey’s defense, endeavored to show that Harvey was a “good person,” for whom the murders were an aberration, and thus would be worthy of mercy. To that end, he called seventeen mitigation witnesses. Sixteen witnesses were family and friends whose testimony painted the picture of a nice, shy young 7 Watson’s opening statement is the subject of Harvey’s second ineffective-assistance claim. Specifically, Harvey argues that Watson did not get Harvey’s consent to the strategy of conceding guilt for second-degree murder and, that even if he consented, Watson’s opening statement actually conceded first-degree murder without his consent. Part IV presents Watson’s opening statement in greater detail. 6 man, who loved his family very much. Nearly all mitigation witnesses expressed shock at Harvey’s arrest and said that what he had done did not fit with his character. Some of these witnesses also portrayed him as being dominated by his wife of one year—her lifestyle demands serving as motive for robbing the Boyds. Watson also called a psychologist, Dr. Frank Petrilla, to testify to the results of the personality evaluation he performed on Harvey prior to trial. Dr. Petrilla diagnosed Harvey with “dysthymic disorder, chronic depressive reaction and dependant and personality disorder.” Dr. Petrilla also noted that Harvey had a “passive” personality and a below average IQ. He said that Harvey had poor coping skills that would harm his ability to reason during times of stress. The jury recommended the death penalty for each murder by a vote of 11-1. The court found four aggravating circumstances: the murders were committed (1) while the defendant was engaged in the commission or an attempt to commit robbery and burglary, Fla. Stat. § 921.141(5)(d) (1985); (2) for the purpose of avoiding or preventing a lawful arrest, id. § 921.141(5)(e); (3) in a cold calculated and premeditated manner, id. § 921.141(5)(i); and (4) the murders were especially heinous atrocious and cruel, id. § 921.141(5)(h). The court found only one mitigating factor—the non-statutory catch-all, “any other aspect of the defendant’s 7 character or record”8: Harvey’s low IQ (86), poor education and social skills, and inability to reason abstractly, combined with low self-confidence and feelings of inadequacy. The court rejected three statutory mitigating factors: (1) lack of significant history of prior criminal activity, id. § 921.141(6)(a); (2) age of the defendant, id. § 921.141(6)(g); and (3) murder committed under the influence of extreme mental or emotional disturbance, id. § 921.141(6)(b). The court found that the aggravating factors outweighed the mitigating factors and sentenced Harvey to death on both murder counts. Harvey appealed his murder convictions and death sentences to the Florida Supreme Court. His brief raised claims not at issue in this appeal. On June 16, 1988, the Florida Supreme Court affirmed. Harvey, 529 So. 2d at 1088. The United States Supreme Court denied certiorari. Harvey v. Florida, 489 U.S. 1040, 109 S. Ct. 1175, 103 L. Ed. 2d 237 (1989). The Governor signed Harvey’s execution warrant on March 29, 1990. 8 This mitigating factor was subsequently codified in Fla. Stat. § 921.141(6)(h) (2008) (“The existence of any other factors in the defendant's background that would mitigate against imposition of the death penalty.”). 8 On August 27, 1990, Harvey filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 in the trial court.9 In his motion, Harvey raised seventeen claims—several with various subparts.10 The court dismissed as 9 Harvey filed a corrected copy of that motion on September 24, 1990. 10 The Florida Supreme Court summarized Harvey’s claims: (1)(a) trial counsel was ineffective for failing to make several arguments in support of his motion to suppress Harvey’s confession; (1)(b) trial counsel was ineffective for failing to challenge juror Brunetti for cause or peremptorily after she stated she could not be impartial; (1)(c) trial counsel was ineffective for failing to object to the trial court’s change of venue to Indian River County; (1)(d) trial counsel was ineffective for making claims in his opening statement that were not later established; (1)(e) trial counsel was ineffective for failing to raise a valid objection to the admission of hearsay testimony relating to Harvey’s pretrial escape; (1)(f) trial counsel was ineffective for admitting Harvey’s guilt during opening statements; (2)(a) trial counsel was ineffective for failing to adequately investigate and present mitigating evidence; (2)(b) trial counsel was ineffective for failing to establish the substantial domination mitigating factor; (2)(c) trial counsel was ineffective during his penalty-phase closing argument; (2)(d) trial counsel was ineffective for failing to waive the no significant history mitigating factor; (2)(e) trial counsel was ineffective for allowing the State to anticipatorily rebut evidence of remorse when such an argument was not made; (2)(f) trial counsel was ineffective for failing to present evidence or argument at the final sentencing hearing; (2)(g) trial counsel was ineffective for failing to investigate and confirm that the victims overheard Harvey and the co-defendant deciding to kill them; (3) trial counsel was ineffective for failing to ensure that Harvey received a competent mental health examination; (4) Harvey was tried by a de facto eleven-person jury; (5)(a) the trial court rendered trial counsel ineffective by refusing to hear and rule on Harvey’s motion to suppress prior to jury selection; (5)(b) the trial court rendered trial counsel ineffective by denying counsel’s motion for co-counsel; (5)(c) the trial court rendered trial counsel ineffective by denying counsel’s motion for continuance made between the guilt and penalty phases of the trial; (6) the trial court failed to expressly evaluate all mitigating factors, failed to find each proposed mitigating circumstance, and failed to weigh those factors against the aggravating factors; (7) fundamental changes in the law require resentencing because the trial court improperly rejected the no significant history mitigating factor based on offenses committed after the murders but before sentencing; (8)(a) the trial court failed to properly instruct the jury regarding the 9 facially insufficient all claims save one: that Watson rendered ineffective assistance of counsel in not striking the “admittedly biased juror,” Brunetti. The court held an evidentiary hearing on that claim on March 11, 1993. On March 17, 1993, the court denied the claim and Harvey’s Rule 3.850 motion. Harvey appealed the trial court’s Rule 3.850 rulings to the Florida Supreme Court. On February 23, 1995, it rendered its decision. Harvey v. Dugger, 656 So. heinous, atrocious, or cruel and cold, calculated, and premeditated aggravating factors; (8)(b) the penalty-phase jury instructions and the prosecutor’s closing argument precluded the jury from considering sympathy in recommending a sentence; (8)(c) the trial court erred in refusing to answer two jury questions relating to when Harvey would be eligible for parole and whether life sentences would be imposed consecutively; (8)(d) the trial court erred in denying Harvey’s special requested penalty-phase instructions; (9) the penalty-phase jury instructions improperly shifted the burden to Harvey to prove that the mitigating factors outweighed the aggravating factors, and trial counsel was ineffective for failing to object to them; (10) the heinous, atrocious, or cruel instruction was unconstitutionally vague, and trial counsel was ineffective for failing to object to the lack of a limiting instruction; (11) the cold, calculated, and premeditated instruction was unconstitutionally vague, and trial counsel was ineffective for failing to object to the lack of a limiting instruction; (12)(a) the State withheld the fact that witness Griffin had been used as a jail-house informant in other cases; (12)(b) the State withheld the fact that Harvey requested counsel after his arrest; (13) Florida Rule of Criminal Procedure 3.851 violates Harvey’s rights to due process, equal protection, and access to the courts; (14) the jury was improperly instructed that its role was merely advisory; (15) the State improperly argued victim-impact evidence; (16) trial counsel was ineffective for failing to object to the admission of evidence that Harvey threatened to kill a fellow inmate; and (17) Florida’s system for funding the defense of indigent capital defendants violates due process and equal protection. Harvey v. Dugger, 656 So. 2d 1253, 1254–55 (Fla. 1995). The court considered Harvey’s ineffective assistance claims to have been prosecuted under the standard established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Harvey, 656 So. 2d at 1257. 10 2d 1253 (Fla. 1995). The court affirmed the trial court’s denial of most of Harvey’s claims, but found that an evidentiary hearing would be necessary to resolve four ineffective assistance claims, three of which are pertinent here: (1) Watson rendered ineffective assistance by conceding Harvey’s guilt during his opening statement to the jury without Harvey’s consent; (2) Watson did not adequately investigate life-history mitigation evidence; and (3) Watson did not adequately investigate mental health mitigation, which would have included evidence of organic brain damage. Id. at 1256–57. In August 1998, the trial court held an evidentiary hearing on the designated ineffective assistance claims, judging Watson’s performance under the standard established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court found that Watson’s performance satisfied that standard and, in January 1999, entered an order denying each of the designated claims. Harvey appealed the court’s rulings to the Florida Supreme Court. On July 3, 2003, the Florida Supreme Court reversed the trial court’s denial of Rule 3.850 relief as to the first of the designated ineffective assistance claims, vacated Harvey’s murder convictions and death sentences, and remanded the case for a new trial. Harvey v. State, No. SC95075, 2003 Fla. LEXIS 1140 (Fla. July 3, 2003). It held that Watson’s opening statement conceded first-degree murder and 11 that the concession was the “functional equivalent of a guilty plea.” Id. at *11. As such, Watson did not “subject the prosecution’s case to meaningful adversarial testing” under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Harvey, 2003 Fla. LEXIS 1140, at *11. Harvey therefore did not need to show prejudice under Strickland; rather, the court presumed prejudice under Cronic. Harvey, 2003 Fla. LEXIS 1140, at *11. The court relied on Nixon v. Singletary, 758 So. 2d 618 (Fla. 2000), which held that concessions without the defendant’s consent constitute ineffective assistance per se under Cronic. Harvey, 2003 Fla. LEXIS 1140, at *11–12. The State petitioned the Florida Supreme Court for rehearing. While its petition was pending, the United States Supreme Court reversed the Florida Supreme Court’s per se rule in Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 560, 160 L. Ed. 2d 565 (2004). Relying on this decision, the Florida Supreme Court vacated its 2003 opinion and, on June 15, 2006, rejected the ineffective assistance claim at issue in a new opinion. Harvey v. State, 946 So. 2d 937, 940 (Fla. 2006). The court adhered to its earlier finding that Watson’s opening statement conceded first-degree murder without Harvey’s consent, id. at 942–43, but found that Harvey had not shown Strickland prejudice because the jury received in Harvey’s confession the same information contained in Watson’s 12 concession, id. at 943–44. The court rejected the claims that Watson failed to investigate adequately Harvey’s life-history and mental health mitigation evidence. Id. at 947, 948. Two justices concurred in part and dissented in part. In their view, Watson’s concession to first-degree murder and “superficial [mitigation] investigation” left “no genuine adversarial testing of the appropriate penalty.” Id. at 951 (Anstead, J., concurring in part and dissenting in part). On January 18, 2008, Harvey petitioned the United States District for the Southern District of Florida for a writ of habeas corpus. See 28 U.S.C. § 2254(d). His petition presented twelve claims,11 including the four ineffective assistance of counsel claims raised in this appeal. The district court denied his petition. He then requested a certificate of appeal under 28 U.S.C. § 2253(c) for six of his 11 Harvey’s claims were that Watson had rendered ineffective assistance of counsel in (1) failing to perform a mental health investigation; (2) failing to perform a non-mental health investigation; (3) conceding guilt in the opening statement without first disclosing the strategy to Harvey or obtaining his consent; (4) failing to strike an admittedly biased juror, Brunetti; (5) failing to use a booking sheet that allegedly indicated Harvey’s request for a lawyer before his interrogation by police as a basis to suppress his confession; (6) failing to object to the trial court’s change of venue; (7) making claims in the opening statement that were not proven to the jury during Harvey’s case in chief; (8) failing to raise a valid objection to certain hearsay testimony; (9) allowing the State to anticipatorily rebut the non-statutory mitigating circumstance of remorse when the defense did not argue that such mitigating circumstance existed; (10) failing to investigate the evidence supporting the heinous, atrocious and cruel aggravating circumstance; and (11) failing to waive the statutory mitigating circumstance of no significant history of prior criminal activity, and that the trial court (12) violated his Sixth Amendment rights to an “impartial and qualified jury” by failing either to strike juror Brunetti sua sponte or obtain an on- the-record waiver from Harvey when it seated juror Brunetti. 13 twelve claims. Five were claims that Watson rendered ineffective assistance of counsel in (1) failing to investigate mental health mitigation, (2) failing to investigate non-mental health mitigation, (3) conceding guilt in his opening statement to the jury without Harvey’s prior authorization, (4) failing to strike juror Brunetti, and (5) failing to introduce a booking sheet suggesting that Harvey requested a lawyer before confessing to the murders. The final claim was that the trial court erred in (6) failing sua sponte to strike juror Brunetti.12 The district court granted a certificate of appeal for issues (1)–(4) and (6), but denied the certificate for issue (5). This appeal followed. II. A. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs Harvey’s habeas corpus petition. Under 28 U.S.C. § 2254(d), a federal court cannot overturn a state court conviction on collateral attack unless the state court decision (1) . . . was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 12 Harvey did not address this argument in his brief. It is therefore waived. 14 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)–(2). As the Supreme Court has instructed, Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412–13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). In determining whether we should overturn the state courts’ rejection of the claim at issue, we review the highest state court decision disposing of the claim. See Shere v. Fla. Dep’t of Corr., 537 F.3d 1304, 1310 (11th Cir. 2008) (“[O]ur review is limited to examining whether the highest state court’s resolution of a petitioner’s claim is contrary to, or an unreasonable application of, clearly established law . . . .”). The Florida Supreme Court’s 1995 and 2006 decisions13 are therefore our reference points.14 13 Harvey v. Dugger, 656 So.2d 1253 (Fla. 1995), and Harvey v. State, 946 So. 2d 937 (Fla. 2006). 14 Although we are reviewing the district court’s decision denying Harvey habeas corpus relief, because that decision was based solely on the district court’s determination that the Florida 15 B. The Sixth Amendment to the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”15 U.S. Const. amend. VI. This clause has been interpreted to mean that the accused shall have the right to the effective assistance of counsel. See, e.g., McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763 (1970) (citations omitted). We determine whether the accused has received such assistance under the standard for counsel’s performance established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A valid claim of ineffective assistance of counsel requires a two-part showing. First, trial counsel’s performance must be deficient, falling below an objective standard of professional care. Id. at 688, 104 S. Ct. at 2064. Second, that deficient performance must have prejudiced the outcome of the petitioner’s trial; but for the deficient performance, there must be a probability that the Supreme Court’s 1995 and 2006 decisions rejecting those claims could not be overturned under AEDPA, we are, in effect, standing in the district court’s shoes reviewing those Florida Supreme Court decisions under AEDPA. See Hightower v. Schofield, 365 F.3d 1008, 1014 (11th Cir. 2001), vacated and remanded on other grounds, 545 U.S. 1124, 125 S. Ct. 2929, 162 L. Ed. 2d 863 (2005). 15 The Sixth Amendment provision of the right to counsel has been made applicable to the States under the Due Process Clause of the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335, 342–45, 83 S. Ct. 792, 795–97, 9 L. Ed. 2d 799 (1963). 16 petitioner’s outcome would be different. Id. at 695, 104 S. Ct. at 2068–69. The petitioner seeking release bears the burden of proof regarding both deficient performance and prejudice. Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). The performance inquiry will generally boil down to whether trial counsel’s actions (or inactions) were the result of deficient performance or sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (“[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” (quoting Michael v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83 (1955))). To protect counsel’s independence, we start with the strong presumption that trial counsel’s performance was constitutionally adequate. Id. Two principles underlie this presumption. First, the Supreme Court has time and again counseled against judging trial counsel’s performance with the benefit of hindsight. Id.; see also Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 6, 157 L. Ed. 2d 1 (2003) (per curiam) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”); Bell v. Cone, 535 U.S. 685, 698, 122 S. Ct. 1843, 1852, 152 L. Ed. 2d 914 (2002) (same). Second, trial advocacy is not a science, but an art; there are few “right” answers in the proper way to handle a trial. Strickland, 466 U.S. at 17 693, 104 S. Ct. at 2067 (“Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”). This presumption is an evidentiary presumption that carries through the trial. Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc). Thus, a petitioner must not present evidence merely to refute the presumption. Rather, the petitioner must present evidence that outweighs the presumed evidence of competence. Kimmelman v. Morrison, 477 U.S. 365, 384 106 S. Ct. 2574, 2588, 91 L. Ed. 2d 305 (1986) (“[T]he defendant must rebut this presumption by proving that his attorney’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.”). Therefore, “‘where the record is incomplete or unclear about [counsel]’s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.’” Chandler, 218 F.3d at 1314 n.15 (quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999)). We do not apply fixed or rigid rules when evaluating trial counsel’s performance. Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065. Rather, a petitioner receives ineffective assistance where the representation “[falls] below an objective standard of reasonableness,” id. at 688, 104 S. Ct. at 2064, reasonableness being the “prevailing professional norms,” Wiggins v. Smith, 539 18 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003). To put it another way, trial counsel’s error must be so egregious that no reasonably competent attorney would have acted similarly. See Wood v. Allen, 542 F.3d 1281, 1309 (11th Cir. 2008), aff’d 130 S. Ct. 841 (2010) (“[O]ther attorneys might have done more or less . . . or they might have made the strategic calls differently, but we cannot say that no reasonable attorney would have done as [he] did.” (quoting Williams, 185 F.3d at 1244)). III. Harvey first claims that his lawyer, Watson, was constitutionally ineffective because he did not attempt to dismiss—either for cause or with a peremptory challenge—a biased juror. A. This claim focuses on Juror Marlene Brunetti. Brunetti was chosen as the first alternate juror, but later replaced a juror excused for illness. During voir dire, Brunetti expressed an ability to be impartial generally, but stated that the news media had influenced her views: The Court: . . . . Do you have any difficulty in being an alternate juror? Mrs. Brunetti: Yes, because of the news media. .... 19 The Court: And I will explain to the jury all of the laws which apply to this case. Can you follow all of the laws that I’ll explain to the jury must be followed and applied by the jury in reaching their verdict if you are a juror and assist in the decision of the case? Mrs. Brunetti: Yes. The Court: Is there anything about the charge that’s made here where you might find it to be difficult to be fair and impartial because of that charge? Mrs. Brunetti: No, not with the charge, no. The Court: . . . . Do you have any biases or prejudices for or against the state or for or against defendants in general that might affect your ability to be a juror here? Mrs. Brunetti: Only from the news media. The Court: Do you have any biases or prejudices in general? Mrs. Brunetti: No. .... The Court: If you are a juror will you be fair and impartial? Mrs. Brunetti: Yes. Outside the presence of the seated jurors and prospective alternates, Brunetti explained her knowledge about the crime and her doubt that she could be impartial: The Court: . . . . Now, do you know anything about this case other than from news coverage? 20 Mrs. Brunetti: Just what I read and what I saw on the TV. .... The Court: What do you recall? Mrs. Brunetti: Well, I recall that he confessed to doing it and that’s why I feel that I couldn’t be, you know, impartial about it. The Court: Why do you think there was a confession? Mrs. Brunetti: Because I think he did it. I think he did it and he confessed to doing it. The Court: Why do you think there was a confession? Was that in the news coverage? Mrs. Brunetti: I think I read that he confessed to it, or I saw it on the TV. The Court: You know there is more than one person that was charged? Mrs. Brunetti: Yes, two. There are two. The Court: What was the name of the person who confessed; do you know that? Mrs. Brunetti: Harvey. The Court: You’re sure of the name? Mrs. Brunetti: Yes. .... The Court: What else do you recall about the case? 21 Mrs. Brunetti: I just recall seeing it and reading it in the paper that two people were murdered. The Court: Do you recall any of the incidents about the events? Mrs. Brunetti: That it was a robbery case. They robbed the people .... The Court: What you recall about the case or think you recall about the case, would that affect your ability to be fair and impartial here and confine your decision in the case only to the evidence and the law that I will instruct you? Mrs. Brunetti: I don’t think I could be impartial after reading about it. .... Mr. Colton16: When you read in the paper or saw on the news that he had confessed, did it say in what you saw what it was that it [sic] was in his confession, or just the fact that he had confessed. Mrs. Brunetti: I think it said that he had confessed to killing them. Mr. Colton: But did it go into any detail as to what the confession was? Mrs. Brunetti: I can’t remember. I don’t think so. .... Mrs. Brunetti: Just said that he had signed a confession. That he had been apprehended. Mr. Colton: One of the instructions on the law that the Judge will give you is that you’re to put aside anything that you read or heard 16 State Attorney Bruce Colton. 22 about the case and form your verdict based on the evidence that you heard in the courtroom; could you do that? Mrs. Brunetti: I don’t know if I honestly could. .... Mr. Watson17: What is your present perception as to what happened based upon those articles? Mrs. Brunetti: Well, I think they broke in, is the best that I can remember, and they robbed them or something and then they were afraid they would be identified and they killed them. .... Mr. Watson: When you say that you think he did it, do you mean that you think that he shot the people or when you say you think he did it, do you mean you think he committed a certain crime? Mrs. Brunetti: I feel that he committed the crime that he was charged for. Mr. Watson: First-degree murder?18 17 Harvey’s attorney, Robert Watson. 18 Here, Watson was repeating what the court informed the venire before the voir dire of individual venire persons commenced. The court stated: I read to you from the indictment in this case. . . [T]he State of Florida charges . . . two persons, only one of whom is being tried at this time, . . . that Harold Lee Harvey, Jr. . . . did on the 23d day of February 1985 unlawfully and from a premeditated design to effect the death of W. H. Boyd, . . . did kill and murder him . . . by shooting him with a rifle. That’s count 1, that’s a charge of murder in the first degree. .... Again the second charge is a charge of murder in the first degree. 23 Mrs. Brunetti: Yes. Mr. Watson: But the Judge hasn’t given you the instructions. Mrs. Brunetti: I know. Mr. Watson: But from what all you said up there that’s what, you know — you’ve come to a conclusion as to what first-degree murder is based upon what Mr. Colton and I said? Mrs. Brunetti: Yes. Mr. Watson: Do you think that that falls into this category? Mrs. Brunetti: Yes. Mr. Watson: Do you feel because Mr. Colton and I may not have explained to you as well as the Judge would later, do you think you could follow the Judge’s instructions? Mrs. Brunetti: I can’t honestly say that I could have an open mind after reading it and seeing it on the news. I have to be honest. I wouldn’t want to get on the jury and not say what I feel. Watson also questioned Brunetti about her views of the death penalty and psychology. On the death penalty, Brunetti said, “I’m kind of confused on the death penalty after listening to all of these different people. I think it’s a deterrent because a person would not be able to get out to do the same thing again. But I don’t necessarily believe that two wrongs make a right.” On psychology, Brunetti stated that her sister “went to a psychologist for two years” and that “[her sister] was benefitted” by the experience. 24 Judge Geiger then asked both attorneys if either would care to challenge Brunetti: The Court: Motions? .... The Court: Are there any preemptories [sic]? .... The Court: These two jurors will be our alternate jurors then? Immediately after this discussion, Judge Geiger again called the parties to the bench: The Court: Just so I understand, there [are] no motions for cause that have been made at this time? .... The Court: There are no preemptories [sic] at this time? Watson did not challenge Brunetti for cause, nor did he use a peremptory challenge to remove her. Brunetti was then seated as an alternate. A juror fell ill and Brunetti became the twelfth juror for Harvey’s trial. She voted to convict and for the death sentence. Harvey’s March 11, 1993 Rule 3.850 post-conviction hearing concerned Watson’s failure to strike Brunetti. Harvey’s post-conviction counsel called James 25 Green, an experienced capital defense attorney, as a witness.19 Green was critical of Watson’s performance in two areas. First, he said that Watson should have asked the venire, Brunetti in particular, more questions regarding how strongly they would weigh a confession. This consideration was vital because, by the time Brunetti was questioned, the court had denied Watson’s motion to suppress Harvey’s confession. Green’s second criticism focused on Watson’s strategy. Green stated that he could not “envision any rational trial strategy . . . to justify [Watson’s] . . . fail[ure] to challenge Mrs. Brunetti.” Watson testified as a State’s witness regarding his overall trial strategy and his specific strategy regarding Brunetti. His overall strategy was driven by the confession; once admissible, Watson believed that conviction was certain and that “it was a pure [penalty phase] jury.” To save Harvey’s life, Watson felt he needed to preserve credibility with the jury, which would determine not only Harvey’s guilt, but also recommend life or death. In his opinion as a criminal defense 19 Harvey’s attorney also called Gary Patrick Moran, Ph.D., a psychology professor, to testify regarding the impact a biased juror would likely have on jury deliberations in order to prove Strickland prejudice. However, the court rejected Moran’s proffered testimony as irrelevant because Moran could not explain what actually happened inside the jury room in 1986. The propriety of this ruling is not before us here. Moreover, because the reasonableness of counsel’s actions under Strickland is a question of law for the court to decide, expert testimony regarding performance deficiencies carries little, if any, weight. See Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998). 26 expert, Watson stated that it is not a bad strategy to seat a juror biased regarding guilt if the juror could be open-minded during the penalty phase. Watson could not recall Brunetti’s voir dire, nor could he recall his reasons for keeping her on the jury. Presented with the record, he recognized that he “knew that there was not only grounds for cause, but an invitation extended to [Watson by the court] for cause.” But, Watson testified, “Obviously I made a decision to keep [Brunetti]. . . . What factors I was considering and which ones I weighed more heavily than others I can’t tell you . . . .” The State Attorney implied one factor—that Watson accepted Brunetti because she was receptive to psychological testimony. Watson intended to call a psychologist during the penalty phase. On the stand, Watson neither confirmed nor denied the implication. Rather, he observed that “she seemed to be certainly not antagonistic to psychologists or psychology.” The court rejected Harvey’s argument that Watson’s failure to challenge Brunetti constituted ineffective assistance, and denied relief.20 In its March 17, 1993 order denying relief, the court did not provide reasons for its decision,21 but, 20 The court’s order also denied relief to Harvey’s other claims. 21 The order reads: Ordered and Adjudged . . . . That after an evidentiary hearing on Claim IB. [ineffective assistance of counsel regarding Brunetti] of defendant’s motion, the court determines that defendant is not entitled to relief, defendant having neither 27 instead, attached a 200 page appendix as support. The only portions of the appendix relevant to Watson’s decision to keep Brunetti were six pages of Brunetti’s voir dire. The Florida Supreme Court affirmed the trial court’s order, holding that there was competent and substantial evidence to support the lower court’s finding that defense counsel made a reasonable decision not to challenge Brunetti based on his strategy of attempting to find jurors likely to recommend a life sentence instead of the death penalty. Thus, Harvey has failed to demonstrate that counsel’s performance was deficient during the voir dire. Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995). B. Harvey claims that Watson’s failure to challenge Brunetti either peremptorily or for cause constituted ineffective assistance of counsel. To prevail, Harvey had to prove (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The Florida Supreme Court found that Watson’s decision was sound trial strategy and thus did not consider Strickland’s prejudice prong. Harvey, 656 So. 2d at 1256. Having ruled on the merits of Harvey’s claim, the court’s ruling receives proven serious errors that denied him of his right to counsel nor actual prejudice that deprived him of a fair trial.” 28 AEDPA deference and can only be disturbed if it was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). As we stated in part II.B, the bounds of constitutionally effective assistance of counsel are very wide. An attorney’s actions are sound trial strategy, and thus effective, if a reasonable attorney could have taken the same actions. See, e.g., Williams v. Head, 185 F.3d 1223, 1244 (11th Cir. 1999). We evaluate juror selection claims as we would any other Strickland claim. See, e.g., Baldwin v. Johnson, 152 F.3d 1304, 1315–16 (11th Cir. 1998); Smith v. Gearinger, 888 F.2d 1334, 1337–38 (11th Cir. 1989). 1. Harvey first argues that sound trial strategy can never include seating a biased juror without the defendant’s consent. The logic of his argument follows several steps. First, a criminal defendant has a Sixth Amendment right to a trial by an impartial jury. Second, like a guilty plea, the defendant must personally waive this right. Third, counsel’s trial strategy is therefore sound only if the defendant personally consents to the seating of the biased juror. Fourth, the record does not show that Harvey consented. Citing a Sixth Circuit decision on point, Hughes v. United States, 258 F.3d 453, 463 (6th Cir. 2001), Harvey claims that his murder convictions cannot stand. 29 From a first principle, conceding guilt and focusing on the penalty phase is a valid trial strategy for Strickland analysis. With overwhelming evidence of guilt, it is often trial counsel’s only chance to spare the capital defendant’s life. See Florida v. Nixon, 543 U.S. 175, 191, 125 S. Ct. 551, 562, 160 L. Ed. 2d 565 (2004) (“[A]voiding execution [may be] the best and only realistic result possible” because “[p]rosecutors are more likely to seek the death penalty . . . when the evidence is overwhelming and the crime heinous.”); Hightower v. Schofield, 365 F.3d 1008, 1039 (11th Cir. 2004) (“Counsel testified . . . that their strategy was to save Hightower’s life, rather than to seek an acquittal. This was a reasonable strategic choice, given that Hightower confessed to the murders . . . .”), vacated and remanded on other grounds, 545 U.S. 1124, 125 S. Ct. 2929, 162 L. Ed. 2d 863 (2005). Therefore, trial counsel may validly select jurors he or she believes are open to life imprisonment or are receptive to a particular mitigation defense. However, trial counsel must consult with the capital defendant about “questions of overarching defense strategy.” Nixon, 543 U.S. at 187, 125 S. Ct. at 560 (“An attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy.” (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2052)); see also Hightower, 365 F.3d at 30 1039 (“Counsel only pursued this sentence-focused strategy after discussing it with Hightower and gaining his approval.”). Harvey’s claim fails at this last piece—evidence of consent. Harvey argues that, because the record shows no evidence of consent, we must presume that he never consented. This argument turns the Strickland burden of proof on its head. It is the petitioner’s burden to introduce evidence proving trial counsel’s deficiency. Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 2588, 91 L. Ed. 2d 305 (1986); Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). The record is silent regarding Harvey’s consent or lack thereof. The trial court held an evidentiary hearing on March 11, 1993 on the claim that Watson’s decision to accept Brunetti constituted ineffective assistance of counsel.22 Harvey did not testify at the hearing. Watson did, but he was not asked whether he obtained Harvey’s consent to Brunetti’s selection. The record of the hearing is accordingly silent on the question of whether Watson discussed his decision to accept Brunetti with Harvey.23 22 The March 11, 1993 evidentiary hearing is the only relevant moment for purposes of evaluating Watson’s decision to accept Brunetti as a juror. Our task on habeas review is to review the Florida Supreme Court’s decision in light of the evidence before it at the time. The court rejected Harvey’s Brunetti claim in its 1995 decision, Harvey v. Dugger, 656 So. 2d 1253 (Fla. 1995), at which point, it only had the record of the March 11, 1993 evidentiary hearing before it. 23 Watson’s testimony did cover Harvey’s consent regarding Watson’s opening statement to the jury, another issue in this appeal. 31 With the record silent, we cannot assume that Watson did not consult with Harvey. See Williams, 185 F.3d at 1228 (“[W]here the record is incomplete or unclear about [trial counsel’s] actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.”). In short, Harvey has not met his burden here. 2. Harvey next argues that, even if sound trial strategy could encompass seating a biased juror, Watson’s testimony at the March 11, 1993 hearing does not demonstrate any strategy. At the hearing, Watson testified, I cannot remember this juror, nor can I tell you what factors I was considering in making the decision to keep her. Obviously I made a decision to keep her. Obviously from the record I knew that there was not only grounds for cause, but an invitation extended to me for cause and obviously I made a decision. What factors I was considering and which ones I weighed more heavily than others I can’t tell you at this point. Harvey argues that this statement is merely “post-hoc speculation,” and that we should follow the Fifth Circuit’s ruling in Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006). In Virgil, trial counsel failed either to question further or challenge two venire persons whose voir dire suggested bias. Id. at 609–10. The Fifth 32 Circuit rejected trial counsel’s “conclusory affidavit”24 (introduced to support counsel’s decision) because it “lack[ed] any suggestion of a trial strategy for not using peremptory or for-cause challenges on” the prospective jurors. Id. at 610. The State’s explanations were similarly rejected as “after-the-fact justifications” unsupported by the record. Id. at 611. This argument fails to consider this circuit’s evidentiary presumption that counsel acted properly. To give trial counsel proper deference, this circuit presumes that trial counsel provided effective assistance. Williams, 185 F.3d at 1227–28. And it is the petitioner’s burden to persuade us otherwise. See Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (“Based on this strong presumption of competent assistance, the petitioner’s burden of persuasion is a heavy one . . . .”). 24 The relevant portion of the affidavit read: I spent approximately thirty (30) minutes talking to and questioning the jury in this case. I was able to ask all of the questions that I thought were necessary to determine if there was any prejudice or bias against my client. I was also able to question the potential jurors regarding any issues that I thought might arise in this case. In determining the final jurors, I used all peremptory strikes that were available to me. I have reviewed the record and confirmed the number of strikes I used in this case. I struck all persons whom I thought had some type of bias, prejudice or issue based upon my voir dire. Virgil v. Dretke, 446 F.3d 598, 610 (5th Cir. 2006). 33 Harvey’s argument requires us to “turn [this] presumption on its head.” Williams, 185 F.3d at 1235. Williams provides a useful analogue. There, the petitioner faulted trial counsel for not recognizing red flags during his investigation for mitigation evidence. Id. at 1234. At the post-conviction hearing—ten years later—trial counsel could not recall his conversations with the petitioner, but assumed that he asked relevant questions. Id. “Given the lack of clarity of the record,” the court presumed that trial counsel made the appropriate inquiries. Id. at 1235. Here, Watson clearly could not recall why he chose to accept Brunetti as a juror. His lack of memory is understandable; the evidentiary hearing occurred nearly seven years after Watson made his decision. Like the petitioner in Williams, Harvey improperly seeks to draw an inference in his favor from Watson’s poor recollection. Reliance on Virgil is misplaced for the same reason. The Fifth Circuit faulted trial counsel’s affidavit as “conclusory” and for its “fail[ure] to indicate why for-cause challenges were not used.” Virgil, 446 F.3d at 610. This language suggests that the Fifth Circuit’s jurisprudence will give the petitioner the benefit of trial counsel’s short memory. Binding precedent prevents us from deviating towards such a standard. See Williams, 185 F.3d at 1227–28 (“[W]here the record 34 is incomplete or unclear . . . we will presume that [trial counsel] did what he should have done, and that he exercised reasonable professional judgment.”); see also Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc). 