alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
* 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.

REVISED May 13, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50444

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

AUGUSTIN CRUZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:07-CR-342-4

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Augustin Cruz appeals his jury-trial conviction for conspiracy to possess

with intentto distribute, and possession with such intent, 100 kilograms or more

of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. The sole issue raised on

appeal is whether the district court erred in excluding from evidence the

United States Court of Appeals

Fifth Circuit

F I L E D

May 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-50444

2

Government’s 30 April 2007 motion to dismiss the initial complaint against Cruz

without prejudice. The motion declared that, in the light of the relevant

evidence then known, the case against Cruz was not “readily provable”.

Additional evidence implicating Cruz in the conspiracy, however, was provided

shortly thereafter by Cruz’ codefendants. This evidence formed the basis of the

superseding indictment against Cruz. Cruz contends the Government’s motion

was admissible as a statement of a party-opponent under Federal Rule of

Evidence 801(d)(2).

Evidentiary rulings are reviewed for abuse of discretion, subject to

harmless-error analysis. United States v. Cantu, 167 F.3d 198, 203 (5th Cir.

1999). For an evidentiary ruling to constitute reversible error, it must have

substantially prejudiced the defendant’s rights. See United States v. Sanders,

343 F.3d 511, 519 (5th Cir. 2003); FED. R. EVID. 103(a).

We need not address whether the Government’s motion constitutes an

admissible statement of a party-opponent under Rule 801(d)(2), because Cruz

has failed to maintain, much less demonstrate, that the claimed error affected

the outcome of the proceedings. Moreover, any such contention would not be

supported by the record.

At trial, the jury heard testimony that the Government did not have

enough evidence in April 2007 to pursue a case against Cruz, which is precisely

whatthe motion evinces. The motion does not indicate the Government believed

Cruz was innocent but that the case was not“readily provable” as of the date the

motion was filed. Further, the jury heard testimony that the Government

subsequently received additional evidence from codefendants detailing Cruz’

involvement in the case; and, the codefendants testified at trial. As such, even

if the evidentiary ruling was erroneous, Cruz has failed to demonstrate it

affected his substantial rights. Accordingly, any error was harmless. See

Sanders, 343 F.3d at 519.

AFFIRMED.
#### Leslie JACKSON, and Deborah Ann Smith, a/k/a Deborah Jackson, Appellants, v. The STATE of Oklahoma, Appellee.

Nos. F-81-556, F-81-557.

Court of Criminal Appeals of Oklahoma.

Nov. 16, 1982.

Rehearing Denied Dec. 14, 1982.

Stephen E. Lile, Lawton, for appellants.

Jan Eric Cartwright, Atty. Gen., Robert C. Smith, Jr., Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

As their sole assignment of error, on appeal from their conviction in Comanche County District Court, Case No. CRF-80-519, of Unlawful Possession of Marijuana with Intent to Distribute, the appellants, Leslie Jackson and Deborah Ann Smith, a/k/a Deborah Jackson, argue that the trial court erred in failing to suppress the contraband as it was allegedly obtained as a result of an illegal arrest.

On the evening of September 23, 1980, acting upon a “tip” from a reliable confidential informant, Lawton police officers set up surveillance at the Chickasha tollgate of the H.E. Bailey Turnpike, waiting for a brownish-gold Honda with a red “For Sale” sign taped to the rear window, which was supposed to contain two black females who were bringing marijuana to Lawton from Oklahoma City. At approximately 10:50, P.M., Lawton Police Officers Goss and Dawkins observed the vehicle exit the tollgate and began to follow it at a distance. Officer McDougle, who was in Lawton, was instructed to stop the vehicle on a traffic violation if possible, but stop it before it reached 622 Bishop Road. However, before he was able to do so, the car was stopped by a highway patrolman for speeding. Trooper Tom Downs testified that he was routinely working traffic and clocked a vehicle approximately one half mile from him that was traveling at sixty (60) miles per hour in a fifty-five (55) miles per hour zone, and he stopped the vehicle for speeding. As *1058Downs exited his cruiser, the Honda suddenly drove away. During the pursuit that followed, the passenger door of the fleeing car opened and a large, green plastic bag was thrown out of the Honda. It was retrieved, and was found to contain several bags of marijuana amounting to a total weight of 4.75 pounds.