3. Finally, Harvey argues that we should not defer to Watson’s strategy regarding Brunetti because it “directly undermined several purported strategies that Watson claims he employed during trial.” Br. Appellant 39, May 5, 2009. First, Harvey claims that Watson’s Brunetti strategy—selecting a juror likely to vote against the death penalty—conflicted with Watson’s strategy of persuading the jury to find Harvey guilty of the lesser included offense, second- degree murder. During voir dire, Brunetti stated that she believed that Harvey was guilty of first-degree murder. Watson testified briefly at the March 11, 1993 hearing25 about his guilt- phase strategy: It would be my recollection today that I discussed with [Harvey] what I was going to argue, whether I was going to argue not guilty or a lesser included offense. I would be shocked to learn that we never 25 The August 1998 evidentiary hearing is immaterial to the outcome of the Brunetti issue. See supra note 22. 35 communicated that. I doubt I went over the specific statements and the opening statement with him. .... In phase one from reading a bit of the opening that I read, it is obvious that I was arguing for second degree murder rather than first- degree murder which I felt was the only possibility. But Watson also testified that he did not believe that his second-degree murder argument would persuade the jury. Once the trial court ruled Harvey’s confession admissible, Watson believed that he was picking a “pure phase two jury”—phase two being the penalty phase. Because Harvey’s confession was “comprehensive,” Watson “did[ not] have an expectation of a not guilty verdict.” As a result, Watson—who tried Harvey’s case without co- counsel—believed that he needed to “establish credibility with the jury,” which would decide Harvey’s guilt and recommend a sentence. Without credibility, Watson feared that the jury would find him “insincere” and further harm Harvey’s chance for mercy. Watson’s testimony does not specifically link “credibility” with his second-degree murder strategy. But his testimony implies that a second-degree murder strategy was the only possible guilt phase argument that acknowledged the validity of Harvey’s confession and could avoid a capital murder conviction. According to Harvey, selecting Brunetti—who believed Harvey to be guilty of first-degree murder—directly undermined this guilt-phase strategy of arguing 36 for second-degree murder. Therefore, Watson’s purported trial strategy could not have been “sound.” Harvey’s argument construes Watson’s strategy too narrowly. According to Watson, Harvey’s confession doomed any chance for acquittal and nearly any chance of conviction for anything other than first-degree murder. Therefore, his “strategy” was simply to save Harvey’s life. In context, it appears that conceding second-degree murder was not a stand-alone strategy, but rather a way to build credibility with the jury. Brunetti’s belief that Harvey was guilty of first-degree murder was thus immaterial to Watson’s overall strategy to save Harvey’s life. Second, Harvey argues that the Florida Supreme Court’s finding that Watson kept Brunetti because she would be receptive to psychological evidence was speculative and therefore erroneous because Watson did not hire a psychiatrist. This argument is also unavailing. Although Watson did not call a psychiatrist, he did call Dr. Frank Petrilla, a psychologist, to provide a character profile of Harvey. Dr. Petrilla testified that, among other things, Harvey had low self-esteem, was a follower, and had poor abstract thinking skills. Someone receptive to psychological testimony might hear this information and view the defendant as worthy of mercy. We thus cannot say that the Florida Supreme Court acted unreasonably in reaching the finding of which Harvey complains. 37 Lastly, Harvey argues that Brunetti’s equivocal statements regarding the death penalty were insufficient to justify Watson’s purported penalty-phase strategy. As indicated above, Brunetti explained her view of the death penalty as: “I’m kind of confused on the death penalty after listening to all of these different people. I think it’s a deterrent because a person would not be able to get out to do the same thing again. But I don’t necessarily believe that two wrongs make a right.” Brunetti did not say that she favored the death penalty; neither did she say that she was against the death penalty. While her statements did not strongly support Watson’s purported strategy, they did not wholly contradict it either. Strickland requires that we defer to trial counsel’s performance and eschew “the distorting effects of hindsight.” 466 U.S. at 689, 104 S. Ct. at 2065. With that command in mind, we cannot say that a competent attorney would have inferred from Brunetti’s statement a willingness to vote for the death penalty. We therefore cannot find that the Florida Supreme Court unreasonably applied federal law when it determined that Harvey failed to show that Watson was constitutionally ineffective for accepting Brunetti. IV. Harvey next argues that Watson was constitutionally deficient for conceding Harvey’s guilt to first-degree murder during his opening statement to the jury. 38 The Florida Supreme Court rejected this claim because it found that Harvey could not prove the prejudice prong of Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674 (1984). Harvey v. State, 946 So. 2d 937, 943–44 (Fla. 2006). A. On the first day of trial, Watson gave his opening statement to the jury. There, after indicating what the State’s evidence would show, he stated that such evidence would establish that Harvey was guilty of second-degree murder. The relevant portion of Watson’s opening statement reads: Harold Lee Harvey is guilty of murder. If anything is established over the next week, it will be that Harold Lee Harvey is guilty of murder. I have been doing defense work for some time. I’ve never said that in a court of law, that my client is guilty of murder. But he is. That doesn’t by any means end your consideration of his case. The physical act that he committed was that he pulled the trigger on what was an automatic military weapon firing it into a room, discharging projectiles that hit human beings and killed them. Now, what events lead up to that? What events place this young man in that chair in this room before these 14 people to determine not whether or not he’s a murderer but merely what type of murderer he is? .... But the evidence will show that this case is the story of a robbery, a robbery that went very badly. I believe the evidence will show that after that robbery was concluded a murder did take place. A murder took place that was the result of panic, of fear, of depression, of lack of planning, of a depraved mind. 39 This is the story of how Harold Lee Harvey, Jr. killed Mr. and Mrs. Boyd. .... And then it happened just about the way that Mr. Morgan26 said it did. When they got there Mrs. Boyd surprised them. She was outside the house. She was on her way out to get the garbage, they didn’t have time to put their masks on. Mrs. Boyd came up to them, it was, I believe, shortly before nightfall, and asked them at the front door, “What are you doing out here?” And Stiteler looked at [Harvey] and [Harvey] looked at Stiteler and they knew that things were starting to go wrong. And they had Mrs. Boyd walk back into the house and Mr. Boyd was in the house and they told them, “We want your money.” And Stiteler ran around the house, all through the house looking for this cache of money, while [Harvey] went into the bedroom with Mr. and Mrs. Boyd. Mr. and Mrs. Boyd then gave Lee what little bit they had, which was about $30 or $40 at the time. They didn’t have any stash of money there. And Stiteler never did find the stash of money and they came down and they completed the robbery. And little facts come out in cases that are always sometimes more indicative of what’s really going on and is more indicative about the human beings involved than what the real plan was than other things. And the little fact in this case is Mr. Boyd asked for money for church, it was Saturday. And he said, “I have to go to church tomorrow, you’re taking all my money.” After all, he’s thinking this is the neighbor kid. I know this kid, he lives over there. What’s this crazy kid doing? And Lee gave him back money for church, because he didn’t plan to kill him. But then they went outside. And at that time Stiteler had the imposing weapon and Lee had the handgun. And at that point they began this frenzied conversation. They were just outside the home and the door was half open. They asked Mr. and Mrs. Boyd to sit down at a card table in the room, and you’ll see pictures of the room. And they had this conversation and without question what was discussed during this conversation was whether or not to kill these 26 Assistant State Attorney David Morgan. 40 two people. This is a crazy conversation for these two young men to be having but that’s what it had gotten to. In its March 17, 1993 order, the trial court denied, without an evidentiary hearing, Harvey’s claim that Watson rendered ineffective assistance by conceding that Harvey was guilty of second-degree murder. The Florida Supreme Court concluded that an evidentiary hearing was necessary, however, and remanded the claim for that purpose. Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995). The evidentiary hearing took place in August 1998. There, Watson testified that his strategy focused on preserving credibility with the jury. Credibility required a consistent defense between the guilt phase and—because Harvey’s confession made acquittal unlikely—the penalty phase. Conceding second-degree murder achieved this goal. He also testified that he told Harvey about this strategy. Harvey took the stand and denied that Watson consulted him about the concession strategy. Steve Samilow, a member of the team of lawyers who had represented Harvey at the March 11, 1993 hearing, testified that he found nothing in Watson’s files indicating Harvey’s consent to the strategy. Andrea Lyon, an expert in defending defendants charged with capital murder, said that merely informing the defendant of a concession strategy was insufficient; an attorney would be unreasonable to infer consent from the defendant’s silence. 41 The trial court again denied Harvey’s claim, in its order of January 15, 1999.27 It found that Watson discussed the strategy with Harvey, that the strategy entailed admitting “some degree of murder if [Harvey’s] confession was ruled admissible,” that Harvey understood the strategy, and that he therefore consented to it. As indicated in part I, on appeal, the Florida Supreme Court rendered two decisions regarding this claim. In 2003, the court reversed the trial court and vacated Harvey’s convictions and death sentences. Harvey v. State, No. SC95075, 2003 Fla. LEXIS 1140, at *16 (Fla. July 3, 2003). The court found that Watson’s opening statement admitted that Harvey and Stiteler discussed whether to kill the Boyds, thus conceding premeditated first-degree murder. Id. at *11. Without Harvey’s consent, these statements were the functional equivalent of a guilty plea. Id. As such, Watson’s opening statement performance was constitutionally deficient. The court then presumed prejudice under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), because Watson’s “performance failed to subject the prosecution’s case to meaningful adversarial testing.” Id. (citing Atwater v. State, 788 So. 2d 223, 231 (Fla. 2001)). 27 Judge Geiger issued an amended order on January 26, 1999. 42 In 2006, however, the Florida Supreme Court withdrew the July 3, 2003 decision and accompanying opinion in light of Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). Harvey v. State, 946 So. 2d 937, 940 (Fla. 2006). According to the court, Nixon precluded Cronic’s presumed prejudice in cases involving “counsel’s concession of guilt to the crime charged, even without the defendant’s consent.” Id. at 942. Rather, the petitioner had to prove prejudice under Strickland’s second prong. Id. Applying the Strickland standard, the court found that Harvey failed to show prejudice. Id. at 943–44. According to the court, Watson’s guilt-phase defense was based around Harvey’s confession, which he knew would be admitted at trial. Id. at 944. Harvey confessed to the murders in great detail, including the conversation about killing the Boyds. Id. Because the jury would have heard this information anyway, there was no reasonable probability that, but for Watson’s statements, the jury would have found differently. Id. In denying Harvey’s claim, however, the court held that Watson did in fact concede first-degree murder. Id. at 943. It again pointed to Watson’s reference to the conversation between Harvey and Stiteler about whether to kill the Boyds. Id. That language, according to the court, was sufficient to show premeditation, and 43 thus first-degree murder. Id. This concession was of no moment, however, because the court found no prejudice. Id. B. Harvey challenges the Florida Supreme Court’s finding of no prejudice and, thus, its denial of his ineffective assistance claim based on Watson’s first-degree murder concession. Harvey bears the burden of proving that Watson’s concession was objectively unreasonable and that but for the concession, a reasonable probability exists that the outcome of his trial would have been different. See Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068. We cannot overturn the Florida Supreme Court’s decision rejecting the claim unless we find that it was “contrary to, or involved an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts,” id. § 2254(d)(2). Harvey first argues that, because he never consented to Watson’s first- degree murder concession, we should presume prejudice under Cronic because Watson, in conceding that Harvey was guilty of first-degree murder, “fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” See Cronic, 466 U.S. at 659, 104 S. Ct. at 2047. The Florida Supreme Court adopted this argument in its 2003 decision, Harvey, 2003 Fla. LEXIS 1140, at *16, but reversed it in 44 2006 in light of Nixon, Harvey v. State, 946 So. 2d at 943–44. Harvey claims that Nixon’s holding is narrower and only applies where trial counsel discusses his strategy with his client; without consent or discussion, we should presume prejudice. To evaluate Harvey’s claim, we must first turn to Nixon. In Nixon, the defendant, Nixon, was on trial for capital murder. 543 U.S. at 180, 125 S. Ct. at 556. Given Nixon’s confession and “overwhelming evidence” of his guilt, id., Nixon’s attorney determined that the only way to avoid a death sentence was to concede guilt and focus on the penalty phase, id. at 181, 125 S. Ct. at 557. Trial counsel attempted to explain this strategy to Nixon and gain his consent, but Nixon was uncooperative and was eventually removed from the courtroom. Id. at 181–82, 125 S. Ct. at 557. The Florida Supreme Court vacated Nixon’s conviction and sentence after finding trial counsel ineffective for conceding guilt without the defendant’s express consent. Id. at 186–87, 125 S. Ct. at 559–60. The court presumed prejudice under Cronic because it found that the concession “allowed the prosecution’s guilt-phase case to proceed essentially without opposition” and left the prosecution’s case unexposed to “meaningful adversarial testing.” Id. at 185, 125 S. Ct. at 559. The United States Supreme Court disagreed. Although the Court acknowledged that criminal defendants must consent to guilty pleas, id. at 187, 45 125 S. Ct. at 560, it did not find the murder concession to be the functional equivalent of a guilty plea, id. at 188, 125 S. Ct. at 561. “Nixon retained the rights accorded a defendant in a criminal trial. . . . The State was obliged to present during the guilt phase competent, admissible evidence . . . .” Id. Trial counsel did not cede the case; he cross-examined witnesses and attempted to exclude prejudicial evidence. Id. Therefore, Nixon’s explicit consent to counsel’s concession strategy was not required. Id. at 189, 125 S. Ct. at 561. Furthermore, the Court held that counsel’s performance was not so ineffective as to presume prejudice under Cronic. Id. It explained that “[t]he Florida Supreme Court’s erroneous equation of [the] concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel’s performance ranked as ineffective assistance.” Id. The Florida Supreme Court did not require Nixon to prove prejudice under Strickland, but rather presumed prejudice under Cronic. Id. The Supreme Court explained, however, that Cronic’s presumption was a “narrow exception” to Strickland’s prejudice requirement where “counsel has entirely failed to function as the client’s advocate.” Id. at 189–90, 125 S. Ct. at 561–62. The concession strategy in Nixon did not fall into that category, as trial counsel viewed concession to be the only 46 way to save Nixon’s life in the face of the prosecution’s overwhelming evidence. Id. at 191–92, 125 S. Ct. at 563. Harvey argues, though, that Nixon’s holding does not apply because Watson never consulted with him regarding a first-degree murder concession. He points to language in Nixon implying that consultation is required to shift from Cronic’s presumed prejudice to Strickland’s prejudice showing. The relevant language in Nixon reads: “But when a defendant, informed by counsel, neither consents nor objects to the course counsel describes . . . counsel is not automatically barred from pursuing that course.” Id. at 178, 125 S. Ct. at 555. According to Harvey, Nixon is a narrow holding that, where trial counsel concedes the charge in an opening statement, courts must presume prejudice under Cronic unless “(1) the attorney fulfills the obligation of consulting with the client about the strategy and asking for consent and (2) the client does not approve or reject the strategy because the client is silent or uncooperative.” Br. Appellant 50. The failing of Harvey’s argument lies not with its logic, but with the deference we must afford the Florida Supreme Court under AEDPA. Under AEDPA, we can grant Harvey’s request only if that court’s holding was “unreasonable.” See 28 U.S.C. 2254(d)(1) (“A . . . writ of habeas corpus . . . shall not be granted . . . . unless the adjudication of the claim resulted in a decision that 47 . . . involved an unreasonable application of[] clearly established Federal law . . . .”). Nixon can be read in two equally compelling ways. On one hand, Harvey’s quoted text does suggest that consultation could be the key fact that requires Strickland prejudice to be presumed under Cronic. On the other hand, the Court emphasized the distinction between a guilty plea and a concession strategy: “The Florida Supreme Court’s erroneous equation of [the] concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel’s performance ranked as ineffective assistance.” Nixon, 543 U.S. at 189, 125 S. Ct. at 561. This quoted language suggests that consent is irrelevant for determining whether the prejudice component of an ineffective assistance claim is governed by Cronic’s or Strickland’s standard. The Florida Supreme Court employed the latter standard. With two equally compelling readings available, we cannot conclude that the court was unreasonable for choosing one reading over the other. Furthermore, Cronic’s presumed prejudice standard is only available in extreme circumstances where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047. The “failure must be complete. . . . [C]ounsel [must] fail[] to oppose the 48 prosecution throughout the . . . proceeding as a whole,” rather than merely “at specific points” in the proceeding. Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 1851, 152 L. Ed. 2d 914 (2002). Cronic itself did not find defense counsel constitutionally deficient even though counsel was a real estate attorney appointed to defend a complex mail fraud case with only twenty-five days to prepare a defense. 466 U.S. at 663, 104 S. Ct. at 2049; see also Nixon, 543 U.S. at 190, 125 S. Ct. at 562 (describing the counsel in Cronic as “an inexperienced, underprepared attorney in a complex mail fraud trial”). Rather, the Cronic Court pointed to Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), as a useful case in point. 466 U.S. at 660–61, 104 S. Ct. at 2047–48. In Powell, an out-of-state lawyer was appointed on the same day as the defendants’ rape trial even after the lawyer informed the court that he was neither aware of the facts nor familiar with local procedure. 287 U.S. at 55, 53 S. Ct. at 59. Powell thus presented an example where “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual 49 conduct of the trial.” Cronic, 466 U.S. at 559–60, 104 S. Ct. at 2047. Watson’s performance clearly met that low bar.28 In sum, the Florida Supreme Court’s refusal to determine Strickland prejudice under Cronic’s presumed prejudice standard did not constitute a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Thus, because he cannot rely on Cronic’s presumed prejudice, Harvey must show that, but for Watson’s first-degree murder concession, there is a reasonable probability that the outcome of his trial would have been different. Strickland, 466 U.S. at 695, 104 S. Ct. at 2068–69. The Florida Supreme Court found that Watson’s opening statement merely restated facts that the jury would soon hear when the State introduced Harvey’s confession into evidence. Harvey, 946 So. 2d at 943–44. Therefore, according to the court, even without Watson’s opening statement, including the murder concession, the jury still would have heard that Harvey and Stiteler conferred about whether to kill the Boyds, after which Harvey shot and killed them. Id. 28 Putting aside his opening statement to the jury, Watson’s performance throughout trial was not such that he effectively ceased to represent Harvey. Watson contested the admission of Harvey’s confession, cross-examined witnesses, and objected to prejudicial evidence he thought was inadmissible. Considering the record as a whole, we cannot say that Watson “entirely failed” to contest the prosecution’s case against Harvey. 50 We cannot say that the Florida Supreme Court’s Strickland finding of no prejudice constituted “an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). The State’s evidence against Harvey was overwhelming and included his own confession. Under such circumstances, it would be very difficult to see how the outcome of the trial would have been different had Watson not conceded Harvey’s guilt, as charged in the indictment. See Nixon, 543 U.S. at 192, 125 S. Ct. at 563 (“[C]ounsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in ‘a useless charade’ [by failing to concede overwhelming guilt].” (quoting Cronic, 466 U.S. at 656 n.19, 104 S. Ct. at 2046 n.19)). Harvey attempts to point us away from this conclusion. His first argument for actual prejudice restates his argument that Cronic’s presumed prejudice should apply. As we explained, Cronic’s presumed prejudice only applies where trial counsel entirely failed to challenge the prosecution’s case; Watson’s performance does not fall within that category. Second, Harvey argues that Watson’s closing statement during the penalty phase conceded the aggravating factors at issue. This argument has two fatal flaws. For one, Harvey did not mention this claim in his motion for a certificate of appealabilty. Thus, the district court’s certificate of appealability did not authorize 51 Harvey to appeal the claim. The other flaw is that this prejudice argument does not address the prejudice suffered because of Watson’s concession of guilt. Rather, it points out a completely separate performance error—admitting aggravating factors—and attributes the possible prejudice from that error to Watson’s guilt concession. This is not proper Strickland analysis. Harvey must show prejudice flowing from Watson’s concession of guilt, which he has not done. Third, Harvey attempts to show prejudice by pointing to his attorney’s “endorsement” of legal conclusions—“‘guilty,’ ‘murder,’ ‘premeditation,’ ‘robbery,’ ‘burglary,’ and ‘kidnaping.’” But, Harvey does not explain how these concessions caused actual prejudice. He cites Frances v. Spraggins, 720 F.2d 1190 (11th Cir. 1983), for the proposition that defense counsel’s personal belief about guilt is necessarily prejudicial. Spraggins, however, concerned a very different circumstance. There, the capital defendant denied his involvement in the crime and took the stand, testifying to that end. Spraggins, 720 F.2d at 1194. His attorney, however, undermined his testimony by saying that he believed the defendant to be guilty. Id. Nothing of the sort happened here. Harvey confessed to the facts Watson laid out in his opening statement; restating these facts could not have undermined Harvey’s non-existent trial testimony. 52 Within this argument, Harvey cites Watson’s references to his “evil” actions, referring to the murder as “repulsive” and “the product of a depraved mind.” This argument fails for the same reason as his second prejudice argument—it refers to a separate performance deficiency. The deficiency at issue is Watson’s concession of guilt. These failures—“evil,” “depraved,” and “repulsive”—are not poor consequences that flowed from Watson’s concession. They allege separate episodes of allegedly ineffective assistance of counsel. Furthermore, Harvey takes Watson’s words out of context. In their proper context, each word forms part of a coherent strategy. “Evil” referenced what was set in motion by Harvey and Stiteler’s botched robbery—clearly an attempt to foreshadow that events were going to spiral beyond Harvey’s control. “Repulsive” referred to murder, generally, followed by a plea to the jury not to “let that repulsion carry into their deliberations and affect their decision-making process as to what type of murder this was.” “Depraved” referred to the mens rea for second-degree murder. Finally, Harvey argues that he was prejudiced by Watson’s attempt to “distance” himself from his client. This argument again mixes analytical steps; this is not prejudice flowing from Watson’s concession of guilt. 53 For the foregoing reasons, we reject Harvey’s claim that the Florida Supreme Court’s no prejudice finding was based on an “unreasonable” factual determination “in light of the evidence presented” at Harvey’s trial. 28 U.S.C. § 2254(d)(2).29 V. We turn now to Harvey’s final two claims: Watson was deficient for failing properly to investigate mitigation evidence regarding both his client’s personal history and mental health. Like all claims of ineffective assistance of counsel, Harvey must prove deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Harvey contends that, with respect to both kinds of mitigation evidence, Watson’s pretrial investigation was markedly deficient. In his view, an adequate pretrial investigation would have led to a different mitigation strategy for the penalty phase of the trial, one that would have produced a different outcome—a life sentence rather than the death penalty. We first consider, in subpart A, Watson’s performance relating to Harvey’s personal history, then, in subpart B, Harvey’s mental health. In the end, we reject 29 The no prejudice finding is a finding of ultimate fact—an inferred fact. In concluding that the finding was not unreasonable, and therefore entitled to AEDPA deference, we also conclude that the subsidiary fact findings, those which yielded the ultimate fact, were similarly not unreasonable. 54 Harvey’s argument that the Florida Supreme Court unreasonably found that Watson’s investigation into these areas of mitigation was objectively reasonable under Strickland’s performance standard. See 28 U.S.C. § 2254(d)(1), (2). A. 1. Watson’s penalty phase strategy was to portray Harvey as a good person worthy of saving and to convince the jury that the murders were an aberration from his otherwise amiable nature. To that end, he called sixteen witnesses. His mother, father, two sisters, brother, uncle, as well as several friends, several family friends, his work supervisor, a co-worker and two teachers testified. The Florida Supreme Court, in Harvey v. State, capsulized Watson’s strategy by adopting the trial court’s description of what Watson presented: Evidence was also presented that he was hard-working, from a good, decent family who would be negatively effected [sic] if he would be executed, that he had been a loving brother to his disabled sister, that the crime was out of character, and that he was pressured by his wife to provide things he could not financially do. Evidence showed that he was involved in the fatal accident at age 16 and would be able to adapt to a life sentence in prison. 946 So. 2d 937, 947–48 (Fla. 2006). In addition to this, the court noted that “[t]he jury viewed several childhood photographs of Harvey with his siblings, as well as home movies of various family outings.” Id. at 948. 55 In his August 27, 1990 motion for post-conviction relief, Harvey claimed that Watson’s investigation into his personal history, and therefore Watson’s penalty phase strategy, was constitutionally insufficient. The trial court denied the claim without an evidentiary hearing. The Florida Supreme Court vacated the ruling and remanded the claim for an evidentiary hearing. Harvey v. Dugger, 656 So. 2d 1253, 1257 (Fla. 1995). As indicated in part I, the evidentiary hearing was held in August 1998. Harvey’s attorneys called several witnesses. Some recounted Harvey’s personal history. Others testified that, but for Watson’s deficient investigation, an accurate personal history would have been revealed and presented to the jury during the penalty phase of the trial. Harvey’s family members, many of whom also testified at Harvey’s trial, said that the questions Watson asked them pertained only to the positive aspects of Harvey’s life and family situation. Harvey’s father said that Watson gave him the questions Watson would ask and the answers he should give. Other family members said they would have told Watson the grittier aspect of Harvey’s life had Watson asked. One sister said that Watson directed her testimony—only to say “yes, sir” and “no, sir.” The other sister explained that she was not eager to tell Watson about her family’s “dirty laundry.” 56 The personal history the family witnesses gave portrayed an entirely different picture of Harvey’s life than the one Watson presented to the jury. Harvey’s parents and siblings testified that the family grew up in poverty; the children and their mother picked fruit on the weekends to survive; there was not enough to eat growing up; the children rarely had medical care; Harvey’s father was an alcoholic who would hit Harvey with a stick when he would drink; Harvey once physically separated his parents when Harvey’s father was beating Harvey’s mother; and that the family never expressed love or affection for each other. Two family members, however, did state that Harvey’s parents loved him. Harvey was involved in a fatal automobile accident at age sixteen. Family members emphasized the impact the accident had on Harvey’s subsequent behavior. One sister testified to the gruesomeness of the accident and described Harvey’s hospital-bed appearance in detail. Following the accident, Harvey had nightmares, exhibited noticeable personality changes, seemed to have “his mind somewhere else” at times, and exhibited wild mood swings and reckless behavior. Family members related three incidents of violent behavior they attributed to the accident. The first involved Harvey driving a truck, with his sister in the passenger seat, into on-coming traffic, veering just in time to avoid a crash. The second incident consisted of Harvey choking the same sister during something 57 akin to a black-out. The third incident involved Harvey shooting out a street light with a weapon. Members of the family also described Harvey’s chronic abuse of drugs and alcohol. Harvey used alcohol at an early age; one member said that Harvey’s step- grandfather gave him alcohol during his pre-teen years. Joseph Krumey, Jr., Watson’s first private investigator, testified that Watson hired him in May 1985 to find evidence of “redeeming social qualities.” According to the testimony, Krumey did not perform the investigation himself; instead, he hired a former FBI agent to conduct the investigation. Krumey was not certain whether it was he or the former agent who met with Watson during the five months the investigation proceeded. Watson fired Krumey in October 1985 after performing roughly twenty hours of work.30 Andrea Lyon, a clinical professor of law, testified as an expert on how to investigate a capital case. She said that defense counsel should interview the potential witnesses in person because the best mitigation evidence—for example, parental abuse of the defendant as a child—is usually embarrassing. It frequently takes between three and six interviews of family members before they reveal the 30 Krumey testified that he charged $35/hour and was paid $750 for his work. 58 truth about the defendant’s upbringing. Until they are willing to open up, the family is likely to provide only positive information. Watson appeared at the hearing as a witness for the State, and covered several points. Although he was unsure of the date, he said that he initially gave Krumey instructions to look for witnesses who could testify regarding Harvey’s “redeeming social qualities.”31 Watson added that he was displeased with Krumey’s work, so, in October 1985, he fired him and hired a second investigator. Watson further testified that he met with members of Harvey’s family on several occasions, and acknowledged that, as it turned out, his penalty phase strategy coincided with the image he formed of the family after meeting them over dinner. He rejected Harvey’s attorneys’ assertion that he formed his strategy prematurely, before Harvey’s background investigation was finished. When asked whether he had received information to the effect that Harvey was a drug user or had been subjected to domestic abuse as a child, Watson answered in the 31 Although Watson could not recall when he hired Krumey, the record, including Krumey’s testimony, indicates that he hired Krumey shortly after he was appointed to represent Harvey, and that Krumey and the former FBI agent Krumey assigned to the case worked for Watson for five to six months, until October 1985. During that time, if the $750 ($35 per hour) Krumey billed Watson is an accurate indication of the amount of investigative work he and the former agent performed, one would have to conclude that they did accomplish very little—which was why Watson, with the court’s permission, employed the second investigator at the State’s expense. Steve Samilow, an early member of Harvey’s post-conviction team of lawyers, testified that his examination of Watson’s files indicated no “extensive evidence of mitigation investigation.” 59 negative.32 He said that if he had he been given such information, he would not have presented it to the jury—evidence of drug use or child abuse would have undermined his strategy, requiring the development of a completely different theme than the “aberration” theme he chose. After receiving the parties’ evidentiary submissions, the trial court rejected the claim that Watson’s investigation into Harvey’s personal history was objectively deficient, that a reasonably competent attorney would have uncovered the information Harvey’s family members disclosed at the hearing and would have presented it to the jury. The court noted that Watson’s mitigation strategy emphasized Harvey’s positive attributes, and that the new evidence Harvey’s attorneys presented would have undermined the “good person” defense Watson was portraying. In the court’s view, counsel were asking the court to speculate as to whether their proffered strategy might have been more effective than Watson’s. The three incidents of violent behavior—playing chicken, choking, and shooting the street light—counsel considered to be a mitigating factor might, in the court’s view, harm Harvey’s case after being subject to the State’s cross-examination. 32 Neither Harvey nor the State called Watson’s second investigator as a witness. In saying that he received no information regarding drug use or domestic abuse, the inference is that neither the family members with whom Watson had conversations nor the second investigator said anything that would lead Watson to believe that Harvey had a history of drug use or had been the victim of domestic abuse. 60 The Florida Supreme Court affirmed the trial court’s rejection of Harvey’s claim that Watson’s personal history investigation fell below Strickland’s reasonably-competent-attorney standard. It found that “[t]he record clearly demonstrate[d] that counsel conducted an adequate investigation into Harvey’s background . . . .” Harvey, 946 So. 2d at 948. 2. Harvey disagrees with the Florida Supreme Court’s finding. He argues that Watson’s investigation of potential mitigating evidence was constitutionally deficient and that a proper investigation—one performed by a reasonably competent attorney—would have uncovered evidence painting a vastly different, and stronger, mitigation picture. Strickland governs trial counsel’s investigation of mitigating evidence: [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. 466 U.S. at 690–91, 104 S. Ct. at 2066. Therefore, Harvey bears the burden of proving that Watson unreasonably limited his investigation. The fact that Watson 61 was unaware of particular facts is immaterial if he conducted a reasonable investigation. Harvey must also overcome the deference we afford the Florida Supreme Court. Harvey cannot obtain habeas relief unless the Florida Supreme Court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented,” id. § 2254(d)(2). The core of Harvey’s argument is that Watson approached his client’s penalty phase defense with a preconceived strategy—the “good person” strategy—and only sought evidence to support that strategy. After reviewing the August 1998 evidentiary hearing before the trial court, we cannot conclude that the Florida Supreme Court’s decision that Watson conducted an adequate investigation was based on an unreasonable determination of the ultimate fact. Three sets of witnesses testified to Watson’s investigation: Krumey, the investigator; Harvey’s family members; and Watson. Krumey’s testimony shed no light on the investigation that actually occurred. Krumey admits that he did not actually perform the investigation; he passed off that task to a former FBI agent. Furthermore, Watson clearly did not approve of the work Krumey had done; 62 Watson fired him in October 1985. What Watson’s second investigator found is unknown—because he was not called to testify at the evidentiary hearing. Also unknown is what that second investigator may have told Watson—because neither side asked Watson what he said. Harvey’s family members likely had questionable credibility with the finder of fact—the trial court. Many of the same witnesses testified to completely different sets of facts during Harvey’s 1986 trial. It would be entirely reasonable to discount their credibility based on their inconsistent testimony and current motive to lie to save Harvey’s life. Watson testified that he hired two private investigators and also spoke with the family personally. He claims that the “good person” defense was not cut from whole cloth, but rather resulted from his investigation. That he did not learn about Harvey’s physical abuse or substance abuse says nothing about the quality of that investigation. These pieces together do not satisfy Harvey’s burden of proving that Watson’s investigation was deficient. Nor do they allow us to conclude that the Florida Supreme Court was unreasonable in denying Harvey’s claim. Against this conclusion, Harvey presents several arguments. Harvey first claims that Watson did not follow the guidelines of the 2003 American Bar 63 Association Standards for Criminal Justice—that he should have interviewed “virtually everyone else who knew [Harvey] and his family.” Br. Appellant 58 (quoting ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.7, Commentary (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 1024 (2003)). This standard is an inappropriate metric for judging Watson’s performance. Although the ABA standards provide useful guideposts, see Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, they are only relevant “to the extent they describe the professional norms prevailing when the representation took place.” Bobby v. Van Hook, 130 S. Ct. 13, 16, 175 L. Ed. 2d 255 (2009) (per curiam). Norms from 2003 are irrelevant when judging a representation from 1985–1986. Instead, the relevant ABA standards are more general. The 1982 Standards for Criminal Justice issue a broad “duty to investigate,” the relevant portion of which says: “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.” 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982). Harvey has not proven that Watson’s investigation fell short of this standard. 64 This is not a case where trial counsel ignored obvious red flags or overlooked documents he had a duty to consult. Harvey argues that his case is analogous to several Supreme Court decisions, Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); and one from this circuit, Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008). As we explain, however, none of these cases apply. In Rompilla, the Supreme Court found trial counsel ineffective because he did not investigate mitigating evidence available in a court file from one of the habeas petitioner’s prior convictions. 545 U.S. at 383, 125 S. Ct. at 2464. The file would have raised red flags leading to evidence of drinking, alcoholic parents, and childhood beatings. Id. at 391–92, 125 S. Ct. at 2468. Although superficially similar to Harvey’s claim, Rompilla’s holding is narrow and inapplicable. There, trial counsel was required to read the court file only because he knew that the prosecution would introduce the petitioner’s prior convictions; therefore, he should have read the file to anticipate the State’s argument. Id. at 383–84, 125 S. Ct. at 2464. Nothing similar occurred in Harvey’s case. 65 Trial counsel in Wiggins likewise ignored a readily available document that noted the petitioner’s “misery as a youth” and would have led to extensive mitigation evidence. 539 U.S. at 523–25, 123 S. Ct. at 2536–37. This failure coincided with counsel’s general failure to investigate or prepare a social history report, the standard practice at the time. Id. Wiggins contrasts with Harvey’s case because counsel in Wiggins both failed to investigate and had key leads in documents before him. Watson faced nothing as glaring in readily-available files. Taylor also presented a case where trial counsel failed to find available files showing a “nightmarish childhood,” imprisoned parents, and frequent beatings. 529 U.S. at 395, 120 S. Ct. at 1514. Counsel’s insufficient investigation—begun only one week before the trial—failed to uncover these red flags. Id. Again, Harvey’s case presents neither a failure to investigate nor readily-available documents that would necessarily have led to the mitigation evidence Harvey presented at the August 1998 evidentiary hearing. Finally, trial counsel in Allen overlooked evidence in an available report of a low IQ, personality disorder, and evidence of childhood abuse. 542 F.3d at 1339. The evidence contrasted with the penalty phase testimony, during which the petitioner’s mother—the only witness trial counsel interviewed during his investigation—provided mild testimony regarding beatings administered by the 66 petitioner’s father. Id. at 1329, 1339. This limited interview fell short of professional standards including the need to verify information, id. at 1339 (citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.41(D) (1989)), which particularly hurt the petitioner because it turned out that his mother also abused him, id. at 1332. Watson, in contrast, did not limit his sources—he called sixteen personal-history mitigation witnesses. Furthermore, Harvey has not presented sufficient evidence to give an idea of what investigation actually took place. And, what evidence he did present, the trial judge was not required to find credible. We therefore cannot conclude that the Florida Supreme Court’s finding that Watson conducted an objectively reasonable investigation into Harvey’s personal history constituted an unreasonable finding of fact, a finding not entitled to AEDPA deference. 28 U.S.C. § 2254(d)(2). B. Harvey’s last claim argues that Watson did not conduct an effective mental health investigation. Specifically, he points to Watson’s failure to hire a psychiatrist—as opposed to a psychologist—to interview Harvey and testify at trial. Again, Harvey bears the burden of proof. He must show that Watson’s decision not to hire a psychiatrist was deficient, falling below professional norms, 67 and that Watson’s failure prejudiced Harvey’s defense against the death penalty. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. 1. After the trial court appointed Watson to defend Harvey, Watson moved the court for funds to hire both a psychiatrist and psychologist. The court granted Watson’s motion and subsequent motions for funds. With those funds, Watson hired Dr. Fred Petrilla, a psychologist with a Masters in counseling psychology from West Virginia University and a Ph.D in psychology from the University of Kentucky. At the time of trial, Dr. Petrilla had seen patients for eight years. He primarily worked as a school psychologist; the majority of his practice concerned adolescents and older adolescents. He had served as an expert witness in civil and criminal cases, though never on behalf of a defendant in a murder trial. Dr. Petrilla interviewed Harvey in the Okeechobee County jail in June 1985. There, he administered a battery of personality tests.33 He also conducted a background investigation and spoke with Harvey’s teachers and family. 33 Dr. Petrilla stated that he performed the following tests on Harvey: Bender Visual- Motor Gestalt test, Draw-A-Family, Draw-A-Person, Fundamental Interpersonal Relations test, House-Tree test, and the Minnesota Multiphasic Personality Inventory. 68 Watson called Dr. Petrilla in Harvey’s penalty phase defense. He testified regarding the various tests he performed. From these tests, Dr. Petrilla concluded that Harvey was “very dependent and depressed,” “immature,” and had chronic depression. Harvey, according to Dr. Petrilla, also had poor concrete reasoning, which meant that he was unable to plan effectively his actions and when placed under stress, would be an even more rash thinker. Furthermore, Dr. Petrilla diagnosed Harvey with “dysthmic disorder, chronic depressive reaction and dependent personality disorder.” He focused on these “emotional disorders” because the tests did not indicate brain damage—that is, damage to the frontal lobes. Dr. Petrilla did not attempt to use these diagnoses to explain Harvey’s behavior or thinking at the time of the murder. When asked, he said, “no, I’m just here to explain the test results.” Based on this testimony, the trial court, in sentencing Harvey, found non- statutory mitigating factors regarding Harvey’s low IQ, low self-esteem, poor education, poor social skills, and inability to reason abstractly. However, these mitigating factors did not outweigh the aggravating factors, and Harvey was sentenced to death. Harvey’s August 27, 1990 motion for post-conviction relief included the current claim that Watson’s mental health investigation was constitutionally 69 ineffective. The trial court rejected the claim on March 17, 1993 without an evidentiary hearing. In 1995, the Florida Supreme Court vacated the decision and remanded the claim to the trial court for an evidentiary hearing. Harvey, 656 So. 2d at 1257. The trial court held that hearing in August 1998. At the evidentiary hearing, several witnesses testified regarding Watson’s mental health investigation. Watson testified that he sought court funds for both a psychologist and a psychiatrist because it was “necessary to have both [exams] to get a total picture.” Regarding his preparation of Dr. Petrilla, he instructed Dr. Petrilla not to speak with Harvey about the circumstances of the crime because he was afraid of the State using this information against the defense on cross- examination. Watson conceded that Dr. Petrilla suggested that he hire a psychiatrist to confirm his findings and that he wrote himself a note to call a psychiatrist. Watson did not contact a psychiatrist, however, because he feared he would lose the jury by calling two mental-health experts during the penalty phase. Watson believed that juries are pre-disposed to disbelieve psychological testimony in criminal cases; calling multiple experts might seem a “thin excuse” because Harvey did not have a documented history of mental illness. 70 Dr. Michael Norko, a psychiatrist, testified for Harvey. Dr. Norko examined Harvey in connection with the post-conviction process—once in April 1990 and once in April 1996. Unlike Dr. Petrilla, who did not examine the facts of the crime and Harvey’s background before interviewing Harvey, Dr. Norko, before he examined Harvey, read through the post-conviction affidavits and various records to learn about Harvey’s life and his case. Based on what those materials disclosed and his examination of Harvey, Dr. Norko made several diagnoses that overlapped Dr. Petrilla’s penalty phase testimony—including depression, low IQ, poor abstract thinking, dependent personality disorder, and post traumatic stress disorder. Dr. Norko disagreed with Dr. Petrilla regarding the existence of brain damage—Dr. Norko found evidence of organic brain disorder. He gleaned this from a mixture of test results and evidence of head trauma from Harvey’s car accident and subsequent head injuries. Dr. Norko did not subject Harvey to a CAT, MRI, or EEG scan because these tests do not always perceive organic brain dysfunction. Finally, Dr. Norko testified that Harvey’s condition satisfied three statutory mitigation factors: (1) lack of capacity to appreciate the criminality of his conduct; (2) duress or substantial domination by both Harvey’s wife and accomplice Stiteler; and (3) extreme mental or emotional disturbance. 71 Andrea Lyon, Harvey’s criminal defense expert, testified that Watson should have had a psychiatrist examine Harvey. Dr. Petrilla was a clinical psychologist, but had no forensic expertise. She also could not understand why Watson did not allow Harvey to speak about the crime with a mental health expert. Based on Harvey’s medical reports—particularly following Harvey’s car accident—Lyon claimed that Watson should have noted red flags regarding possible brain damage. On cross-examination, however, the State pointed out that the medical records also indicated that, following his car accident, Harvey was responsive, needed only four stitches, and received no special treatment regarding his loss of consciousness. Harvey called a second psychiatrist, Dr. Brad Fischer. Dr. Fischer examined Harvey in April 1990 and performed a battery of psychological tests similar to those Dr. Petrilla had performed prior to Harvey’s trial. He came to the same conclusions as Dr. Norko. Dr. Fischer also faulted Dr. Petrilla’s investigation and report. He did so primarily because Dr. Petrilla’s professional experience focused on counseling; he lacked experience as a forensic examiner. In his opinion, Dr. Petrilla’s lack of experience was exacerbated by Watson’s failure to provide Dr. Petrilla with all of Harvey’s background materials. Furthermore, Dr. Petrilla was not properly alerted to the possibility of brain 72 damage because the background materials he had at hand did not mention Harvey’s car accident or other head traumas. Dr. Fischer also noted “scoring errors” in Dr. Petrilla’s evaluation that undermined Dr. Petrilla’s ability to spot Harvey’s brain damage. Dr. Petrilla also testified about his initial evaluation and Watson’s performance. Regarding Watson’s investigation, Dr. Petrilla testified that Watson asked him only to administer a personality evaluation, distinct from a forensic evaluation, which he stated tested different areas of the brain. In his estimation, he could not have performed a forensic evaluation in 1985 because he was incompetent to do so then. Dr. Petrilla complained that Watson failed to provide him with Harvey’s background information. Although he did not want these facts before seeing Harvey, he felt they would have been useful when interpreting the results. Regarding organic brain damage, Dr. Petrilla testified that he told Watson that he did not think Harvey had brain damage. In retrospect, however, he did so only because he did not have sufficient experience to link Harvey’s test results with signs of organic brain damage. It was this lack of competence that led him to suggest that Harvey see a psychiatrist, who not only could provide a second opinion, but also would be more thorough regarding likelihood of organic brain 73 damage. However, Dr. Petrilla did not tell Watson that he was incompetent to render an opinion about the possibility of brain damage. After hearing Harvey’s evidence, the trial court denied Harvey’s claim. The court concluded that Dr. Petrilla did test for organic brain damage and found none, but that he did recommend that Harvey see a psychiatrist to verify his opinion and diagnoses. Watson chose not to consult a second expert because he feared that conflicts between two experts might cause the jury to disregard all mental health evidence and that calling two mental health experts would anger the jury as a “bad excuse for bad behavior.” The court noted that Dr. Petrilla told Watson that Harvey did not have brain damage but suffered from a personality disorder. The court discounted the uncovered evidence of brain damage because the post-conviction experts “concede that there is no expert proof of any particular cause of brain damage.” The court concluded that Harvey had not shown that Watson “fail[ed] to ensure a competent mental health examination.” The Florida Supreme Court agreed. Harvey, 946 So. 2d at 945–47. Its 2006 opinion found that Watson’s performance satisfied Strickland’s performance standard, contrasting Watson’s investigation with those in which trial counsel “never attempted to meaningfully investigate mitigation.” Id. at 946 (quoting 74 Rose v. State, 675 So. 2d 567, 572 (Fla. 1996)). The court found that Watson “conducted a reasonable investigation into Harvey’s mental health background and incorporated his findings into a penalty phase strategy.” Id. at 947. 2. Harvey argues that the post-conviction evidence he presented proved that Watson was deficient in failing to contact a psychiatrist, and that Watson’s failure to present such evidence to the jury prejudiced Harvey’s defense. Framed under Strickland, Harvey’s argument is that Watson’s investigation fell below an objective standard of professional conduct. See Strickland, 466 U.S. at 690–91, 104 S. Ct. at 2066. Moreover, because the Florida Supreme Court found Watson’s investigation objectively reasonable, Harvey must demonstrate that the court’s finding constituted an “unreasonable determination of” fact. 28 U.S.C. § 2254(d)(2). A thorough post-conviction mental health investigation does not render trial counsel’s less thorough investigation ineffective. Johnson v. Upton, 615 F.3d 1318, 1337 n.17 (11th Cir. 2010). The key factor is whether the “known evidence would lead a reasonable attorney to investigate further.” Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010) (quoting Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538). “[T]he mere fact [that] a defendant can find, years after the fact, a mental 75 health expert who will testify favorably for him does not demonstrate that trial counsel was ineffective for failing to produce that expert at trial.” Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1242 (11th Cir. 2010) (quoting Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir. 1997)). Harvey presses two main arguments against the Florida Supreme Court’s finding that Watson’s mental health investigation was objectively reasonable. First, he argues that Watson was deficient for failing to follow Dr. Petrilla’s advice to follow-up with a psychiatrist. We cannot accept this argument because of the deference we must show not only to Watson’s professional judgment, but also to the Florida Supreme Court’s finding of reasonableness under AEDPA. Strickland allows attorneys to limit investigations if it would be reasonable to do so. 466 U.S. at 690–91, 104 S. Ct. at 2066. Watson was told by his expert, Dr. Petrilla, that Harvey did not have brain damage.34 Although Dr. Petrilla claimed incompetence in his post-conviction testimony, he did not express that view to Watson in 1985, prior to Harvey’s trial. Rather than obtain a second opinion, Watson chose to rely on his expert, who gave him no reason to doubt that 34 Harvey’s brief to this court suggests that, in 1985, Dr. Petrilla noted test results indicative of brain damage and suggested that Harvey see a psychiatrist because of his inexperience in neuropsychology. Br. Appellant 5. Dr. Petrilla’s testimony does not paint nearly as explicit a picture as does Harvey’s brief. Dr. Petrilla never expressed his competency concerns to Watson and told Watson that he did not think Harvey had brain damage. 76 he was competent. We cannot say that Watson’s performance was deficient. And we certainly cannot say that the Florida Supreme Court’s finding constituted an unreasonable assessment of the evidence bearing on Watson’s performance. Harvey’s second argument is that Watson’s own familiarity with the case should have raised red flags sufficient to justify a more thorough mental health evaluation. Specifically, Harvey points to Watson’s observations that “Harvey was a ‘borderline operator,’ suicidal, slow to understand and tearful.” This argument, however, is just another way of arguing Harvey’s first point. Watson must have been concerned for Harvey’s mental health—he hired Dr. Petrilla. Harvey’s argument would require Watson to give greater weight to his own “red flags” than to his own expert’s professional opinion that Harvey did not have organic brain damage. Again, we cannot conclude that Watson was deficient for trusting his own expert. Harvey’s final argument is that the case, here, is “highly analogous” to Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); and Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008); therefore, the Florida Supreme Court’s finding that Watson’s investigation was objectively reasonable constituted 77 an unreasonable factual determination under AEDPA, 28 U.S.C. § 2254(d)(2). As with Harvey’s personal history argument, his mental investigation argument is nothing like the arguments advanced in these cases. As laid out above, each case involved an attorney who overlooked a readily available document that would have opened doors to undiscovered mitigation evidence. See Rompilla, 545 U.S. at 383–84, 125 S. Ct. at 2464; Wiggins, 539 U.S. at 523–25, 123 S. Ct. at 2536–37; Taylor, 529 U.S. at 395, 120 S. Ct. at 1514; Allen, 542 F. 3d at 1339. No such document existed for Harvey. Without a similar smoking gun, we cannot disagree with the Florida Supreme Court’s finding that Watson acted reasonably in trusting his expert’s opinion that Harvey did not have brain damage. VI. Based on the foregoing analyses, the district court’s denial of Harvey’s petition for a writ of habeas corpus is AFFIRMED. 78
01-03-2023
10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3222042/
From a judgment of conviction for the offense of murder in the second degree, with 20 years' sentence in the penitentiary, this appeal was taken. The first exception noted relates to the ruling of the court in allowing the sheriff to testify, over objection and exception, that the bullet exhibited to witness "resembled the bullet" he saw at the preliminary trial of this case. There is no merit in this exception. The defendant admitted the killing of the deceased and relied upon self-defense. It is not conceivable how this matter could in any wise affect his substantial rights. Whether witness Taylor saw the deceased (Mr. Fant) with a pistol at the association on that same day at 4 o'clock was wholly immaterial. The court properly so held. The same applies to whether defendant's witness, Wilkerson, saw the deceased about 10 o'clock to 12:30 o'clock that day. It was within the court's discretion to permit the state on rebuttal to identify the shoes worn by deceased at the time he was killed. The exception here cannot be sustained. The remaining points of decision are *Page 305 based upon the refusal to defendant of numerous special written charges requested. We note that the oral charge of the court consumes practically eleven pages of this record, and in addition thereto numerous charges were given at request of defendant. Some of the refused charges relate to murder in the first degree only. These, of course, need not be considered as by the verdict of the jury murder in the first degree has been eliminated from this case. The oral charge was very able and explicit. It was fair to defendant, and covered every phase of the law involved upon this trial. We think that the oral charge fairly and substantially covered such of the refused charges as properly state the law. This being true, the court was under no duty to give said charges, and will not be placed in error for refusing them. To enter into a detailed discussion of each of the refused charges could serve no good purpose, and we refrain from so doing. As stated the jury was given in charge the law in its every phase involved in this case, correctly, plainly, and fairly. The exception reserved to the court's oral charge is by reference only; it is therefore not presented for consideration. Moreover, the point of decision involved is without error. Finding no error in any rulings of the court, and the record proper being regular in all things, the judgment of conviction in the lower court, from which this appeal was taken, will stand affirmed. Affirmed.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/127430/
537 U.S. 1212 ROOKSv.UNITED STATES. No. 02-8225. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. 2 C. A. 6th Cir. Certiorari denied.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3435934/
Plaintiff's petition sought damages in the sum of $2,449.65 for personal injuries received while riding on a truck owned by defendant, of which $449.65 was sought for hospital and medical care and supplies, $1,500 for pain, suffering, *Page 1295 and mental anguish in the past, and $500 for pain, suffering, and mental anguish in the future; plaintiff also demanded the costs of the action. Count I of the petition predicated liability on the ground of negligence of the driver of defendant's truck. Count II predicated liability on the ground of recklessness of the driver of the truck. Defendant moved the court to require the plaintiff to elect on which cause of action he proposed to proceed. This motion was overruled without prejudice should defendant wish to raise the question during the trial. At the close of plaintiff's evidence in chief defendant moved the court to withdraw from the consideration of the jury and to direct a verdict in favor of the defendant on Count I of the petition because the evidence showed that plaintiff was at most only a guest and as such defendant would not be liable to plaintiff for negligence. This motion was sustained and the trial proceeded on Count II of the petition. At the close of all of the evidence defendant moved for a directed verdict as to said Count II on the ground that the evidence failed to show recklessness. This motion was overruled. The jury returned a verdict in favor of plaintiff for $1,200. Judgment was entered thereon, from which defendant appealed to this court. Plaintiff also perfected a cross-appeal from the order which withdrew Count I of his petition from the consideration of the jury. At the time that the record was settled it was stipulated that the only question to be raised by defendant on appeal was that the court erred in overruling its motion for directed verdict, which challenged the sufficiency of the evidence to show recklessness, and that the only question to be raised by plaintiff was that the court erred in refusing to submit his cause on the theory of negligence. We are of the opinion that there is merit in each appeal. I. We will first consider the defendant's appeal. Plaintiff was a pharmacist, age forty-two, and on October 13, 1942, volunteered to assist in the local scrap drive sponsored by the Spencer Junior Chamber of Commerce. He and a number of other men were on a Ford truck, owned by defendant partnership and operated by one of the partners. They picked *Page 1296 up some old motors, steel girders, etc., which were delivered and unloaded. They then picked up a heavy tank, about four feet long and a foot and a half in diameter, weighing from eight hundred to one thousand pounds, and a quantity of wire. At a collecting station they unloaded the wire but not the tank. They then proceeded south on a paved highway out of Spencer past Leach Field, used as a park and athletic field, and made a right-hand turn off the pavement onto a graveled road to the west. As the truck made the turn, the rack or body of the truck tipped and became separated from the rear end of the chassis. The chassis and cab of the truck did not upset. Plaintiff jumped or was thrown from the truck and was injured. Plaintiff testified: "I was looking around and more or less talking. Everybody was talking to each other. There was nothing unusual that I recall." Asked as to the speed of the truck, he answered: "I don't really know well enough because I wasn't paying enough attention. I can't say how fast we were going." One witness for plaintiff testified that the truck approached the corner at a speed of from thirty to thirty-five miles an hour and did not slow down appreciably before it reached the corner. Another testified that the truck was traveling twenty-five to thirty miles an hour and slowed down one or two miles as it approached the corner. Another placed the speed at thirty to thirty-five miles an hour and that it slowed down about five miles an hour for the turn. Another of plaintiff's witnesses placed the speed of the truck at about twenty miles an hour when it made the turn and that there had been quite a decrease in its speed. Another testified that the speed was twenty-five to thirty miles an hour and that the driver took his foot from the accelerator as he approached the corner but did not apply his brakes, reducing the speed to from twenty to twenty-seven miles per hour; after the rack started to tip the truck was stopped suddenly. Another witness testified *Page 1297 that the speed of the truck was thirty-five miles an hour and that it "kind of skidded around the corner." Another witness placed the speed of the truck at thirty-five miles an hour. The truck had been purchased by defendant about seven days before the accident. The rack was bolted on with two U-bolts, one in front and one in the rear. After the accident the front bolt still held. The rear bolt was missing and was not found at the scene of the accident. The testimony offered by defendant created a sharp conflict in the evidence as to the speed of the truck, some of it placing the speed of the truck as it made the turn at fifteen miles per hour or less. But it was for the jury to decide as to the credibility of the witnesses. We must view the evidence in the light most favorable to the plaintiff. The specifications of recklessness asserted in the petition were as follows: "a. Driving the truck at a speed greater than was reasonable and proper having due regard for the fact that he was turning off a paved highway on to a graveled highway and also having regard for the fact that the box or rack contained a cylinder as above set out weighing 1,000 pounds or more and that some of the occupants of the box or rack were sitting upon the top rail thereof. "b. Driving said truck at a speed of thirty-five miles per hour under the conditions as herein set forth while making the turn as herein set out. "c. In failing to keep said vehicle under control and reduce the speed to a reasonable and proper rate while making a sharp turn as herein set out." Some doubt arises whether the foregoing allegations state a case of recklessness. But, in any event, the evidence introduced in support of them created nothing more than a jury question on an issue of negligence. We have often held that recklessness is something more than negligence and that proof of negligence alone will not permit a recovery under section 5037.10, Code, 1939, formerly section 5026-b1, Codes, 1935, 1931, 1927. The following cases are illustrative: Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46; Neessen v. Armstrong, *Page 1298 213 Iowa 378, 239 N.W. 56; Wilde v. Griffel, 214 Iowa 1177, 243 N.W. 159; Levinson v. Hagerman, 214 Iowa 1296, 244 N.W. 307; Welch v. Minkel, 215 Iowa 848, 246 N.W. 775; Koch v. Roehrig, 215 Iowa 43, 244 N.W. 677; Phillips v. Briggs, 215 Iowa 461, 245 N.W. 720; Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635; Petersen v. Detwiller, 218 Iowa 418, 255 N.W. 529; Stanbery v. Johnson,218 Iowa 160, 254 N.W. 303; Paulson v. Hanson, 226 Iowa 858, 285 N.W. 189; Scott v. Hansen, 228 Iowa 37, 289 N.W. 710; Roberts v. Koons, 230 Iowa 92, 296 N.W. 811; Peter v. Thomas, 231 Iowa 985,2 N.W.2d 643; Harvey v. Clark, 232 Iowa 729, 6 N.W.2d 144, 143 A.L.R. 1141; Tomasek v. Lynch, 233 Iowa 662, 10 N.W.2d 3. The rules announced and applied in the foregoing decisions of this court are well known to the bench and bar. It is not necessary to here elaborate upon them. Application of them to the facts of record herein, when taken in the light most favorable to the plaintiff, demonstrates that the defendant's motion for a directed verdict on Count II of the petition should have been sustained. The court erred in overruling it. The defendant's assignment of error in this court is well taken and must be sustained. II. Plaintiff's assignment of error is submitted to us as an alternative proposition. Plaintiff seeks to sustain the ruling of the trial court on the motion for directed verdict as to Count II and asserts that, if such ruling is to be reversed, then the trial court erred in withdrawing from the consideration of the jury Count I of plaintiff's petition which predicated liability on the ground of negligence in the operation of defendant's truck. As we have sustained defendant's assignment of error as to the disposition of Count II of the petition, it now becomes our duty to consider the cross-appeal of plaintiff. The high lights of the evidence have been reviewed by us in Division I of this opinion, supra. Further elaboration at this point would not seem necessary. We are satisfied that the evidence, when viewed in the light most favorable to the plaintiff, presented a disputed question of fact sufficient to require submission to the jury of the issue whether defendant's truck *Page 1299 was operated at a reasonable rate of speed and with due care for the safety of those riding thereon when attempt was made to negotiate the turn to the right at the time when plaintiff received his injuries. Defendant asserts that plaintiff knew all of the circumstances under which he was riding on the truck, made no objection thereto, and assumed the risk of injury therefrom. But, were the jury to find defendant guilty of negligence, the evidence would warrant a further finding that the negligence which was the proximate cause of plaintiff's injury was of an unexpected nature and of such short duration that plaintiff could not be deemed to have acquiesced therein for such a length of time as to be said to be guilty of contributory negligence as a matter of law. See Miller v. Mathis, 233 Iowa 221, 8 N.W.2d 744. If liability is to be predicated herein on negligence, defendant's negligence and plaintiff's freedom from contributory negligence were issues that should have been submitted to the jury. The trial court, having considered the evidence sufficient to present a jury question on the issue of recklessness, obviously considered that there was sufficient evidence to warrant a finding of negligence on defendant's part. The court withdrew Count I of the petition from the consideration of the jury on the theory that the evidence showed, as a matter of law, that plaintiff was "riding in said motor vehicle as a guest or by invitation and not for hire," within the contemplation of section 5037.10 of the Code, so that he could only recover by showing that he was injured because of the reckless operation of defendant's truck. The court erred in so holding. The trial court based its ruling on the case of Park v. National Casualty Co., 222 Iowa 861, 270 N.W. 23. That case is not in point. In that case the plaintiff, Park, was injured while riding in an automobile owned by one Craig. Park recovered judgment against Craig in an action predicated on negligence in the operation of the vehicle and then sued the National Casualty Company as Craig's insurance carrier. The company defended on the ground that, since Park and Craig were members of an orchestra and were proceeding to fill a business engagement as such and Craig was being reimbursed for the use of the automobile on such enterprise, the vehicle was being *Page 1300 used for the purpose of carrying passengers for a consideration, which rendered the insurance protection unavailable under an exclusion clause in the policy. This court held that the exclusion clause of the policy was not controlling. The case did not involve any interpretation of section 5037.10 of the Code, 1939 (then section 5026-b1, Code, 1935). The case is not in point here because there is no contention that defendant was carrying any passengers for hire. The question here is whether plaintiff is a "guest" within the contemplation of section 5037.10. The trial court also relied upon the case of Brown v. Branch,175 Va. 382, 9 S.E.2d 285. In that case the defendant was the superintendent of a Sunday School and offered the use of his truck free of charge to conduct members and their guests to and from a Sunday School picnic. On the return trip after the picnic, the truck ran off the road into the ditch and plaintiff, who was then riding thereon, was injured. The issue, under the Virginia statute, was whether plaintiff was a "pay passenger" or a gratuitous guest. The court held that defendant was to receive no remuneration for the use of his truck and that the plaintiff was a gratuitous guest. We do not think that the decision is in point here because we feel that there is an important difference between a purely social enterprise, such as a Sunday School picnic, and a patriotic and community enterprise, such as the local scrap drive involved herein. The general principles usually applied in defining a guest under the various guest statutes are thus stated in 4 Blashfield, Cyclopedia of Automobile Law and Practice, section 2292, to wit: "In determining who are `guests' within the meaning of automobile guest statutes, the enactments should not be extended beyond the correction of the evils which induced their enactment. "One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. If, in its direct operation, it confers a benefit only on the person to whom the ride is given, and no benefits, *Page 1301 other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes; but, if his carriage tends to the promotion of mutual interests of both himself and the driver and operates for their common benefit or if it is primarily for the attainment of some objective or purpose of the operator, he is not a guest within the meaning of such enactments. Of course, a passenger for hire is not within their operation, regardless of whether the passenger or some one else pays or promises to pay for the transportation. "The fact that it is contemplated that some indirect benefit will accrue to the operator of the automobile, to which the carriage will have in some degree contributed collaterally or by way of inducement, is not sufficient to make the carriage one for mutual benefit within the rule as stated." In the Pocket Supplement, 1944, the foregoing statement is amplified thus: "In other words, the term `guest,' as it is ordinarily used in automobile guest statutes, imports that the occupant referred to is the recipient of the owner's or driver's hospitality. And a person enjoying this hospitality, and riding in an automobile either for his own pleasure or on his own business, without making any return therefor or conferring any benefit on the driver other than the mere pleasure of his company, is a `guest.' On the other hand, a person who renders value received, or gives such recompense as to make it worth the driver's while to give the ride, is a `passenger.' * * * "Otherwise stated, the benefit accruing to or conferred upon the operator of the vehicle, sufficient to take the person riding with him out of the guest class, must be a tangible one growing out of a definite relationship. It is not necessary, however, that it be a consideration agreed upon for the transportation, and it may be in the form of anticipated profit as well as a direct return." In line with the foregoing statements, in the case of Forsling v. Mickelson, 66 S.D. 366, 283 N.W. 169, it was held that where a musician, who had volunteered his services for a booster *Page 1302 trip to advertise a community enterprise called the "Corn Carnival," was being transported in an automobile donated for the purpose by a public-spirited businessman, the musician was not a "guest" of the businessman under the guest statute. In Boysen v. Porter, 10 Cal. App. 2d 431, 52 P.2d 582, an employee of a committee organized to elect a candidate for mayor of Los Angeles was riding in a truck, which had been donated with a driver for the service of the committee, when injured, and was held not to be a "guest" of the owner of the truck. In Arkansas Valley Co-op. Rural Elec. Co. v. Elkins, 200 Ark. 883, 141 S.W.2d 538, an employee of a rural electric company asked a farmer to ride in a company car to determine where light poles should be placed on the farm and it was held that the farmer was not a "guest" of the electric company. In Delk v. Young, Ohio App., 35 N.E.2d 969, a supporter of a candidate for sheriff accompanied him to a public meeting and it was held that the supporter was not a "guest" of the candidate. While we do not find any analogous cases among the decisions of this court, it is apparent that the general principles applied in the foregoing decisions have been recognized and applied by this court. In Bookhart v. Greenlease-Lied Motor Co., 215 Iowa 8, 244 N.W. 721, 82 A.L.R. 1359, a prospective buyer of an automobile, who on invitation from a salesman entered the car to observe its performance, was held not to be a guest. In Thompson v. Farrand,217 Iowa 160, 165, 251 N.W. 44, a lawyer's client who went with him on a trip to Ottumwa, stopping off at Pella to attend to some business, was held not to be a guest. In Knutson v. Lurie,217 Iowa 192, 251 N.W. 147, we held that it was a disputed question of fact for the jury to determine whether a domestic servant was riding in her employer's car as a guest or as a servant. In Porter v. Decker, 222 Iowa 1109, 1111, 270 N.W. 897, we held that it was a jury question whether a young man who accompanied a truck driver on a trip to Omaha was to perform acts of assistance in loading and unloading the truck so as to obviate the guest statute. In Wittrock v. Newcom, 224 Iowa 925, 930, 277 N.W. 286, we held that a young lady's presence in an automobile demonstrator with the salesman and a prospect *Page 1303 was sufficiently identified with the attempt to sell the car so that she was not a guest. In Doherty v. Edwards, 227 Iowa 1264, 1269, 290 N.W. 672, we held that, where a representative of the FRA took a borrower in his car to arrange for some money for feed, the borrower was not a guest. In Mitchell v. Heaton,231 Iowa 269, 276, 1 N.W.2d 284, 138 A.L.R. 832, we held that a friend of a prospective purchaser, who accompanied the two negotiating parties, was in the car for the benefit of both parties to the negotiations and was not a guest. By reason of the foregoing, we hold that the trip which plaintiff made in defendant's truck was not a social or gratuitous trip such as contemplated by the guest statute. Plaintiff and defendant were engaged in a patriotic, community project to aid the war effort. Defendant furnished a truck and a driver. Plaintiff was one of those who furnished physical labor required to load and unload the truck. The purpose of each was to aid the defense of his country. The trip was advantageous to each in the accomplishment of their mutual enterprise. The guest statute does not apply. The court erred in holding that it does. Plaintiff's assignment of error in this court is well taken and must be sustained. Accordingly the cause is — Reversed and remanded on both appeals. SMITH, MULRONEY, OLIVER, BLISS, GARFIELD, HALE, and WENNERSTRUM, JJ., concur. MANTZ, C.J., dissents.