Trooper Downs stated that although he had overheard on his police radio that a police unit wanted a brown Honda stopped in the vicinity, he did not know that it was the vehicle that he was stopping until he had begun his attempted arrest.

Whether or not the attempted arrest for speeding was a subterfuge arrest need not be determined by this Court because here the contraband was not obtained by use of a search, as was done in all the cases cited as authority by the appellants. In the instant case an abandonment of the evidence occurred when the marijuana was flung from the fleeing vehicle, and the seizure was thus outside the area protected by the Fourth Amendment,1 and was properly admitted at trial. This assignment of error is wholly without merit.

The judgments and sentences are AFFIRMED.

BRETT, P.J., and CORNISH, J., concur.

1

. For a case reaching the same conclusion on similar facts, see, *United States*v. *HoIIman,*541 F.2d 196 (8th Cir.1976).
#### John MERCEDE, Appellant, v. Richard HOLOFF, individually, and Arthur Snow, individually, and d/b/a Tri-Cor Supply, Inc., Appellees.

No. 4-86-3136.

District Court of Appeal of Florida, Fourth District.

Oct. 14, 1987.

Kenneth R. Mikos of Friedman, Blackwell, Mikos & Ridley, Fort Lauderdale, and Russell S. Adler, Fort Lauderdale, for appellant.

Alberto A. Macia of Shea & Gould, Miami, for appellees.

PER CURIAM.

This appeal arises out of an action to enforce a rent escalation clause contained in a lease. After the pleadings closed, the trial court granted appellees’ motion for judgment on the pleadings.

Appellant contends that material questions of fact exist concerning the interpretation of the rent escalation provision. We agree and reverse. The rent escalation provision is ambiguous on its face. In *Royal American Realty v. Bank of Palm Beach and Trust Co.,*215 So.2d 336 (Fla. 4th DCA 1968), we said:

> *806In the construction of contracts the intention of the parties is to govern. Such intention is ordinarily deduced from the language employed when the same is without ambiguity; however, if the language used does create an ambiguity, then parol evidence is properly admissible, not for the purpose of changing or varying the terms of the written instrument, but to elucidate, explain or clarify the intention of the parties.

*Id.*at 338.

The rent escalation clause contains conflicting provisions for the computation of rent that cannot be reconciled. A literal interpretation of the provision would result, for all practical purposes, in no increase in rent unless the consumer price index doubled in a single year. Such an interpretation would render it meaningless. The trial court should not have entered judgment on the pleadings because a factual question exists as to the intent of the parties and the interpretation to be placed on the rent escalation provision. *See Krieger v. Ocean Properties, Ltd.,*387 So.2d 1012 (Fla. 4th DCA 1980).

REVERSED and REMANDED.

HERSEY, C.J., DELL, J., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.
T hi s di s pos i t i on i s notappr opr i a t e f orpubl i c a t i on and i s notpr e c e de nt * e xc e pta s pr ovi de d by9th C i r . R . 36- 3.

T he pane l una ni m ous l yc onc l ude s thi s c a s e i s s ui t abl e f orde c i s i on ** w ith o u t o r a l ar g u m e n t. See F ed. R . A pp . P . 34 (a )( 2). NOT F OR P UB L I CAT I ON UN I TE D STATE S C OU RT OF APPE ALS FOR T HE NI NTH CI RC UI T R O S A M A R I A M O R A L E S L E M U S a nd J ENNEFE R M ARI A M ARTINEZ M O RA LES, P et i t i o n ers, v. E R I C H . H O L D E R , J r ., A tto rn e yG e n e r a l, R e s p o n d e n t. N os . 09- 70088 09- 72760 A ge nc yN os . A 029- 274- 266