01-03-2023
07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1896104/
684 F.Supp. 814 (1988) AVNET, INC., Plaintiff, v. AMERICAN MOTORISTS INSURANCE CO., Defendant. No. 87 Civ. 0758 (KC). United States District Court, S.D. New York. May 18, 1988. Howard R. Hawkins, Cadwalader, Wickersham & Taft, New York City, for plaintiff. Maura Fecher, Sidley and Austin, New York City, Kathleen A. Marron, Lawrence Zelle, Robins, Selle, Larson and Kaplan, Minneapolis, Minn., for defendant. OPINION AND ORDER CONBOY, District Judge: Plaintiff brings this action to recover fees and expenses incurred in defending a lawsuit, which it claims are covered under an insurance policy issued by defendant. In July, 1978, defendant issued to plaintiff a liability policy protecting plaintiff from losses arising from third-party claims for personal injury, including claims for malicious prosecution. The policy required defendant both to defend and to indemnify plaintiff in case of a covered third-party claim. In 1981, plaintiff was in fact sued for malicious prosecution, in Scope v. Avnet, a litigation brought in Superior Court of California, County of Los Angeles. Plaintiff alleges in this action that defendant failed to reimburse it for the full cost of its defense in the Scope litigation. Plaintiff's original complaint contained claims for fraud and RICO violations. Judge Weinfeld dismissed those counts with leave to amend in May, 1987. See Avnet, Inc. v. American Motorists Ins. Co., 115 F.R.D. 588, 590-92 (S.D.N.Y.1987). In June, 1987, plaintiff filed its amended complaint. In the amended complaint, plaintiff sues for breach of the insurance contract as its only claim for relief. Plaintiff seeks the full cost of its defense of the Scope action. As part of its claim for relief, plaintiff requests punitive damages, claiming that defendant's refusal to pay the costs of the defense was in bad faith. Defendant moves to dismiss the request for punitive damages, pursuant to Fed.R. Civ.P. 9(b). Defendant also moves to strike paragraphs 27 through 32 of the amended complaint. These paragraphs relate to the request for punitive damages. *815 A. Dismissal Under Rule 9(b) Under New York law, the law of the case, see Avnet, Inc., 115 F.R.D. at 591, the mere breach of an insurance contract, even a willful and unjustified breach, does not support a claim for punitive damages. See, e.g., Eccobay Sportswear, Inc. v. Providence Washington Ins. Co., 585 F.Supp. 1343, 1344 (S.D.N.Y.1984). The New York courts routinely dismiss claims for punitive damages against insurance carriers when there has been no allegation or showing that the carrier, in its dealings with the general public, had engaged in a fraudulent scheme evincing such a high degree of moral turpitude and ... such wanton dishonesty as to imply a criminal indifference to civil obligations. Id. (quoting Leidesdorf v. Fireman's Fund Ins. Co., 470 F.Supp. 82, 85 (S.D.N.Y.1979) (quotation marks omitted); see, e.g., Hubbell v. Trans World Life Ins. Co., 50 N.Y.2d 899, 901, 408 N.E.2d 918, 919, 430 N.Y.S.2d 589, 590 (1980) (mem.); Supreme Automotive Mfg. Corp. v. Continental Casualty Co., 126 A.D.2d 153, 155-56, 512 N.Y.S.2d 820, 822-23 (1st Dep't), appeal dismissed mem., 69 N.Y.2d 1038, 511 N.E. 2d 90, ___ N.Y.S.2d ___ (1987); Royal Globe Ins. Co. v. Chock Full O'Nuts Corp., 86 A.D.2d 315, 318-21, 449 N.Y.S.2d 740, 743-45 (1st Dep't 1982), appeal dismissed mem., 58 N.Y.2d 800, 445 N.E.2d 649, 459 N.Y.S.2d 266 (1983); Buttignol Constr. Co. v. Allstate Ins. Co., 22 A.D.2d 689, 689, 253 N.Y.S.2d 172, 173 (2d Dep't 1964) (mem.), aff'd mem., 17 N.Y.2d 476, 214 N.E.2d 162, 266 N.Y.S.2d 982 (1965); see also Walker v. Sheldon, 10 N.Y.2d 401, 404-06, 179 N.E.2d 497, 498-500, 223 N.Y. S.2d 488, 490-92 (1961) (addressing circumstances warranting award of punitive damages in "fraud and deceit" action generally). Absent a showing of such gross and wanton fraud on the public, plaintiff's claim for punitive damages cannot stand. Plaintiff argues that, as its cause of action is for "bad faith breach of contract," the allegations necessary to support an award of punitive damages need not comply with Rule 9(b). The argument is without merit. "The particularity requirement of Rule 9(b) extends to `all averments of fraud or mistake.' Thus, the rule extends to averments of fraud or mistake, whatever may be the theory of legal duty—statutory, tort, contractual, or fiduciary." Shapiro v. Miami Oil Producers, 84 F.R.D. 234, 236 (D.Mass.1979); accord Frota v. Prudential-Bache Sec., 639 F.Supp. 1186, 1193 (S.D.N.Y.1986).[1] The rule in New York is that "absent an allegation of public fraud, a claim for punitive damages cannot be sustained in a breach of contract action." Purdy v. Consumers Distrib. Co., 648 F.Supp. 980, 983 (S.D.N.Y.1986).[2] Thus, it is necessary for those of plaintiff's allegations of defendant's conduct that go to the alleged "public fraud" to meet the demands of Rule 9(b). In an attempt to show fraud on the public, plaintiff points to three occasions, other than the Scope action, when defendant delayed or denied payment of a claim. First, in 1972 defendant issued to plaintiff blanket bonds protecting plaintiff from losses arising out of dishonest or fraudulent acts *816 of its employees. Plaintiff suffered losses due to a kickback scheme engaged in by two of its officers. Plaintiff submitted a claim. Defendant initially denied coverage of the claim but ultimately paid it. Second, plaintiff alleges a second fraudulent scheme perpetrated on it, without providing any details other than to state that it was similar to the first kickback scheme. Plaintiff alleges that defendant denied coverage of its claim stemming from this scheme. Third, plaintiff points to a claim submitted to defendant by Central Armature Works, an insured unrelated to plaintiff. Defendant declined to pay this claim. In the District Court for the District of Columbia, defendant was held liable under the law of the District of Columbia for compensatory and punitive damages for bad faith denial of this claim. See Central Armature Works v. American Motorists Ins. Co., 520 F.Supp. 283, 291-96 (D.D.C.1980). Plaintiff contends that these three incidents, plus the Scope incident, are enough to show fraud on the public entitling it to punitive damages. Defendant counters that an insurance company has a right and a duty to investigate insurance claims before paying them, and that accordingly some delay in payment cannot constitute a punitive damages claim. Further, defendant points out that, while plaintiff has been insured by defendant for more than fifteen years, plaintiff has been able to identify only four incidents of delayed payment. This does not show "wrongdoing ... `of a continuous and systematic nature, and aimed at the public generally.'" Continental Casualty Co., 126 A.D.2d at 155, 512 N.Y.S.2d at 822 (quoting Merrick v. Four Star Stage Lighting, Inc., 60 A.D.2d 806, 807, 400 N.Y.S.2d 543, 544 (1st Dep't 1978) (mem.)). Plaintiff's allegations are insufficient. "To sustain its claim for punitive damages, the plaintiff must do more than `resort [sic] to repetitive labels and meaningless verbiage'—plaintiff must set forth `sufficient evidentiary allegations of ultimate facts' pointing to a fraudulent scheme upon the public." Eccobay Sportswear, Inc., 585 F.Supp. at 1345 (quoting Holoness Realty Corp. v. New York Property Ins. Underwriting Ass'n, 75 A.D.2d 569, 570, 427 N.Y.S.2d 264, 265-66 (1st Dep't 1980) (mem.)). This amended complaint fails to raise a colorable issue regarding punitive damages. In view of the fact the defendant has the right to deny or delay payment of disputed claims, see Leidesdorf v. Fireman's Fund Ins. Co., 470 F.Supp. at 85; Cohen v. New York Property Ins. Underwriting Ass'n, 65 A.D.2d 71, 76-78, 410 N.Y.S.2d 597, 600-01 (1st Dep't 1978), and in view of the small number of claims over many years allegedly handled in bad faith, "it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The request for punitive damages therefore is dismissed for failure to comply with Rule 9(b). See Nordlicht v. New York Tel. Co., 617 F.Supp. 220, 229 (S.D.N.Y.1985), aff'd, 799 F.2d 859 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 929, 93 L.Ed.2d 981 (1987). As plaintiff has been given the opportunity to amend to comply with Rule 9(b), and has failed to do so in the amended pleading, dismissal with prejudice is justified. See Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114-15 (2d Cir.1982); Denny v. Barber, 576 F.2d 465, 470-71 (2d Cir.1978); see also Armstrong v. McAlpin, 699 F.2d 79, 93-94 (2d Cir.1983) (dismissing second amended complaint with prejudice). The dismissal of the first complaint "put plaintiff's counsel on the plainest notice of what was required." Denny, 576 F.2d at 471; see Avnet, Inc., 115 F.R.D. at 591-92 & n. 5; see generally Transcript of hearing on motion to dismiss, Apr. 28, 1987. It is not appropriate to allow plaintiff another opportunity to plead. Plaintiff should have recognized that it would be required to comply with Rule 9(b) despite framing its cause of action as one for "bad faith breach of contract." Therefore, the request for relief in the form of punitive damages is dismissed with prejudice. B. Motion to Strike Defendant, anticipating success on its motion to dismiss, also moves to strike *817 the pleadings of paragraphs 27-32 of the amended complaint. To properly decide a motion to strike, the issue must be framed. Burger v. Health Ins. Plan, 684 F.Supp. 46, 52 (S.D.N.Y.1988); Gleason v. Chain Serv. Restaurant, 300 F.Supp. 1241, 1257 (S.D.N.Y.1969), aff'd per curiam, 422 F.2d 342 (2d Cir.1970). Having dismissed the request for punitive damages, the issue in the case is defendant's conduct regarding this contract. Once the issue[ is] framed, the court turns to the particular allegations, keeping in mind that "[m]otions to strike are generally disfavored and will not be granted unless the matter asserted clearly has no bearing on the issue in dispute." ... Matter will not be stricken on the ground it is immaterial and impertinent "unless it can be shown that no evidence in support of the allegation would be admissible." Burger v. Health Ins. Plan, 684 F.Supp. at 52 (first bracketed material added, second bracketed material in original) (quoting, respectively, Reiter's Beer Distribs. v. Christian Schmidt Brewing Co., 657 F.Supp. 136, 143 (E.D.N.Y.1987), and Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir.1976)). The particular allegations at issue deal with breaches of other contracts of insurance. "Federal Rule of Evidence 404(b)—which applies in both civil and criminal cases— generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge." Huddleston v. United States, ___ U.S. ___, ___, 108 S.Ct. 1496, ___, 99 L.Ed.2d 771 (U.S.1988); see In re Estate of Brandon, 55 N.Y.2d 206, 210-11, 433 N.E.2d 501, 503, 448 N.Y.S.2d 436, 438 (1982). Rule 404(b) also lists, inter alia, intent and plan as relevant issues supporting the introduction of extrinsic evidence. Fed.R.Evid. 404(b). The court's determination that plaintiff has failed to state a claim for punitive damages disposes of any argument that evidence concerning these incidents could be admitted to show a plan by the defendant. There may be, however, other grounds to admit evidence regarding these incidents. There could be, for example, an issue regarding defendant's intent when it breached this contract. Presently, the court is not able to say to a certainty that no evidence regarding these other contract disputes will be admissible. As the Second Circuit has stated: Evidentiary questions ... should especially be avoided at such a preliminary stage of the proceedings. Usually the questions of relevancy and admissibility in general require the context of an ongoing and unfolding trial in which to be properly decided. And ordinarily ... a district court ... should [not] decide to strike a portion of the complaint—on the grounds that the material could not possibly be relevant—on the sterile field of the pleadings alone. Lipsky v. Commonwealth United Corp., 551 F.2d at 893. This denial is made without prejudice to raise the issue at a later time. See United States Football League v. National Football League, 634 F.Supp. 1155, 1165-75 (S.D.N.Y.1986) (treating motion to strike made untimely, and including matter outside the pleadings, as a motion for partial summary judgment), aff'd, 842 F.2d 1335 (2d Cir.1988). CONCLUSION Plaintiff's request for punitive damages is dismissed with prejudice. Defendant's motion to strike is denied, without prejudice to raise the issue at a later time. The parties are directed to proceed with discovery. Discovery shall close August 12, 1988. Any motions to be made shall be filed no later than August 26. If no motions are made, the parties are to file a joint pre-trial order by September 16, 1988. Trial is scheduled for October 11, 1988. SO ORDERED. NOTES [1] In dismissing three causes of action relating to these allegations, the court previously stated that they "state a single tort claim against defendant[]." Avnet, Inc. v. American Motorists Ins. Co., 115 F.R.D. 588, 592 (S.D.N.Y.1987) (emphasis added). This label is consistent with the principle stated in the Restatement (Second) of Contracts section 355: Punitive damages are not recoverable for a breach of contract unless the conduct constituting the breach is also a tort for which punitive damages are recoverable. Id., quoted in Purdy v. Consumers Distrib. Co., 648 F.Supp. 980, 983 (S.D.N.Y.1986). [2] The court in Purdy v. Consumers Distributing Company, 648 F.Supp. 980 (S.D.N.Y.1986), stated that Williamson, Picket, Gross, Inc. v. Hirschfeld, 92 A.D.2d 289, 460 N.Y.S.2d 36 (1st Dep't 1983), was "aberration[al]" from the line of cases discussing the availability of punitive damages in breach of contract actions in that it did not require an allegation of public fraud. See 648 F.Supp. at 982-83. The court disagrees with this reading. See 92 A.D.2d at 295, 460 N.Y.S.2d at 41 ("Suffice to say, `punitive damages are not available for mere breach of contract, for in such a case only a private wrong, and not a public right, is involved.'") (quoting Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 358, 353 N.E.2d 793, 795, 386 N.Y.S.2d 831, 833 (1976)).
01-03-2023
10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1895805/
267 F. Supp. 791 (1967) UNITED STATES of America v. Louis PILNICK, Martin Fleishman, Julius Gladstein, Allan Harris, Rubin Ehrlich, Iris Helms and Golden Palm Acres, Inc., Defendants. No. 66 Cr. 958. United States District Court S. D. New York. April 25, 1967. *792 *793 *794 Robert M. Morgenthau, U. S. Atty., for Southern District of New York, New York City, for United States of America; Lawrence W. Newman, Asst. U. S. Atty., of counsel. Gilbert S. Rosenthal, New York City, for defendant Pilnick; William C. Herman, New York City, of counsel. WEINFELD, District Judge. The indictment charges Pilnick, five other individuals and one corporation with offenses arising out of the sale of undeveloped land in Florida to the public in 1965 and 1966. Count 1 charges all the defendants, and others not named as defendants, with conspiring to violate the mail and wire fraud statutes,[1] and counts 2 through 57 charge five of the individual defendants and the corporation with a scheme to defraud through the use of the mails.[2] Pilnick is named in all 57 counts. Pilnick moves to dismiss the indictment on several distinct grounds, some relating to the indictment itself and others to the manner in which it was obtained. Each of the grounds will be considered separately. *795 MOTION TO DISMISS INDICTMENT Pilnick first moves to dismiss on the grounds that the indictment is vague and fails to comply with Rule 7 (c) of the Federal Rules of Criminal Procedure. While the indictment is wordy and hardly a model pleading, as drawn it is sufficient to withstand this motion. Its sufficiency is not determined by whether it could have been more artfully drawn or made more definite and certain.[3] The conspiracy and the scheme charged are sufficiently set forth to apprise the defendant of the crimes charged so as to enable him to prepare his defense and to plead any judgment entered thereunder as a bar to further prosecution for the same offenses.[4] The omission of details of which defendant complains can be resolved by such bill of particulars to which he is entitled, as hereafter provided.[5] The defendant next contends that certain counts of the indictment must be dismissed because, with respect to each, the items alleged to have been mailed "for the purpose of executing" a scheme to defraud would not have been mailed until after the defendants had received the money and the scheme was completed. Even were defendant's argument meritorious with respect to the counts charging the mailing of receipts and deeds, it fails with respect to those involving confirmations for, "the term `confirmation' is not a word of art. It has no fixed legal meaning nor does it give rise to fixed legal consequences. It may serve a variety of purposes. Merely because the mailings enumerated in these counts are designated as `confirmations' does not indicate what function they served in the alleged transactions or at what stage in the transactions they were placed in the mails."[6] Moreover, the defendant's argument as to the counts involving receipts and deeds is without merit. Neither Kann v. United States[7] nor Parr v. United States,[8] relied upon by defendant, held that the respective indictments failed to state offenses. They held, rather, that the evidence adduced at trial showed the mailing occurred after the scheme had reached fruition, and consequently, proof of an essential element was lacking. This is made abundantly clear in the recent case of United States v. Sampson,[9] where the Supreme Court reversed the dismissal of thirty-four counts of a mail fraud indictment, stating: "We are unable to find anything in either the Kann or the Parr case which suggests that the Court was laying down an automatic rule that a deliberate, planned use of the mails after the victims' money had been obtained can never be `for the purpose of executing' the defendants' scheme. Rather the Court found only that under the facts in those cases the schemes had been fully executed before *796 the mails were used. * * * [S]ubsequent mailings can in some circumstances provide the basis for an indictment under the mail fraud statutes."[10] Here, as in Sampson, there has not yet been a trial. The proof at trial may establish the mailings of receipts and deeds were for the purpose of executing the alleged scheme.[11] If not, defendant may then move for a dismissal of the affected counts. Defendant next urges dismissal of the conspiracy count upon the ground that it alleges two separate and distinct conspiracies.[12] The basis of this contention is that in addition to charging a conspiracy in a scheme "to defraud purchasers of tracts of land in Western Dade County, Florida," which allegedly was carried out through the Golden Palm Acres, Inc., a corporation dominated and controlled by Pilnick, the indictment further charges in certain subparagraphs that Pilnick caused the sale of certain portions of the land to codefendant Martin Fleishman, doing business under the trade name of Atlantic and Pacific Land Company, who resold the same to the persons to be defrauded; accordingly, defendant contends that two conspiracies are charged —the Golden Palm Acres, involving all the defendants, and the Atlantic and Pacific Land Company, involving only himself and Fleishman. However, a fair reading of the indictment makes it clear that a single conspiracy is charged and that the resale of properties through the Fleishman trade name of Atlantic and Pacific Land Company was in furtherance of its purposes. Thus, it is charged that Pilnick participated in setting up the Atlantic and Pacific Land Company and caused to be sold to Fleishman portions of the Western Dade County land for resale to those to be defrauded. The indictment sufficiently alleges Pilnick's involvement with Fleishman's operation in an alleged overall conspiracy which had a single purpose common to all co-conspirators.[13] Whether the government will sustain its allegation of a single conspiracy must await the trial. Next, the defendant urges that dismissal of the indictment is compelled because of alleged violation of his rights under the Fifth and Sixth Amendments. The claim of self-incrimination and the denial of effective assistance of counsel, somewhat interwoven upon the defendant's presentation, rests upon the following circumstances: Pilnick, prior to the indictment, while the matter was under investigation, was requested to and did appear for an interview by an Assistant United States Attorney. He was accompanied by an attorney, who was present through the entire interview. Subsequently, this same attorney represented Norman Babat, who was later named in the indictment as a co-conspirator but not as a defendant, and also Julius Gladstein, named as a defendant only in the conspiracy charge. It is averred, and the government does not deny, that Babat and Gladstein had numerous conferences with the Assistant United States Attorney, and later testified before the grand jury. The defendant charges that "the actions of the *797 office of the United States Attorney in permitting without question a lawyer having such an obvious conflict of interest to represent persons other than Pilnick and to sit in and be present at conferences, discussions and interviews, was highly improper and did violate the rights of the defendant Pilnick under the Fifth and Sixth Amendments * * * and did in fact reduce to a minimum of zero his representation by counsel in his prior interview with the authorities." This broad charge of infringement of the constitutional rights and unethical conduct attributed to the Assistant United States Attorney and defendant's former attorney dissolves upon recital of the facts. The former attorney has filed an affidavit which is unchallenged. It appears that he conferred with Pilnick for about one-half hour prior to his appearance before the Assistant United States Attorney; that thereafter at the interview at which the attorney was present Pilnick repeated everything he had previously told the attorney. Up to this point there is no basis for any claim of adverse interest, since the attorney did not then represent Gladstein or Babat, or that at this single conference the attorney's representation was anything but adequate and professional.[14] The former attorney swears he never told anyone what Pilnick had told him in their sole conference preceding the interview, and that thereafter he had no further conversation with Pilnick. The Assistant United States Attorney swears he was told nothing by the former attorney concerning what Pilnick had told him, and further that no one else told him anything which could be attributed to the former attorney's disclosure of Pilnick's confidence. Despite these unchallenged and unequivocal statements that there was no impairment of the confidential relationship, the defendant presses that when thereafter the former attorney undertook to represent Babat and Gladstein, he "must have" revealed Pilnick's confidences to those other clients; that when Babat and Gladstein appeared before the grand jury, his right to the effective aid of counsel and against self-incrimination was infringed by the government's knowing use of them as witnesses, since they were being advised by "an attorney who was privy to the secrets and confidences of Pilnick." Bluntly put, the charge is made that the attorney revealed to Babat and Gladstein what Pilnick had told him. To support this charge and to overcome the categorical denials by both the former attorney and the Assistant United States Attorney, the defendant offers no proof; instead, he relies upon a line of civil cases which hold that on applications to disqualify lawyers from shifting sides and representing litigants in matters adversely relating to former clients' interests and involving the same subject matter of the original litigation, the court will presume that confidences were disclosed by the previous client.[15] The cases are entirely inapposite. They simply hold that no inquiry will be made as to what the former client told the attorney in order to avoid disclosure of the very matters intended to be protected by the privilege. The presumption is that the client revealed to the attorney confidential matters relating to the subject of representation. No such presumption is required here since it is not disputed that Pilnick made such disclosure. The cases, however, do not hold, as defendant here necessarily *798 contends, that a further presumption is indulged in that the lawyer subsequently breached the relationship and revealed the confidences. But even of more significance, Pilnick's statements no longer were protected by the lawyer-client privilege, since it is not disputed that when he was interviewed by the Assistant United States Attorney he repeated everything he had previously told his lawyer. Any privilege, whether self-incrimination or attorney-client, that Pilnick might have had with respect to information disclosed to his former attorney was destroyed when he gave this same information to the Assistant at the interview.[16] Finally, not only was there no "switching" of sides here, but also it does not appear that Pilnick's interests and those of Babat and Gladstein were antagonistic. Parenthetically, it should be noted that it is not uncommon for a principal defendant, such as Pilnick, to enlist in his own interest the services of his lawyer on behalf of other persons involved in the same alleged crime. To uphold the defendant's position on the facts here presented would permit an easy and convenient means of aborting an indictment. The claim here asserted, even if of constitutional dimensions, is without merit. The defendant makes a further contention that his privilege against self-incrimination was violated when he was subpoenaed to testify before the grand jury after a complaint had been filed and he had been arrested, and after the Assistant United States Attorney had been advised, in advance of his scheduled appearance, that he would assert his privilege before the grand jury. The argument is two-pronged: (1) that as a prime target of the investigation and a potential defendant he was not subject to grand jury questioning, and (2) that since the United States Attorney had been advised the defendant would assert the privilege, to require him to do so before the grand jury constituted compelled demeanor evidence which prejudiced him before the grand jury and necessarily influenced it in voting a true bill. These contentions are without validity. The fact that a witness is a potential defendant does not immunize him from being called upon to testify before a grand jury.[17] Neither does the fact that the witness has been arrested in a matter which is the subject of the grand jury inquiry gain for him automatic immunity from grand jury process.[18] As to the further contention that because his lawyer gave advance notice that he intended to assert his privilege against self-incrimination, he was excused from appearing before the grand jury, sufficient answer is this court's observation on a related issue: "To uphold the defendant's plea in advance of the taking of his testimony upon the mere filing of his affidavit asserting the privilege would take from the Court the determination of the basic issue of whether or not an answer in response to specific questions would incriminate the defendant *799 or subject him to real danger and leave its determination entirely to the defendant. This is not the law."[19] The doctrine asserted by the defendant would serve as a handy vehicle automatically to render sterile grand jury subpoenaes and to deprive the government of its right to the testimony of witnesses—a right subject only to constitutional limitations and not to the unilateral judgment of the witness. Finally, the claim of the defendant that he was prejudiced in the eyes of the grand jury, which in consequence was influenced to return an indictment because of the assertion of his constitutional right, equally is without foundation. No implication of guilt was permissible because he invoked his Fifth Amendment privilege before the grand jury.[20] MOTION FOR CHANGE OF VENUE Defendant Pilnick moves for a transfer of venue to the Southern District of Florida pursuant to Rule 21(a), which provides for such transfer if "there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial." The defendant's claim of prejudice is that the acts of the United States Attorney's office evince a vendetta-like prejudice against him—a view probably entertained by most defendants of their prosecutors; further, he contends that any petit jury outside Florida will necessarily be prejudiced by not understanding that easements in Florida are commonplace and do not reflect upon the character of the land. These contentions are patently frivolous. The prejudice referred to in the Rule is that which would foreclose a fair and impartial trial before a court and jury. No such hostile atmosphere is asserted. Apart from the fact that the charge of prosecution hostility is without support, the personal attitude of the prosecution toward the defendant has no bearing on the issue.[21] Insofar as defendant's argument relating to Florida easements has any validity, it relates not to jury prejudice but to alleged lack of knowledge; he may offer evidence to a jury in this district as to the nature of such easements. The defendant also moves under Rule 21(b), which permits transfer "for the convenience of parties and witnesses, and in the interest of justice" for the transfer of the prosecution either to Florida or New Jersey. A transfer will not be granted "unless the factors involved indicate a balance of inconvenience of some substance to the defendant."[22] Florida is claimed to be a more appropriate forum because Pilnick resides there, the land involved is located there, and Pilnick intends to call expert witnesses upon the trial to testify concerning the nature of the land. Alternatively, New Jersey is claimed as a more appropriate forum because the offices of defendant Golden Palm Acres, Inc. were located there, and most of *800 the acts complained of would have occurred there. Three of the defendants and one co-conspirator live in New Jersey, but within close and easy travel distance to New York. One defendant and five co-conspirators live in this district; another co-conspirator lives on Long Island. None of the persons who allegedly received mailings, as alleged in the substantive counts of the indictment, resides in New Jersey or Florida; many of them reside in New York. Under all the circumstances, not only has defendant not carried his burden of proof that convenience and justice would be best served by transferring this action, but it appears that this district is the most appropriate for the trial of this matter. MOTION FOR SEVERANCE Defendant next moves for a severance under Rule 14 of the Federal Rules of Criminal Procedure. His motion rests upon three grounds: (1) it would be contrary to the interests of justice, for reasons previously discussed, to try him together with defendant Fleishman;[23] (2) he intends to call as witnesses various codefendants who may assert their constitutional privileges not to testify; and (3) any admissions and confessions of codefendants introduced at trial would irreparably prejudice him. As previously discussed, since the indictment charges a single conspiracy, defendant's "two-conspiracy" argument with respect to Fleishman is premature, and his motion for severance upon this ground may be renewed, if appropriate, upon the trial. His second argument is predicated upon a problem which may never arise, and in any event, as he concedes, any codefendant may assert his privilege if called to testify at a subsequent trial of defendant alone. Indeed, even if there were a severance and the codefendants were tried before this defendant, the codefendants could still assert their constitutional privilege, since they might be subject to prosecution under state or other federal laws for actions in or integrally connected with this case.[24] Defendant's final argument is that United States v. Bozza[25] indicates that the heretofore leading case of Delli Paoli v. United States[26] has been effectively overruled by Jackson v. Denno.[27] Acceptance of defendant's argument would mean that whenever the admissions of one codefendant will be used against him at trial, the court must automatically grant severance upon the motion of another codefendant likely to be implicated by such admissions. This is not the holding of Bozza. Rather, the holding is "that there is a point where credulity as to the efficacy of such [limiting] instructions with respect to a confession implicating co-defendants is overstrained, and that this point was reached here."[28] It is clear from both Delli Paoli and Bozza that the necessity for a severance cannot be determined at this stage of the prosecution. If the government does offer any statements of codefendants, the court may then assess the applicability *801 of Delli Paoli,[29] and if necessary protect Pilnick, either by excision of material from offered admissions of codefendants, severance or exclusion of evidence.[30] And, of course, the government may decide not to offer admissions of a codefendant. These are matters to be reserved for the trial. MOTION FOR DISCOVERY AND INSPECTION The defendant's motion for discovery and inspection is granted to the extent that the government shall produce for inspection and copying: (1) all statements made by Pilnick. If such statements have not been reduced to writing or are not in recorded form, then any handwritten notes relating to such statements; (2) all books of account which are within its possession and which it intends to offer in evidence upon the trial; (3) the recorded testimony of defendant Pilnick before the grand jury. The government states that it has no results of reports of scientific tests or experiments made in connection with this case; accordingly, this and all remaining aspects of defendant's motion under Rule 16 are denied. MOTION FOR BILL OF PARTICULARS The motion for a bill of particulars is granted to the extent that the government shall set forth: (1) the names of all co-conspirators presently known to the government and their addresses at the time of their alleged participation in the alleged conspiracy; (2) any overt acts not enumerated in the indictment, concerning which acts the government intends to offer evidence upon the trial of the indictment herein; (3) a legal description of the plots of real estate which were the subject of the mailings referred to in counts 2 through 57; (4) if it intends upon the trial to offer evidence of false and fraudulent pretenses, representations and promises not included in paragraph 3(m) of count 1, set forth the substance thereof; (5) to the extent known to it, the true names of the salesmen who, as alleged in paragraph 3(g) of count 1, concealed their true names; (6) the legal description of any real property it will be claimed, as alleged in paragraph 3(j) of count 1, that the defendant Pilnick caused to be sold to the defendant Martin Fleishman; (7) from where and to where and whom it will be claimed Norman Babat made telephone calls in November and December 1965 and April 24, 1966, as alleged in overt acts 1, 2 and 5; (8) from where and to where and whom it will be claimed Julius Gladstein made telephone calls in December 1965, as alleged in overt act 3; (9) the name and address of the customer and the place where it is alleged Allan Harris "had a meeting with a customer," as alleged in overt act 4; (10) a copy or reproduction of each and every matter and thing named in counts 2 through 57 of the indictment, including any and all envelopes in which it is claimed such matter was mailed or received; (11) the names and last known addresses of persons from whom mail matter was sent addressed to Golden Palm Acres, Inc. or Atlantic and Pacific Land Co., in counts 7, 11, 13, 15, 16, 17, 19, 21, 22, 24, 25, 30, 33, 43, 55 and 56. In all other respects the motion is denied. *802 MOTION TO STRIKE SURPLUSAGE The defendant's motion under Rule 7(d) of the Federal Rules of Criminal Procedure to strike certain language from the indictment as surplusage is denied. The included matter may be relevant to the conspiracy charge; in any event, there is no basis to the claim that its inclusion is prejudicial or inflammatory.[31] The defendant's final motion to extend his time to make additional motions after the government has complied with the discovery and inspection order entered herein is denied. As the above discussion indicates, the defendant's counsel has made a series of extended motions which have covered all areas of pretrial inquiry. To grant this motion would only serve to delay the trial. NOTES [1] 18 U.S.C. § 371. [2] 18 U.S.C. §§ 1341, 1343. [3] United States v. Pope, 189 F. Supp. 12, 17 (S.D.N.Y.1960). See also United States v. Debrow, 346 U.S. 374, 376, 74 S. Ct. 113, 98 L. Ed. 92 (1953); Hagner v. United States, 285 U.S. 427, 52 S. Ct. 417, 76 L. Ed. 861 (1932); Clay v. United States, 326 F.2d 196 (10th Cir.), cert. denied, 372 U.S. 970, 83 S. Ct. 1095, 10 L. Ed. 2d 132 (1963). [4] See Russell v. United States, 369 U.S. 749, 763-764, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962); United States v. Cruikshank, 92 U.S. 542, 557-559, 23 L. Ed. 588 (1875); United States v. Hoffa, 205 F. Supp. 710, 715-717 (S.D.Fla.), cert. denied sub nom. Hoffa v. Lieb, 371 U.S. 892, 83 S. Ct. 188, 9 L. Ed. 2d 125 (1962). [5] See United States v. Brown, 335 F.2d 170, 172 (2d Cir. 1964); United States v. Ketchum, 320 F.2d 3, 8 (2d Cir.), cert. denied, 375 U.S. 905, 84 S. Ct. 194, 11 L. Ed. 2d 145 (1963). [6] United States v. Greenberg, 30 F.R.D. 164, 167 (S.D.N.Y.1962). [7] 323 U.S. 88, 93-95, 65 S. Ct. 148, 89 L. Ed. 88 (1944). [8] 363 U.S. 370, 392-393, 80 S. Ct. 1171, 4 L. Ed. 2d 1277 (1960). [9] 371 U.S. 75, 83 S. Ct. 173, 9 L. Ed. 2d 136 (1962). [10] Id. at 80, 83 S.Ct. at 176. [11] See Friedman v. United States, 347 F.2d 697, 710-711 (8th Cir.), cert. denied, 382 U.S. 946, 86 S. Ct. 407, 15 L. Ed. 2d 354 (1965); Clark v. United States, 93 U.S. App.D.C. 61, 208 F.2d 840, cert. denied, 346 U.S. 865, 74 S. Ct. 105, 98 L. Ed. 376 (1953). [12] See Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). [13] See Blumenthal v. United States, 332 U.S. 539, 557-559, 68 S. Ct. 248, 92 L. Ed. 154 (1947); Friedman v. United States, 347 F.2d 697, 708 (8th Cir.), cert. denied, 382 U.S. 946, 86 S. Ct. 407, 15 L. Ed. 2d 354 (1965); United States v. New York Great A & P Tea Co., 137 F.2d 459, 463 (5th Cir.), cert. denied, 320 U.S. 783, 64 S. Ct. 191, 88 L. Ed. 471 (1943); United States v. Bruno, 105 F.2d 921, 922-923 (2d Cir.), rev'd on other grounds, 308 U.S. 287, 60 S. Ct. 198, 84 L. Ed. 257 (1939). [14] See United States v. Garguilo, 324 F.2d 795, 796-797 (2d Cir. 1963); United States v. Gonzalez, 321 F.2d 638 (2d Cir. 1963); United States v. O'Donnell, 260 F.2d 232 (7th Cir. 1958); United States v. Stern, 123 F. Supp. 118, 122-123 (D. Md.1954), aff'd, 219 F.2d 263 (4th Cir. 1955). [15] Marco v. Dulles, 169 F. Supp. 622, 629-630 (S.D.N.Y.), appeal dismissed, 268 F.2d 192 (2d Cir. 1959); T. C. Theatre Corp. v. Warner Bros., 113 F. Supp. 265, 268-269 (S.D.N.Y.1953). [16] See Himmelfarb v. United States, 175 F.2d 924, 938-939 (9th Cir.), cert. denied, 338 U.S. 860, 70 S. Ct. 103, 94 L. Ed. 527 (1949); Green v. Crapo, 181 Mass. 55, 62 N.E. 956, 959 (1902) (Holmes, J.). ("The privacy for the sake of which the privilege was created was gone by the appellant's own consent, and the privilege does not remain under such circumstances for the mere sake of giving the client an additional weapon to use or not at his choice.") [17] United States v. Irwin, 354 F.2d 192, 198-199 (2d Cir. 1965), cert. denied, 383 U.S. 967, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (1966); United States v. Rosen, 353 F.2d 523 (2d Cir. 1965), cert. denied, 383 U.S. 908, 86 S. Ct. 889, 15 L. Ed. 2d 663 (1966); United States v. Winter, 348 F.2d 204, 207 (2d Cir.), cert. denied, 382 U.S. 955, 86 S. Ct. 429, 15 L. Ed. 2d 360 (1965); United States v. Cleary, 265 F.2d 459 (2d Cir.), cert. denied, 360 U.S. 936, 79 S. Ct. 1458, 3 L. Ed. 2d 1548 (1959). [18] See United States v. Cleary, 265 F.2d 459 (2d Cir.), cert. denied, 360 U.S. 936, 79 S. Ct. 1458, 3 L. Ed. 2d 1548 (1959). See also United States v. Cefalu, 338 F.2d 582, 584 (7th Cir. 1964). [19] United States v. Lustig, 16 F.R.D. 138, 139-140 (S.D.N.Y.1954). See also Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963); United States v. Irwin, 354 F.2d 192, 199 (2d Cir. 1965), cert. denied, 383 U.S. 967, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (1966); United States v. Winter, 348 F.2d 204 (2d Cir.), cert. denied, 382 U.S. 955, 86 S. Ct. 429, 15 L. Ed. 2d 360 (1965); United States v. Cleary, 265 F.2d 459 (2d Cir.), cert. denied, 360 U.S. 936, 79 S. Ct. 1458, 3 L. Ed. 2d 1548 (1959); Enrichi v. United States, 212 F.2d 702 (10th Cir. 1954); United States v. Leighton, 265 F. Supp. 27 (S.D.N.Y.1967); Untied States ex rel. Laino v. Warden, 246 F. Supp. 72 (S.D. N.Y.1965), aff'd per curiam, 355 F.2d 208 (2d Cir. 1966). [20] See Grunewald v. United States, 353 U.S. 391, 421, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957); United States v. Tomaiolo, 249 F.2d 683, 690-691 (2d Cir. 1957). [21] Cf. Wood v. United States, 357 F.2d 425, 427 (10th Cir.), cert. denied, 385 U.S. 866, 87 S. Ct. 129, 17 L. Ed. 2d 94 (1966). [22] United States v. Cohen, 35 F.R.D. 227, 232 (N.D.Cal.1964). [23] Defendant also urges his trial together with Gladstein would, for reasons previously discussed, prejudice him. This aspect of his motion has, however, become moot, since Gladstein pleaded guilty to the count naming him. [24] See Murphy v. Waterfront Comm'n, 378 U.S. 52, 79, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964); Hoffman v. United States, 341 U.S. 479, 486-488, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); Bowman v. United States, 350 F.2d 913, 914-915 (9th Cir. 1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1209, 17 L. Ed. 2d 212 (1966). [25] 365 F.2d 206 (2d Cir. 1966). [26] 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957). [27] 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). This contention is of doubtful validity in the light of the recently decided Spencer v. State of Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967). See also United States v. Jones, 374 F.2d 414 (2d Cir. 1967). [28] 365 F.2d 206, 217 (2d Cir. 1966). [29] Compare United States v. Bozza, 365 F.2d 206 (2d Cir. 1966), with United States v. Lovejoy, 364 F.2d 586 (2d Cir. 1966). [30] See United States v. Kahaner, 203 F. Supp. 78, 82-83 (S.D.N.Y.1962). [31] United States v. Chas. Pfizer & Co., 217 F. Supp. 199, 201 (S.D.N.Y.1963); United States v. Klein, 124 F. Supp. 476, 479-480 (S.D.N.Y.1954).
01-03-2023
10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2892606/
NO. 07-03-0524-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MARCH 21, 2005 _______________________________ IN THE INTEREST OF BRITTANY NICOLE SANDERS _______________________________ FROM THE 320 TH DISTRICT COURT OF POTTER COUNTY; NO. 63,497-D; HON. DON R. EMERSON, PRESIDING _______________________________ Opinion _______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Gail Wayne Sanders (Sanders) appeals from an order establishing his parentage as father of Brittany Nicole Sanders and ordering him to pay retroactive child support of $52,400, attorney’s fees, and court costs.  Though not contesting paternity, he nonetheless attacks the trial court’s 1) failure to execute findings of fact and conclusions of law supporting its determination, 2) award of $52,400 as retroactive support, and 3) award of $8,000 as attorney’s fees.  We affirm the judgment of the trial court. Background The dispute before us involves the attempt by Rolisa Carol Utzman to establish that Sanders was the father of her child Brittany and obtain retroactive child support.  Brittany was born on November 30, 1984, and Rolisa and Sanders continued to have a relationship through 1991.   Throughout this time and continuing through the date of trial, Sanders was married to another person. After an evidentiary hearing, the trial court found that the amount of net resources available to Sanders beginning January, 1991, and continuing through May of 2003, was in excess of $4,000 per month.  It also concluded that Sanders’ retroactive child support was $400 per month for the same period and that he owed Utzman a total of $52,400. Issue One – Findings of Fact Sanders’ first issue involves the trial court’s failure to timely execute findings of fact and conclusions of law.  The record discloses that he did ask the trial court to execute findings of fact and conclusions of law per Texas Rule of Civil Procedure 296.  And, though the trial court did not comply with the request within the time parameters established by the applicable rules of procedure, it nevertheless executed a set on March 22, 2004.  Those findings have also been made part of the appellate record.  Furthermore, Sanders has not contended that they are deficient; nor has he asked for an opportunity to re-brief the issues in view of the findings and conclusions.   It is clear that we may remedy the trial court’s failure to execute findings and conclusions by abating the appeal, remanding the cause, and directing the trial court to issue same.   Lubbock County Cent. Appraisal District v. Contrarez, 102 S.W.3d 424, 426 (Tex. App.–Amarillo 2003, no pet.).  Since the trial court effectuated that remedy sua sponte , we cannot but hold that Sanders’ complaint has become moot.  Thus, we overrule the first issue. Issue Two – Retroactive Child Support Through his second issue, Sanders contends that the trial court abused its discretion in ordering him to pay $52,400 as retroactive support.  This is allegedly so because the award lacks evidentiary support and the trial court failed to reduce the sum by the support he had already paid.  Moreover, the award supposedly lacks evidentiary support because the evidence fails to illustrate that his net resources exceeded $4000 per month as found by the trial court.  We overrule the issue.   We review the decision of the trial court under the standard of abused discretion.   See In re Tucker, 96 S.W.3d 662, 668 (Tex. App.–Texarkana 1998, no pet.) (stating that the courts of appeal review an award of retroactive child support for an abuse of discretion); Garza v. Blanton, 55 S.W.3d 708, 710 (Tex. App.–Corpus Christi 2001, no pet.)  (stating that whether to award retroactive support and the amount awarded lies within the discretion of the trial court).  Furthermore, whether it properly exercised its discretion depends upon not only whether it acted with reference to guiding rules and principles, In re Hamer, 906 S.W.2d 263, 265 (Tex. App.–Amarillo 1995, no writ), but also whether the decision enjoys evidentiary support.   See id. at 265 n.1 (holding that while the existence of evidence supporting the trial court’s decision is not an independent ground of attack, it is nonetheless an indicia to consider when determining if the trial court abused its discretion).  Moreover, we are obligated to view the evidence in the light most favorable to the trial court’s decision and indulge in every presumption favoring the judgment.   In re Tucker , 96 S.W.3d at 664-65.   Next, should the trial court decide to award retroactive support, it is then free to turn to the child support guidelines found in Chapter 154 of the Family Code to help in ascertaining the amount of the award.   See Tex. Fam. Code Ann. § 154.131(a) (Vernon 2002) (stating that the “child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered”).  And, while compliance with those guidelines is not mandatory, In re Valadez , 980 S.W.2d 910, 913 (Tex. App.–Corpus Christi 1998, pet. denied), it must nonetheless “consider” the “net resources” of the father during the relevant time period and whether 1) the mother of the child had made any previous attempts to notify the father of his paternity, 2) the father had knowledge of his paternity, 3) the order of retroactive child support will impose an undue financial hardship on the father or his family, and 4) the father provided actual support or other necessaries before the filing of the action.   Tex. Fam. Code Ann. §154.131(b) (Vernon 2002).  Finally, the term “net resources” means all the income received by the obligor, id.  §154.062(b), but not his losses.   In re Grossnickle , 115 S.W.3d 238, 248 (Tex. App.–Texarkana 2003, no pet.); Fanning v. Fanning , 828 S.W.2d 135, 150 (Tex. App.–Waco 1992), rev’d on other grounds , 847 S.W.2d 225 (Tex. 1993) (involving the similarly worded predecessor to §154.062(b) of the Family Code). The evidence of record contains both the joint tax returns filed by Sanders and his wife during the years 1991 through 2001 and a summary of those returns.  They illustrate that the couple had income totaling $1,261,748 for the ten-year period.  Moreover, dividing the sum by ten results in an average annual income approximating $126,175.   See Norris v. Norris , 56 S.W.3d 333, 341-42 (Tex. App.–El Paso 2001, no writ) (holding that the trial court did not abuse its discretion in determining monthly resources by averaging the obligor’s income over a period of time).  And, while Sanders testified that most of the income was earned by his wife or from her separate property, the trial court was free to disbelieve him. (footnote: 1)  So, it could well have decided to attribute the entire amount to him. (footnote: 2) Next, given an average annual income of $126,175, and in view of the guidelines appearing in §154.061 of the Family Code (which guidelines are used in calculating net monthly income), one could reasonably conclude from the record before us (and assuming that the trial court discredited his testimony about who generated the income) that Sanders net monthly income was around $7170 for that ten-year period.  Finally, the latter sum does exceed $4000 per month, as found by the trial court.  So, we reject Sanders’ argument that there “is insufficient evidence of Appellant’s resources to support the judgment . . . .” (footnote: 3) We next address Sander’s attack upon the finding wherein the trial court determined that “the percentage applied to the first $6,000.00 of . . . Sanders’ net resources for child support by the actual order rendered is 16 percent.”  This argument is premised upon the allegation that the trial court found Sanders’ net resources “to be $4,000.00 not $6,000.00."  However, the pertinent finding actually states that his net resources were “in excess of $4,000.00 per month,” not simply $4000.  Furthermore, the calculations made earlier in this opinion could have supported a finding that his income approximated $7000 per month.  Additionally, 16 percent of $7000 and $6000 is $1120 or $960, respectively, and both sums are far more than the $400 monthly support obligation that the court applied retroactively.  So, in essence, we cannot see how he was or is harmed by the finding, assuming it is inaccurate. Sanders also posits that the trial court needed to enter findings required by the Family Code.  The findings in question involved some explanation justifying the trial court’s decision to simply not set the support obligation at 20 percent of Sanders’ net resources.  Yet, this argument is premised upon the acceptance of Sanders’ testimony that his net resources were actually far less than $4000 per month.  As stated before, the trial court was entitled to disbelieve him and conclude that his resources were actually greater than that amount.    We next consider the suggestion that the trial court erred in failing to give Sanders credit for the child support he paid between 1991 and 2001.  This argument is founded upon that portion of the Family Code requiring the trial court to consider whether the obligor provided actual support or other necessaries to the child before suit was initiated.   Tex. Fam. Code Ann. §154.131(b)(4) (Vernon 2002).  And, we reject it for several reasons. First, §154.131(b)(4) does not expressly require the trial court to credit an obligor with past support payments.  It simply states that the trial court “shall consider” whether the obligor provides support or necessaries in ordering retroactive support.   Tex. Fam. Code Ann. §154.131(b)(4) (Vernon 2002).  Moreover, the plain meaning of the word “consider” encompasses the act of thinking about or contemplating something.   Merriam-Webster’s Collegiate Dictionary 265-66 (11 th ed. 2003).  And, requiring one to think or contemplate about a particular act is a far cry from ordering that the particular act be done.  Furthermore, inherent in the term is the concept of discretion; that is, while the person told to think about doing something may have to think about it, the directive leaves the decision whether to do the thing up to him.  And, given this interpretation, we cannot say that the trial court failed to consider Sanders’ prior efforts at support.  For instance, the trial court could have considered whether the houses and car given Rolisa by Sanders were actually intended to be child support.  In so contemplating the matter, it could have recalled the evidence illustrating that Sanders was living with Rolisa at the time while still married to his wife.  And, had it so recalled that evidence, it could have also concluded that maybe the house and car were actually provided to facilitate the extramarital relationship, and not to help out his daughter.   Additionally, our analysis of the record (as discussed above) uncovered evidence that would have supported a finding that Sanders actually had monthly net resources exceeding $6000, not just $4000.  And, to the extent that the trial court was authorized to presumptively order an obligor to pay 20% of his net resources as child support (as previously argued by Sanders), it could have found Sanders’ retroactive obligation to be $1200 per month, as opposed to simply $400. (footnote: 4)  Indeed, if it only found that Sanders’ resources were $4000 per month, the trial court could have ordered him to pay $800 per month in retroactive support.  Yet, it merely ordered him to pay $400.  Given this, we cannot say that the trial court failed to “consider” Sanders’ prior attempts at support in determining the amount of retroactive support to award. Attorney’s Fees In his next and last issue, Sanders alleges that the trial court erred in awarding counsel for Brittany’s mother attorney’s fees of $8000.  This was purportedly error because the recipient of the fees did not segregate the amount incurred in prosecuting the action to establish parentage from that related to obtaining retroactive support.  Moreover, such segregation purportedly was required because Sanders admitted to paternity immediately after he was sued.  We overrule the issue. Statute provides for the recovery of attorney’s fees incurred in establishing parentage.   Tex. Fam. Code Ann. §160.636(c) (Vernon 2002).  Furthermore, attorney’s fees may be awarded in any suit arising under Title 5 of the Texas Family Code.   Tex. Fam. Code Ann. §106.002(a) (Vernon Supp. 2004-05).  Proceedings to recover retroactive child support fall under Title 5.   See e.g. Tex. Fam. Code Ann. §154.009(a) (Vernon 2002) (a provision allowing the court to order a parent to pay retroactive child support and falling under chapter 154 of Title 5 of the Family Code).  Thus, attorney’s fees may be awarded in a suit to recover retroactive support.  So, because fees are recoverable in both a suit to establish parentage and to obtain retroactive fees and those were the two claims Brittany’s mother pursued, neither she nor her attorney were obligated to segregate the fees as alleged by Sanders.    Having overruled all issues, we affirm the judgment of the trial court. Brian Quinn      Justice FOOTNOTES 1:Indeed, the trial court expressly questioned the credibility of Sanders’ testimony at trial.  This may be due to the evidence that even though his estranged wife supposedly owned the assets generating the income he, nonetheless, exercised extensive control over them and had income generated by them sent to his own address.       2:While authority holds that a trial court cannot arbitrarily allot a percentage of community income to one spouse or another, see e.g., Powell v. Swanson , 893 S.W.2d 161, 163-64 (Tex. App.–Houston [1 st Dist.] 1995, no writ), we again note that the trial court had before it evidence indicating that Sanders, as opposed to his wife, operated the businesses which generated the income and had much of that income sent to his own mailing address.  Furthermore, he had sufficient monies to allegedly buy homes for his child’s mother, renovate those homes, buy $70,000 worth of ostriches, buy and give cars to the mother of his child, and buy a quarter of a million dollars worth of cars while supposedly having little income of his own.  This provides some evidence upon which the trial court could have reasonably allotted the income appearing on the tax returns to Sanders.      3:In so holding we again note that business losses (other than those suffered by a self-employed individual) are excluded when determining an obligor’s net resources.   In re Grossnickle , 115 S.W.3d 238, 248 (Tex. App.–Texarkana 2003, no pet.); Fanning v. Fanning , 828 S.W.2d 135, 150 (Tex. App.–Waco 1992) rev’d in part on other grounds , 847 S.W.2d 225 (Tex. 1993).   So, while the tax returns indicated that Sanders had little income for tax purposes due to losses he suffered, that does not mean that he had little income for purposes of determining his child support obligation.   See Powell v. Swanson , 893 S.W.2d 161, 163 (Tex. App.–Houston [1 st Dist.] 1995, no writ) (noting the difference between calculating resources for income tax purposes and calculating them for purposes of child support).  And, to the extent he posits that various of the losses were actually losses experienced while self-employed, the trial court could have rejected the proposition that he was self-employed.  Sanders did admit to being the vice-president of Cottonwood Cove Investment Corporation, a corporation through which he conducted many business transactions.  Furthermore, while he also suggests that his auto and real estate businesses were his own, he fails to cite us to evidence illustrating that they were sole proprietorships as opposed to corporations.  And, if they were the latter, then he cannot be considered self-employed when operating them, given the separate identity of a corporate entity. 4:Twenty percent of $6000 is $1200.
01-03-2023
09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/3813172/
This cause was tried in the district court of Okmulgee county, on appeal from the county court of said county. The motion for new trial was overruled on June 1, 1921, and on that day the appellants, R.L.A. Steigleder and others, were given 90 days within which to prepare and serve case-made. On July 29, 1921, the court made an order of further extension of 60 days from that date within which to make and serve case-made; on September 29, 1921, the court made another order of extension of 15 days from that date within which to make and serve case-made, and within the time allowed by the last order the case-made was served upon the appellees. The appellees have filed their motion to dismiss the appeal for the reason that the case-made was not served within the time allowed by a valid order of the trial court. The order of extension made by the court on July 29, 1921, expired on September 27, 1921; therefore the trial court was without jurisdiction to make the order of September 29, 1921, and such order was a nullity, and the case-made which was made and served under said order is a nullity and conferred no jurisdiction upon this court. The motion to dismiss the appeal is sustained, and the appeal dismissed. HARRISON, C. J., and PITCHFORD, McNEILL, and ELTING, JJ., concur.
01-03-2023
07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/127444/
537 U.S. 1213 CERNAv.UNITED STATES. No. 02-8247. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. 2 C. A. 6th Cir. Certiorari denied.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/2792513/
IN THE SUPREME COURT OF MISSISSIPPI NO. 2013-CA-01411-SCT JANET OLIER v. DONNA BAILEY ON MOTION FOR REHEARING DATE OF JUDGMENT: 08/02/2013 TRIAL JUDGE: HON. DALE HARKEY TRIAL COURT ATTORNEYS: BRENT M. BICKHAM C. PAIGE HERRING COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BRENT M. BICKHAM ATTORNEY FOR APPELLEE: C. PAIGE HERRING NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED IN PART; REVERSED IN PART AND REMANDED - 04/09/2015 MOTION FOR REHEARING FILED: 01/08/2015 MANDATE ISSUED: EN BANC. KITCHENS, JUSTICE, FOR THE COURT: ¶1. The motion for rehearing is granted. The original opinions of this Court are withdrawn and these opinions are substituted therefor. ¶2. Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard. As she attempted to flee, she fell and broke her arm. Olier sued Bailey in the County Court of Jackson County under a theory of premises liability and, alternatively, under the dangerous- propensity rule. The trial court granted summary judgment because it found that Olier was a licensee on Bailey’s property and that Bailey did not breach her duty of care toward Olier. It also denied relief under the dangerous-propensity rule because there was no evidence that the particular goose that bit Olier ever had exhibited dangerous propensities prior to the incident. Olier appealed to the Jackson County Circuit Court, which affirmed. Olier then filed the instant appeal. We hold that, while Olier cannot, as a matter of law, pursue her claim under her theory of general premises liability, she can proceed under the dangerous- propensity theory. Accordingly, we affirm the trial court judgment in part, reverse it in part, and remand for further proceedings. FACTS AND PROCEDURAL HISTORY ¶3. Olier and Bailey became acquainted through a gardening website called “Dave’s Garden,” a message board of sorts for gardening enthusiasts to share their hobby. On the day of Olier’s injury, she visited Bailey at her home to view some of Bailey’s plants. Bailey, who has a “Beware–Attack Geese” sign in her yard, also informed Olier verbally that she kept geese in her yard. Bailey kept several five-gallon buckets of water in the yard lined along the edge of the porch to provide the geese drinking water and to act as a barrier so the birds could not walk onto the porch. ¶4. Olier wanted to see Bailey’s blooming banana plant in the yard, and she ventured beyond the buckets while Bailey remained on the front porch. As Olier stepped over the buckets, a goose squawked at her. Olier said the goose was large and that its neck reached out as if it meant to bite her chest. She stepped back onto the porch, within the safe confines of the bucket-fence, and told Bailey she could not go out into the yard because of the geese. Bailey assured Olier that the geese would not bite if Bailey was with her and offered Olier 2 a bamboo pole with which to fend off the birds. When the two women entered the yard, Bailey attempted to lead the geese away from Olier. However, the geese noticed Olier and approached her, squawking and hissing. Frightened by the geese, and thinking that the bamboo pole was useless, Olier threw it to the ground. At this point, a goose reached out and nipped her in the “crotch area.” Olier turned to flee, tripped over one of the buckets lining the patio, and fell, breaking her arm. ¶5. Olier sued Bailey and her husband1 in the County Court of Jackson County. For her injuries, Olier sought $200,000, the jurisdictional limit, plus court costs. Olier pursued her claim on two theories of liability: premises liability and liability under the dangerous- propensity rule. Bailey moved for summary judgment, arguing that Olier was a licensee at Bailey’s home when she was injured and that Bailey did not breach her duty of care to Olier. Bailey also contended that the goose that attacked Olier had not exhibited dangerous tendencies previously, and thus the dangerous-propensity rule was inapplicable. Olier responded by arguing that Bailey had provided a bamboo pole to Olier for the explicit purpose of fending off the aggressive geese, which showed that Bailey knew about their aggressive and dangerous propensity. ¶6. The trial court granted summary judgment in favor of Bailey, finding that Olier was a licensee, that Bailey did not breach her duty of care to a licensee, and that the dangerous- propensity rule did not apply. The Jackson County Circuit Court affirmed, and this appeal soon followed. Bailey has filed an additional motion to strike portions of Olier’s brief. 1 Bailey’s husband later was dismissed from the suit with prejudice. 3 BAILEY’S MOTION TO STRIKE PORTIONS OF OLIER’S BRIEF ¶7. In her Motion to Strike Portions of Olier’s Brief, Bailey argues that several of Olier’s arguments on appeal should be struck because they were not raised before the trial court. We find that the motion is not well taken and should be denied. We are not inclined to parse through the different arguments that may or may not have been made at the trial level for the purpose of determining whether to strike them from a brief. If the record reveals that an argument was not made before the trial court, we will address it appropriately. Accordingly, Bailey’s Motion to Strike Portions of Olier’s Brief is denied. ANALYSIS ¶8. Olier’s issues on appeal are as follows: I. Do genuine issues of material fact exist regarding whether Olier was an invitee or licensee, and, if Olier was a licensee, did Bailey nevertheless breach her duty of care to Olier? II. Should the Hoffman affirmative negligence doctrine, which applies to business premises, be expanded to cover domiciles? III. Do domestic fowl fall under the dangerous propensity rule, and did Bailey have knowledge of her geese’s dangerous propensity? ¶9. Our well-known standard of review from a trial court’s grant of summary judgment is de novo. Double Quick, Inc. v. Moore, 73 So. 3d 1162, 1165 (¶ 7) (Miss. 2011). We view the evidence “in the light most favorable to the party against whom the motion has been made.” Id. If the movant can “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[,]” then summary judgment is appropriate. M.R.C.P. 56(c). 4 I. Janet Olier was a licensee as a matter of law. ¶10. In determining whether liability attaches to a landowner, this Court must determine (1) the status of the visitor, whether trespasser, licensee, or invitee; (2) the duty that the landowner owed to the visitor based on that status; and (3) whether the landowner breached his or her duty of care to the visitor. Hoffman v. Planters Gin Co., 358 So. 2d 1008, 1011 (Miss. 1978). A. Olier’s Status ¶11. Olier argues that genuine issues of material fact exist regarding whether she was an invitee on the day that she visited Bailey’s home. Bailey argues that Olier was a licensee as a matter of law, and the trial court agreed. ¶12. A person is classified as a licensee if he or she enters the property for “his or her own convenience, pleasure or benefit pursuant to the license or implied permission of the owner. . . .” Massey v. Tingle, 867 So. 2d 235, 239 (¶ 14) (Miss. 2004). We classify an invitee as a visitor “who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Hoffman, 358 So. 2d at 1011. The difference in classification is important; a landowner owes a much higher duty of care to invitees than he or she does to licensees. The landowner owes an invitee the duty “to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not [in] plain and open view.” Little by Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (citation omitted). On the other hand, the landowner owes a 5 licensee the duty only “to refrain from willfully or wantonly injuring him.” Id. (citation omitted). ¶13. The trial court found that Olier was a licensee. Olier argues that the parties were friends, that they shared an interest in gardening, that they had visited each other’s yards and had gone to trade shows, and that they traded plants and flowers with each other. In other words, she argues that her visit with Bailey to discuss their shared hobby of gardening and to take a sample of Bailey’s plant was mutually beneficial, such that her status was that of an invitee. Bailey argues that she received no benefit from Olier that would confer upon Olier the status of invitee. Instead, Bailey argues the entire purpose of the visit was for Olier to see Bailey’s plants, and perhaps take a sample home, which would have benefitted only Olier. ¶14. There is case law establishing that a social guest can become an invitee if sufficient benefit is bestowed upon the landowner by nature of the guest’s visit. This Court has held that a visitor who went to the home of her mother to take the mother to a doctor was an invitee entitled to a higher degree of care. Minor v. Eng’g Serv. Co., Inc., 304 So. 2d 45, 48 (Miss. 1974). More recently, in Hall v. Cagle, 773 So. 2d 928 (Miss. 2000), this Court confronted the classification of a guest who was helping the homeowner unload boxes, arrange furniture, and move into the house. The Court, citing Minor, held that the plaintiff “was at the home of the Cagles to perform a service for their benefit, i.e., to assist them in moving and unpacking.” Id. at 930 (¶ 7). The Court held that the plaintiff’s service to the landowner was sufficient to render her an invitee, and that she had “alleged and proved sufficient facts to make a prima facie showing that she was an invitee rather than a licensee 6 such that” her suit should have survived summary judgment. Id. (¶ 8). See also Pinnell v. Bates, 838 So. 2d 198, 202 (¶ 14) (Miss. 2002) (holding that there was a factual dispute regarding the status of a visitor who came to a friend’s home and helped out with housework because the homeowner was having back trouble, and summary judgment therefore was inappropriate). ¶15. We find the facts in this case distinguishable from those in which we found an issue of fact regarding the entrant’s status. In Minor, Hall, and Pinnell, the plaintiff was performing a service for the landowner that conferred a genuine benefit on the landowner, whether that was helping take someone to a doctor, helping someone move in, or assisting with housework.2 Here, Olier came at Bailey’s invitation to view Bailey’s plants. She did not assist Bailey with housework, help her move, take her somewhere, or do anything to benefit Bailey. Instead, she came entirely for her own benefit to look at Bailey’s plants and perhaps take a sample home with her. 2 The Court has deemed these types of visits mutually beneficial, although in fact the benefit to the landowner clearly is unilateral. No benefit, other than the pleasure of assisting a friend, inures to the visitor who assists the landowner without compensation. This confusion about mutual benefit probably is a result of the classical definition of an invitee as a customer of a business who receives the benefit of purchasing goods from the premises owner. In a social context, the benefit to the visitor disappears, except for a vague altruistic benefit which this Court never has recognized as one deserving of invitee status. Accordingly, our rule for classifying such social guests as invitees is more properly deemed one of unilateral benefit to the landowner. If a social visitor’s purpose is to confer a benefit upon the landowner, then that visitor is classified as an invitee. Of course, if there is some mutual benefit, such as payment for the assistance, the visitor clearly is an invitee. 7 ¶16. Accordingly, there is no issue of fact regarding Olier’s status. She came to Bailey’s home at Bailey’s invitation entirely for her own benefit. Olier was a licensee as a matter of law. B. Bailey did not breach her duty of care as a landowner to Olier. ¶17. Olier argues that, even if she was a licensee at Bailey’s home, questions of material fact remain regarding whether Bailey breached her duty of care to her. Olier argues that the geese were a hidden danger, and that her being in the yard with them, with her access to the porch blocked by a wall of buckets, was tantamount to a trap. She argues that Bailey’s geese expertise and her knowledge of their aggressive propensity militate toward a finding that she willfully and wantonly injured Olier. ¶18. As Olier was a licensee, Bailey owed her the duty “to refrain from willfully or wantonly injuring” her. Little by Little, 719 So. 2d at 760. This Court also has held that, against a licensee, a landowner has a duty “not to set traps for him by exposing him to hidden perils.” Marlon Inv. Co. v. Connor, 149 So. 2d 312, 315 (Miss. 1963). However, “[o]nce the licensee in fact discovers the danger, he may not later complain of it.” Id. at 316. As for willful and wanton injury, this Court has stated: Willfulness and wantonness connote knowingly and intentionally doing a thing or wrongful act. . . . The guest assumes the ordinary risks which are attached to the premises. No exception is made to the rule because of the fact that the guest enters on the host’s express invitation to enjoy his hospitality. A host merely offers his premises for the enjoyment of his guests with the same security which the host and members of his family who reside with him have. Raney v. Jennings, 158 So. 2d 715, 718 (Miss. 1963). 8 ¶19. Here, the geese were not a hidden danger. Bailey had a sign warning visitors of their presence, and Olier saw them in the yard before she stepped onto it. The water buckets were plainly visible, and Olier was aware of them, as she had to step over them to enter the yard. Bailey offered a bamboo stick for Olier to use in protecting herself from the geese, an action that was at odds with any intent to injure. Bailey accompanied Olier into the yard, another factor which weighs against willful and wanton injury. There is no evidence in the record that Bailey either “knowingly or intentionally” allowed her domestic geese to roam the yard to bite Olier, or placed the buckets of water in such a manner that would constitute a hazard. We hold that Bailey did not breach her duty of care to Olier, a licensee, as a matter of law. ¶20. Presiding Justice Dickinson contends that Bailey’s duty of care toward licensees on her property is the same regardless of the nature of the negligent activity involved. This is unworkable for several reasons, the main one being that the presence of domestic animals cannot rightly be said to be a condition of the premises.3 This Court never has held, and the dissent points to no authority that does hold, that keeping animals on one’s property is the same as having “spills on the floor, cracks in the sidewalks, improperly stacked shelves, or exposed electrical wiring.” All of the examples offered by the Dickinson dissent are stationary conditions of the property that remain in place unless moved or changed by the landowner. Animals exist independently of the property; they are capable of independent movement and action and present different potential for harm in different places to different 3 This much was admitted by Bailey in her memorandum in support of her motion to strike portions of Olier’s brief, in which counsel for Bailey stated, “Candidly, counsel would assert that the animal law would appear to apply because the incident was not one involving a defect or issue with the premises.” 9 persons at different times. This is one of the many reasons that animals should not be considered conditions of the property. Accordingly, causes of action for injuries related to animal attacks should be maintained independently of premises-liability actions, which in some cases may be pled as separate counts or claims in the same civil pleading. ¶21. Several of the examples cited by Presiding Justice Dickinson are inapposite to the situation before us, as they come from cases in which the only way the plaintiff could have sued the landowner was under a theory of premises liability because the landowner had no ownership or control over the person or thing that caused injury to the plaintiff. In Albert v. Scott’s Truck Plaza, 978 So. 2d 1264, 1265 (¶ 2) (Miss. 2008), the plaintiff’s wife was hit and killed by a truck driven by a third party with no relationship to the landowner. The only avenue of relief available to the plaintiff against the landowner was via premises liability, as the landowner did not own or operate the truck that had killed the decedent. ¶22. Similarly, in the cases involving landowner liability for injuries caused to invitees or licensees on premises, premises liability was the only way to file suit against the landowner. In Kroger Co. v. Knox, 98 So. 3d 441, 442 (Miss. 2012), the plaintiff sued the landowner because the plaintiff was robbed on the premises by a third party. Had she been robbed in the street, or on other public property, she could have sued only the person who had robbed her.4 The grocery store was involved only because the incident had occurred on the store’s 4 However, if the plaintiff had been attacked by a dog owned by the premises owner while not on the premises, suddenly animal-owner law would have applied and the premises owner, now being sued as an animal owner, still could have been sued in tort. 10 premises. The same goes for a shooting in a convenience store parking lot,5 or sexual assault at a hotel,6 or a shooting at an apartment complex.7 In all of those cases, the entity causing the actual injury was not owned by or was not under the control of the premises owner; so premises liability was the only avenue through which the premises owner could have been brought into the litigation. ¶23. However, in the case of an animal or a group of animals owned by the landowner, the scenario is notably different. Premises liability then is no longer required as a means through which the land/animal owner may be brought into court. Presiding Justice Dickinson would render licensees and trespassers unable to present their claims to triers of fact if they are attacked by the landowner’s animal(s) on the landowner’s premises. However, the same person instantly would be able to proceed with his or her claims if similarly attacked just outside the property. An animal owner’s duty to the public with regard to his or her animals should not be subject to wide ranges of duties which depend on the various statuses of injured persons. Animals are active and they are mobile. They move with minds of their own, in ways, and with motivations, that machines and vehicles which require human intervention to function do not. See Cade v. Beard, 130 So. 3d 77 (Miss. 2014) (analyzing suit based upon injury and death suffered in all-terrain vehicle accident on defendant’s property under the theory of premises liability). We do not hold today that only stationary 5 Double Quick, Inc. v. Moore, 73 So. 3d 1162, 1164 (Miss. 2011). 6 Doe v. Jameson Inn, Inc., 56 So. 3d 549, 551 (Miss. 2011). 7 Thomas v. Columbia Grp., LLC, 969 So. 2d 849, 851 (Miss. 2007). 