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I m m i gr a t i on A ppe a l s ’ ( “ B I A ” ) or de rde ny i ng the i rm ot i on 

# FI LED MA R 02 2011 M OLLY C. DW Y ER, CLERK U . S. C O U R T OF APPE ALS09- 72760 2 to r e o p e n o n th e b a s is o f in e f f e c tiv e a s s is tan c e o f

c o u n s e l, an do r d e rd e n y in g th e ir m ot i on t o r e c ons i de r . W e ha ve j ur i s di c t i on unde r8 U . S . C . § 1252. W e r e vi e w f or ab u s e o f d is c r e tio n th e d e n ia l o f am o tio n to r e o p e n o rr e c o n s id e r , Moh am m ed v. G on zales , 4 0 0 F .3 d7 8 5 , 7 9 1 ( 9 th C ir . 2 0 0 5 ) , an dw e d e n yth e p e titio n f o rr e v ie w . T h e B I A d idn o t ab u s e its d is c r e tio n in d e n y in g p e titio n e r s ’ m o tio n to re op en as un t i m el y bec ause i tw as fi l ed m ore than ei gh tye ar s a ft erthe S ept em ber 11, 1998, de a dl i ne f

orm ot i ons t o r e ope n f

orthe purpos e of

f i l i ng an appl i c a t i on f

or spec i alrul e c ance l l at i on of re m ov alun der the N i cara gu an A dj ustm entand C entra l A m e r ic a n R e lie f

A c t o f 1 9 9 7 , se e 8 C . F . R . § 1 00 3. 43 (e )( 1), and p et i t i on er s f ai l ed to e s tab lis h th a t th e ya c te dw ith th e du e d ilig e n c e r e q u ir e df o re q u itab le to llin g , se e I tu rr i b a rr i a v . I

NS , 3 2 1 F .3 d8 8 9 , 8 9 7 ( 9 th C ir . 2 0 0 3 ) ( e q u itab le to llin g is a v a ilab le w here “ pet i t i on eri s pre vent ed fr om fi l i ng because of dec ept i on , fr aud, or error, as lo n g a s th e p e titio n e ra c ts w ith du e d ilig e n c e ” ) . A cco rd i n g l y, th e B IA d i dn o tab u se i t s d i scret i o n i n d en yi n g p et i t i o n ers’ m o tio n to r e c o n s id e r . See 8 C .F .R . § 1 0 0 3 .2 ( b ) ( 1 ) ( “A m o tio n to r e c o n s id e rs h a ll s t a t e the r e a s ons f

orthe m ot i on bys pe c i f

y i ng the e rr or s of

f a c torl aw i n the pr i or B o a r dd e c is io n . . . .” ) . P E T I T I ON F OR RE V I E W DE NI E D.
IV

107TH CONGRESS

1ST SESSION H. CON. RES. 283

Expressing the sense of Congress that Parker Dykes deserves to be recognized

for his years of commitment to football and his community and is

extremely worthy of the award of National Junior College Coach of

the Year.

IN THE HOUSE OF REPRESENTATIVES

DECEMBER 6, 2001

Mr. SHOWS submitted the following concurrent resolution; which was referred

to the Committee on Education and the Workforce

CONCURRENT RESOLUTION

Expressing the sense of Congress that Parker Dykes deserves

to be recognized for his years of commitment to football

and his community and is extremely worthy of the award

of National Junior College Coach of the Year.

Whereas Parker Dykes was named National Junior College

Coach of the Year;

Whereas Parker Dykes has been actively involved in football

for more than 36 years;

Whereas Parker Dykes has been a strong role model for

youth in both his personal and professional life, as indicated by his selection for the Fellowship of Christian Athletes of Mississippi Influence Award;
2