11 objects or conditions implicate premises liability, but only that injuries caused by animals owned by premises owners do not. ¶24. The question is not whether Bailey breached her duty of care toward Olier as a landowner, but as an animal owner. The geese were not a condition of the land to which such a duty attached. The two torts exist independently of one another. One does not have to have been injured on another’s property to maintain a civil action for damages caused by a defendant’s animal. The dangerous-propensity theory of liability exists independently of premises liability, and Bailey’s duty of care as an animal owner is different than her duty of care as a landowner. II. The Hoffman Affirmative-Negligence Doctrine ¶25. Although Olier indisputably was a licensee when this incident occurred, this Court has provided an exception to the willful/wanton standard of care owed to licensees. In Hoffman, this Court held that the duty of care to a licensee could be elevated, and that a landowner could be “liable for injury proximately caused by his affirmative or active negligence in the operation or control of a business,” and that, in that event, “the standard of ordinary and reasonable care has application.” Hoffman, 358 So. 2d at 1013 (emphasis added). Justice Coleman makes a compelling and persuasive argument to extend the Hoffman affirmative- negligence doctrine to the realm of private, nonbusiness landowners. However, as we find that liability as an animal owner is analyzed separately from liability as a landowner, the proposed extension has no place in our analysis. III. The Dangerous-Propensity Rule 12 ¶26. So, Olier cannot proceed under a theory of premises liability as a matter of law. However, while Bailey did not breach her duty of care toward Olier as a landowner, whether Bailey breached her duty of care toward Olier as an animal owner is a different question. Olier contends that the dangerous nature of Bailey’s geese, Bailey’s knowledge of their dangerous propensity, and her negligence in keeping them in the yard when Olier was injured, allow her to proceed with an action for negligence against Bailey. Under the dangerous-propensity rule, this Court has stated that an animal owner may be exposed to liability for an attack by his or her animal when: (1) There is some proof that the animal has exhibited some dangerous propensity or disposition that the owner was aware of prior to the attack complained of; and, (2) There is proof that the owner reasonably should have foreseen that the animal was likely to attack someone. Poy v. Grayson, 273 So. 2d 491, 494 (Miss. 1973). The Court noted that “‘[t]he gist of the action has been characterized as the keeping of the animal with knowledge of its vicious disposition.’” Id. at 493 (quoting 4 Am. Jur. 2d Animals § 86 (1962)). ¶27. In Poy, the plaintiff, a garbage collector, sued the owner of the premises when one of the defendant’s dogs reached through a fence and bit the plaintiff while he was collecting garbage. Id. at 492. The Court denied relief to the plaintiff, because, although he stated that the offending animal was a watch dog and the plaintiff believed the dog to be dangerous, the dog had not evidenced any aggressive behavior or dangerous propensity. Id. at 494. The Court found nothing “in the record capable of supporting a finding that this puppy had previously exhibited any such character or disposition as would reasonably have put [the 13 defendant] on notice or enabled [him] reasonably to foresee that it might attack or bite someone.” Id. at 493-94. Based on the lack of evidence of a dangerous propensity, the Court held that the “jury should have been peremptorily instructed to find for” the defendant. Id. at 491-92. ¶28. In Mongeon v. A & V Enterprises, Inc., 733 So. 2d 170, 170 (¶ 2) (Miss. 1997), the plaintiff was attacked by two dogs while walking from her trailer to the washateria on the premises of the trailer park in which she resided. At trial, the plaintiff adduced testimony showing that another resident of the trailer park had informed the manager of the park that the dogs had growled at her on a previous occasion. Id. at 172 (¶ 9). Trailer park management assured the complainant that the dogs would be tied up. Id. The jury found for the plaintiff, but the trial court granted a motion for judgment notwithstanding the verdict for the defendant. Id. at 171 (¶ 4). The plaintiff appealed. ¶29. This Court reversed. In so doing, the Court looked to other jurisdictions, which had held that “‘[a]ny tendency of a dog to injure persons, whether the dog acts from a purpose to do bodily harm, from ill-temper, or only playfulness, is a dangerous propensity for which a keeper who has reason to know of such habit will be liable.’” Id. (¶ 11) (quoting Boosman v. Moudy, 488 S.W.2d 917, 920 (Mo. Ct. App. 1972)). The Court also relied on Farrior v. Payton, 562 P.2d 779, 786 (Haw. 1977), which held that a dog which had barked on numerous occasions at strangers on the property had exhibited vicious propensities, even though the dog never had bitten anyone. The Court noted with approval that such evidence as barking and chasing was “deemed sufficient to present to a jury the issue of whether the 14 owners of the dog were negligent and liable for the plaintiff’s injuries which resulted from her attempt to escape from the defendant’s dog.” Mongeon, 733 So. 2d at 172 (¶ 11) (citing Farrior, 562 P.2d at 787). ¶30. Based upon the holdings of the Missouri Court of Appeals and Supreme Court of Hawaii, this Court held that “a reasonable jury could have found that the incident in which Brown’s dogs growled at Donna Nelson near the washateria constituted an exhibition of a dangerous or vicious propensity by Brian Brown’s black Labrador retrievers.” Mongeon, 733 So. 2d at 172 (¶ 12). As the Court considered the evidence in the light most favorable to the plaintiff, it held that there was credible evidence from which the jury could find for her. Id. ¶31. In this case, we are not dealing with a dog, but with a young goose.8 Despite the youth of the goose, Olier claims it was large enough to reach her chest and was behaving aggressively. Her encounter with the geese in the yard can be divided into two incidents. She initially went out alone, but was frightened by the geese and returned to the refuge of the porch. At that point, the aggressive nature of the geese was apparent. After Bailey witnessed her geese squawking and hissing at Olier and thereby causing her to retreat to the porch, Bailey agreed to accompany her into the yard to distract the geese and lead them away from Olier. Bailey also provided Olier a bamboo pole and “briefly instructed Olier on how to fend off the goslings.” (Emphasis added.) With Bailey distracting the geese, and Olier armed with her bamboo goose stick, Olier was prepared to reenter the yard proper. When she did, the observant geese noticed and approached her again. Olier thought that the stick was 8 Bailey maintains that all of the adult geese were restrained when the incident happened, and that only goslings were in the yard. 15 insufficient to protect her and abandoned it. At that point, a young goose bit her in the crotch, whereupon Olier turned and fled, tripping and breaking her arm in the fall. ¶32. Bailey’s main argument is that the particular goose which bit Olier never had exhibited a dangerous propensity in the past, i.e., it never had bitten or chased anyone before. Although an adult goose of the same gaggle admittedly had run a police officer off the property previously, that goose was locked up when the attack upon Olier occurred. Bailey argues that, because there was no evidence that the particular goose in question had exhibited a dangerous propensity, she therefore had no actual or constructive knowledge of a dangerous propensity on its part, and therefore she cannot be held liable for its actions. ¶33. Olier argues first that it would be inherently unfair to require her to identify the particular goose that bit her and find evidence of that precise bird’s having exhibited a dangerous propensity. Further, she contends that the real issue is foreseeability. Was Bailey on notice of the dangerous propensity of her gaggle of geese as a whole? Olier contends that she was. Bailey saw her geese approach Olier aggressively, she saw Olier retreat to the porch, she armed Bailey with a stick and “instructed” her on how to “fend off” aggressive geese, and even went so far as to act as a decoy in an attempt to distract the geese so that Olier could attempt to venture into the yard surreptitiously. Olier argues that these actions, along with Bailey’s expertise with geese, clearly evidenced that Bailey was aware of the dangerous propensities of her geese. ¶34. This Court has never confronted the issue of an aggressive bird under the dangerous- propensity rule, and, it seems, few other jurisdictions have either. In an unpublished opinion, 16 the Michigan Court of Appeals analyzed a goose attack on a delivery person. Schisler v. Argenbright, Inc., 2006 WL 1688285, *1 (Mich. Ct. App. June 20, 2006). In that case, the delivery driver was attacked by a goose which pecked at his head, causing the driver to trip and fall, fracturing his wrist. Id. Summary judgment was denied the defendants because the plaintiff put on evidence showing that the geese had been nesting on the property and that one of the geese had been harassing visitors by hissing at them and chasing them. Id. The court noted that there was no evidence that the goose that attacked the driver was the one that had attacked before. Id. at n.1. The court held, although there may have been a question of whether the defendants had notice of the dangerous propensity of the goose in question, summary judgment to the defendants was appropriate because, “as tenants, their duty did not encompass the ‘common areas’ on the property, including the landscaping outside the building, where this incident occurred.” Id. at *2. As the defendants did not own the goose, premises liability was the only avenue through which the plaintiff could maintain suit. ¶35. So, at least one court has recognized that bird attacks may be analyzed under the propensity rule. In Schisler, the court held that a goose attack may have been compensable but for the fact that the tenant defendant had no control over the common area in which the attack had occurred. Here, Bailey had total control over the area, as it was her yard, and, more importantly, she owned the goose that attacked Olier as well as the entire gaggle of geese of which the successful attacker was a member. ¶36. In this case, foreseeability is the fulcrum upon which liability turns. This Court first promulgated the propensity rule in Poy, holding that there had to have been some proof that 17 the animal had exhibited some dangerous propensity prior to the attack complained of, and the owner had actual or constructive knowledge of that dangerous propensity. Poy, 273 So. 2d at 494. The rationale underpinning such a rule is that the courts will not hold a defendant liable for the injuries caused by his or her animal that were not reasonably foreseeable.9 And in Mongeon, this Court held that an actual physical attack was not necessary to put an owner on notice of his or her animal’s dangerous propensities, but instead held that evidence of barking, growling, and chasing can be sufficient to put an animal’s owner on notice of the animal’s dangerous propensity. Mongeon, 733 So. 2d at 172 (¶ 12). ¶37. Generally, if the owner knows, or has reason to know, that the animal will be aggressive, or exhibits a dangerous propensity, that owner may be liable in tort. In that sense, it is possible for the dangerous-propensity rule, as articulated in Poy and Mongeon, to be unnecessary for the finding of foreseeability of the injury, and, consequently, liability for the injury. Instead, where an injury is a result of an animal’s having behaved consistently with its general nature, it is irrelevant whether that particular animal had exhibited an unusually dangerous propensity previously, as its own inherent propensity precipitated the injury. This case also differs from both Poy and Mongeon because it involves a group of potentially dangerous animals, rather than the individual dog in Poy or the pair of dogs in Mongeon. 9 The Court also relied on language stating that an animal owner usually would not be liable for an injury caused by an animal acting in a way “not natural to the class of animals to which the offending animal belongs. . . .” Poy v. Grayson, 273 So. 2d 491, 494 (Miss. 1973) (quoting 3 C.J.S. Animals § 148(a) (1936)). Since the “great majority of dogs are harmless,” the owner of a dog “is not liable for its biting a person . . . unless he has reason to know that it is likely to do so.” Id. (quoting Restatement of Torts § 509(f) (1938)). Geese may not be as universally harmless as dogs, although the plaintiff has offered no evidence to support such a statement. 18 Here, Olier was scared of all of the geese, Bailey instructed Olier how to defend herself from all of the geese, and Bailey attempted to distract all of the geese. Bailey arguably understood that all of her geese were potentially aggressive and acted accordingly. Therefore, a jury could find that what happened to Olier was foreseeable to Bailey. ¶38. This concept perhaps was best expressed by the Supreme Court of South Dakota, which held that a plaintiff can establish foreseeability by arguing “to the jury that the owner knew or should have known of the dog’s dangerous propensities or that, under the totality of the circumstances, injury to the plaintiff was reasonably foreseeable.” Rowland v. Log Cabin, Inc., 658 N.W.2d 76, 79 (¶ 9) (S.D. 2003) (emphasis added). That court went on to say that, while “the duty owed by a business owner to a business invitee and the duty owed by a dog owner to individuals in society have different origins, the reasonable person standard applies to both.” Id. (¶ 11). As for Bailey, there remains a dispute of fact whether Olier’s injury was reasonably foreseeable under the totality of the circumstances. Similarly, it may be foreseeable to a landowner that visitors may come unannounced to that landowner’s property, or that errant children or others may inadvertently or negligently stray onto their property. Under the totality of the circumstances, if the injury by an animal is reasonably foreseeable, the animal’s owner may be held liable. ¶39. However, Presiding Justice Dickinson’s dire predictions of successful suits against homeowners by burglars are defeated by the longstanding rule in this state that “[o]ne has a right to defend his home and the members of his family . . . and to protect his property from intruders and trespassers.” Anderson v. Jenkins, 70 So. 2d 535, 538 (1954). The Restatement 19 (Second) of Torts states that “[a] possessor of land or chattels is privileged to employ a dog or other animal, for the purpose of protecting his possession of land or chattels from intrusion. . . .” Restatement (Second) of Torts § 516 (1977). Landowners in this State are permitted to use lethal force to resist attempts “to commit any felony . . . upon or in any dwelling . . . or in the immediate premises thereof in which such a person shall be. . . .” Miss. Code Ann. § 97-3-15(1)(e) (Rev. 2014). Clearly, no liability can attach when a malicious trespasser is attempting to harm the person, family, or property of the owner. ¶40. Justice Coleman’s dissent takes issue with our expansion of the dangerous-propensity doctrine to an animal which had not exhibited a dangerous propensity in the past. Indeed, here, no evidence was adduced that the goose in question ever before had bitten anyone. A different, older goose had, at a time previous, chased a police officer out of the yard. So, under a strict reading of Poy, Olier’s suit cannot be maintained. However, the entire purpose of the dangerous-propensity rule is to hold owners liable for the actions of their animals where the owners reasonably could foresee the injury complained of, or where they should have known that any or all of their animals were likely to exhibit behavior that could lead to an injury. The fact that the particular goose in question had not exhibited a dangerous propensity before does not necessarily matter when Bailey may have known that her geese were aggressive and possibly dangerous in general. When a person keeps a large group of essentially indistinguishable animals, some of which have exhibited dangerous propensities in the past, we find that such person can be liable for injuries attributable to characteristics that the animals have exhibited collectively. Here, Bailey’s geese were known to have chased 20 a visitor without warning, and this Bailey clearly knew. Additionally, as stated above, it is the group of geese collectively that concerned Olier and Bailey. Accordingly, although one goose actually bit Olier and caused her to fall, the analysis of that particular individual goose’s history is unnecessary. ¶41. The Coleman dissent would send the plaintiff on a wild-goose chase to find and identify a single offending fowl and determine its particular history of dangerous propensity. As has been said before, “[i]t is common knowledge that horses buck, cattle roam, cats stray and dogs bite.” Blaha v. Stuard, 640 N.W.2d 85, 88 (¶ 9) (S.D. 2002). If that be the case, it also is common knowledge that geese honk, hiss, chase, and bite. ¶42. The Coleman dissent seems to recognize this point, as it remarks that the plaintiff failed to produce evidence that showed that the goose in question did not exhibit a propensity that was not natural to geese as a class of animal. This contention belies an understanding of the purpose of the dangerous-propensity rule. The rule is necessary to impose liability on animal owners who, without the occurrence of a prior incident involving an outside party, would not have actual or constructive knowledge of any dangerous propensity of their otherwise tame and predictable animal. If the animal in question belongs to a class that exhibits a dangerous propensity that is natural to its class, the need for the propensity rule falls away because the natural propensity of the animal is known or should be known to its owner. See Poy, 273 So. 2d at 494 (“A distinction has been made between animals which, by reason of their species, are by nature ferocious, mischievous or intractable, and those of a species normally harmless. . . . In the second class are cattle, 21 sheep, horses, dogs and cats. . . .” (quoting W. Prosser, Handbook of the Law of Torts § 75 (3d ed. 1964)). ¶43. Where, as here, the goose is just being a goose, and being a goose includes biting and chasing people, then there need not have been a prior incident to put its owner on notice of that propensity, as the owner knew or should have known that its animal naturally engaged in that kind of behavior. See Williams v. Tysinger, 399 S.E.2d 108, 111 (N.C. 1991) (holding defendants liable because they were “chargeable with knowledge of the general propensities” of a horse, which “include the fact that the horse might kick without warning or might inadvertently step on a person.”). ¶44. Finally, the Coleman dissent argues that Olier has not demonstrated that Bailey had superior knowledge of her geese’s dangerous propensity, and that both were fully aware of the propensity of the geese. With respect, that is an issue for the jury. Olier claimed that Bailey held herself out as a goose expert. Bailey tutored Olier in how to defend herself from geese and assured her that she would be safe in the yard. Olier admittedly was hesitant to enter the yard again but did so with faith in Bailey’s confident assurances. If this case is tried, the jury will be free to distribute fault as it sees fit. If it finds that no reasonable person would have reentered the yard, then it will not find for Olier. Several questions are left unanswered regarding the relative fault of the two parties, but those are not for our decision. Only a trial can settle those questions. ¶45. In that context, we find that, viewing the facts in the light most favorable to the plaintiff, there exists an issue of fact regarding whether Bailey was on notice of her geese’s 22 alleged dangerous propensity. Although Bailey had locked up the adult geese, including the only one that specifically could be identified as having chased a person in a previous incident, an issue of fact remains as to whether she was on notice of her younger goslings’ aggressive proclivities. She witnessed Olier’s going into the yard and quickly retreating from the squawking, hissing, approaching geese. Bailey then went out into the yard to distract the geese, clearly with the knowledge that if she did not do so, the geese would aggressively approach Olier again. Furthermore, she gave Olier a long bamboo stick with which to fend off the geese and instructed her in its use, plainly indicating that she knew that the geese probably would approach Olier and that Olier might have need of the stick for purposes of defense. We find that there is at least a question of fact regarding whether Bailey was on notice of her geese’s dangerous propensity. She had witnessed the geese being aggressive toward Olier, she armed Olier, she trained Olier to defend herself from the creatures, and she volunteered to act as a diversionary decoy so the geese would not immediately set upon Olier when she entered the yard. A reasonable and properly instructed jury could find that the type of injury caused by these geese reasonably could have been foreseen by Bailey under these circumstances. ¶46. While our holding today may seem to be either a departure from or an expansion of our longstanding dangerous-propensity rule, the situation before us simply is not conducive to that test because it heretofore has been restricted to a single animal. The dogs in Poy and Mongeon were individual animals, or a pair of animals. Here, Olier was not fearful of one particular animal, or a pair, but an entire group. That is why Bailey may be held liable for 23 her geese’s behavior without determining whether the particular goose that attacked Olier had exhibited a dangerous propensity in the past. Whether a pack of dogs, a herd of rodeo cattle, a swarm of honey bees, or a gaggle of geese—when analyzing the behavior of any grouping of nonhuman creatures with a dangerous propensity collectively, it is unnecessary and counterintuitive to analyze the unique history of each and every creature in the unit. This has been a truth accepted by mankind since we drew on cave walls. We fear not the wolf, but the pack; not the bee, but the swarm; not the buffalo, but the herd. Janet Olier feared not the goose, but the gaggle. The bamboo stick was provided for her defense against all of the geese, not just one. Bailey attempted to distract all of the geese, not just one. A jury could find that, under the totality of the circumstances, this incident could have been foreseeable to Bailey, and therefore summary judgment was inappropriate. CONCLUSION ¶47. The trial court properly granted summary judgment to Donna Bailey on the theory of premises liability. Janet Olier was a licensee as a matter of law, and Donna Bailey did not willfully or wantonly injure her. However, a question of fact remains regarding whether Donna Bailey was on notice of the alleged dangerous propensity of her geese, and whether Janet Olier’s injury was reasonably foreseeable under the totality of the circumstances. Accordingly, there is a genuine issue of material fact regarding whether Donna Bailey breached her duty of care to Janet Olier as an animal owner. We reverse the grant of summary judgment on that basis and remand this case to the County Court of Jackson County for further proceedings consistent with this opinion. 24 ¶48. AFFIRMED IN PART; REVERSED IN PART AND REMANDED. WALLER, C.J., CHANDLER AND KING, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, P.J., DISSENTS IN PART III AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY COLEMAN, J. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PIERCE, J.; DICKINSON, P.J., JOINS THIS OPINION IN PART; RANDOLPH, P.J., JOINS THIS OPINION IN PART II ONLY. DICKINSON, PRESIDING JUSTICE, DISSENTING: ¶49. The plurality—as a matter of first impression in Mississippi—finds that civil claims resulting from injuries caused by animals on a homeowner’s property may not be analyzed under premises-liability law. The plurality abandons the trespasser and licensee classifications for purposes of determining the homeowner’s duty of care, leaving homeowners wide open to claims of ordinary negligence by trespassers who come on their property—unwelcome and uninvited. Because I believe this to be unwise, I respectfully dissent. ¶50. The traditional rule in Mississippi has been that an invited social guest provides no benefit to the landowner, and therefore is a mere licensee. And landowners owe no more to licensees than a duty to refrain from willfully or wantonly injuring invited social guests.10 Many courts have abolished the old common-law distinction between licensees and invitees altogether.11 I believe this goes too far. But other courts have settled on a middle-ground 10 Wright v. Caffey, 239 Miss. 470, 475, 123 So. 2d 841, 843 (1960). 11 See, e.g., Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968) (abolishing the common-law distinctions between trespassers, licensees, and invitees), superseded in part by statute, Cal. Civ. Code § 847 (West 2015), as recognized in Calvillo-Silva v. Home 25 approach and have held that social guests who have been invited to the property should be treated as invitees entitled to a duty of reasonable care.12 I believe it is time for this Court to follow the lead of these courts. We should abandon the licensee classification for persons who are invited to come on the property (social guests), regardless of the reason for the invitation, and reclassify them as invitees. In my view, an express invitation carries with it an implied representation that the property is reasonably safe for the guest’s visit. Thus, it seems to me this sensible change would be reasonable and in concert with today’s social mores. ¶51. The plurality rejects this view and chooses to leave homeowners open to claims of negligence to everyone, including trespassers. This requires that I apply the law that I firmly believe controls this case—premises-liability law. In this negligence case, Olier charges that, by maintaining geese with dangerous propensities on her property, Bailey did not maintain her premises in a reasonably safe condition. Her allegations of negligence concerning the geese in the yard are no different from allegations of negligence concerning spills on the floor, cracks in the sidewalk, improperly stacked shelves in a store, or exposed electrical wiring. All such negligence claims associated with maintaining dangerous conditions on the property first must be filtered through the premises-liability classifications for determination of the degree of negligence necessary for liability. Grocery, 968 P.2d 65, 72 (Cal. 1998). 12 See, e.g., Burrell v. Meads, 569 N.E.2d 637, 643 (Ind. 1991) (holding that social guests are invitees entitled to a duty of reasonable care). 26 ¶52. When a person enters onto another’s land and suffers personal injuries due to the landowner’s negligence for failure to keep the premises in a reasonably safe condition—for instance, failing to repair a faulty electrical appliance or keeping a flock of attack geese—the claim must be analyzed under premises-liability law. ¶53. A premises owner’s liability is predicated upon the decision to create, maintain, or allow a dangerous condition on the property.13 The plurality incorrectly concludes—for the first time and with no citation of authority—that premises-liability cases must be limited to negligence associated with “stationary conditions of the property,” and that these stationary conditions must “remain in place unless moved or changed by the landowner.” This bold, unsupported characterization of premises-liability law is breathtaking in its scope. ¶54. While the plurality’s label may apply to dangerous spills that fall on the floor or dangerously stacked boxes that fall on a customer, it certainly does not explain why, in Cade v. Beard, this Court used premises-liability law to analyze a hunter’s death in an ATV accident.14 Nor does it explain Albert v. Scott’s Truck Plaza, in which this Court relied on premises-liability law to analyze the landowner’s liability for a pedestrian being struck by a big truck.15 Nor does it explain the numerous cases in which we have used premises-liability 13 See Mayfield v. The Hairbender, 903 So. 2d 733, 737 (Miss. 2005) (citing Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994)) (“Tharp’s authority extends to cases (including the case before us today) in which the plaintiff alleges the defendant was negligent in creating or failing to repair a dangerous condition, and the defendant alleges the dangerous condition was open and obvious.”). 14 Cade v. Beard, 130 So. 3d 77, 81 (Miss. 2014). 15 Albert v. Scott’s Truck Plaza, Inc., 978 So. 2d 1264, 1266 (Miss. 2008). 27 law to analyze a premises owner’s liability for injuries caused to its invitees by other persons.16 ¶55. In attempting to distinguish the above cases, the plurality states that “premises liability was the only avenue through which the premises owner could have been brought into the litigation.” This concession agrees with my only point in citing these cases, and that is to refute the plurality’s assertion that premises-liability cases must be limited to negligence associated with “stationary conditions of the property,” and that these stationary conditions must “remain in place unless moved or changed by the landowner.” ¶56. Simply stated, I believe uninvited licensees and trespassers who go onto another’s property should not be allowed to make an ordinary negligence claim and recover for attacks by a homeowner’s animal—whether a dog, cat, or goose. This unwise approach exposes homeowners to liability, even for guard dogs kept inside the house. While I would reclassify invited social guests as invitees owed a duty of reasonable care, a majority of this Court has not adopted that view and I am constrained to analyze this case under our existing premises- liability law. Because Olier is a licensee under our existing law and because Bailey’s conduct cannot rise to the level of willful and wanton negligence, summary judgment was proper. For these reasons, I respectfully dissent. COLEMAN, J., JOINS THIS OPINION IN PART. 16 See Kroger Co. v. Knox, 98 So. 3d 441, 442 (Miss. 2012) (premises-liability action involving purse snatching at grocery store); Double Quick, Inc. v. Moore, 73 So. 3d 1162, 1164 (Miss. 2011) (premises-liability action involving shooting in convenience store parking lot); Doe v. Jameson Inn, Inc., 56 So. 3d 549, 551 (Miss. 2011) (premises-liability action involving sexual assault at hotel); Thomas v. Columbia Grp., LLC, 969 So. 2d 849, 851 (Miss. 2007) (premises-liability action involving shooting at apartment). 28 COLEMAN, JUSTICE, DISSENTING: ¶57. I agree with Presiding Justice Dickinson that the instant case is a premises liability case and that the law will not allow us to consider the applicability of the dog-bite rule, or dangerous propensity rule as it is otherwise called, without considering our law on premises liability. However, rather than changing our longstanding premises liability law and classifications of plaintiffs attendant thereto, I believe Mississippi law as it stands provides that the usual standard for negligence against a licensee, as all agree the plaintiff was in the instant case, does not apply to the plaintiff here. I would apply the exception to the invitee/licensee dichotomy created by the Court in Hoffman v. Planters Gin Co., Inc., 358 So. 2d 1008 (Miss. 1978), and apply an ordinary and reasonable standard of care to the defendant. ¶58. However, even under such a standard of care, for three reasons the plaintiff has failed to adduce sufficient evidence, even taking all evidence in the record in a light favorable to her, to create an issue of material fact. What I will herein refer to as the dangerous propensity rule governs the defendant’s claim under the reasonable care standard, and the plaintiff has failed to create an issue for the jury under it. First, the plaintiff failed to produce any evidence that the goose that attacked her had ever displayed a propensity for dangerous behavior prior to her injury. Second, the plaintiff failed to produce any evidence that the aggressive behavior of the goose was anything other than natural behavior for geese as a class of animals. Finally, I would hold that because the plaintiff’s knowledge of the relevant behavior of the defendant’s geese equaled that of the defendant, the defendant cannot be 29 liable. Accordingly, I am of the opinion that, as a matter of law. the defendant cannot be held liable for the plaintiff’s injuries. I. The case sub judice must be analyzed as a premises liability case, but a reasonable standard of care nevertheless applies to the defendant. ¶59. When a plaintiff receives injuries as a result of the conditions present or activities conducted on premises belonging to the defendant, premises liability law applies. Double Quick, Inc. v. Moore, 73 So. 3d 1162, 1166 (¶ 10) (holding that premises liability law controlled claim arising from a parking lot shooting when decedent did not die as a result of acts by defendant’s employees and when defendant’s employees were unaware of his presence on the property; rather, the death occurred because of activity being conducted on the property); Doe v. Jameson Inn, Inc., 56 So. 3d 549, 553 (¶ 11) (Miss. 2011). The Double Quick Court wrote, “Because [the decedent’s] injury was the result of an activity that occurred on Double Quick’s property, we find that Moore’s claim is one of premises liability. Accordingly, the trial court erred in holding that the instant case was not a premises-liability case.” Double Quick, 73 So. 3d at 1166 (¶ 10). In other words, a negligence claim sounds in premises liability or it does not. It cannot sound in both. Keeping geese is an activity, and in the instant case the defendant conducted the activity on her premises where the injury occurred. The instant case is one that sounds in premises liability and is subject to premises liability law. ¶60. All parties agree that the plaintiff entered upon the defendant’s property as a social guest and licensee, and I have nothing to add to the plurality’s explication of the standard of care normally owed a licensee. However, the normal standard of care does not apply to the 30 plaintiff in the instant case. In Hoffman v. Planters Gin Co., Inc., 358 So. 2d 1008 (Miss. 1978), the fourteen-year-old plaintiff was injured when he accompanied his father to a cotton gin for the purpose of transporting cottonseed and fell into a moving auger. Id. at 1010. He lost his leg below the knee. Id. There were no warning signs on the building or doors, and the entrance to the tunnel containing the auger was never locked; testimony established that the generally accepted safety practices in the Mississippi Delta included posting warning signs, preventing unauthorized persons around machinery, and covering augers accessible to anyone. Id. The plaintiff testified that half of the auger covers were off and no gin employees or supervisors ever warned him to stay away from the augers despite knowing he often was around them. Id. He was, however, warned that the augers were dangerous. Id. After establishing that, as either the child of an adult who himself was on the premises to conduct business or, in the alternative, as an invitee who exceeded the scope of his invitation, the plaintiff was a licensee, the Hoffman Court eschewed the traditional standard of care owed to a licensee in favor of the usual negligence standard of reasonable care. Id. at 2012. The Court wrote, The legal distinctions between a licensee and invitee have little significance once the presence of a person upon the possessor’s premises is known and there are affirmative actions involving him. Status relates largely to negligence for the condition of premises, that is, passive negligence and not to active or affirmative negligence emanating from action or inaction by the possessor with knowledge of an individual’s presence. Id. In closing and after discussing several other secondary sources, the Hoffman Court quoted with approval Prosser, Law of Torts 379 (4th ed. 1971), which read, “It is now 31 generally held that as to any active operations which the occupier carries on, there is an obligation to exercise reasonable care for the protection of a licensee. . . .” ¶61. There have been limited opportunities for the Court to address what has come to be known as the Hoffman exception in the more than three-and-a-half decades of its existence. However, I would be remiss if I failed to address one aspect of its development that runs counter to my position. In the opinion, the Hoffman Court wrote: We think the premises owner is liable for injury proximately caused by his affirmative or active negligence in the operation or control of a business which subjects either licensee or invitee to unusual danger, or increases the hazard to him, when his presence is known and that the standard of ordinary and reasonable care has application. Hoffman, 358 So. 2d at 1013 (emphasis added). Nowhere else in the opinion does the Court use the word “business” in the same context, and none of the secondary sources limits the principle that I now refer to as the Hoffman exception to businesses. Id. at 1013. ¶62. In the context of the opinion as a whole, the Hoffman Court’s use of the clause, “affirmative or active negligence in the operation or control of a business,” did nothing more than describe the conduct at issue in the case. I do not read it to express an intent on the part of the Court to limit the exception to business invitees, nor am I able to appreciate any difference between business premises and nonbusiness premises that would explain such a limitation. However, I acknowledge that subsequent opinions read the language as a limit of the exception to business premises, see, e.g., Little v. Bell, 719 So. 2d 757, 761-762 (¶ 22) (Miss. 1998) (“[T]he Hoffman exception only applies to those cases involving the operation or control of a business.”) (citing Hughes v. Star Homes, Inc., 379 So. 2d 301, 304 (Miss. 32 1980)), and that to adopt my position, the Court would have to clarify the rule and modify, if not overrule, cases such as Little and Hughes. It is remarkable that, although the Little Court relied on Hughes to support its reading of the business-premises limitation into Hoffman, Hughes itself does not do so. In fact, the word “business” appears nowhere in the Hughes opinion. Rather, the Hughes Court expressed the narrowness of the Hoffman exception as follows: In one case, Hoffman v. Planters Gin Co., Inc., 358 So. 2d 1008 (Miss. 1978), we applied the standard of ordinary and reasonable care rather than the standard of intentional or wanton negligence due a licensee. In that case we held that the owner of premises is liable for injury proximately caused by the owner’s affirmative or active negligence in the operation or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known. In Hoffman, we changed the standard of care owing to a licensee but carefully limited the new standard of care to those cases involving injury resulting from active conduct as distinguished from conditions of the premises, or passive negligence. Hughes, 379 So. 2d at 304. ¶63. Because the remainder of the Hoffman opinion cannot be read to support the business-premises limitation; the Court expressly stated its “view” to be that statement of the rule written by Prosser, quoted above, which makes no mention of such a limitation; and the Hughes opinion does not support the Little Court’s reliance upon it, I am of the opinion that it would be correct for the Court to clarify that the Hoffman exception does not apply only to business premises. ¶64. Turning to the case sub judice, the evidence clearly shows that the defendant knew the plaintiff was present on the premises. Moreover, an allegation of negligence relying on the dangerous propensity rule is an allegation of active, rather than passive negligence. As 33 I develop further below, a claim under the dangerous propensity rule is at its heart a claim based on the superior knowledge of the animal owner and failure of the animal owner to warn or protect others from a dangerous propensity in the animal that, because the class of animal to which it belongs does not share the propensity, the other person cannot be expected to know of it. If the Hoffman Court considered the failure to lock doors, place warning signs, and cover the augers to be active negligence, so too is a dangerous-propensity claim. Moreover, a dangerous-propensity claim, as it is based on the superior knowledge of the defendant, is similar in nature to a failure-to-warn claim. Failure to warn constitutes active negligence. Long Term Care, Inc. v. Jesco, Inc., 560 So. 2d 717, 719 (Miss. 1990) (failure to warn classified as active negligence in context of contribution between tortfeasors). Finally, by keeping the geese and encouraging her guest to make her ill-fated foray into their midst, the defendant increased the hazard. Accordingly, the Hoffman exception should apply here. II. The plaintiff has failed to create a triable issue of fact under the dangerous propensity rule. ¶65. Having set forth why I believe an ordinary care standard should apply, I now turn to what the standard is in a case involving allegations that an owner is liable for injuries caused by an animal. In Poy v. Grayson, 273 So. 2d 491 (Miss. 1973), the Court examined a few secondary sources addressing animal-owner liability and settled upon the following rule: There is a considerable diversity among the Courts of the several states as to the conditions under which liability may be imposed in cases of this kind. However, we believe the sounder rule requires that there be some proof that the animal has exhibited some dangerous propensity or disposition prior to the attack complained of, and, moreover, it must be shown that the owner knew 34 or reasonably should have known of this propensity or disposition and reasonably should have foreseen that the animal was likely to attack someone. Id. at 494. Regarding the dog attack in Poy, which the Court held resulted in no liability attributable to the owner, the Court wrote, “There is nothing whatever in the record capable of supporting a finding that this puppy had previously exhibited any such character or disposition as would reasonably have put Poy on notice or enabled Poy reasonably to foresee that it might attack or bite someone.” Id. at 493-494. ¶66. In Mongeon v. A & V Enter., Inc., 733 So. 2d 170 (Miss. 1997), the Mississippi Supreme Court reversed a trial court’s grant of judgment notwithstanding the verdict in a case where a jury awarded damages to a plaintiff who had been attacked by dogs belonging to the defendant. The Mongeon Court held that evidence of one occasion when the dogs earlier had growled at another person and a second occasion when the dogs had approached her small dog together sufficed to show a dangerous propensity or disposition. Id. at 172 (¶ 12). ¶67. By contrast, in the case sub judice, neither the plurality nor the plaintiff identifies any evidence of record that showed any sort of dangerous propensity or disposition on the part of the young goose prior to the incident which resulted in the attack on the plaintiff. At best, the plaintiff points to aggressive behavior of the goose during the attack itself but identifies nothing that occurred beforehand that could fairly be said to have put the defendant on notice that the goose was dangerous or had any tendency to injure persons. Both the Poy and Mongeon Courts looked for evidence of dangerous behavior that preceded the underlying attacks – not that occurred as part of the same series of events that included the attack as 35 occurred in the instant case. Poy, 273 So. 2d at 491, 493 (“All of the other direct testimony was to the effect that the puppy had never attacked or attempted to attack anyone prior to the occasion when plaintiff was bitten.”) (emphasis added); Mongeon, 733 So. 2d at 172 (¶¶ 9- 10, 12). With respect, I disagree with the plurality’s choice to rely on evidence that, at some point, another goose within the gaggle of geese acted aggressively toward some law enforcement officers. The dangerous propensity doctrine, as discussed in Poy and the secondary sources discussed therein, applies only to individual animals. ¶68. Second, the Poy Court, quoting 3 C.J.S. Animals 148a (1936), wrote that for liability to attach, the vicious propensity in question must be “not natural to the class of animals to which the offending animal belongs.” Poy, 273 So. 2d at 494. The plaintiff failed to produce any evidence showing that the dangerous propensity exhibited by the subject goose in the instant case was not natural to geese as a class of animal. The lack of evidence on the point provides a fatal blow to the plaintiff’s appeal. On the instant point, the plurality responds with the suggestion that geese as a group are dangerous animals, and because they are dangerous as a class the dangerous propensity rule “falls away.” (Plur. Op. at ¶42). However, as noted above, the dangerous propensity rule upon which the plaintiff relies applies by its terms only when the dangerous propensity in question differentiates the animal from other animals of the same class. ¶69. Finally, the plaintiff has failed to demonstrate that the defendant had superior knowledge of any dangerous propensity of the goose. In the case sub judice, all evidence of any danger posed by the goose, or gaggle of geese, was known equally to the plaintiff and 36 defendant. The defendant entered the domain of the geese once alone and retreated. Armed with a bamboo stick, the plaintiff soldiered once more into the geese. Because the plaintiff’s knowledge equaled that of the defendant, I would hold she cannot recover. See Durham v. Mason, 256 Ga. App. 467, 468, 568 S.E.2d 530, 532 (2002) (“The true test of liability is the owner’s superior knowledge of his dog’s temperament.”). While I find no case in which Mississippi explicitly has adopted the superior knowledge requirement, I find cases discussing such a requirement to be persuasive. It follows naturally from two principles. First, liability of the owner arises from the knowledge of the dangerous propensity. “‘The gist of the action has been characterized as the keeping of the animal with knowledge of its vicious disposition.’” Poy, 273 So. 2d at 493 (quoting 4 Am. Jur. 2d Animals § 86 (1962)) (emphasis added). Second, the dangerous propensity distinguishes the animal from its class of like animals. Poy, 273 So. 2d at 494. It follows that a dangerous propensity known to both parties either because it is natural to the class of animal or because both have witnessed the same evidence of the subject propensity cannot support a finding of liability. Accordingly, equal knowledge possessed by the plaintiff obviates the above-stated purpose for imposing liability. ¶70. I would hold that the defendant in the case sub judice was subject to the Hoffman exception and a reasonable care standard, that the standard of reasonable care applicable to the defendant is established by the dangerous propensity rule, and that, even taking the evidence of record in a light most favorable to the plaintiff, she has failed to make a prima facie case. Accordingly, summary judgment was appropriate, and I respectfully dissent. 37 PIERCE, J., JOINS THIS OPINION. DICKINSON, P.J., JOINS THIS OPINION IN PART. RANDOLPH, P.J., JOINS THIS OPINION IN PART II ONLY. 38
01-03-2023
04-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/127461/
537 U.S. 1214 BROOKSv.UNITED STATES. No. 02-8256. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. 2 C. A. 4th Cir. Certiorari denied. Reported below: 49 Fed. Appx. 402.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/2907584/
City of Cleburne v. Davenport NO. 10-90-030-CV IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * *           CITY OF CLEBURNE,                                                                                             Appellant           v.           JAMES DAVENPORT, ET AL,                                                                                             Appellees * * * * * * * * * * * * * From 249th Judicial District Court Johnson County, Texas Trial Court # 249-174-85 * * * * * * * * * * * * * O P I N I O N * * * * * * *           This is a suit for property damage and mental anguish brought by Plaintiff-Appellees James Davenport and his wife and their three children against the Defendant-Appellant City of Cleburne, in which the Davenports claim the City was negligent in failing to clean out a creek bed near the Davenport property. The City contended, among other things, that its actions were subject to the doctrine of governmental immunity.           Trial was to a jury which found the City negligent in failing to do what an ordinary city would have done in connection with the work they undertook to do on the creek. The jury failed to find that the Davenports suffered any property damage as a result of the City's negligence; however, the jury did award damages for mental anguish to the Davenports. More specifically, the jury awarded for mental anguish $5,000.00 each to Mr. and Mrs. Davenport plus $2,500.00 each to the three children.           The Davenport property upon which is situated their home place and rent house is located near the north city limits of the City of Cleburne. West Buffalo Creek flows from north to south, and enters the City at the north city limits and flows all the way southward wherein it joins East Buffalo Creek just north of the south city limits. The Davenport property is located within the City limits a short distance south of the north city limits, and near West Buffalo Creek. This suit arose as a result of flooding which occurred when West Buffalo Creek overflowed its banks during heavy rains that occurred in the spring of 1985. Plaintiffs' property was located in a flood plain and the Davenports knew this within a short time after they purchased this property in 1977, because they were required to secure flood insurance. A piece of property that adjoined the Davenport property was contiguous to and was a part of West Buffalo Creek, the ownership of which piece of property was unknown to the Davenports. Significantly, the evidence shows that the land over which West Buffalo Creek flows is all privately owned, and that none of same is owned by the City of Cleburne.           In 1979 a flood occurred which caused waters to rise to four feet inside the Davenport home, after which time the Davenports always knew their land would flood if there was enough rain. After the 1979 flood, the City cleaned out most of the west fork of Buffalo Creek. The cleaning operation was originally intended to go from city limit to city limit, but because the land along and under the creek channel was privately owned, the City had to obtain each landowner's permission in order to fulfill that intent. In fact, some landowners refused permission to the City to enter upon their property, resulting in the City stopping the cleanout project about four blocks south of the Davenport property. Witnesses testifying in behalf of the City testified that the City had no duty to clean out the creek that was on private property, and that the City could not clean out debris without the permission of the landowners. Such testimony was further to the effect that the only recourse the City could have taken once they were refused admittance by such property owners would have been to condemn the property and take easements. Proof showed the City Council considered that action and decided not to take that action.           In May 1985 another flood occurred which is the one the Davenports complain damaged their property; however, the waters that rose in 1985 did not go into their house as they had in 1979. The Davenport home never flooded after 1979.           Perry Harts, the City Engineer, testified that cleaning the creek bed downstream from the Davenports allowed the water adjacent to the Davenport property to get out quicker and not back up on their property. Moreover, he testified that if the City had skipped over the objecting landowners' property and cleaned further north it would have created a dam on the uncleared property and would have caused the water to back up even worse onto the Davenport property.           Appellant City's first point of error asserts the trial court erred in entering judgment in favor of the Davenports because (the City contends) the City is immune from liability under the doctrine of governmental immunity. The City's second point of error argues that there was no evidence that the City owed a duty to the Plaintiffs. For the reasons hereinafter stated, we sustain these two points of error, and thereby reverse the trial court's judgment and render judgment that the Plaintiff-Appellees take nothing.           The Davenports do not contend that the City failed to act to provide or construct drainage improvements, but they argue that once the City undertook to make drainage improvements on Buffalo Creek, the City had a duty to not perform such construction or maintenance in a negligent manner. Former City Manager, Lloyd Moss, testified that it was originally the City's intention to clean out the creek from city limit to city limit. The City actually did clean out the creek bed from the south city limits northward up to about four blocks south of the Davenport property, where these cleaning-out efforts ceased because of the refusal of property owners of the creek bed to allow the City and its equipment to enter upon their property. In other words, the Davenports are saying the City is not negligent in failure to provide drainage facilities, but once the City undertook to clean out the creek they became under a duty to do so in a non-negligent fashion, and if the City cleaned out the creek in a negligent fashion, then the City is liable. There was evidence that neighbors close to the Davenports dumped dirt and other debris into the creek. In summary, Plaintiffs say that the City failed to maintain the creek after debris had been dumped in the creek, and the City was negligent in failing to clean the creek as it had originally intended.           The planning and construction of drainage improvements is a quasi-judicial exercise of police power and a governmental function within the province of governmental immunity. City of Watauga v. Taylor (Fort Worth CA 1988) 752 S.W.2d 199, no writ. A city which undertakes to provide drainage has no duty to provide facilities adequate for all floods that may reasonably be anticipated. Id. In this connection, the Dallas Court of Appeals in Norman & Schaen Inc., v. City of Dallas (Dallas CA 1976) 536 S.W.2d 428, NRE, at page 430 has this to say: "Since partial protection against floods is better than none at all, if the city undertakes to provide drainage, it has no duty to provide facilities adequate for all floods that may be reasonably anticipated. The existence of such liability would tend to deter the city from providing even partial relief from flooding. The extent of the protection to be provided is within the discretion of the governing body, which must weigh the needs of the entire community and allocate available resources so as best to serve the interest of all its citizens. To award damages in a private action for insufficient drainage of a particular tract of land would be to permit use of the judicial process to supervise the planning and construction of public improvements. Municipal fiscal policy, instead of being set for the city as a whole by the elected representatives of the people, would be subject to piecemeal review and revision by courts in separate actions concerned primarily with the interests of one or more individual landowners and their lessees. (citations)" We are of the opinion and hold that the City's decision concerning how to or whether to take steps to prevent or minimize flooding along West Buffalo Creek is a discretionary governmental function for which the City should be afforded governmental immunity.           Moreover, there is an additional reason why the City's governmental immunity should apply. Mr. Lloyd Moss, the former City Manager, testified that the cleanout project on West Buffalo Creek was originally intended to go from city limit to city limit if the City obtained permission from the landowners who owned the creek bed; however, this intent was thwarted because some private citizens along the creek bed would not permit the City to come upon their respective properties for the purpose of cleaning out the creek. Mr. Moss testified that once the City was refused permission by a landowner to enter upon and clean the creek, the only alternative the City had was to condemn the person's property where access was refused and for the City to acquire an easement. He further testified that the City Council considered this alternative and rejected it.            The decision on the part of the City to exercise or not exercise their right of eminent domain is a legislative power and not a judicial power. Stirman v. City of Tyler (Tyler CA 1964) 443 S.W.2d 354, 358, NRE. In this connection our Supreme Court in Lewis v. City of Fort Worth (Tex. 1936) 89 S.W.2d 975 at page 978, has this to say: " . . . . It is also elementary that in instances where the law visits upon a governing body the duty to exercise its sound judgment and discretion, courts have no right to interfere so long as such body acts lawfully. In other words, a court has no right to substitute its judgment and discretion for the judgment and discretion of the governing body upon whom the law visits the primary power and duty to act. Of course, if such governing body acts illegally, unreasonably, or arbitrarily, a court of competent jurisdiction may so adjudge, but there the power of the court ends. (citation)."           Applying the reasoning of the above authorities to the case at bar, we hold that the City of Cleburne's exercise of its discretion to not condemn the property of the landowners along Buffalo Creek was a governmental function of the City and is subject to the doctrine of governmental immunity.           By Appellant's tenth and final point of error it is asserted that the trial court abused its discretion in granting the Davenports' Motion for Sanctions and imposing a sanction of $2,000 against the City because (the City says) the Appellant City did not violate the Texas Rules of Civil Procedure.           Prior to trial, the time and place of the deposition of Mr. Charlie Perkins was arranged by agreement. Counsel for the City desired to take the depositions of Messrs. Barney Ballard and W. D. Doggett at the same time and place that Mr. Perkins' deposition was scheduled to be taken. Mr. Wilson, counsel for the Davenports, would not agree that the depositions of Ballard and Doggett be taken at the time of the Perkins deposition. The City's attorneys sent notices of the Ballard and Doggett depositions by fax to a number provided by Mr. Wilson's office. The depositions of Ballard and Doggett were taken at the time and place specified by the fax notice.           Mr. Wilson denied ever receiving written notice of the Ballard and Doggett depositions; however, he did actually know that the depositions were being taken and he, in fact, personally appeared at such depositions for a brief time, but he refused to take part in such depositions and left before they were taken. No motion to quash the depositions was ever filed. However, Mr. Wilson did file a motion for sanctions and requested that the City be precluded from using the Ballard and Doggett depositions and further requested monetary sanctions against the City.           The trial court conducted a hearing (prior to trial on the merits) on this motion after which the court granted the motion. More specifically, the trial court did not strike the City's pleadings; however, he struck the Ballard and Doggett depositions and imposed sanctions in the amount of $2,000.00 against the City, requiring the City to pay the $2,000.00 at Mr. Wilson's office on or before 5:00 P.M. the following day. The trial court further announced that if the $2,000.00 was not paid as ordered, then the court would strike the City's pleadings and grant default judgment against the City.           The trial court stated that he granted the Davenport motion for sanctions because he believed that the City had not complied with the Texas Rules of Civil Procedure when the City's counsel faxed the notices to the Davenports' attorney. The court stated that Rule 21(a) of the Rules of Civil Procedure authorized service of a notice by personal delivery or by certified or registered mail. The trial court further stated that Rule 200 (concerning notice required for oral depositions) did not state any exception from the requirements of Rule 21(a) when providing notice of a deposition. In other words, the court reasoned that when the City failed to serve the notice on the Davenports' attorney by personal delivery or by certified or registered mail, that the City failed to comply with the Rules of Civil Procedure. This is the reason given by the trial court for granting the Davenports' motion for sanctions, resulting in suppression of the Ballard and Doggett depositions and the assessment of a $2,000.00 sanction to be paid by the City.           The question before us is whether the trial court abused its discretion in granting the Davenport motion for sanctions. We are of the opinion and hold that the trial court did abuse its discretion in this regard.           Although the Davenports' attorney was not served with a notice by personal delivery or by registered or certified mail, yet said attorney had actual knowledge of the time and place of such depositions, and was actually present when such depositions were about to be taken. The City's testimony showed that Mr. Wilson had been served by a fax message, whereas Mr. Wilson denied that he ever received such message. At any rate, Mr. Wilson had actual knowledge of the depositions, and was there.           The City has not shown that it was harmed by not being able to use the two depositions in question; therefore we believe the trial court's order barring such depositions should stand; however, we hold that the trial court abused its discretion in assessing the $2,000.00 sanctions paid by the City; therefore, this part of the trial court's order is set aside.           For the reasons hereinabove stated, we reverse the trial court's judgment and render judgment that Plaintiff-Appellees take nothing, and set aside that portion of the trial court's order assessing the $2,000.00 sanctions payment made by the City.                                                                                    JOHN A. JAMES, JR.                                                                                  Justice (Retired) Before Chief Justice Thomas, Justice           Hall (Retired) and Justice           James (Retired) Reversed and Rendered Opinion delivered and filed February 14, 1991 Do not publish n>   Because the videotape was admitted without limitation, even though the parties agreed on the record that some of the matters depicted therein were inadmissible, Vaccaro is estopped to complain about the admission of the videotape in evidence.  See Willover v. State, 70 S.W.3d 841, 846 (Tex. Crim. App. 2002).  And because the videotape was admitted without limitation, Vaccaro is estopped to complain that the jury reviewed the entirety of the videotape.           In Willover, the defendant sought to introduce a videotape in evidence for impeachment purposes, but the trial court refused to admit the evidence because portions of it were inadmissible and the court had no means to edit the inadmissible portions.  See id.  The Court of Criminal Appeals held that the trial court did not abuse its discretion by excluding the evidence because the defendant failed to segregate and offer only the admissible portions.  Id. at 846-47.  As the Court explained: The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part.  If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection.   Id. at 847 (quoting Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992)).           Vaccaro’s case presents a procedural scenario opposite that presented in Willover, yet with the same result.  Vaccaro offered a videotape containing admissible and inadmissible matters rather than offering a redacted version of the videotape.  The court admitted the evidence without limitation, and Vaccaro did not request a limiting instruction when the evidence was admitted.  Cf. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001) (“If a limiting instruction is to be given, it must be given when the evidence is admitted to be effective.”).  “If evidence is offered and challenged which contains [admissible and inadmissible evidence], the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences.”  Willover, 70 S.W.3d at 847 (quoting Jones, 843 S.W.2d at 492).           Thus, we overrule Vaccaro’s fifth issue. Notice of Deadly-Weapon Issue           Vaccaro contends in his sixth issue that his right to due process was violated when the court submitted a deadly-weapon question in the charge because the State did not give adequate notice of its intent to seek a deadly-weapon finding.           A defendant has a right to notice of the State’s intent to seek a deadly-weapon finding.  Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).  This right is “firmly rooted in fundamental precepts of due process and due course of law.”  Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (quoting Ex parte Patterson, 740 S.W.2d 766, 774 n.7 (Tex. Crim. App. 1987)).           Here, the indictment presented by the grand jury did not contain a deadly-weapon allegation.  The State filed a motion to amend the indictment to include a deadly-weapon allegation and to add enhancement allegations on September 7, 2004.  The court heard the State’s motion in a pretrial hearing on September 29.  Vaccaro objected to only the proposed enhancement allegations.  The court granted the State’s motion to amend, although the court did not interlineate the proposed amendments at that time.  Voir dire was conducted on October 15, and the trial on the merits started three days later.           Vaccaro had at least two weeks’ notice of the State’s intent to seek a deadly weapon finding.  Thus, his right to due process was not violated by the timing of the State’s notice.  See Williams v. State, 172 S.W.3d 730, 737 (Tex. App.—Fort Worth 2005, pet. ref’d) (8 days’ notice of intent to enhance punishment adequate); Richardson v. State, 170 S.W.3d 855, 857 (Tex. App.—Texarkana 2005, pet. ref’d) (11 days’ notice adequate); Hackett v. State, 160 S.W.3d 588, 591 (Tex. App.—Waco 2005, pet. ref’d) (minimum of 10 days’ notice required for enhancement allegations), disavowed sub silentio by Villescas, 189 S.W.3d at 294.[2]  Accordingly, we overrule Vaccaro’s sixth issue. Ineffective Assistance           Vaccaro contends in his seventh issue that he received ineffective assistance of counsel.  We begin with a “strong presumption” that counsel provided reasonably professional assistance, and Vaccaro bears the burden of overcoming this presumption.  See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).  Generally, the appellate record is insufficient to satisfy this burden.  Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004).  If nothing in the record reveals the reason for the act or omission which is the basis of an ineffective assistance complaint, we may not speculate on that reason.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Jones v. State, 170 S.W.3d 772, 775 (Tex. App.—Waco 2005, pet. ref’d); Hajjar v. State, 176 S.W.3d 554, 567 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).           Vaccaro did not raise this issue in a motion for new trial.  Without a record elucidating the reasons for counsel’s acts and omissions, Vaccaro has failed to overcome the “strong presumption” that counsel provided reasonably professional assistance.  See Andrews, 159 S.W.3d at 101; Jones, 170 S.W.3d at 776-77; Hajjar, 176 S.W.3d at 567.  Thus, we overrule Vaccaro’s seventh issue. We affirm the judgment.   FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring) Affirmed Opinion delivered and filed May 2, 2007 Do not publish [CRPM] [1]           The first two issues (legal and factual sufficiency) are presented in an appellant’s brief filed by counsel whom Vaccaro retained about six months after trial and who represented Vaccaro for about four months.  The remaining five issues are presented in a pro se appellant’s brief Vaccaro filed during a period of about one year when he was not represented by counsel.  After that, Vaccaro retained other counsel who filed a supplemental brief providing additional argument and authority with regard to the videotape issue.  The State has filed briefs in response to each of the briefs filed on Vaccaro’s behalf.  We have renumbered the issues presented in Vaccaro’s pro se brief to supplement the issues presented in the brief filed by his former counsel. [2]           In Hackett, a majority of this Court held that a defendant is entitled to a minimum of ten days’ notice of the State’s intent to seek enhancement-of-punishment findings.  Hackett v. State, 160 S.W.3d 588, 591 (Tex. App.—Waco 2005, pet. ref’d).  In Villescas, the Court of Criminal Appeals “disavow[ed] the [El Paso] court’s attachment of special significance to the time period of ten days.”  Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006).  Thus, less than ten days’ notice may be sufficient depending on the circumstances of the case.
01-03-2023
09-10-2015
https://www.courtlistener.com/api/rest/v3/opinions/996924/
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-2287 THE HEIRS OF WILLIE LANCE, Plaintiff - Appellant, versus GEORGETOWN COUNTY WATER AND SEWER DISTRICT, Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. Solomon Blatt, Jr., Senior District Judge. (CA-98-1328-2-8BD) Submitted: November 5, 1998 Decided: November 18, 1998 Before ERVIN, LUTTIG, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Jesse R. Lance, Appellant Pro Se. William Walter Doar, Jr., MCNAIR LAW FIRM, P.A., Georgetown, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Jesse Lance appeals the district court’s orders dismissing without prejudice his “appeal” of a state court decision dismissing his challenge to a condemnation action. We have reviewed the record and the district court’s opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we affirm on the reasoning of the district court. The Heirs of Willie Lance v. Georgetown County Water & Sewer Dist., No. CA-98-1328-2- 8BD (D.S.C. June 7 & July 27, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the deci- sional process. AFFIRMED 2
01-03-2023
07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/3103833/
NO. 07-10-00324-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C -------------------------------------------------------------------------------- NOVEMBER 15, 2011 -------------------------------------------------------------------------------- JAMES CODY SULLIVAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE -------------------------------------------------------------------------------- FROM THE 64TH DISTRICT COURT OF CASTRO COUNTY; NO. A3000-0504; HONORABLE ROBERT W. KINKAID JR., JUDGE -------------------------------------------------------------------------------- Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, James Cody Sullivan, pleaded guilty to forgery of a financial instrument, a state jail felony, and was sentenced to two years in a State Jail Facility (SJF), however the term of confinement was suspended and appellant was placed on community supervision for a period of four years. Thereafter, an agreed order modifying appellant's community supervision was filed that required appellant to complete the program at the Brownfield Regional Treatment Center. After completion of this program, a second and ultimately, a third order modifying appellant's community supervision were filed. Finally, the State filed a motion to revoke appellant's community supervision. At the hearing on the State's motion to revoke community supervision, appellant pleaded "True" to the allegations contained in paragraphs two through five. After receiving appellant's pleas of "True" and other evidence, the trial court revoked appellant's community supervision and sentenced him to serve two years in a SJF. Appellant has appealed the decision of the trial court to revoke his community supervision. We affirm. Appellants attorney has filed an Anders brief and a motion to withdraw. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial courts judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se response. Appellant has not filed a response. By his Anders brief, counsel raised a ground that could possibly support an appeal, but concludes the appeal is frivolous. We have reviewed this ground and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such arguable grounds and agree with counsel that the appeal is frivolous. Accordingly, counsels motion to withdraw is hereby granted and the trial courts judgment is affirmed. Mackey K. Hancock Justice Do not publish.
01-03-2023
10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/3822271/
This case, fraught as it has been since the issuance of the opinion of this court, if not before, with public clamor, was submitted to this court on oral argument and without briefs on the part of defendants in error. Seemingly defendants in error in their original petition before this court, and unquestionably in their attorney's petition for rehearing (they not appearing, nor approving his appearance), seek to avoid the force of the opinion of this court in the decision of this matter. In the argument before this court they largely relied upon the so-called inherent right of the Legislature to assemble for impeachment purposes, and urged us to determine they had such inherent right. Mr. Justice Harrison, while expressing himself then that the matter was not before the court (for the Legislature had not met nor attempted to expend money from the public treasury), cited in his views the case of Farrelly v. Cole (Kan.) 56 P. 492, wherein that Supreme Court said: "The sole power is thus deposited in the Governor to convene the Legislature on extraordinary occasions." See, also, syllabus 2, therein. Also observe the citations, Whitman v. R. R. Co., 2 Har. (Del.) 514: "This is a power the exercise of which the framers of the Constitution have seen fit to intrust to the chief executive officer of the state alone." So it is in Colorado, 9 Colo. 642, 21 P. 477. There the court held the power under their Constitution "rested entirely in the judgment of the executive." Again in 35 P. 531, the Colorado court held relative to the Governor: "He alone is to determine when there is an extraordinary occasion for convening the Legislature." In New York, People v. Rice, 65 How. 245, 20 N.Y. S. 296, that court, treating with their section 4, article 4 of the Constitution, said: "This article gave the Governor power to convene the Legislature in extraordinary session, and from the very nature of the provision, he must be the judge as to what constitutes the extraordinary occasion." So it was in Rhode Island. In re Legislature Adjournment,18 R.I. 830, 27 A. 327. And so in Wisconsin. State v. Farwell, 3 Pin. 439. The analogy is the same with the federal government. No case has been called to our attention and we have been unable to find any where in the history of our government any Legislature had inherent authority to convene itself. It is urged that they have the right to convene themselves. It might just as reasonably be said that men possessing the qualifications of grand jurors could assemble, organize a grand jury and return indictments, without being called together as provided by law. Certainly the Constitution could be amended so as to provide for the power and duty of the Legislature to convene itself. Has this been done? Defendants in error urge that Initiative Petition No. 79 was a constitutional amendment, known as article 8a, Bobbs-Merrill Supp. p. 19, wherein same is published as an amendment to the Constitution. It cannot be a constitutional amendment, for by the very text of the document, under *Page 278 paragraph (F), it says: "The purpose of this Act is to complete the vitalization of article 8, of the Constitution, and render the same effective." Note the word "Act" — note the provision for vitalization. Then can it be said that this is but a statute, if anything? Not so. It was not submitted as a constitutional amendment, and certainly cannot be considered as such. If it be a statute, it is in violation of the Constitution of this state, for the Constitution, by article 5, section 27, provided: "The Legislature shall hold regular biennial sessions as herein provided, but this shall not prevent the calling of a special session of the Legislature by the Governor." Article 6, section 7, provides: "The Governor shall have power to convoke the Legislature, or the Senate only, on extraordinary occasions." So the Constitution having invested the power in the Governor alone to convene the Legislature on extraordinary occasions, the Governor can only be divested of that power by a constitutional amendment. It is elementary that when the constitutional mandate says one thing and a statute says a directly opposite or contrary thing, the Constitution must be adhered to and the statute must fall. All the foregoing has been said upon the theory, solely for the sake of presentation, that the so-called "79 Act" was properly submitted to the sovereign citizens of the state of Oklahoma. "79" purported to be an initiative measure. Article 5, section 3, of the Constitution says in part: "All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference." It is the record that neither the Legislature nor the then Governor referred 79 to the people at the election of October 2, 1923. The called special election of that date was for the express purpose of other matters, to wit: State Question No. 121, relative to Workmen's Compensation Act; State Question No. 122, a proposed constitutional amendment relative to women's right to hold state offices; State Question No. 123, a proposed constitutional amendment known as the Soldiers' Bonus; State Question No. 124, a constitutional amendment known as the $15 per capita school aid, carried, but declared noneffective by the Supreme Court, September 9, 1924; State Question No. 125, a constitutional amendment relating to the depositors' guaranty fund. As heretofore stated, Petition No. 79, was not submitted by the Governor nor by the Legislature, the same being State Question No. 119, Initiative Petition No. 79, which we now have before us. Article 5, section 3, provides in part: "The Legislature shall make suitable provision for carrying into effect the provisions of this article." This language shows that the same is not self-executing. See Atwater v. Hassett, 27 Okla. 292, 111 P. 802, wherein the opinion shows that the Governor submitted the amendment. It was held by syllabus 3 that the Constitution having expressly provided that the Legislature shall enact laws "for carrying into effect provisions relating to the initiative and referendum," courts will not revise such discretionary powers. The opinion says: "It has been time and again held by this court that the initiative and referendum provisions as contained in the Constitution of this state were not self-executing. Ex parte Wagner, 21 Okla. 33, 95 P. 435; Norris et al. v. Cross,25 Okla. 287, 105 P. 1000; Threadgill v. Cross, 26 Okla. 403,109 P. 558; In re Initiative State Question No. 10,26 Okla. 554, 110 P. 647." And so subsequently the Legislature did provide by section 6653, Compiled Oklahoma Statutes, 1921, Session Laws 1916, the act approved by Honorable R. L. Williams, then Governor, author of Atwater v. Hassett: "Whenever any measure shall be initiated by the people in the manner provided by law, or whenever the referendum shall be demanded against any measure passed by the Legislature, same shall be submitted to the people for their approval or rejection at the next regular election: Provided, the Governor shall have power, in his discretion, to call a special election to vote upon such questions, or to designate the mandatory primary election as a special election for such purpose." The proviso is not here applicable, for the October 2, 1923, special election was not a mandatory primary election, nor was that election called by the Governor to vote upon Initiative Petition No. 79. Consequently 79 was not properly submitted to the people as a statute. This act, by providing that the Governor may designate the mandatory primary election as a special election for such purpose, or call a special election, conclusively shows that the Legislature did not consider *Page 279 a primary election or special election held throughout the state as a regular election, and it was therefore necessary, before these measures could be voted on at such election that same be submitted thereat by the Governor. It is insisted by the respondents that, as the Constitution provides (section 3, article 5): "All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the the express purpose of making such reference." It is further provided in said section: "Petitions and orders for the initiative and the referendum shall be filed with the Secretary of State and addressed to the Governor of the state who shall submit the same to the people." It appears that Hon. J. C. Walton, on August 13, 1923, submitted to the people of the state, by proclamation of that date, certain measures to be voted upon, at a special election, on October 2, 1923. After this proclamation had been issued signatures to Initiative Petition No. 79 were filed with the Secretary of State. The Governor did not submit the question as contained in No. 79 at the said special election to be held on the other matters contained and set forth in his proclamation theretofore issued. The right of the Governor to call or refuse to call an election, or submit or refuse to submit both initiative and referendum measures, has been many times construed by the executive department of this state. Such interpretation has been long conceded to be the law as to the time and manner and when the initiative and referendum petitions go, under the Constitution and statutes of this state, to the people. For example: Initiative Petition No. 92 was filed April 8, 1925, and was submitted by the Hon. M. E. Trapp, Governor, to the voters of this state at the primary election held August 3, 1926. Referendum Petition No. 47 was filed April 17, 1925, but was not voted on at the primary election held throughout the state, August, 1926, but its submission was ordered by the Governor at the general election, November 2, 1926. Referendum Petition No. 49 was filed April 7, 1925, and was not submitted by the Hon. M. E. Trapp at the primary election held on August 3, 1926, but was submitted by the Governor to the electors to be voted on November 2, 1926. Initiative Petition No. 89 was filed May 28, 1925, and the same was not submitted at an election held throughout the state which occurred on August 3, 1926, but was submitted at an election held November 2, 1926. Initiative Petition No. 90 was filed with the Secretary of State on May 28, 1926, and the same was not submitted at an election held throughout the state which occurred on August 3, 1926, but was submitted at the election held November 2, 1926. Initiative Petition No. 50 was filed on April 24, 1924, and the same was not submitted by the Hon. M. E. Trapp at the primary election held throughout the state on August 3, 1926, but was submitted at the election November 2, 1926. Referendum Petition No. 51 was filed on April 8, 1925, in the office of the Secretary of State and election was not held thereon at the primary election held throughout the state on August 3, 1926, but the same was submitted at an election held on November 2, 1926. Referendum Petition No. 52 was filed April 9, 1925, and the same was not submitted at the election held throughout the state on August 3, 1926, but the same was submitted on November 2, 1926. This clearly shows that the executive construction of the provisions of the Constitution and laws of the state has, in this manner, been exercised so as to empower the Governor to call an election on the measures initiated as set out in the Constitution as vitalized by the acts of the Legislature. Initiated Question No. 79 was never submitted by the Governor of Oklahoma to the electors of the state at an election held on October 2, 1923. The Hon. J. C. Walton on October 3, 1923, called a special election on No. 79 to be held December 6, 1923. This election was never held. Having reached this conclusion, it follows that the petition for rehearing should be denied, and it is so ordered. *Page 280
01-03-2023
07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/2827151/