•HCON 283 IH

Whereas under Parker Dykes’s leadership the Jones Junior

College football team finished the 2001 season with 10

wins and 1 loss and ranked 6th in the National Junior

College Athletic Association Poll; and

Whereas under Parker Dykes’s leadership the Jones Junior

College football team won the Mississippi Junior/Community College Association State Championship football

game by defeating Mississippi Delta Community College

by a score of 22 to 6 on November 17, 2001: Now, therefore, be it

1 Resolved by the House of Representatives (the Senate

2 concurring), That it is the sense of Congress that Parker

3 Dykes deserves to be recognized for his years of commit4 ment to football and his community and is extremely wor5 thy of the award of National Junior College Coach of the

6 Year.

Æ
* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 25, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-51079

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MARTINEZ-RODRIGUEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. DR-02-CR-292-1-OG

--------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

 Jose Martinez-Rodriguez appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation/removal in violation of 8 U.S.C. § 1326. 

Martinez contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)

define separate offenses. He argues that the prior conviction

that resulted in his increased sentence is an element of a

separate offense under 8 U.S.C. § 1326(b) that should have been

alleged in his indictment. Martinez maintains that he pleaded
No. 02-51079

-2-

guilty to an indictment which charged only simple reentry under

8 U.S.C. § 1326(a). He argues that his sentence exceeds the

two-year maximum term of imprisonment which may be imposed for

that offense.

In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause. Id. at 239-47. 

Martinez acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). 

He seeks to preserve his argument for further review. 

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted). The judgment of the district court is

AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that an appellee’s brief not be required. The motion is GRANTED. 

AFFIRMED; MOTION GRANTED.
EXHIBIT 10.23


 


January 28, 2005


 


Doug Arm, Ph. D.


 


Dear Dr. Arm:


 


We are pleased to offer you the position of
Vice-President of Development - Biologics at a salary of $13,333 per month
(which, if computed on an annual basis, would be equivalent to $160,000),
payable semi-monthly. You will report to me, and your start date will be
Monday, February 15th, 2005. 
Both the device development groups in Engineering and Biologics will
report to you.  You will also primarily
manage outside relationships relative to this project.  In effect, you will, in conjunction with me,
have overall responsibility for the current engineering development and future
direction of the stem cell device projects. You will have primary project management
duties and responsibility to interact with quality, regulatory, production as
well as related outside groups.  In
addition, you will likely be called upon to interact with marketing, clinical
trials coordinators and clinicians. 
Clearly this will be a very challenging but very rewarding opportunity.


 


You will receive MacroPore’s employee benefits
comparable to MacroPore’s standard package, including PPO medical insurance for
you and your family, group life insurance, group long-term disability
insurance, and participation in our flexible spending account and 401(k) plan.
Your paid time off will be four (4) weeks per year.


 


We will propose to reimburse you for all expenses
incurred related to your move to San Diego of up to $40,000. You will receive a
car allowance of $400/month.


 


We will recommend to the Board of Directors that it
grant to you, under our Amended and Restated 1997 Stock Option and Stock
Purchase Plan, 50,000 stock options. These stock options, if granted by the
Board, would vest monthly over four years (subject to a 1-year cliff) starting
from your first day of employment. The exercise price would be equal to 100% of
the fair market value of our stock as of the date the Board acts to grant the
options. The options will be exercisable once they vest, subject to your
remaining an employee of the Company, as described in the stock option
agreement you will receive from the Company. 
(Please see attached addendum form Incentive Stock Option Agreement.)


 


Employment with MacroPore is “at will” and may be
terminated without cause by either party. 
This letter describes a written offer of employment and does not
constitute a contract.


 


Doug, we would be delighted to have someone of your
caliber join our company. Please sign below as acceptance of this offer and
return a copy to me at your earliest convenience.


 


	
  Sincerely,

  
	
   

  
	
  /s/ Marc Hedrick

  	
   

  
	
  Marc Hedrick

  
	
  President

  



 


 


Acceptance:


I understand and accept the above offer.


 


 


	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Douglas M. Arm

  	
   

  	
   

  	
  2/1/05

  	
   

  
	
  Doug Arm, Ph.D.

  	
   

  	
  Date
#### In re the MARRIAGE OF: Irene L. NORTON, Appellee, and Thomas F. Norton, Appellant.

No. 80CA1245.

Colorado Court of Appeals, Div. II.

Sept. 17, 1981.

Rehearing Denied Oct. 8, 1981.

Certiorari Denied Feb. 1, 1982.

Epstein, Epstein & Lozow, P. C., Frederick Epstein, Peter L. Franklin, Denver, for appellee.

Dorothy Tomasetti, James S. Kimmel, Littleton, for appellant.

KELLY, Judge.

In this dissolution of marriage case, the husband, Thomas F. Norton, appeals from that portion of the permanent orders entered by the trial court pertaining to his visitation rights with the parties’ minor child. We affirm.

The parties were married on May 27, 1979, and separated on October 10, 1979. They have one child, born May 25, 1980. The dissolution of marriage decree was entered on September 9, 1980, at which time the trial court entered permanent orders.

The orders directed that the father be afforded “adequate opportunity for input as to the upbringing and care of the child” and “reasonable and liberal visitation,” which included every Sunday afternoon and one afternoon during the week. The court retained jurisdiction and offered to modify the terms of the visitation as the child grows older, stating:

> “[W]hen the child reaches one year or one year and six months, when the child becomes more mobile and is more in need for input into the visitation . . . then the Court will be happy ... to provide modifications to these visitation orders.”

The father contends that the trial court’s visitation order was an abuse of discretion based on sex bias which will permanently deprive him of a lasting and meaningful relationship with his son, whom he is better qualified to raise because he took a course in child care. Sex bias is not readily found in an order awarding custody to a mother who is breastfeeding her child. Instead of permanently depriving the father of a meaningful relationship with his son, the trial court explicitly set forth plans to reconsider the father’s visitation rights the following year. It is unclear whether the father seeks joint custody, but even if he does, the trial court recognized that joint custody cannot be awarded absent agreement, and the mother does not want joint custody. The visitation awarded by the court is clearly “reasonable visitation rights” under § 14-10-129, C.R.S.1973.

*255We view this as a frivolous appeal, wasting the time of counsel and this court. Although not requested by appellee, we, nevertheless, award appellee damages of $1,000, pursuant to C.A.R. 38.

Judgment affirmed.

VAN CISE, J., concurs.

TURSI, J., concurs in part and dissents in part.

TURSI, Judge,

concurs in part and dissents in part.

I fully concur in affirming the trial court’s order.

However, although the record herein is demonstrative of the extreme immaturity of the Respondent, it does not, in my opinion, show an intent to be frivolous or to be wasteful of the time of the court. Therefore, I dissent on the award of damages pursuant to C.A.R. 38, which is denominated “Damages for Delay.”
#### SOUTHERN AMERICAN INSURANCE CO. v. HARTFORD ACCIDENT INDEMNITY CO.

No. 86-C-2481.

Supreme Court of Louisiana.

Jan. 23, 1987.

In re Southern American Ins. Co.; applying for writ of certiorari and/or review; to *426the Court of Appeal, First Circuit, No. CA/85/1170; Parish of St. Mary, 16th Judicial District Court, Div. “D”, No. 66731.

Prior report: La.App., 498 So.2d 280.

Denied.
**Exhibit 32.1**

 

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,AS ADOPTED PURSUANT TO

 

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

Inconnection with the Quarterly Report of American Patriot Financial Group, Inc.(the “Company”) on Form 10-Q for the period ending September 30,2008, as filed with the Securities and Exchange Commission on the date hereof(the “Report”), I, Jerry A. Simmerly, Chief Executive Officer of the Company,certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to section906 of the Sarbanes-Oxley Act of 2002, that:

 

(1)           TheReport fully complies with the requirements of section 13(a) or 15(d) ofthe Securities and Exchange Act of 1934; and

 

(2)           Theinformation contained in the Report fairly presents, in all material respects,the financial condition and results of operations of the Company.

 

 
|   | /s/ Jerry A. Simmerly   |
|--------|-------------------------|
|   | Jerry A. Simmerly       |
|   | Chief Executive Officer |
|   | November 14, 2008  |

 

----