[Cite as State v. Montgomery, 2015-Ohio-3255.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 14AP-1057 (C.P.C. No. 12CR-6125) v. : (REGULAR CALENDAR) Albert L. Montgomery, : Defendant-Appellant. : D E C I S I O N Rendered on August 13, 2015 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellant. APPEAL from the Franklin County Court of Common Pleas LUPER SCHUSTER, J. {¶ 1} Defendant-appellant, Albert L. Montgomery, appeals from a judgment of the Franklin County Court of Common Pleas sentencing him to an aggregate prison term of 16 years for his convictions for trafficking in cocaine and illegal manufacture of drugs. For the following reasons, we affirm and remand with instructions. I. Facts and Procedural History {¶ 2} In December 2012, Montgomery was indicted on three counts of trafficking in cocaine, in violation of R.C. 2925.03 (Counts 1, 3, and 4), and one count of illegal manufacture of drugs, in violation of R.C. 2925.04 (Count 2). Counts 2 and 4 of the indictment each contained a school enhancement specification, namely that Montgomery committed the offense in the vicinity of a school, as defined under R.C. 2925.01. No. 14AP-1057 2 Montgomery waived his right to a jury trial, and the case was tried to the court in April 2013. Following the presentation of evidence, the trial court found Montgomery guilty on all four counts. On May 24, 2013, the trial court held a sentencing hearing. At the May 2013 sentencing hearing, the trial court indicated it was merging Counts 3 and 4 for the purpose of sentencing, and the plaintiff-appellee, State of Ohio, indicated its election to have Montgomery sentenced on Count 4. By entry filed May 28, 2013, the trial court imposed a sentence of 8 years incarceration each on Counts 1, 2, and 4, with Counts 1 and 2 to be served concurrent to each other, and consecutive to Count 4. {¶ 3} Montgomery appealed, challenging his convictions and sentences on various grounds. On September 30, 2014, this court issued a decision, affirming in part, and reversing in part, the judgment of the trial court. See State v. Montgomery, 10th Dist. No. 13AP-512, 2014-Ohio-4354. This court overruled Montgomery's assignments of error challenging his convictions, but sustained in part his assignment of error challenging his sentences. Id. at ¶ 68. This court found the trial court failed to make the requisite findings under R.C. 2929.14(C)(4) prior to imposing consecutive sentences. Id. at ¶ 65-67. Consequently, this court remanded the matter for resentencing. Id. at ¶ 67. {¶ 4} On November 21, 2014, the trial court held a resentencing hearing. By judgment entry filed November 24, 2014, the trial court again imposed the following sentences: 8 years incarceration each on Counts 1, 2, and 4, with Counts 1 and 2 to be served concurrent to each other, and consecutive to Count 4. {¶ 5} Montgomery timely appeals. II. Assignments of Error {¶ 6} Montgomery assigns the following errors for our review: [1.] The trial court's failure to order the State to designate at the November 21, 2014 hearing which of the two merged offenses it wished Appellant to be punished while indicating otherwise in its Judgment Entry constituted plain error and violated Crim. R. 43 and Appellant's right to due process of law memorialized in the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 1 and 16 of the Ohio Constitution. [2.] Because the record does not support the lower court's consecutive sentence findings under R.C. 2929.14(C)(4) its No. 14AP-1057 3 imposition of consecutive punishment was contrary to law. These actions violated R.C. 2953.08(G)(2) and the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 1 and 16 of the Ohio Constitution. [3.] The Appellant's sentence is contrary to law because the trial court improperly employed the "sentencing package doctrine" in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 1 and 16 of the Ohio Constitution and R.C. 2953.08(A)(4). III. Discussion A. First Assignment of Error – State's Sentencing Election Regarding Merged Offenses (Counts 3 and 4) {¶ 7} Montgomery's first assignment of error alleges the trial court erred in sentencing him on Count 4 without receiving direction from the state at the November 2014 resentencing hearing as to whether the state elected the court to impose a sentence on Count 3 or 4. Montgomery further asserts the November 24, 2014 judgment entry incorrectly indicates the state had elected sentencing on Count 4. According to Montgomery, the trial court's notation on the November 24, 2014 judgment entry that the state elected sentencing on Count 4 is different from what occurred at the sentencing hearing. {¶ 8} Montgomery argues his counsel preserved this issue by objecting at the sentencing hearing. At the sentencing hearing, Montgomery's counsel objected to the sentences on the basis that the record does not support the length of the sentences or the imposition of consecutive sentences. But Montgomery's counsel did not object to the trial court sentencing Montgomery on Count 4 on the basis that the court did not obtain direction from the state regarding the merged offenses. Thus, Montgomery must demonstrate the trial court's imposition of a sentence as to Count 4 constituted plain error. See State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 33, citing State v. Scott, 10th Dist. No. 05AP-1144, 2006-Ohio-4981, ¶ 19, 21. {¶ 9} An appellate court recognizes plain error with the utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice. State v. Pilgrim, No. 14AP-1057 4 184 Ohio App. 3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139. For an error to be a "plain error" under Crim.R. 52(B), it must satisfy three prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the error must be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the error must have affected "substantial rights," meaning the error must have affected the outcome of the trial. State v. Barnes, 94 Ohio St. 3d 21, 27 (2002). {¶ 10} Montgomery cannot demonstrate the trial court erred in sentencing him on Count 4. A defendant may be indicted and tried for allied offenses of similar import, but may be sentenced on only one of the allied offenses. State v. Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2, ¶ 17. The state chooses which of the allied offenses to pursue at sentencing. Id. This election may be made prior to trial, after a verdict of guilty, or on a remand to the trial court after an appeal. See id. at ¶ 21. {¶ 11} As set forth above, Montgomery was first sentenced in May 2013. At the May 2013 sentencing hearing, the state indicated its understanding that Counts 3 and 4 should merge for the purpose of sentencing. The trial court agreed and let the state select which of the two counts a sentence would be imposed upon, stating, "I believe the prosecution gets to pick which count he would be sentenced on." (May 24, 2013 Sentencing Proceedings, 3.) The state expressly elected to have Montgomery sentenced on Count 4. Based on that election, the trial court imposed sentences on Counts 1, 2, and 4. Montgomery appealed the matter, arguing, inter alia, the sentences imposed were contrary to law. See generally Montgomery. Because the trial court did not make the requisite findings under R.C. 2929.14(C)(4) prior to imposing consecutive sentences, this court reversed the trial court's judgment in part and remanded the matter for resentencing. Id. at ¶ 68. {¶ 12} To begin the November 2014 resentencing hearing, the trial court provided a brief procedural background to the matter and asked the state whether anything needed to be corrected or added. The state replied, "Nothing from the original sentencing, Judge." (Nov. 21, 2014 Sentencing Proceedings, 3.) Later during the hearing, regarding the issue of the merger of offenses and which of the merged offenses would receive a sentence, the trial court simply stated: "Counts Three and Four merge for purposes of No. 14AP-1057 5 sentencing. The Defendant will be sentenced on Count Four." (Nov. 21, 2014 Sentencing Proceedings, 13.) {¶ 13} The trial court's November 24, 2014 judgment entry correctly indicates the state made the election that Montgomery be sentenced on Count 4. Montgomery's first assignment of error is based on the unsupported assumption that the state's election to have him sentenced on Count 4 was no longer operative after this court remanded the matter for resentencing. At the November 2014 resentencing hearing, the state did not expressly state its election that Montgomery be sentenced on Count 4. However, the state's continued election that Montgomery be sentenced on Count 4 was implicit based on the statements made at the hearing. By indicating to the court that, from the state's perspective, nothing from the original sentencing needed modified, the state did not alter its earlier election that Montgomery be sentenced on Count 4. Considering the matter was remanded for resentencing on the same offenses, and at the resentencing hearing the state implicitly indicated that its earlier election remained in effect, it was unnecessary for the state to expressly indicate its election again. Thus, the November 24, 2014 judgment entry's notation that the state "elects sentencing on Count Four" was correct because the state had already made the election before the original appeal, and on remand that election was implicitly confirmed. {¶ 14} Accordingly, Montgomery's first assignment of error is overruled. B. Second Assignment of Error – Imposition of Consecutive Sentences {¶ 15} Montgomery's second assignment of error alleges the trial court erred in imposing consecutive sentences because the record does not support the trial court's findings under R.C. 2929.14(C)(4). In support of his second assignment of error, Montgomery also argues the trial court erred because its findings under R.C. 2929.14(C)(4) are absent from the judgment entry and because those findings are not connected to specific offenses. {¶ 16} Before imposing consecutive sentences, a court must make certain findings. R.C. 2929.14(C) provides as follows: (4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the No. 14AP-1057 6 public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post- release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. {¶ 17} Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive terms of imprisonment, a trial court is required to make at least three distinct findings: (1) that consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and (3) that one of the subsections (a), (b), or (c) applies. State v. Price, 10th Dist. No. 13AP-1088, 2014- Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177. {¶ 18} A trial court seeking to impose consecutive sentences must make the findings required by R.C. 2929.14(C)(4) at the sentencing hearing and also incorporate such findings into its sentencing entry. Bonnell at ¶ 37. But the trial court need not state reasons to support its findings, nor is the court "required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry." Id. "[A] word-for-word recitation of the language of the statute is not required," but where "the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record No. 14AP-1057 7 contains evidence to support the findings, consecutive sentences should be upheld." Id. at ¶ 29. {¶ 19} At the November 2014 resentencing hearing, the trial court reviewed and discussed Montgomery's extensive criminal history, as reflected in the presentence investigation report. Montgomery's criminal history includes convictions for assault, attempted robbery, resisting arrest, receiving stolen property, possession of cocaine, attempted burglary, and domestic violence. The trial court then made the following statement: The findings concerning the consecutive sentence are as follows based upon everything that I have said earlier. The consecutive service is necessary to protect the public from future crime and to punish the offender. The consecutive sentences are not disproportionate to the seriousness of the offender's conduct and the danger that the offender poses to the public, and I specifically find subsection C, the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. (Nov. 21, 2014 Sentencing Proceedings, 14-15.) {¶ 20} In this appeal, Montgomery does not allege the trial court did not make the findings required by R.C. 2929.14(C)(4) at the sentencing hearing. Instead, Montgomery alleges the record does not support the trial court's findings and the trial court failed to incorporate those findings into the sentencing entry. According to Montgomery, the trial court's failure to include in the judgment entry its findings under R.C. 2929.14(C)(4) requires a remand of this matter for another resentencing. {¶ 21} Montgomery argues his acceptance of responsibility and expressions of remorse at the resentencing hearing weigh against the trial court's imposition of consecutive sentences and, thus, render the sentences not supported by the record and contrary to law. At the resentencing hearing Montgomery stated, "I just want to apologize for my actions." (Nov. 21, 2014 Sentencing Proceedings, 6.) Although Montgomery's apparent acceptance of responsibility and remorse were pertinent to the trial court's consideration of the appropriate sentences for the offenses, other factors supported the trial court's finding that the consecutive sentences were necessary and appropriate. See No. 14AP-1057 8 R.C. 2929.12(D)(5). Despite Montgomery's stated remorse, his extensive criminal history is a factor that indicates he is likely to commit future crimes. See R.C. 2929.12(D)(2) (a history of criminal convictions is a factor indicating the offender is likely to commit future crimes). Furthermore, Montgomery committed two of the offenses in this matter in the vicinity of a school, indicating the seriousness of his conduct and the harm he poses to the public. Thus, the record supports the trial court's findings under R.C. 2929.14(C)(4). {¶ 22} As to the trial court making the necessary notations in its judgment entry, the state concedes the trial court did not include its findings under R.C. 2929.14(C)(4) in the judgment entry as required under Bonnell. But the state challenges Montgomery's contention that the omission requires another resentencing. The state argues the omission only requires a limited remand for the trial court to correct the clerical mistake. We agree with the state. Not journalizing the required R.C. 2929.14(C)(4) findings in the judgment entry does not render consecutive sentences contrary to law when the trial court makes those findings during the sentencing hearing. See Bonnell at ¶ 30 ("A trial court's inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law."). However, because the trial court did not journalize its findings in its judgment entry, this matter must be remanded. See id at ¶ 30. On remand, the trial court must journalize its findings under R.C. 2929.14(C)(4) in a nunc pro tunc judgment entry correcting the clerical error of omission. Id.; State v. Rivera, 10th Dist. No. 14AP-460, 2015-Ohio-1731, ¶ 6; and State v. Hillman, 10th Dist. No. 14AP-252, 2014-Ohio-5760, ¶ 71. Such an administrative correction does not necessitate a new sentencing hearing. See Rivera at ¶ 6 (the journalization of a nunc pro tunc entry to reflect the R.C. 2929.14(C)(4) findings that were previously made "does not require a new sentencing hearing to be conducted."). {¶ 23} Lastly, Montgomery argues the trial court "failed to specify the offenses worthy of consecutive punishment." (Montgomery Brief, 16.) According to Montgomery, the trial court did not "link" its R.C. 2929.14(C)(4) findings to Count 4. (Montgomery Brief, 17.) Montgomery does not develop or cite any authority for this argument and the argument is unpersuasive. The imposition of consecutive sentences necessarily involves more than one offense. Here, the trial court sentenced Montgomery on Counts 1, 2, and 4, No. 14AP-1057 9 with Counts 1 and 2 to run concurrent to each other and consecutive to Count 4. As discussed above, the trial court made the required findings at the resentencing hearing in order to impose consecutive sentences. And there is no uncertainty that the trial court's findings necessary to impose consecutive sentences were related to the offenses on which it imposed consecutive sentences. Moreover, to the extent Montgomery argues the trial court should have provided additional reasoning, we note that while R.C. 2929.14(C)(4) requires a court to make certain findings before imposing consecutive sentences, it does not require a court to provide reasons for imposing consecutive sentences. State v. Vargas, 10th Dist. No. 14AP-515, 2014-Ohio-5250, ¶ 12. Thus, Montgomery's argument that the trial court did not properly link the findings to the offenses is unpersuasive. {¶ 24} For these reasons, Montgomery's second assignment of error is overruled. This matter must be remanded, however, for the trial court to file a nunc pro tunc entry to correct the clerical mistake relating to its R.C. 2929.14(C)(4) findings. C. Third Assignment of Error – Sentencing Package Doctrine {¶ 25} Montgomery's third assignment of error alleges the trial court improperly applied the "sentencing package doctrine." Montgomery argues the trial court, at resentencing, improperly structured a 16-year sentencing package to match the previously imposed 16-year aggregate sentence. We disagree. {¶ 26} The "sentencing package doctrine" is a federal doctrine that requires a sentencing court to consider the sanctions imposed on multiple offenses as the components of a single, comprehensive sentencing plan. State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, ¶ 5. Pursuant to this doctrine, an error within the sentencing package as a whole, even if only on one of multiple offenses, may require modification or vacation of the entire sentencing package due to the interdependency of the sentences for each offense. Id. at ¶ 6, citing United States v. Clements, 86 F.3d 599, 600-01 (6th Cir.1996). But this doctrine does not apply in Ohio courts. In Saxon, the Supreme Court of Ohio expressly rejected application of the sentencing package doctrine to Ohio's sentencing laws. See id. at paragraph two of the syllabus ("The sentencing-package doctrine has no applicability to Ohio sentencing laws: the sentencing court may not employ the doctrine when sentencing a defendant and appellate courts may not utilize the doctrine when reviewing a sentence or sentences."). Thus, under Ohio law, a sentencing No. 14AP-1057 10 court "lacks the authority to consider the offenses as a group and to impose only an omnibus sentence for the group of offenses." Id. at ¶ 9. {¶ 27} Here, Montgomery contends the trial court formulated a comprehensive sentencing plan and imposed the sentences on remand in conformity with that plan. In support, Montgomery cites the following statement of the trial court at resentencing: "So I felt that the sentence I imposed when you were here the last time was appropriate. I still believe it to be appropriate." (Nov. 21, 2014 Sentencing Proceedings, 13.) According to Montgomery, this statement reflected the trial court's "predisposition" to impose an aggregate 16-year sentence. Contrary to Montgomery's contention, the trial court did not apply the sentencing package doctrine. In the previous appeal, this court reversed and remanded because the trial court did not make the necessary findings to support the imposition of consecutive sentences. Montgomery at ¶ 67. This court did not, however, alter the number or severity of offenses requiring sanctions on remand. On remand, the trial court noted its view that the appropriate sentences, for the same offenses, had not changed. The trial court's expression of that view did not demonstrate the application of the sentencing package doctrine. Montgomery received the same sentences for the same offenses. Therefore, the trial court did not improperly impose one or more sentences pursuant to the sentencing package doctrine. {¶ 28} Accordingly, Montgomery's third assignment of error is overruled. IV. Conclusion {¶ 29} Based on the foregoing, Montgomery's first, second, and third assignments of error are overruled. However, this matter must be remanded for the trial court to correct the clerical error regarding its R.C. 2929.14(C)(4) findings. Accordingly, the judgment of the Franklin County Court of Common Pleas is affirmed, and this matter is remanded to that court for the limited purpose of entering a nunc pro tunc entry reflecting the R.C. 2929.14(C)(4) findings the court made during the resentencing hearing. Judgment affirmed; cause remanded with instructions. BROWN, P.J., and HORTON, J., concur.
01-03-2023
08-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/2892599/
NO. 07-04-0024-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E MARCH 22, 2005 ______________________________ RAND McPHERSON AND GEORGETTE McPHERSON, APPELLANTS V. CITY OF LAKE RANSOM CANYON, APPELLEE _________________________________ FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 99-506,390; HONORABLE SAM MEDINA, JUDGE _______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. (1) MEMORANDUM OPINION Rand McPherson and Georgette McPherson challenge the trial court's judgment declaring them to be in violation of Section 2 of Ordinance 46 of the City of Lake Ransom Canyon, granting injunctive relief sought by the City, and severing their claims for malicious prosecution and abuse of process to be determined at a subsequent date. By their first five issues, the McPhersons contend the trial court erred in granting summary judgment because (1) the judgment failed to dispose of all claims of the parties in the record, (2) criminal proceedings were pending upon alleged violations of the subject ordinances, (3) sections 54.012 and 54.018 of the Texas Local Government Code are the exclusive civil remedies for enforcement of an ordinance regulating structures, (4) genuine and material issues of fact regarding the City's claim of violation of municipal ordinances existed, and (5) ordering removal of the caboose is outside the scope of permissible declaratory relief. By their sixth issue, the McPhersons contend the trial court erred in ordering a severance of the remaining claims. We affirm. In 1996, the McPhersons purchased a tract of land in City of Lake Ransom Canyon, Texas and built a residence there. At all times material here, City Ordinance 51, entitled Substandard Building and City Ordinance 46, pertaining to Amendment of Building Code were in effect. According to the affidavit of the City Administrator, McPherson contacted the Architecture Control Committee and stated he wanted to install a 1914 Burlington Northern Caboose on his property to be used for storage and a bunkhouse/playhouse for grandchildren. After consideration, the Committee denied the request. The McPhersons then took their request to the City Council by personal appearance on May 13, 1997. Their request was presented orally along with a written summary. However, because a motion was not presented, no action was taken on the request for a permit. The McPhersons made a second appearance before the City Council on July 1, 1997, and renewed their request for a permit to move the caboose onto their property. Following discussion, upon a motion to deny, the Council voted to deny the request. Then, without obtaining a building permit or other authority, in February 1999, the McPhersons had concrete pads installed on their property. Although a building official for the City observed the installation of the concrete pads, he did not object to the work. Then, without obtaining a variance or building permit, the caboose was placed on a trailer bed and moved to the McPherson's property. After the wheels were reattached, a crane was used to place the caboose on the concrete pads. Commencing May 18, 1999, the City served the McPhersons with 15 citations charging violations of Ordinance 46, Section 2, and Ordinance 51; however, the judgment does not indicate the status of the citations on the docket of the municipal court. The citations prompted the McPhersons to file the underlying action seeking declaratory judgment and damages. Among other things, they alleged that a building permit was not required for the caboose project because it "represented a small and unimportant work, and the City waived any requirement for a building permit." They sought a declaratory judgment declaring they had not violated any ordinances and the building official's failure to "red tag" the project constituted a "no objection" or waiver of Ordinance 46. Also, the McPhersons contended that Ordinances 46 and 51 were unconstitutionally vague and overly broad. In addition, they sought attorney's fees pursuant to section 36.009 of the Texas Civil Practice and Remedies Code and filed a separate claim for damages for malicious prosecution. In addition to its answer and special exceptions, the City likewise sought declaratory judgment seeking, among other relief, a determination that the McPhersons were in violation of Section 2 of Ordinance 46, mandatory injunctive relief, and attorney's fees. By its third amended motion for summary judgment, the City sought a declaration that (1) the McPhersons were in violation of Section 2 of Ordinance 46 for (a) constructing a concrete slab adjacent to their residence without obtaining a permit from the City or a variance for non-requirement of a permit, and (b) moving and placing the caboose on the concrete slab without obtaining a permit or variance, (2) there was no basis for the McPhersons' claim of malicious prosecution, or (3) there was no basis for their claims of abuse of process as a matter of law. Following a hearing on the City's motion, the trial court concluded: •the McPhersons are in violation of Section 2 of Ordinance 46 in (a) constructing a concrete slab on their property without obtaining a permit from the City or a variance for non-requirement for permit and (b) in moving and placing a railroad caboose on the concrete slab on their property without obtaining a variance for non-requirement thereof; •the McPhersons' claims for malicious prosecution and abuse of process are separate and distinct and are properly severable; •the McPhersons' claims that Ordinance 51 is unconstitutional are not relevant or material to the determination of the City's motion based on Section 2 of Ordinance 46; •injunctive relief sought by the City to require the removal of the caboose and pad was proper under section 37.011 of the Tex. Civ. Prac. & Rem. Code; and rendered judgment accordingly. Before commencing our analysis of the McPhersons' issues, we set forth the appropriate standards of review. Standard of Review-Summary Judgment In reviewing summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985): 1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the non-movant's cause of action. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied). Issues which the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion and not by mere reference to summary judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). By their first issue, the McPhersons contend the trial court erred in granting summary judgment when the judgment failed to dispose of all claims of the parties. By their sixth issue, they contend the trial court erred in ordering a severance of the claims of malicious prosecution and abuse of process. Because we disagree as to both contentions and these two issues implicate the severance of claims, we will consider them simultaneously. Pursuant to Rule 41 of the Texas Rules of Civil Procedure, the trial court was authorized to sever claims. Severance of claims is proper if the (1) controversy involves more than one cause of action, (2) severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Guaranty Federal v. Horseshoe Operating, 793 S.W.2d 652, 658 (Tex. 1990). Also, we review the action of the trial court for abuse of discretion. Id. at 658. Moreover, a trial court may grant a severance sua sponte. Rice v. Travelers Express Co., 407 S.W.2d 534, 536 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.). Considering the claims for malicious prosecution and abuse of process were independent claims and they were severed along with other issues, we are unable to hold the trial court abused its discretion in severing those matters. Due to the severance of the claims, the judgment challenged here is final and subject to appeal. Lehmann v. Har-Con Corp., 39 S.W.3d 191,195 (Tex. 2001). Issues one and six are overruled. By their second issue, the McPhersons contend the trial court erred in granting summary judgment and denying their plea to the jurisdiction on the City's declaratory judgment action when there were pending criminal proceedings on the subject ordinances. We disagree. Section 54.012 of the Texas Local Government Code provides that a municipality may bring a civil action for the enforcement of an ordinance. As we understand their contention, the McPhersons assert that because the section does not authorize simultaneous criminal prosecutions with civil enforcement proceedings, the City could not maintain its counterclaim for declaratory judgment while the criminal prosecutions remained pending. In connection with its argument, they cite City of Longview v. Head, 33 S.W.3d 47 (Tex.App.--Tyler 2000, no pet.); however, that case is not controlling because the underlying civil proceeding was commenced by the McPhersons after the citations for ordinance violations were issued and served. Moreover, the City filed its answer and counterclaim for declaratory judgment as permitted by the Texas Rules of Civil Procedure. Any error in this regard was therefore invited by the McPhersons and may not be considered on appeal as grounds for reversal. See Bell v. Showa Denko K.K., 899 S.W.2d 749, 760 (Tex.App.--Amarillo 1995, writ denied). Issue two is overruled. By their third issue, the McPhersons contend the trial court erred in granting summary judgment when the exclusive civil remedy for enforcement of an ordinance would have been pursuant to sections 54.012 and 54.018 of the Local Government Code and that a declaratory judgment action and mandatory injunction was improper. We disagree. By their multiple responses to the City's motion for summary judgment, the McPhersons did not expressly present to the trial court their contention that a mandatory injunction was not available. Accordingly, this issue may not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). See also McConnell, 858 S.W.2d at 341. Issue three is overruled. By their fourth issue, the McPhersons contend the trial court erred in granting summary judgment because material issues of fact regarding their violation of the municipal ordinance existed. By two sub-parts, they allege that issues of fact existed to prevent summary judgment (a) on the City's claim that the placement of the caboose violated Section 2 of Ordinance 46, and (b) regarding unconstitutionally vague and broad language describing properties subject to waiver of the permit requirement. We disagree. Before we commence our review of the two sub-parts, we first note that because the record does not show that the McPhersons' objections to the summary judgment evidence presented by the City were presented to the trial court and a ruling obtained thereon, they may not be considered on appeal. See Giese v. NCNB Tex. Forney Banking Center, 881 S.W.2d 776, 782 (Tex.App.--Dallas 1994, no writ); McConnell, 858 S.W.2d at 343. Section 2 of Ordinance 46 provides: That Section 301(a) of the Uniform Building Code, 1976 Edition, as amended by the City of Lubbock, Texas, which Ordinance was adopted by the Village of Lake Ransom Canyon as its Building Code in Ordinance No. 17 and Section 2:1 of Ordinance No. 24 be and they are amended to read as follows: Permits required. No person, firm or corporation shall erect, construct, enlarge, alter, repair, move, improve, remove, convert, or demolish any building or structure in the Village, or cause the same to be done, without first obtaining a separate building permit for each building or structure from the building official, except that upon application and authorization of the building official, a building permit may be waived for small and unimportant work. No permit will be required for normal repair and maintenance of any building nor shall a permit be required for erection of a fence or construction of a patio so long as any such structure would not constitute a violation of any other provision of the building code. (Emphasis added). Sub-part (a). Waiver by Building Official. Per Section 2, upon application to the building official, the official may waive the requirement of a permit for small and unimportant work. According to the summary judgment evidence, in order to move the caboose to the McPherson property, it's size required that it be placed on a trailer by a crane, an oversize permit obtained from the Texas Department of Transportation for movement on the highway and placement on the McPhersons' property by crane. Unlike the construction of a gazebo, a barbeque pit, or a shed for lawn and garden hand tools without plumbing or electrical wiring, which some may consider to be small and unimportant work, the summary judgment evidence considered in the context of a residential subdivision does not raise a fact question that the construction of the concrete pad and the placement of the caboose or the property was both small and unimportant work. Accordingly, the fact that the building official did not red tag the project is not controlling because the exception for "small and unimportant work" would not have been available. Sub-part (b). Vagueness challenge. Although our decision in sub-part (a) that no fact question is presented that the installation of the caboose constituted "small and unimportant work," we briefly address the issue. The McPhersons did not apply to the building official for a building permit on any ground. Instead, they appeared before the Architecture Control Committee and twice before the City Council and their requests were denied. The decision of the City Council is not subject to collateral attack as the McPhersons attempt here. See Carr v. Bell Sav. & Loan Ass'n., 786 S.W.2d 761, 764 (Tex.App.--Texarkana 1990, writ denied). Issue four is overruled. By their fifth issue, the McPhersons contend the trial court erred in granting summary judgment ordering removal of the caboose which is outside the scope of permissible declaratory judgment. We disagree. Pleadings frame the issues for determination. Murray v. O & A Express, Inc., 630 S.W.2d 633 (Tex. 1982). By its second amended cross-petition for declaratory judgment, among other things, the City expressly sought mandatory injunctive relief to require the McPhersons to remove the caboose. Notwithstanding this pleading, the McPhersons did not challenge the appropriateness of injunctive relief by special exception. Accordingly, any contention that injunctive relief would not lie was waived. See Tex. R. Civ. P. 90; J.K. & Susie L. Wadley Research Inst. v. Beeson, 835 S.W.2d 689, 693 (Tex.App.--Dallas 1992, writ denied). Further, by its third amended motion for summary judgment, the City also sought injunctive relief. However, by their multiple responses to the City's motion for summary judgment, the McPhersons did not expressly present to the trial court their contention that an order requiring removal by injunction was not appropriate. Accordingly, this issue may not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166(a)(c); see also McConnell, 858 S.W.2d at 341. Issue five is overruled. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
01-03-2023
09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/2792582/
Electronically Filed Supreme Court SCPW-15-0000193 08-APR-2015 12:41 PM SCPW-15-0000193 IN THE SUPREME COURT OF THE STATE OF HAWAI'I LILY TAI NOMURA, Petitioner, vs. THE HONORABLE MICHAEL K. TANIGAWA, JUDGE OF THE DISTRICT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent Judge, and ASSOCIATION OF APARTMENT OWNERS OF CENTURY CENTER, INC., DANNY ROBERTS; MICHAEL SPENCER; SAMANTHA COOK; ALETTA FLEISCHINGER; KAYLA FERNANDEZ; KAYCEE HABAN; ALIX LUNSFORD; HANS BRODO; LILY LUM; CHRISTOPHER SCHULTE; LYLE NAM PAK; TOM SALT; LOGAN CROWLEY; ERIN BARASKY; JOHN DOES 1-50; and JANE DOES 1-50, Respondents. ORIGINAL PROCEEDING (CIV. NO. 1RC14-1-7636) ORDER DENYING PETITION FOR WRIT OF MANDAMUS (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.) Upon consideration of Petitioner Lily Tai Nomura’s petition for a writ of mandamus, filed on March 23, 2015, the documents attached thereto and submitted in support thereof, and the record, it appears that Petitioner fails to demonstrate that the respondent judge committed a flagrant and manifest abuse of discretion in denying her “Motion to Set Bond for a Stay Pending Appeal.” If an appeal is filed in the underlying proceeding, Petitioner may seek relief in the district court or in the Intermediate Court of Appeal, as appropriate. Petitioner is not entitled to extraordinary relief. See Kema v. Gaddis, 91 Hawai'i 200, 204-05, 982 P.2d 334, 338-39 (1999) (a writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action; where a court has discretion to act, mandamus will not lie to interfere with or control the exercise of that discretion, even when the judge has acted erroneously, unless the judge has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which he or she has a legal duty to act); Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 241, 580 P.2d 58, 62 (1978) (a writ of mandamus is not intended to supersede the legal discretionary authority of the trial courts, cure a mere legal error, or serve as a legal remedy in lieu of normal appellate procedure). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, April 8, 2015. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Richard W. Pollack /s/ Michael D. Wilson 2
01-03-2023
04-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/127463/
537 U.S. 1214 COLEMANv.UNITED STATES. No. 02-8259. Supreme Court of United States. February 24, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. 2 C. A. 3d Cir. Certiorari denied.
01-03-2023
04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/4046542/
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01-03-2023
09-29-2016
https://www.courtlistener.com/api/rest/v3/opinions/2750252/
Filed 11/10/14 P. v. Arevalo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter) THE PEOPLE, C075052 Plaintiff and Respondent, (Super. Ct. No. CRF12-1323) v. MONICA RENEE AREVALO, Defendant and Appellant. Following a jury trial, defendant Monica Renee Arevalo was convicted of first degree residential burglary (Pen. Code, § 459)1 and receiving stolen property (§ 496, subd. (a)), and sentenced to an aggregate term of two years in state prison. On appeal, defendant contends she cannot be convicted of both “stealing and receiving the same property.” Defendant also contends the trial court relied on “improper factors” in denying her probation. We conclude defendant was properly convicted of both crimes and any error in denying defendant’s probation was harmless. We affirm the judgment. 1 Undesignated statutory references are to the Penal Code. 1 PROCEDURAL BACKGROUND2 Defendant was charged with entering an inhabited dwelling house of another with the intent to commit theft and/or any felony therein (§ 459), and receiving stolen goods (§ 496, subd. (a)). After she was found competent to stand trial a jury found defendant guilty as charged. At sentencing, defendant argued that although she was statutorily ineligible for probation, her case was unusual and the court should grant her probation. The trial court disagreed, finding the case was not unusual. In reaching its decision, the trial court found: “there is certainly nothing about the offense that would show that this is an unusual case. And there is really nothing, as I look at the factors in mitigation submitted by [defendant] or anywhere else, that would indicate that this is an unusual case.” The court then outlined the criteria it considered under California Rules of Court, rule 4.4143 in reaching its decision. Those factors include that: the crime was carried out in a professional manner, defendant’s record of criminal activity was increasing in seriousness, defendant’s ability to comply with probation would be limited due to her history of substance abuse, emotional injury was inflicted on the victim, defendant was a danger to others, and defendant had not shown any remorse for her crimes. The court also noted the rule 4.414 factors it considered that weighed in favor of granting defendant probation: defendant’s prior performance on probation was satisfactory and defendant had expressed a willingness to comply with the terms of probation. On balance, the trial court concluded, defendant’s case was not unusual. The trial court then sentenced defendant to an aggregate term of two years in state prison. 2The facts regarding defendant’s crimes are not relevant to the issues on appeal. Accordingly, we omit them from our opinion. 3 Undesignated rule references are to the California Rules of Court. 2 DISCUSSION I On appeal, defendant contends she cannot be convicted of “stealing and receiving the same property.” Whether defendant can be convicted of stealing and receiving the same property is irrelevant because she was convicted of burglary (§ 459) and receiving stolen property (§ 496, subd. (a)) -- not theft. In 1999, the California Supreme Court ruled the law permitted a defendant to be convicted of burglary as well as receiving the property he or she stole during those burglaries. (People v. Allen (1999) 21 Cal.4th 846.) Defendant acknowledges the Supreme Court’s ruling, but argues the ruling needs to be reconsidered. We disagree. We conclude there was no error. II Defendant also contends the trial court improperly relied on the factors set forth in rule 4.414 in finding hers was not an unusual case in order to overcome the statutory limitation on probation. We agree the trial court considered the wrong criteria in determining whether defendant’s case was unusual. We also agree this was error. We conclude, however, the error was harmless. Defendant was presumptively ineligible for probation, unless hers was an “unusual case,” because she was convicted of a serious felony. (§ 1170, subd. (h)(3) [first degree burglary]; § 1192.7, subd. (c)(18).) Rule 4.413(c) lists factors that “may indicate the existence of an unusual case” to overcome the statutory presumption against probation. They include facts limiting defendant’s culpability, such as whether the defendant is youthful or aged and has no significant record of prior criminal offenses. (Rule 4.413(c)(2)(C).) “Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely ‘may indicate the existence of an unusual case.’ [Citation.]” (People v. Stuart (2007) 156 Cal.App.4th 165, 178, italics omitted.) If a trial court determines the presumption against probation has been overcome, then the court evaluates whether to grant probation under rule 4.414, 3 which lists criteria affecting that decision. (People v. Stuart, at p. 178; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.) Here, in reaching its decision that defendant’s case was not unusual, the trial court failed to consider the factors in rule 4.413(c). Instead, the trial court went directly to the more general criteria for determining whether to grant probation listed in rule 4.414. This was error; however, it was error that inured to defendant’s benefit because the court considered criteria it should not have considered unless and until the court found defendant’s case was unusual. The error was, therefore, harmless. Moreover, the trial court’s consideration of the rule 4.414 criteria and resulting decision to deny probation, unequivocally reveal that even if the trial court found defendant’s case “unusual,” the court still would not have granted probation. DISPOSITION The judgment is affirmed. BLEASE , Acting P. J. We concur: MAURO , J. HOCH , J. 4
01-03-2023
11-10-2014